American Sunroof Corp.

748 DECISIONS OF NATIONAL LABOR RELATIONS BOARI) American Sunroof Corporation; Automobile Special- ty Corporation; American Sunroof Manufactur- ing Co. and International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America, (UAW). Cases 7-CA- 13742 and 7-RC-13976 March 28, 1980 DECISION AND ORDER AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On June 29, 1979, Administrative Law Judge Russell M. King issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Re- spondent filed cross-exceptions and a supporting brief. Respondent also filed a motion to reopen the record and the General Counsel filed an opposition to the motion.' 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 of the Administrative Law Judge to the extent consistent herewith and to adopt his recommended Order, as modified herein. In this consolidated proceeding, the Administra- tive Law Judge found that Respondent committed certain unfair practices during the critical period of the Union's organizing campaign." As a result of this misconduct, the Administrative Law Judge set aside the election in Case 7-RC-13976 and directed a second election. However, the Administrative Law Judge rejected the General Counsel's request for a bargaining order, finding that the union au- thorization cards signed by a majority of the em- ployees did not demonstrate majority support for the Union. We agree with most of the Administra- tive Law Judge's unfair labor practice findings, but reverse two of them and modify another, as noted below. We also agree that the Union is entitled to a I In this motion, Respondent seeks to introduce evidence of employee turnover after the hearing in an attempt to show that a bargaining order in this case is unnecessary. As we find that a bargaining order is not wa - ranted here for other reasons, we need not pass on Respoident's motion. 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 coln- vinces us that the resolutions are incorrect. Standard Dry Wall Product', Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and fintd no basis for revers ng his findings. 3 The Administrative Law Judge also dismissed some of the unfair labor practice allegations set forth in the complaint 248 NLRB No. 38 second election and that a bargaining order is not warranted. However, we reach this latter conclu- sion for reasons other than those relied on by the Administrative Law Judge. The Administrative Law Judge found, inter alia, that Respondent violated Section 8(a)(l) of the Act by granting a pay raise to employee Forte and by instituting and disseminating a new pension plan to its salaried employees, both within I day of the election at Respondent's Southgate facility.4 Based on the timing of Respondent's actions, the Admin- istrative Law Judge concluded that both benefits were granted in order to influence the employees to vote against the Union. Respondent excepts to these findings. We find merit in these exceptions. The Board has long held that the granting of benefits during an election campaign is not per se unlawful where the employer can show that its ac- tions were governed by factors other than the pending election. 5 And the Board has further held that an employer can meet this burden by showing that the benefits granted were part of an already established company policy and the employer did not deviate from that policy upon the advent of the Union. 6 Respondent here has made such a showing with respect to both of the above-noted benefits. With respect to the pension plan, the record shows that Respondent, with the assistance of Al- exander & Alexander, an outside brokerage firm,7 began studying the possibility of such a plan as early as April 1974. During 1975, most of the activ- ity regarding the pension plan involved examining existing plans of other employers who used differ- ent insurance carriers. Preparations continued into 1976. In mid-November 1976, the vice president of Alexander & Alexander sent a letter to Respondent stating that he would be able to make a firm rec- ommendation on a pension plan within 4 weeks. In this letter the vice president reviewed the 2 years of preparation for the plan, attributing the delay to the complexities involved, including the then-new Federal pension law-the Employee Retirement Income Security Act (ERISA). On December 18, 1976, representatives for Respondent and Alexan- 4 Respondent operates out of many locations in the State of Michigan. Ihe election in this case only involved the salaried employees at Respon- dent's Southgate facility. The pension plan referred to covered, and was disseminated to. salaried employees at all of Respondent's facilities, not just the eligible voters at Southgate. ' See, e g., Centralia Fireside Health. Inc., d/b/a The Fireside House of Centralia, 233 NLRB 139. 140 (1977). Micro Measurements, an Aurono- mous Division of Vishay Intertechnology, Inc., 233 NLRB 76 (1977) e Pn American Optical Company. Inc.. 211 NLRB 50 (1974). See also The May Department Stores Company. d/b/a Famous-Barr Company, 174 NLRB 770 (1969), where the Board held that an employer confronted by a union campaign should decide whether to grant or withhold benefits as if the union were not in the picture. I At that time, it appears that Respondent informed its employees that it hoped to institute a pension plan in the future. _ .A AMERICAN SUNROOF CORPORATION 749 der & Alexander agreed on a final plan. It was de- cided that Alexander & Alexander would assist in preparing the final documents to make sure that Respondent met all ERISA requirements. Also at this meeting, Alexander & Alexander informed Re- spondent that, under ERISA, Respondent was re- quired to give prompt written notice of the plan to the covered employees in order for Respondent to take certain tax deductions for contributions made that year.8 On January 5, 1977, the parties re- viewed a draft of the plan and made certain revi- sions. Following this meeting, Alexander & Alex- ander prepared a proposed draft of the announce- ment to the employees, as well as an abstract of the plan itself. The parties met and reviewed this an- nouncement on January 15. On January 24, Alex- ander & Alexander submitted the final draft of the announcement to Respondent. On January 24 and 25, Respondent promptly distributed this announce- ment to all salaried employees throughout the State, including the salaried employees at South- gate.9 The Administrative Law Judge found that Re- spondent should have delayed the announcement of the plan until after the election on January 26, and in failing to do so violated the Act. We cannot agree. It is undisputed that the adoption of the pen- sion plan was unrelated to the union campaign. The plan was first conceived prior to the campaign and it covered employees at other locations not in- volved in the election at Southgate. ° Most signifi- cantly, the Administrative Law Judge found that Respondent and Alexander & Alexander did not accelerate completion of the plan in response to the upcoming election. Given this, we can only con- clude that all of Respondent's salaried employees, including those at the Southgate facility, would have received notice of the new pension plan when they did even if there had been no union activity at Southgate. In sum, whatever dividend Respondent received from the announcement of the pension plan, it is clear that Respondent granted this benefit for reasons unrelated to the union activity and that it lawfully announced this benefit when, in the 8 To be eligible for the deductions it appears Respondent had to give its employees written notice of the pension no later than 30 days before the end of Respondent's fiscal year As the fiscal year ran until February 28, 1979, Respondent had to announce the pension plan before January 28. 9 Respondent announced the pension plan to the employees at its Southgate facility on the morning of January 25, the day before the elec- tion. The record indicates that employees at some of the other facilities were informed of the pension plan on Januar 24 '0 Where benefits result from a corporatewide decision and are imple- mented on a corporatewide basis, it suggests that the employer did not grant such benefits for the specific purpose of interfering with an election at one of its manr l cationis See. e.g. .Morwc i Foo:dmiarl of New Bedfobrd. Inc., 230 NLRB 1092, 1098 (1977) normal course of business, the plan was finalized. I Accordingly, we must dismiss this allegation of the complaint. 1 2 Similarly, with respect to the pay raise to em- ployee Forte, the record shows that, notwithstand- ing the close timing between the pay raise and the election, Respondent granted this raise for legiti- mate reasons unrelated to the upcoming election. Thus, it is undisputed that Forte had recently re- ceived a favorable evaluation from her supervisor and, as a result, was entitled to the raise. In fact, the Administrative Law Judge expressly found that "both the Respondent and Forte felt she had earned the raise, that she expected it and that it was properly made retroactive to December 1." Most significantly, the record shows that Forte herself prompted Respondent to grant her the raise when, having not yet received the expected in- crease, she questioned her supervisor about it a few days before the election. She also questioned John Elizerman, Respondent's director of employee rela- tions. A few days later, on January 25, Elzerman personally informed Forte that the pay raise had been approved. Under these circumstances, where Forte received her pay raise for good job perfor- mance, at a time when she was entitled to it, ex- pected it, and requested it, we cannot say that Re- spondent was obligated to postpone payment of this benefit because of the union election.13 Re- spondent granted this benefit for legitimate reasons at the appropriate time. Accordingly, Respondent did not violate the Act by granting the pay in- crease, and we reverse the Administrative Law Judge's finding to the contrary. I Compare The H-P Stores, Inc., 197 NLRB 361 (1972). There, unlike here, an employer manipulated the timing of its announcement to increase pension benefits so as to maximize its impact on the voters The employer in that case withheld its announcement for 13 days before making it 4 days before the election. The Board found this conduct objectable and set aside the election The instant case is markedly different as Respon- dent neither accelerated nor delayed its completion of the pension plan in response to the organizing campaign i2 This result is not diminished by the fact that eligibility in the pen- sion plan was limited to nonbargaining unit employees While the exis- tence of such an eligibility restriction is unlawful, and Respondent violat- ed Sec. 8(a)(1) when it informed the Southgate employees of the eligibil- itN provision (see, e.g., Niagara Wires, Inc., 240 NLRB No. 185 (1979)). it appears that this provision-applicable at all of Respondent's locations- was not specifically designed to capitalize on the union campaign at Southgate or influence the outcome of the election. Thus, while we find that Respondent should not have referred to this eligibility provision when presenting the plan, and violated Sec 8(a)(1) in doing so, we dis- avow that portion of the Administrative Law Judge's rationale suggest- ing that Respondent referred to the proisiol in n order to threaten the employees and influence their votes in the eleclion ':' See, e.g Po.t Houses. Inc. 161 NL.RB 1159, 1164-65 (1966). Nor do we draw any adverse inference against Respondent, as did the Adminis- tratixe Law Judge. from the fact that Elzerman informed Forte of the raise personally As Forte personally questioned Elzerman about the raise, it is understandable that Elzerman wtuld respond in kind 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As noted, we agree with the Administrative Law Judge's other unfair labor practice findings.14 And, as these instances of misconduct occurred within 1 week of the election and tended to interfere with the free choice of the voters, the Administrative Law Judge was correct in setting the election aside. With respect to the General Counsel's request for a bargaining order, the Administrative Law Judge concluded that such a remedy was unwar- ranted, finding that the General Counsel did not es- tablish that a majority of the unit employees had validly designated the Union as their bargaining agent.' 5 While we agree that a bargaining order is not warranted here, we find it unnecessary to pass on any of the questions raised concerning the Union's majority status.' 5 In this connection, we find that, even assuming that the Union had estab- lished majority status at the time Respondent com- mitted the unfair labor practices, these unfair labor practices, in violation of Section 8(a)(l), were not so egregious as to preclude the holding of a fair and reliable second election after the application of the traditional remedies. Accordingly, we shall adopt the Administrative Law Judge's recommend- ed Order, as modified below, 17 and direct a second election. 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 '4 In this regard, while Member Truesdale agrees that Respondent vio- lated Sec. 8(aXl) by detaining employee Moore and questioning her eligi- bility when she attempted to leave her work area to vote in the election, he finds this situation distinguishable from that in Wickes Lumber, A Divi- sion of the Wickes Corporation, d/b/a Home Lumber & Stupply Company, 245 NLRB No. 7 (1979). There, unlike here, the employees involved were fully aware that they were ineligible to vote and only insisted on voting-and leaving their work area-"out of a sense of pique." 's Contrary to Respondent's contention, the question of whether to issue a bargaining order is properly an issue in this case. A bargaining order was timely requested in the underlying charge, and the Administra- tive Law Judge was correct in allowing the General Counsel to amend the complaint to include the request for a bargaining order. It is immate- rial that the complaint initially failed to allege a refusal to bargain in vio- lation of Sec. 8(aXS), since the Board can, and has, issued bargaining orders in appropriate circumstances to remedy an employer's preelection misconduct without finding that the employer violated Sec. 8(aXS) of the Act. See, e.g., Beasley Energy, Inc., d/b/o Peaker Run Coal Company, Ohio Division #1, 228 NLRB 93 (1977). 16 In passing, however, we disavow any suggestion by the Administra- tive Law Judge that the subjective understanding of the card signers is sufficient to overcome the plain language of the authorization cards. 17 In par. (g) of his recommended Order, the Administrative Law Judge used the broad cease-and-desist language "in any other manner." We have considered the case in light of the standards set forth in Hick- mott Foods, Inc., 242 NLRB No. 177 (1979), and have concluded that a broad remedial order is inappropriate since it has not been shown that Respondent has a proclivity to violate the Act or has engaged in such egregious or widespread misconduct as to demonstrate a general disre- gard for the employees' fundamental rights. Accordingly, we shall modify the recommended Order so as to use the narrow injunctive lan- guage "in any like or related manner." Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, American Sunroof Corporation; Automobile Spe- cialty Corporation; American Sunroof Manufactur- ing Co., Southgate, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modi- fied: 1. Substitute the following for paragraph l(b): "(b) Informing its employees that eligibility in its pension plan is limited to nonbargaining unit em- ployees." 2. Delete paragraphs l(d) through (g) and substi- tute therefor the following: "(d) Announcing, presenting, or distributing em- ployee handbooks for salaried employees, for the purpose of dissuading employees from supporting or voting for the Union. "(e) Interfering with the rights of employees to vote in union elections by questioning their eligibil- ity to vote while expressing the opinion that they should not vote, or that it would look bad for other departments or employees. "(f) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of their rights guaranteed by Section 7 of the Act." 3. Substitute the attached notice for that of the Administrative Law Judge. [Direction of Second Election and Excelsior foot- note omitted from publication.] APPENDIX NOTICE To EMPLOYERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties participated and were given the opportunity to call witnesses, examine and cross-examine witnesses, and to pre- sent evidence, it has been found by the National Labor Relations Board that we have violated the National Labor Relations Act, as amended. We have been ordered to stop such activity, to post this notice, and to abide by its terms. WE WILL NOT threaten employees with more onerous working conditions, or the im- position of the use of timeclocks, if the em- ployees support or vote for the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, (UAW), or any other labor organization. WE WILL NOT inform employees that eligi- bility in its pension plan is limited to nonbar- gaining unit employees. - ------- ___ AMERICAN SUNROOF CORPORATION 751 WE WILL NOT threaten employees with loss of status as salaried employees, or with the loss of benefits of salaried employees, if em- ployees support or vote for the above-named Union, or any other labor organization, or if such Union or labor organization should be se- lected as the bargaining representative of the employee. WE WILL NOT announce, present, or distrib- ute employee handbooks for salaried employ- ees, for the purpose of dissuading employees for supporting or voting for the above-named Union, or any other labor organization. WE WILL NOT interfere with the right of employees to vote in any union election by questioning their eligibility to vote while thereafter telling them they should not vote, or that it would look bad for their department or other employees if they voted. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of their rights guaranteed them by Section 7 of the National Labor Rela- tions Act, as amended. Our employees are free to engage in union activ- ity on behalf of any labor organization or to engage in other concerted activity for their mutual aid or protection or to not to do any of these things. AMERICAN SUNROOF CORPORATION AUTOMOBILE SPECIALTY CORPORA- TION AMERICAN SUNROOF MANUFAC- TURING CO. DECISION STATEMENT OF THE CASE RUSSELL M. KING, JR., Administrative Law Judge: These consolidated cases were heard by me in Detroit, Michigan, on March 27, 28, 29, and 30 and April 26, 27, and 28, 1978. The charge in Case 7-CA-13742 was filed by the International Union, United Automobile Aero- space, and Agricultural Implement Workers of America (UAW) (herein called the Union) on February 4, 1977,1 and the complaint was issued by the Regional Director of Region 7, National Labor Relations Board, on behalf of the Board's General Counsel, on March 31, 1977, al- leging that the Respondent, American Sunroof Corpora- tion; American Specialty Corporation; and American Sunroof Manufacturing Co., 2 committed a number of I The charge was signed by Hubert H. Emerick, an assistant organiz- ing director of the Union, and who was present throughout the case. Also present periodically and on behalf of the Union was International Representative Gene E. Poole. I Although the Respondent appears as three separate corporations, they are in reality, and as admitted herein, affiliated businesses at one common facility with common officers, ownership, directors, and opera- tors. constituting a single integrated business enterprise. Thus, where the unfair labor practices during the Union's organizing cam- paign at that Respondent's plant between August 1976 and January 1977 in violation of Section 8(a)(1) of the National Labor Relations Act, as amended. At the begin- ning of the hearing, the General Counsel moved to amend the complaint to allege the Respondent's refusal to recognize and bargain with the Union commencing on or about November 18, 1976 (the date the Union filed its petition for election in Case 7-RC-13976), in violation of Section 8(a)(5) of the Act. The proposed amendment in- cluded the requested remedy that the Respondent be or- dered to recognize and, upon demand, bargain with the Union.3 This amendment was opposed by the Respon- dent, but ultimately granted by me later on in the hear- ing. 4 In Case 7-RC-13976, the Union filed a petition for election on November 18, 1976, with the Regional Di- rector of Region 7. On December 27, 1976, the Regional Director issued his Decision and Direction of Election. On January 26, 1977, the Board, through and by Region 7, conducted an election at the Respondent's plant, the outcome of which was uncertain and challenged.5 On February 4, 1977, and in addition to the unfair labor practice charge filed herein (Case 7-CA-13742), the Union filed Objections to Conduct Affecting Results of Election. On March 18, 1977, the Regional Director issued a Supplemental Decision and Notice of Hearing terms "Respondent," "employer," or "company" appear herein, they shall be taken to mean and include all three corporations together. I Other that the petition for election itself, which recites, "The petition is the result [for recognition]," the Union had (and has) never and other- wise requested recognition or made any demand or request for bargaining to the Respondent. This case had been set for hearing on December 12, 1977. On December 6, 1977, the General Counsel notified Respondent's counsel of his intention to so amend the complaint at the hearing. This prompted the Respondent's request for a continuance which was granted (to March 27, 1978). 4 While drafting this Decision, the Board issued its Decision in R. J. Causey Construction Co., 241 NLRB No. 156 (April 24, 1979), in which it held that a late amendment of a complaint by adding an alleged violation of Sec. 8(aX5) of the Act was improper. The case initially involved only alleged violations of Sec. 8(aXI) of the Act and the Board reasoned that the amendment was, in effect, a new charge predicated on alleged con- duct which occurred more than 6 months prior to the filing thereof (the amendment), and, thus, was barred by the 6-month limitation period set out in Sec. 10(b) of the Act. Thus, I find that I was partially in error in granting the motion (and amendment), and I hereby reverse said ruling, and the motion and amendment that pertains to the B(a(5) addition only stand as denied. While the complaint now stands without an alleged re- fusal to bargain in violation of Sec. 8(a5) of the Act, in my view, and under current Board law, the remedy of a bargaining order remains a po- tential in this case See Beasley Energy, Inc., d/b/a Peaker Run Coal Com- pany, Ohio Division #1, 228 NLRB 93 (1977); Trading Port, Inc., 219 NLRB 298 (1975); and N.LR.B. v. Gissel Packing Cao., Inc., 395 U.S. 575 (1969). It should be further noted that although the charge makes refer- ence to only violations of Sec. 8(al)1) of the Act, and mentions nothing about any refusal to bargain, it does (itself) request the remedy of a "bar- gaining order." The above action and these conclusions by me did not come about easily and with short deliberation. The few words above do little justice to the time spent by me in reaching these results in this rather lengthy and somewhat untidy case. In the interest of attempted brevity, a more complete explanation is excluded. I Of 35 "approximate" eligible voters, 16 votes were cast for, and 15 against the Union. There were eight challenged ballots, six of which were challenged by a Board agent on the ground that they did not appear on the voter eligibility list. These six were employees Ford, Ronan, Sentineal, Gambino, Moore, and Swartout. The ballot of employ- ee Panlovich was challenged by the Respondent, and the ballot of em- ployee Zorn was challenged by the Union. 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on Challenged Ballots. On March 31, 1977, the Regional Director issued the unfair labor practice complaint (Case 7-CA-13742), and, on April 11, 1977, the Respondent filed a motion to consolidate both cases, to which the Regional Director filed his opposition to motion to con- solidate on April 15, 1977, and thereafter, the Respon- dent's motion to consolidate at this point was denied.6 On June 24, 1977, the Hearing Officer's eport and Recommendation on Challenged Ballots was filed, and, on July 20, 1977, the Respondent filed exceptions to the Hearing Officer's report and supporting brief On Sep- tember 27, 1977, the Regional Director issued his Supple- mental Decision on Challenged Ballots and Order, in which he followed the recommendations of the Hearing Officer, and from which the Respondent appealed to the Board. On November 10, 1977, the Board granted the Respondent's request for review pertaining to the status of the two employees Gambino and Sentineal only, "va- cated" that portion of the Regional Director's decision and order dealing with the two employees, and consoli- dated Case 7-RC-13976 with Case 7-CA-13742 "for purposes of hearing and other appropriate action with re- spect to the status of Gambino and Sentineal." 8 On No- vember 30, 1977, the Regional Director issued the state- ment of the case, notice of hearing on objections, order consolidating cases, and notice of consolidated hearing.9 In this pleading, the Regional Director consolidates for hearing three separate allegations stated in the Union's Objections to Conduct Effecting the Results of Election as paralleling certain allegations in the complaint. t' The Regional Director further ordered heard, as objection- able conduct, certain other allegations in the complaint, 6 By order entered on April 21, 1977, by Associate Cbief Administra- tive Law Judge Arthur Leff, in Washington, D.C. I The Hearing Officer recommended that the challenges to the ballots of employees Gambino, Sentineal, Moore, Panlovich, ad Swartout be sustained and that those of employees Zorn, Ford, and Ronan, be over- ruled and their ballots counted. The recommended disposition of the Ronan ballot (originally challenged by the Board as not appearing on the eligibility list) was as a result of a stipulation between the Respondent and the Union that Ronan was not a supervisor within the meaning of Sec. 2(11) of the Act The Respondent's exceptions to the Hearing Offi- cer's recommendations only involved the ballots of emp oyees Gambilo and Sentineal. 8 Thus, and at this point, six of the eight original challenges had been initially disposed of, three of which were sustained and three of which were denied (Ronan's by stipulation). Two (Sentineal ard Gambino) re- mained undecided. On November 23, 1977, the ballots of the three denied challenges (Ford, Ronan, and Zorn) were opened and counted, resulting in a revised tally reflecting 16 votes for the Union and 18 against. During the hearing of this case, counsel for the General Counsel and the Respon- dent stipulated that Sentineal and Gambino were supervisors within the meaning of the Act 9 The Regional Director, in this consolidated pleading, states his con- clusion that, in view of the revised tally resulting in the failure of the Union to get a majority by three votes, any further hearing on challenged ballots is "unnecessary." Assuming the revised tally to be final, this posi- tion appears correct as any later disposition of the two remaining chal- lenges (Sentineal and Gambino) would not be determinative of the out- come of the election. As indicated earlier, during the hearing of this case, both counsel stipulated that both Sentineal and Gambilo were supervi- sors within the meaning of the Act. As earlier noted, the original hearing date for this case was December 12, 1977, as reflected in the notice of consolidated hearing. At the request of the Respondent, on December 7, 1977, it was rescheduled to commence on March 27, 1978. 'O Pars. 15(d), (g), and (j) generally encompass Objections 1, 6, and 5, respectively. not specifically stated or covered in the Union's Objec- tions to Conduct Effecting Results of Election. Upon the entire record, including my observation of the demeanor of the witnesses,' 2 and after due consider- ation of the briefs filed herein by the General Counsel and the Respondent, I make the following: FINDINGS OF FACT 1. JURISDICrTION The pleadings and admissions herein established the following jurisdictional facts. The Respondent is, and has been at all times material herein, a Michigan corporation with a facility or plant complex located in Southgate, Michigan, where it is engaged in the manufacture, sale, installation, and distribution of automobile sunroofs and related products. Although the Respondent owns and operates other plants throughout the State of Michigan, the Southgate facility is the only one involved in this case. During a representative I-year period, in the course and conduct of its business, the Respondent purchased and caused to be delivered to said facility, goods and ma- terials valued in excess of $100,000, of which goods and materials valued in excess of $50,000 were transported and delivered to said facility directly from points located outside the State of Michigan. As admitted, it is thus found that the Respondent is and has been, at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. As further alleged and admitted herein, it is also found that the Charging Union is and has been, at all times material to this case, a labor organization within the meaning of Section 2(5) of the Act. 11. ALLEGED UNFAIR LABOR PRACTICES A. Background The unit of employees involved in this case numbers approximately 35 and consists of the Respondent's office clerical employees. The Respondent's production and maintenance employees are organized and represented by UAW Local 985, and are currently under contract. In the spring of 1975, the office clerical employees contact- ed the Charging Union, a campaign was initiated, and, on June 20, 1975, the Board conducted an election at Re- 'I Citing National Electric Coil Division of McGraw-Edison Company, 184 NLRB 691 (1970). Other authorities, some of which are cited in this case, permit (or perhaps require) such to be done. This, of course, was accomplished long before the General Counsel advised the Respondent of his intention to move to amend the complaint to allege a refusal to bargain, with a request for a bargaining order. It was accomplished, how- ever, after the revised tally was known on November 23, 1977, on which the Regional Director stands as final, and in which the Union fails to obtain a majority (without further need of disposing of remaining and un- decided challenges). 2 The facts found herein are based on the record as a whole and upon my observation of the witnesses. The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits with due regard for the logic of probability, the demeanor of the wit- nesses, and the teaching of N.L.R.. v. Walton Manufacturing Company & Loganville Pants Co., 369 U.S. 404, 408 (1962). As to those testifying in contradiction to the findings herein, their testimony has been discredited either as having been in conflict with the testimony of credible witnesses or because it was in and of itself incredible and unworthy of belief. All testimony has been reviewed and weighed in light of the entire record. AMERICAN SUNROOF CORPORATION 753 spondent's facility. The certified results of that election were 7 votes cast for, and 23 against, the petitioning Union. No postelection objections or related unfair labor practice charges resulted from this losing campaign and election. The Respondent essentially concedes in this case that it did not then, nor does it now, wish to have its clerical employees organized or represented by any union. In mid-August 1976 ,'3 one or more office em- ployees contacted the Charging Union, and there fol- lowed the second organizational campaign culminating in a Board-conducted election on January 26. The postelec- tion litigation in these consolidated cases, more particu- larly, the election or representation case, serves to give some insight into the length and complexity of this matter. There are no discharges or terminations involved in this case, and, in the main, the complaint alleges a series of nine separate violations of Section 8(a)(1) of the Act. With the exception of one such violation alleged to have occurred in August and one on January 27, all remaining allegations are confined to the 6-day period immediately preceding the late afternoon election of January 26. These allegations, in part, include threats of more oner- ous working conditions by the imposition of timeclocks (with loss of status as "salaried" employees), the improp- er granting of a retroactive pay increase to an employee, the announcement of a new pension or retirement income plan and threats of loss of eligibility for this plan, and the distribution of a new handbook for salaried em- ployees. In essence, the complaint charges a last-minute flurry of activities on the part of the Respondent calcu- lated to result in an election loss by the Union, and much of which is alleged to be violative of the Act. In support of these allegations, the General Counsel called eight witnesses, three of which had signed union authorization cards, and gave testimony regarding their respective cards. Additionally, 16 other witnesses were also called by the General Counsel and gave testimony only regard- ing their union authorization cards. The Respondent called 13 witnesses. B. Summary of the Evidence 4 1. Specific testimony and evidence regarding unfair labor practice allegations' 5 Employee Mary Mondon remains employed with the Respondent and has been a secretary since May. She began her employment in September 1975, as an ac- counts payable clerk. On January 20, Supervisor Doro- thy Gambino asked Mondon to eat lunch with her and 13 Hereafter, when a date appears in the last 6-calendar months (July- December), that date falls in the year of 1976, unless otherwise indicated. Likewise, whenever a date appears in the first 6-calendar months (Janu- ary-June), that date is in calendar year 1977, unless otherwise indicated. 14 The following includes a summary of the testimony of the witnesses appearing in the case. The testimony will appear normally in narrative form, although on occasion some testimony will appear as actual quotes from the transcript The narrative only and merely represents a summary of what the witnesses, themselves, stated or related, and does not neces- sarily reflect my ultimate findings and conclusions in this case. *1 Testimony and evidence regarding the union authorization cards themselves is set out in the nest subsection of this Decision. employee Charlene Fessler. 16 Gambino had never previ- ously asked Mondon to lunch, or ate lunch with her. Mondon accepted, and the three ate lunch together in a local restaurant, during which time, according to Mondon, they discussed the Union. Gambino explained that she had attended a management meeting where she was told that, if the Union were voted in, the employee members of the unit would not be eligible for a new pen- sion plan, and that there would be only three positions or categories of employees; namely, clerk, clerk-typist, and secretary. Gambino further explained that if the Union prevailed, the employees would have to punch a time- clock, adding that after being a supervisor for 5 years, there was "no way" she was going to be a clerk. 7 Several days before the election, Mondon testified that Supervisor Mimi Sentineal asked her what she had de- cided regarding the Union, and she responded by indicat- ing that she had not made up her mind. Mondon ex- plained that she and Sentineal worked in the same room, and their desks were approximately 6 feet apart. In this conversation, according to Mondon, Sentineal stated that she thought the Union was "communistic."' 8 On Thursday and Friday of the week preceding the election (January 20-21), the Respondent hosted two luncheons at a local restaurant for all employees (includ- ing those outside of the unit involved in this case). The purpose of these luncheons was to present and explain a new salaried employees handbook. 9 The employees were invited to one of these luncheons by means of a letter which was distributed individually to them at work. The procedure followed at the luncheon was to first eat, and then adjourn to an adjoining room where the handbook was presented, distributed, and explained. The combination of the luncheon and presentation lasted throughout most of the afternoon. Mondon was invited to one of the luncheons and attended only the meal por- tion of the event. She left before the presentation began and returned to work, receiving her copy of the new i' As indicated earlier, Gambino and Mimi Sentineal were among those challenged by a Board agent after the election. These two employ- ees were also the subject of the Board's order of November 10, 1977. wherein the Board returned the representation case for further delibera- tion regarding these two employees only. As mentioned earlier, at the outset of this case. and at the suggestion of Respondent's counsel, it was stipulated that both employees were supervisors within the meaning of Sec. 2(11) of the Act, thus disposing of the issue in this proceeding. As will be seen later herein, Gambino apparently and initially thought that she was eligible to vote and campaigned on behalf of the Union up until sometime in mid-January when her apparent loyalty switched from the Union to the Respondent. t Gambino's remarks here, and her acknowledged status as a supervi- sor, are seemingly inconsistent with her earlier and apparent conclusion that she could vote in the election This apparent inconsistency was never explained in subsequent testimony. Mondon, in her testimony, ac- knowledged that it was evident at the January 20 luncheon that Gam- bino's attitude toward the Union had changed and that she was, at that time, against the Union. Mondon indicated in her testimony that she had previously discussed the Union on numerous occasions with Gambino, and that on these occasions Gambino was urging union support, and had in the past passed out union cards. '8 There is no allegation of misconduct in the complaint itself resulting from this conversation. 1 Prior to this, the record reflects that there had been no actual hand- book in existence, although the Respondent had apparently indicated that oine would be authored and issued prior to the first union election in 1975. The luncheons were held on two separate days because of the large number of employees involved 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD handbook later in the day. Mondon testified that she had not heard about the new handbook and its contents prior to the luncheon.2 On January 24, the Monday before the Wednesday election, the Respondent mailed out a lengthy letter (1- 1/2 typewritten pages) to each salaried employee, a copy of which Mondon received. The letter was on the Re- spondent's letterhead, contained 10 paragraphs, and was signed by the Respondent's director of employee rela- tions, John Elzerman. The letter was exclusively about the upcoming election and urged the employees to vote against the Union. 2 The Tuesday before Wednesday's election, the Re- spondent held a "breakfast" in a local restaurant for eli- gible voters only.22 At this breakfast, the Respondent passed out a letter describing a new pension or retire- ment plan.23 Mondon attended this breakfst and re- ceived a copy of the plan. She testified that she had no knowledge of any retirement or pension plan prior to this breakfast. Several members of management were also present at this breakfast and Director of Employee Relations John Elzerman was the primary speaker and generally explained the new plan to the employees. 20 The handbook itself is entitled "Handbook for Salaried Employees." It is approximately 5 inches wide and 7 inches long, and contains a green cover, with the Respondent's seal in the middle thereof. The Respon- dent's name appears at the top of the cover. The handbook contains 39 pages not including a 2-page introduction and a contents page. The evi- dence in this case reflects in the main, the significance of the handbook was not necessarily in new or added benefits, but in placing in written form and under one cover exactly what existing rules and benefits were, thus enabling employees to gain early knowledge of these benefits and better take advantage of them. 21 The complaint in this case alleges a specific violation of the Act by virtue of this letter, in that the letter threatens "implied" loss of status as salaried employees with further loss of accompanying benefits. Regarding this "implied" loss, the relevant language from the letter is as follows: The Union can promise anything during an election campaign. Hovw- ever, as I have stated, you are a "Salaried Employee." If a Union is voted in, you are no longer a "Salaried Employee." All wages, hours, and working conditions must be bargained for from the very beginning. If the Union "guarantees" are really that good, I suggest you ask for them in writing. Be sure that the Union will make up any differences from their guaranteed promise and what is really ne- gotiated. You are a salaried employee, as such, you are part of management. As I have stated: "You maintain a position with ASC, not just a job." The employee Handbook is a statement of policy and principle by management, for all salaried employees. Two other short paragraphs read as follows: There have also been rumors about the Company taking reprisals against union supporters--that rumor false. I truly believe if you vote "NO", it is a vote for you, and "you" will be the winner! /s/ John C. Elzerman Director of Employee Relations 22 The term "breakfast" is used here for a lack of a better term. It did not consist of a full meal, but merely rolls and coffee. 2s The new retirement plan itself was explained in four typewritten pages and was accompanied by the letter, which was signed by the Re- spondent's secretary-treasurer, Vincent G. Portelli. This letter makes ref- erence to the fact that the new plan is for the Respondent's "non-bargain- ing employees" and had an effective date of January I. Mondon indicated that he asked Chairman of the Board Heinz Prechter what guarantee the employees had that the new handbook would not be changed at a moment's notice. According to Mondon, Prechter replied that they had his "word," to which response some employees laughed. Supervisor Dorothy Gambino presently works as a "warranty analyst" with the Respondent. Prior to June, she was a supervisor in accounts receivable, and she has been employed by the Respondent since October 1972. She agreed that she was a supervisor from 1973 or 1974 to mid-1977, but qualified this by adding that sometimes she was called a "leader" and, at other times, a supervi- sor, although she considered herself a supervisor throughout the period and told other employees that if she were ever demoted that she would resign. Gambino testified that the union organizational campaign started in late summer 1976, and that she had also signed a union authorization card prior to this campaign and during the Union's 1975 organizational attempt. Gambino indicated that she was initially in favor of the Union and talked to most of the other 17 employees that worked in her area about the fact that they "needed to do something to better [themselves] . . . with the Company, and talk to management." In addition to signing her own card in the present organizational attempt, Gambino testified that she also handed out cards to other employees, explaining to these employees that the purpose of cards was "in order to be able to see if the UAW could help us . . . so we could have a meeting to see what these people had to say, and [if] they could help." Gambino also testified about her lunch with employees Mondon and Fessler in January, indicating she had asked Mondon to eat with them because she looked "kind of forlorned." According to Gambino, the conversation consisted of "small talk" and their children were dis- cussed. The three were single parents and Gambino did point out the Respondent's liberal policy in granting time off to tend to their children when necessary, adding that she hoped they would not lose this benefit. When asked whether the Union was discussed, Gambino replied, "No, not really." She also denied making remarks about pension plan eligibility, positions or categories of em- ployees, or punching a timeclock. Gambino explained that there were several reasons why she did not discuss the Union, including the fact that she did not know Mondon that well, and that Fessler was "very anti- union" and refused to discuss the subject anytime. Employee Charlene Fessler had been employed by the Respondent for over 5 years and was presently an "ad- ministrative assistant." She testified that the lunch with Gambino and Mondon was normal and that she and Gambino often went to lunch together. Fessler indicated Gambino asked Mondon because she (Mondon) did not "get out" with people for lunch often. According to Fessler, the main topic of conversation was not the Union, although it "might have been [mentioned in] a short sentence." They mainly talked about their children, according to Fessler, who pointed out that Gambino knew how she felt about the Union and never discussed it around her. AMERICAN SUNROOF CORPORATION 755 Employee Arlene Fillie has worked for the Respon- dent since November 1973, and is presently an accounts payable clerk. Her supervisor was Mini Sentineal. Fillie testified that she supported the Union, handed out cards, and talked to other employees about the Union. She was considered or labled by the Union as an "organizer." Mondon attended the Respondent's luncheon on Friday, before the election, and testified that after the employees finished eating they were "invited" into a room where the new handbooks had been placed on long tables. Ac- cording to Fillie, the Respondent's secretary-treasurer, Vince Portelli, began the presentation by introducing the new handbook and explaining that he had promised it a long time ago and "finally made it." According to Fillie, Portelli had promised it at a company employee meeting prior to the 1975 election, but that thereafter, the em- ployees "never could get it." Fillie added that "nobody knew anything about any handbook" prior to the lun- cheon. Fillie further testified that the next individual to speak at the presentation was Employee Relations Direc- tor Elzerman, who went over the the handbook page by page, completing his presentation about 4:30 p.m. Fillie also indicated that Secretary-Treasurer Portelli, who was also at this presentation, mentioned that a new retirement or pension plan would also be presented soon. According to Fillie, during Portelli's remarks Supervisor Gambino asked if they "become a union," would they be eligible for these benefits, to which either Elzerman or Portelli answered "definitely not."2 4 Fillie also attended the breakfast meeting on January 25, indicating that it lasted from 9 a.m. until 12 noon. Fillie testified that Portelli mentioned the breakfast meet- ing was only for those eligible to vote, but that Supervi- sor Gambino was also there. According to Fillie, Portelli stated that he "wanted to know what some of our gripes were . . . to hack it out, see if there was anything he could do to resolve it so that perhaps we could avoid going through what we were going through." At this breakfast presentation, Portelli also introduced the new pension or retirement plan, indicating that it had been "resolved," that it was what he had promised, and that "he wanted to make sure that we were the very first to get it." Further, and according to Fillie, as Portelli was leaving, he said he "wanted to make sure that everybody [who] felt they were eligible to vote, regardless of whether they were on the eligibility list or not . . . should get up and vote." Fillie also acknowledged that, as far as she knew, the first responses by the Respondent to the Union's organizing efforts came with the luncheon meetings of January 20 and 21, and that, on the morning following the election, she saw employee Debbie Moore, who was then upset and crying, and that she explained that it was over a voting incident the previous day.25 Employee Geraldine Forte is presently employed by the Respondent and has been since December 1975. She attended the luncheon of January 21, indicating that she 24 In direct examination, Fillie testified that Elzerman answered Gam- bino's question. During cross-examination, Fillie became uncertain as to whether Elzerman or Portelli provided the answer. 26 In later testimony, there is described an incident involving Moore's eligibility to vote in the election. This incident is the subject of an alleged violation in the complaint. was "invited" by her supervisor, James Moody. She also attended the January 25 breakfast meeting where the new pension or retirement plan was presented. Forte tes- tified that, prior to and during the week of the election, she had a conversation with General Foreman Kanalos in her office area, and that Kanalos said "something to the effect that anyone that had doings with the Union was going to be fired." During cross-examination, she conceded that this statement by Kanalos only involved the words, "you'll probably be fired anyway," without making any reference to the Union or union activities. 2 6 Forte further testified that the day before the election, her supervisor, Moody, told her that she was not eligible to vote because she was a "plant clerk." Forte responded that her name was included on the eligibility list, after which Moody made no further comment about the sub- ject. Forte further explained that she was hired as a "shipping clerk," but that she was no longer certain of her classification and that many of her present duties did involve paperwork dealing with shipping. 27 According to Forte, at this time Moody also stated that, if the Union came in, they would no longer be considered sala- ried employees and would have to punch in and out on a timeclock. In cross-examination, Forte conceded that Moody's comments were more accurately described by a statement in question form to the effect that "you wouldn't particularly like to punch a timeclock, would you?", to which she responded, "I doubt if that would happen." 28 Forte testified that several days before the election she asked Supervisor Moody about her expec- tant raise, having recently undergone an evaluation. She also made the same inquiry of Employee Relations Man- ager Elzerman, and the day before the election she in fact received a $50-per-month raise (from $600 to $650 per month), retroactive to December I (the first anniver- sary of her employment). Forte indicated that she had received a $25-per-month raise the previous September and was not due another raise for a year. According to Forte, she was told about the raise by Elzerman, who in- dicated that it was an above-average pay increase, and would be retroactive to December I because that was the date that she was due an evaluation and possible raise. At this time, Elzerman also assured her that no one would be fired because of the Union or because of their support of the Union. Employee Debra L. Moore is presently employed with the Respondent and has been since September 1973. She performs clerical work for hourly personnel, working with medical insurance and compensation claims. She worked in the Respondent's labor relations department, and her immediate supervisor was Gerald M. Makuch who was manager of labor relations. 29 Moore was a 2e The language in this concession is also that which appeared in her investigative affidavit, taken by a Board agent prior to the issuance of the complaint. 27 Forte did vote in the election and was not challenged. 28 It was this language that Forte used to describe Kanalos' statement in her investigative affidavit given to a Board agent prior to the issuance of the complaint. 29 Although Moore was not a supervisor, and found not to be a confi- dential list, she was challenged after voting in the election This chal- lenge came from a Board agent and was solely because she was excluded Continued 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union supporter and, according to her testimony, her su- pervisor, Makuch, knew this. Her eligibility to vote had been mentioned by Makuch and Director of Industrial Relations Polocki long before the election. According to Moore, on the day of the election, and as she was going to vote, Polocki told her she was not eligible and she should not vote. She explained that she had received a letter from the Union instructing her to go ahead and vote, and that a determination of her eligibility would be made later, further indicating to Polocki that she was going to vote. Polocki then made a telephone call, after which he then told her not to vote, indicating that "it would look bad for [her] department." Moore then asked Polocki if, in effect, she would be fired in the future if she did vote, to which Polocki replied no. She then left and voted. Moore further testified about employee raises, explain- ing that in July (1976) other employees in her depart- ment had received raises which resulted, the employees felt, from the renewed talk about a union. Moore had not received a raise, and she concluded that this was because the Respondent had determined she would not be eligi- ble to vote. As a result, she first went to her immediate supervisor, Makuch, and inquired about her raise. Not hearing from Makuch after 2 weeks, she went to Secre- tary-Treasurer Portelli, who denied that other employees received raises because they were eligible to vote, fur- ther explaining that they were merely at lower rates prior to their raises. 3 0 According to Moore, the two then discussed why she was in favor of the Union, and Moore indicated that she was because management had "broken their promises" which had been made prior to the 1975 election. Portelli disagreed and, according to Moore, he then discussed the new pension plan that the Respondent was working on, showing her a Iolder full of papers and indicating it was information about the new plan. Portelli added that he did not think a union could get something like this new plan for the employees, lo which Moore responded that she was not going to give the Company a second chance. The conversation ended by Portelli indicating to Moore that he would let her know about her request for a raise, and soon thereafter (before the election) Moore received a $40-per-month raise. Moore continued in her testimony, indicating that the day after the election (January 27) her supervisor (Makuch) asked her to come to his office, which she did. Also present was Employee Relations Manager Elzer- man, and Makuch stated to her that she had been report- ed for talking to employee Richard Dennis and warned her not to do this again on company time. According to Moore, she remembered talking to Dennis and explained that earlier she had left her office and gone out into the plant (or shop) and talked to Dennis about a personal from the eligibility list. That challenge was ultimately ustained because the Regional Director's unit description specifically excluded secretaries who worked in the labor relations department. Moore also signted a unit authorization card and she apparently voted in the 1975 election without challenge. 30 Portelli later testified that Moore based her request for a raise on the results of a recent "employer's association survey," which she had seen (or had). Moore denied this, but did indicate she hd mentioned the results of such a survey to Portelli prior to the 1975 election matter. Also present or nearby was Manufacturing Ser- vice Manager Pat Brockway who Makuch indicated had reported her. Moore related that, according to Makuch, this conversation she had with Dennis resulted in "hold- ing . . . employees up." With this warning, Moore testi- fied that she became upset, she started to cry, and ac- cused both Makuch and Elzerman of harassing her. They assured her that they were not harassing her and indicat- ed that they were going to forget everything that hap- pened. They further indicated that the incident would not affect her job and that from that point on they would just consider that there never was a union elec- tion. Gene C. Poole is an International representative for the Charging Union. He was involved in the organiza- tional campaign at the Respondent's facility. Poole testi- fied that he was first contacted on August 13 by employ- ees of the Respondent and that, thereafter, he mailed out approximately 40 union authorization cards to two em- ployee "contacts," Richard Dennis and Elizabeth Swar- tout. According to Poole, no specific instructions were forwarded regarding the purpose of the cards, Poole in- dicating that they were "familiar with the cards, because there had been an election in 1975." On October 28, Poole attended the first and only open organizational meeting, in which 19 employees attended. At that meet- ing, he told employees that, in signing cards, it "would allow them to be represented at least two ways-that we could, and we do send a letter to the Company after we have received a majority of authorization cards, asking for recognition." Poole conceded, in later testimony, that no request for recognition was ever sent to the Respon- dent, and he further testified that, since employers rarely ever grant recognition, "it is almost automatic that we would have to go an election .... " Poole indicated that at the end of the opening meeting of October 28, a six-member "in-plant organizing committee" was formed.31 These six individuals remained after the meet- ing with Poole who then gave them additional blank au- thorization cards. During his testimony Poole was asked if he, at that time, explained what the purpose of the cards were to the six employees, and he replied that he simply told them to "read the booklets and if they had any questions concerning it, they could present them to [him]." Also at this time Poole further explained to the six employees that he wanted 70 percent of the cards ex- ecuted before he petitioned the Board for an election, be- cause he had 60 percent in 1975 and the Union still lost the election. On November 15, Poole attended a luncheon meeting with the six employee members of the in-plant organiz- ing committee. At this meeting, Poole testified that he collected several additional unsigned cards, and there- after announced to the six employees that they had ob- tained a majority and that he "would proceed to petition for an election."3 2 ': IThe members of this committee were as follows: Marycllelt Nichols Arlene Fillie, Geraldine Forte, Michelene King, Mary irobron. and Susan Morgan. a2 Poole filed the petition on November 18 (Case 7-RC- 13976) Poole further explained that he sent a letter of acknowledgment to the signator Continued AMERICAN SUNROOF CORPORATION 757 The Respondent's vice president for administration and its corporate secretary is Vincent Portelli. He has been with the Respondent for 5 years and began as the corporate secretary-treasurer in charge of labor relations and personnel matters, including various other adminis- trative functions. In early 1974, the Respondent retained the insurance brokerage firm of Alexander & Alexander to manage its entire risk and employee benefit program, including group life insurance, medical, and dental insur- ance and pension programs. Portelli dealt mainly with John R. Beauchamp, an assistant vice president with Al- exander & Alexander. In March 1974, Portelli and Beau- champ commenced work on various insurance matters, including a pension or retirement program. On May 6, 1974, the Respondent distributed a five-page memoran- dum to all salaried employees dealing with pay and bene- fits, and in which contained remarks explaining that the Respondent was working with their "insurance consul- tants" on a retirement plan which they hoped to put into effect "in the near future." According to Portelli, in the last half of 1974 his dealings with Beauchamp consisted of furnishing data and information, and during 1975 most of the activity regarding the retirement plan involved ex- amining existing plans carried by other employers utiliz- ing various different insurance carriers. Portelli indicated that he met personally with Beauchamp 10 times in 1975 regarding "various benefits," including pension pro- grams. Portelli testified that most of the delays surround- ing the drafting of a pension or retirement plan were oc- casioned by a Federal law on the subject, enacted in 1974, followed by new and continuing regulations and changes thereto."" In 1976, Portelli explained that he continued to work with Beauchamp and that, in August, he also additionally began to work with Alexander & Al- exander's new "in-house" consulting actuary, Michael R. Kivi. In the fall of 1976, Portelli explained that Beau- champ and Kivi desired new, additional up-to-date em- ployee data, most of which was subsequently collected in October by on-sight inspection of the Respondent's re- cords by an individual furnished by Alexander & Alexan- der. On November 18 Beauchamp wrote to Portelli, re- viewing the history of their previous discussions over the last several years and indicating that they would be in a position to make their firm recommendations regarding the pension plan in approximately 4 weeks. The letter at- tributes the delay in implementation of the plan to the "long-range financial commitments" involved, "complex- ities of plan design, etc.," all of which require "substan- tial research study, etc.," and other "complicated consid- erations" involving the new legislation (ERISA). On De- cember 18 Portelli and the Respondent's board chairman, of each individual card. with the exception of three emph)ees, and that he could not recall any response or reply by any of the emnplo>ees to the acknowledgment letter. A sample of that letter was admitted into evi- dence. It merely acknowledges receipt of the card, indicates that "even - tual success of this effort depends iupon your cointinuing assistancel. and advised that the emplo3,ees had the "fiull and complete coi,pcratil' and support of the entire ULAW, i their present effort to brilig about higher salaries. ob sectrity, better hbent illts dld the t inlll other heneitis that nflo from collectise a li ll" :'' This Federal law is it fact known as the Fimployee Retiremel lnciomre Security Act of 1)74 and knon also as RISA Prechter, met with Beauchamp and Kivi and finalized a plan which would be installed effective January 1. On January 5, Portelli met again with Kivi and they went over a draft of the plan. On January 15 Portelli met again with Kivi and Beauchamp, and present also was the Respondent's tax consultant. According to Portelli, at this meeting they went over the draft of the plan and they further went over the draft of an announcement of the plan to the employees. Portelli explained that ERISA required prompt notice of such a new plan to employees, and that this announcement had to be made within the "fiscal period."3 4 Portelli testified that copies of the an- nouncement and summary of the new plan were not re- ceived until Monday, January 24, at which time they were distributed to all of the employees involved throughout the State. The Southgate salaried employees were invited to an announcement of the plan on January 25 at a breakfast meeting. Portelli was the primary speak- er and went over the plan with these employees at that meeting, and he related that nothing was said about the Union, the campaign, or the upcoming election. Portelli explained that the breakfast meeting was not restricted to the employees involved in the election, that all salaried employees were invited, and that approximately 40 to 60 employees came. He denied that he engaged in any dis- cussion regarding employee problems or complaints. Portelli testified that he hired John Elzerman on No- vember 23 as "manager of labor relations." One of the first task or "charges" Portelli gave Elzerman was to prepare the handbook for salaried employees. Portelli ex- plained that, in the past, employees had been apprised of various company policies, rules, and benefits, by means of "hand-out sheets" which were circulated periodically. Some employees had requested that a single booklet or handbook be produced, containing all of these matters. Elzerman went to work on this handbook, which result- ed in its distribution at the employee luncheon meetings on January 20 and 21 .73 Portelli testified that he first became aware of union organizing efforts on November 1, when he received a letter from the Union, indicating that there was a cam- paign in progress. He further testified regarding employ- ee Debra Moore's July (1976) pay raise, indicating that Moore came to his office and inquired about the raise and stated that she felt she was underpaid, making a ref- erence to the results of a published survey which had ap- peared in a local employer's association publication. Pre- sent at this meeting was the Respondent's corporate labor relations manager, Gerald Makuch. Portelli's re- sponse to Moore was that he would look into the matter, and give Moore his decision later. The raise resulted, and Portelli denied that he mentioned the pension plan or displayed any materials abut the plan to Moore at that time. He further denied any statement regarding employ- ees' eligibility in such a plan if a union were present. Ac- e4 Portelli commented that this plan was to cover all of the Respon- dent's salaried and nonbargaining unit employees in the State of Michi- gan, which he counted at approximately 600. He also indicated that the total employment of the Respondent including production and mainte- nance employees, totaled approximatel) 1,600 : According to Portelli, this handbook applied to approximately 310 of Respoident's employees throughout the State of Michigan 757 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cording to Portelli, Respondent's policy regarding salary increases involved an employee review at least once a year. If this review was "satisfactory or better," the em- ployee would get a "merit adjustment." Regarding pension plans and handbooks in general, Portelli testified that prior to the new handbook one had previously existed and had been published in May for certain hourly employees in another separate shop. That handbook contained a statement that the Respondent had under review "either a pension plan or a cash 'bonus plan for the employees." According to Portelli, the plan that was announced on January 25 did cover the group of employees who were covered by this earlier May hand- book. John R. Beauchamp testified that he had been with Al- exander & Alexander, insurance brokers, for 7 years, and that he had been a vice president in charge oF employee benefits for the last 3 years. Beauchamp explained that his firm became the "broker agent consultants" for the Respondent in April 1974. He worked mainly with Por- telli, and in his testimony, Beauchamp verified and ac- knowledged the history of his involvement over the period of several years, culminating in the retirement plan presented to the employees on January 25. Beau- champ indicated that consulting actuary Kivi came to work for Alexander & Alexander in August (1976), and represented a new service which the firm could offer its clients. He apparently began working with Portelli im- mediately, and, from then on, the three worked together on the pension plan. According to Beauchamp, on De- cember 18 he and Kivi met with Portelli, Bard Chair- man Prechter, and the Respondent's accountant, and dis- cussed the necessity of a written announcement of the plan to the employees. Beauchamp explained that the In- ternal Revenue Service required such an announcement be made 30 days before the end of a company's fiscal year, in order to take a "legitimate business deduction for that year's contribution."3 6 Beauchamp further testi- fied that it was not uncommon to work "a couple of years" in formulating a specific plan, and that over the years that he worked with Portelli, the Respondent had furnished his firm with enough data to "load" the hear- ing room. Michael R. Kivi testified that he came to work for Al- exander & Alexander in April 1976 as a consulting actu- ary. His main job was working on retirement programs by assisting in plan design, and in the establishment of a funding mechanism. He attended the December 18 meet- ing with Beauchamp, Prechter, and Portelli, and he indi- cated that they all discussed the need to communicate the plan to the employees prior to the end of the Re- spondent's current fiscal year in order to oblain a tax de- duction for the contribution for that year. Kivi added that, in addition to the plan he worked on with Portelli, he also worked on another retirement plan for a group of Respondent's employees who were organized and repre- sented by the UAW, and that this particular plan later went into effect on April 18. In formulating this other plan, Kivi indicated that he not only worked with the 36 The Respondent's fiscal year ended February 28 Respondent's management, but that he also worked with union representatives. Calman Kanalos testified as the general foreman in the Southgate plant. He had worked for the Respondent for 9 years. Kanalos denied that he told employee Forte, Prior to the election or at any time, that anyone who had "doings" with the Union was going to be fired, or would probably be fired anyway. Patrick Brockway testified that in January he was the Respondent's manager of manufacturing services. He had worked with Respondent for 7 years. Brockway related that on or about January 27, he observed employee Debra Moore out in the shop and downstairs from her office, talking with Richard Dennis. Brockway indicated that he was "suprised because she never usually talked to anybody in the shop." He added that, although it was not unusual to walk through the shop to get to other areas in the plant, and that there was no rule against stopping and talking to another employee, it was unusual for the "girls" to stop in the shop because "the guys whistled at them and all that." Brockway also added that "It hadn't been a practice . . . [with Moore] to talk to anybody in that shop." After observing Moore, Brock- way related that he called Corporate Labor Relations Manager Makuch, and asked him if he had sent Moore to the shop for any reason, to which Makuch replied that he had not.2 7 Ronald Polocki was the Respondent's manager of in- dustrial relations. He had been employed by Respondent since December 1975, and his office was in the office of Corporate Labor Relations Manager Makuch. Polocki in- dicated that he handled labor relations personnel matters. He also attended both luncheon meetings on January 20 and 21, to which he maintained that all salaried employ- ees were invited. Acording to Polocki, the total each day was 50 or 60 employees in attendance, and that the meet- ings lasted 3-1/2 to 4 hours, and were held to introduce the new salaried employee handbook and "changes that were being made in the corporation." Polocki went on to explain that the new handbook covered everything that had been published earlier, including the material in an old handbook, and additionally it added some material "in other areas," but that basically most of the informa- tion contained in the new handbook was that which ex- isted previously in one form or another. Polocki spoke briefly at the meeting, and then he introduced Elzerman to the employees as the Respondent's new employee re- lations manager. According to Polocki, Elzerman initial- ly talked about "jobs that [were] going to take place during the course of the year," explaining that his main job would be salaried administration. Elzerman then went through the handbook "page-by-page," after which Portelli spoke briefly and indicated that a new pension plan would be presented soon. Polocki related that, al- though the Union was not mentioned or discussed at the January 20 meeting, a question was asked pertaining to the handbook and related to whether or not it was as good as a union contract, to which Elzerman responded "it was as good, if not better" because the handbook was S7 This reporting by Brockway resulted in the subsequent warning glNen to Moore by Makuch. AMERICAN SUNROOF CORPORATION 759 not as "rigid" as a union contract. According to Polocki, an additional question was asked at the January 21 meet- ing, involving whether or not the employees would be eligible for the new and forthcoming retirement plan "if they had joined the Union." Polocki indicated that Por- telli answered this question by stating that it would not then be applicable to those employees, and that the hand- book was only for "salaried and non-bargaining employ- ees." Polocki maintained that Portelli's response was not "no, definitely no." Polocki further testified that he attended the breakfast meeting of January 25, when the retirement plan was in- troduced. He denied that at this meeting Portelli said that he wanted to "hash out" their gripes or see if he could "resolve" their gripes, grievances or problems, or "avoid what they were going through." Polocki related that an employee eligibility question was again asked at the breakfast meeting, and that Portelli's answer was simply that the new retirement plan was for only salaried and nonbargaining unit employees, adding that "they were not there to discuss unions." The day before the election and on January 26, about 4:30 p.m., Polocki testified that he observed employee Debra Moore with her coat on and leaving the office. He asked her to step into the area near where his office was located, and, upon finding out that she was leaving to vote in the election, he referred her to a Board elec- tion notice, which described the unit involved and ex- cluded secretaries in the labor relations department, fur- ther indicating that she was not eligible to vote. Moore then accused Polocki of trying to hold her up from voting, to which he replied that she was free to go. Po- locki then testified that Moore explained why she felt she was eligible, and he in turn explained that he was not trying to find out how she intended to vote, but that he was merely voicing his opinion that she was ineligible. Moore then informed him that she had received a "docu- ment" from the Board instructing her to vote, to which he responded by telling her to go ahead and vote, fur- ther indicating that all he wanted to do was to explain to her how he interpreted her eligibility. However, Polocki continued by asking Moore to wait or by stating to her "hold on," after which he went into his own persona! office and made a telephone call to his superior, Corpo- rate Labor Relations Manager Makuch. Polocki called Makuch to apparently get his opinion on Moore's eligi- bility, because Moore had previously, and approximately 7 to 10 days earlier, inquired about her eligibility, and Makuch had been aware of this inquiry. Polocki further testified that he had earlier told Moore that in his opin- ion she was ineligible to vote. According to Polocki, Ma- kuch's response was that he had nothing definite on the matter. Polocki testified that he then went back to Moore and told her what time it was, and that she should go on and vote before the voting time was over. Polocki related that Moore then said "I know I'm in the personnel office . . . this dosen't look good for the per- sonnel office," and left. Polocki denied that he told Moore, himself, that it would look bad for the depart- ment if she voted. John Elzerman was employed by the Respondent on November 23, as the director of employee relations. He was hired by Secretary-Treasurer Portelli. In his job, El- zerman testified that he was in charge of personnel mat- ters for all salaried employees throughout the State of Michigan. He was also scheduled to additionally take over the area of labor relations within 6 months to a year. One of Elzerman's initial jobs was to draft the sala- ried employee handbook, which he worked on in De- cember and over the Christmas holidays, presenting an initial draft to the Respondent's management in early January and soon after the plant opened from the Christ- mas shutdown. Elzerman testified that the handbook ap- plied to approximately 300 salaried employees through- out the State, and that the final draft "went to print" during either the first or second week in January, and was thereafter presented to the employees at the South- gate plant at luncheon meetings on January 20 and 21, at which he was the primary speaker and went through the handbook "cover-to-cover, section-by-section." Elzer- man related that, in response to some of "many" ques- tions, he would often explain that they were "salaried employees . . . not in a bargaining unit . . . [and] were treated differently . . . handled as individuals and as re- sponsible people and therefore, there was some latitude in those policies where we could deal with them as indi- viduals . . . that it wasn't a cut-and-dry strictly labor agreement where you operate within two defined crite- ria." Elzerman testified that there was one question about the handbook being a union contract, and that, in response, he explained that, although it was not, it "was as good as a signed contract." A further question in- volved whether or not the handbook would apply if a union was involved, and Elzerman testified that his re- sponse was that it would not, as "anything regarding wages, benefits or conditions of employment, would be subject to negotiations." Elzerman went on to explain that the handbook contained nothing new, and that much of it was previous "practice." He did, however, concede that he had an understanding with Portelli that "as a goal" the handbook would be completed at the end of the Christmas shutdown. Elzerman also attended the breakfast meeting on Janu- ary 25, when Portelli was the main speaker regaroing the new retirement plan. Elzerman remembered that there was an employee question as to whether they could still have the plan if the Union prevailed in the election, and that Portelli simply responded that the plan was for non- bargaining unit employees, and did not respond, "no, definitely no." Elzerman also claimed that Portelli did not bring up or mention the subject of employee gripes, or any related subject. Regarding Forte's yearly evaluation, Elzerman testi- fied that it was accomplished on January 18, and that, shortly thereafter, he received it and endorsed it. He ex- plained that Forte's evaluation "interval" indicated she was eligible for a salary increase. Plant manager Moody had recommended that Forte receive a $50-per-month raise and Elzerman testified that he approved it, and that it was made retroactive to December 31, because this was the first payroll effective date following her yearly anniversary date with the Respondent. Elzerman went on to explain that Forte had inquired about a merit in- crease, and that she felt it was due, and that after he ap- 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proved the increase he told her about it personally be- cause she had earlier expressed fear of being discharged because of her union support and activities, and he wanted to make sure that she knew this was not the case. Elzerman testified that the reason Forte did not receive the raise earlier was that, when he came to the Respon- dent in late November, there were "administrative errors" in the processing of merit increases, and one of his jobs was to survey the situation and grant merit in- creases that were delinquent, making them retroactive to the date that they were actually due. According to El- zerman, Forte was in this category, as were others who received such increases after he came with the Respon- dent during the period of time that he attempted to update all salaries. Elzerman explained that Moody had rated Forte's performance as above average, and that she thus received an above-average increase, which was not unusual. Elzerman testified that he had a second discussion with Forte in January, on the morning of the election, because he had again heard that Forte had expressed fear that she would be fired. Elzerman asked Forte to come to his office, where she acknowleded her fears, and whereupon he again reassured her that her union activi- ties or efforts in no way affected her employment or op- portunity for promotion "or anything." 3 8 Regarding employee Debra Moore, Elzerman testified the day after the election (January 27), and, after having heard that Moore felt the Respondent would "get her," he met with Moore and Corporate Labor Relations Man- ager Makuch, in Makuch's office. According to Elzer- man, he pointed out that Moore's performance had dropped off due to "personal problems" and union activ- ity, and an excessive amount of time away from her desk." However, he explained to her that she had been a good employee in the past, and that her recent drop in performance was also all in the past, and "we only wanted to move forward." Elzerman testified that he added her union activity "had nothing to do with the future" and the election "turmoil" was over, and "it was time to go back to work." According to Elzerman, Moore then became very cmotional and was "in tears," and, because of this, he indicated he regretted "calling the meeting" because it did not accomplish what he had set out to do. James A. Moody testified as the Southgate plant man- ager during the months of December and January. Prior to coming to work for the Respondent, he had worked for the Ford Motor Company for 4 years, and, at the time he testified, he was then (and again) employed by Ford. Regarding employee Debra Moore, Moody testi- fied that some time in January he read the Board's elec- tion notice, and "immediately" told Moore she was not eligible to vote because she was a "plant clerical," and plant clericals were specifically excluded in the notice. Moody also testified that at various times in January he would discuss the Union with employee Forte, mention- ing the fact that, at the Ford Motor Company, there was a "salaried union" for "white collar workers," and that 3R Forte still works for the Respondent and, according to Elzerman, has been "promoted up four salaried grades to a higher le vel job. he ventured the opinion that those "salaried" employees "weren't in the best position in the world," and that some of them had to "punch in and out on a time clock . . .[but were] still considered salaried." Moody denied that he stated to Forte that if the Respondent's salaried employees were represented by a union they would have to punch in and out on a timeclock. Regarding employee Forte's raise, Moody testified that "a number of times" Forte asked him about her evaluation, and pointed out that it was due. Moody then, in fact, checked and ascer- tained that her evaluation was due and he soon thereafter wrote the evaluation, recommending a $50-per-month raise because she had received an "above-average evalua- tion" which he considered favorable. Moody related that this type of evaluation was not isolated, pointing out that, on February 1, he had written an evaluation for em- ployee Matt Borys which was "outstanding," and thus he had recommended a raise of $60. Moody conceded his dislike for unions, stating that "the more union orient- ed [the employees] are, the less work you get out them."3 9 Gerald Makuch testified that he was presently em- ployed by the Respondent and had been since December 1973. In December 1976 and January 1977, he was the Respondent's labor relations manager. He was present in Portelli's office in July (1976) when employee Debra Moore requested a raise. Makuch denied that Portelli mentioned anything about unions or a new pension plan, or displayed any papers regarding such a plan. He also denied that Moore, in her request for a salary increase, mentioned anything about an "employer-association survey," or anything of that nature. Makuch was also present at both luncheon meetings on January 20 and 21, and denied that either Elzerman or Portelli mentioned anything about or discussed unions, and Makuch further denied that the subject of unions was brought up by any employee questions. He also attended the January 25 breakfast meeting where Portelli presented the new pension plan, and he also denied that at this meeting Portelli raised the subject of unions or mentioned anything about employee gripes or problems. He did indicate that an employee asked if the plan would apply to them it there was a union, and ac- cording to Makuch, Elzerman first replied that they were not there to discuss anything about unions, and then Portelli, himself, responded by reiterating that the plan was for nonbargaining unit employees. In his testi- mony, Makuch also made reference to the fact that he did receive a call from Polocki the day of the election and regarding Moore's eligibility to vote, and that he merely told Polocki that Moore was definitely free to vote. Makuch also testified that the day after the election (January 27) employee Brockway called him and asked him what Moore was doing out in the shop, explaining that she was "holding [him] up." According to Makuch, he responded that he did not know but that he would find out, and he then paged Moore, who responded by coming to his office. Moore explained that she had gone '9 Most (if not all) of the employees Moody supervised at the Respon- dent's Southgate plant were represented by the UAW. - I --- ---- AMERICAN SUNROOF CORPORATION 761 out into the plant to see employee Richard Dennis be- cause she felt "harassed" and felt she was going to lose her job as a result of her union activities. Makuch indi- cated that he then assured Moore that her job was not in danger, and that "the past is the past," but that he did request that she let him or someone know when she left the office. Makuch then indicated that Elzerman joined their conversation and again "assured" Moore that she was not going to be discharged, stating to her that she was a "sound" employee, and that the past was behind them. According to Makuch, Moore was very emotional and in tears, and because of her emotional condition, the meeting came to an "abrupt" end. Makuch testified that he then spoke briefly with Moore later in the day re- garding the incident, again indicating to her that the past was over, and merely asking her to let him know where she was going when she left the office, to which Moore replied "Okay." 2. Testimony and evidence regarding union authorization cards The executed union authorization cards of 24 employ- ees were admitted into evidence in this case. 40 Out of these 24 cards, 19 were actually identified by the em- ployee card signers themselves, many testified regarding the receipt of the card and its purpose. The remaining five cards were authenticated by handwriting expert Richard Bowen. 4 ' Out of the 19 employees testifying re- garding their cards, all but 4 are presently employed with the Respondent. Further, and out of these 19 em- ployees, 14 testified essentially that they signed the card only to have an election. 42 Out of these 14, 2 employees were no longer with the Respondent. Out of the remain- ing five employees who testified regarding their cards, no questions regarding purpose were asked of them, with one possible exception. Regarding purpose, this employ- ee testified that she signed "to help get the Union in." Also, out of these five employees, three were no longer employed by the Respondent. "40 The additional card of employee Debra Moore was also admitted, not for the purpose of the card count, but to examine her in connection with allegations alleging violations of Sec. 8(a)(1) of the Act, and in which she was involved Moore, as indicated earlier, was determined to be ineligible, and this determination is final. 41 Bowen is an acknowledged handwriting expert and his qualifications appear in his resume, which was admitted into evidence His qualifica- tions were not disputed by the Respondent in this case. The names of the five employees and the apparent reasons for their nonappearance are as follows: Kenneth Wassus, no longer employed by Respondent, and for personal reasons had to be out of tswn at the time of hearing (excused by counsel fr the General Counsel); Susan Morgan, no longer employed by Respondent, and summons served on "Robert Morgan" (no response to the summons); Terry Brandau, currently with the Respondent but on ma- ternity leave, and apparently not at home (summons returned unclaimed), Annette Popa, no longer with Respondent (summons returned un- claimed), and Deborah Walden. o longer with Respondent (summons re- turned unclaimed with notation "moved-no forwarding address"). .4 Out of these 14 employees, the testimony of only 2 could possibly be interpreted to lack some explicitness in this singular purpose. Both of these employees are presently with the Respondent. The card itself is a single purpose card and recites as follows: 1, the undersigned employee of 9 underscores authorize the Techni- cal, Office and Professional Department of the UAW to represent me in collective bargaining The Board, in its investigation of this case, made inqui- ry by mail of many of the employees who had executed cards. This inquiry was in the form of an affidavit, which was mailed to these employees. The affidavit was blank, except for the statement portion, which contained hand- written language to the effect that the employee ac- knowledges signing the card with the understanding that "it meant I was authorizing the UAW to represent me in collective bargaining . . I understand that it was not for election purposes only."43 The following is a summary of the testimony of each of the 19 employees signing union authorization cards. Linda Camardese-Linda Camardese is no longer em- ployed by the Respondent, although she was in Septem- ber 1976. She testified that she received the card at work from Richard Dennis, and that, although no one told her what the purpose was, she read the card and understood what it meant. She indicated that she filled in the card and signed it on September 17, and thereafter mailed it back to the Union. Sharon Dobson Barns-Sharon Barns is no longer em- ployed by the Respondent. She testified that she was dis- charged over "a little fight [she] had with Mr. Spoztek and Mr. Gubow." Barns indicated that the card was given to her by Linda Camardese, although neither Ca- mardese nor any other person told her what the purpose of the card was. She indicated that she filled the card in and signed it on September 18, and thereafter mailed it back to the Union. Gloria Greenleaf Saulk-Gloria Saulk is presently em- ployed by the Respondent and since the election has been married. Her maiden name was Greenleaf. Saulk testified that she does not remember who gave her the card, but remembers that it was another employee. Saulk indicated that she filled in the card and signed it on Sep- tember 21, and "shortly after" mailed it back to the Union. When asked the purpose on cross-examination, replied "as far as I knew, it was just that the employees felt that they had a right to a vote on whether or not they wanted to organize." Saulk further testified "that's what I was given to believe from reading what it says at the top of the card." 44 Saulk also received and signed a Board statement in the mail, which, in effect, acknowl- edged that she had signed the card to authorize the UAW to represent her in collective bargaining. On redi- rect examination, the General Counsel pointed this fact out to her, giving her an opportunity to examine that 43 Some of the employees acknowledge receipt of this substantially blank affidavit, and acknowledged that they signed the affidavit (which was undated) and forwarded it back to the Board. Also, the evidence re- flects that an agent of the Board made some followup to affidavits or statements that had not been received from various employees. These fol- lowup inquiries were made by telephone. Some employees disregarded the affidavits and yet others changed the precontained writing by delet- ing certain language or adding certain language, and forwarded them back signed. Some were admitted into evidence in this case. In no case are they dated, and, although they contain an acknowledgment provision under oath, none were actually acknowledged under oath before any Board agent or notary public Whenever the term "Board slatement" or "Board affidavit" appears herein, such term makes reference to this blank affidavit or statement. 4 Where no "purpose" was elicited by questions from the General C'ounsel in direct examination, in many instances this subject was brought up on cross-examination by Respondent's counsel and usually by leading questions 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statement. Her reply was that she signed the card with the intention of "not electing the UAW per se .. . only that she wanted the Union to come in and hold an elec- tion about-on whether or not to organize." Kevin D. Klatz-Kevin Klatz is no longer employed by the Respondent. Klatz testified that he completed and signed the card on October 28, and indicated that he had talked to International Representative Poole and chief steward Richard Dennis about the Union and the card.45 In cross-examination, Klatz conceded that Poole and Dennis had told him that the purpose of the card was to get a Board election. In redirect examination by the Gen- eral Counsel, Klatz reaffirmed "that we were told that the purpose of that card was you needed a certain number of those cards before the Union could come in and have an election." The General Counsel continued in redirect examination, and asked Klatz the following questions (among others), obtaining the following re- sponses: Q. Didn't you in fact say that it was-the pur- pose of the card was to make it possible for the Union to show the employees what they would do for the employees as compared with what the Com- pany was doing for the employees? A. I don't know that it was to be a comparison but what was explained was that the Union would be able to come in and offer the people a program that would be beneficial to them. Q. Through negotiating with the Company? A. Through negotiating with the Company. But it was not considered a vote for the Union. It was only considered an interest in what the Union had to say. Q. What the Union could do with the Company for the employees? A. Right, right. Michelene King-Michelene King remained employed with the Respondent. She testified that she thinks Rich- ard Dennis gave her the card, but she was not sure. She filled in the card, signed it, and mailed it back to the Union on September 7. On cross-examination, she testi- fied that she "had heard that the only reason they were signing those cards, was to get so many people to sign them so that we could have a meeting with the UAW." On redirect examination by the General Counsel, she conceded that "to a certain degree" she was an active member of the organizing committee, that she did not object to her name being included as a member of this committee and that she did not ask that her card be re- turned to her or be destroyed. On further recross exami- nation, King testified that she, herself, had distributed cards to other employees, and, she conceded, in response to a leading question, that she explained to these employ- ees that the sole purpose of the card was only to have an initial meeting with the Union to see what the Union had to say. Linda Martinez-Linda Martinez is no longer working for the Respondent. She was employed from December 4' Richard Dennis was the chief steward of the UAW local which rep- resented the Respondent's production and maintenance employees. to April, and she testified that she filled in the authoriza- tion card, signed it on December 25, and, thereafter, mailed it in to the Union. On cross-examination the fol- lowing answers were given: Q. Do you remember what you were told about the purpose of the card when it was given to you? A. Well, I had the option about if I wanted to fill it out and to mail it in, and it was in regard with the Union, if-I believe it was just to say if I would want the Union into the Company. Q. Was anything said about the fact that there would definitely be an election? A. I believe they said that there was going to be one in the future. Q. And did they tell you that before the Union could ever become a bargaining representative an election would be necessary? A. Y-,s On redirect examination, Martinez was questioned about what International Representative Poole stated at the ini- tial organizational meeting of October 28, as follows: Q. And, do you remember what he [Mr. Poole] said, now, concerning the purpose of the card? A. Well, my interpretation was that this was to, like start procedures about getting a union into American Sunroof. Q. Did-he didn't say what they [the cards] were for? A. Just it would be, like, to get the Union started, find out if we were interested in it. Brenda Mathias-Brenda Mathias testified that she did not remember who gave her the card, but that, after re- ceiving it, she read the card, filled it in, and signed it on September 9, and thereafter mailed it to the Union. On cross-examination she asked if she had been told that the card was for the purpose of having a Board-conducted election to see whether or not the employees wanted a union, and she answered "yes, I think so." On redirect examination, Mathias was then asked her reason for sign- ing the card, to which she replied, "for the purpose of seeing if there was enough people interested in getting a union vote together." On further redirect examination, Mathias was asked whether or not anyone told her that the Union could become the representative of the em- ployees without an election, if enough employees signed cards. Her response was simply "no." Maryellen Nichols-Maryellen Nichols is presently em- ployed by the Respondent and has been since February (1976). Nichols testified that she received her card from her supervisor, Dorothy Gambino, after which she read the card, filled it in, and signed it on September 3, and mailed it back in. On cross-examination she was asked if Gambino told her that the purpose of the card was to have a vote to see whether or not there would be a union, to which she answered, "Yes, this is for more in- formation about the Union." Nichols also signed a Board affidavit about her card, and during her testimony she AMERICAN SUNROOF CORPORATION 763 was examined regarding this Board affidavit. She gave the following explanation: Well, authorizing the UAW to represent me in col- lective bargaining. If there were enough signed- enough cards signed. And after the election, if the Union was voted in, that they would, you know, negotiate in collective bargaining. Beverly O'Brien-Beverly O'Brien is presently working for the Respondent and was employed in September (1976). She obtained the card from Richard Dennis, read the card, and filled in the information requested, and thereafter signed the card on September 15 and mailed it back to the Union. On cross-examination, she was asked if she was told that the only purpose of the card was to obtain an election, to which she answered "yes." She further affirmed that she was not told that by signing the card the Union could and would "represent" her. O'Brien signed a Board affidavit, and on redirect exami- nation, she was questioned about the affidavit and gave the following explanation: At the time I received the card, I was told that I was-if I signed the card, it was to protect myself if the Company, at a later date, if there was harass- ment, I could get in touch with the National Labor Relations Board. This [written statement] was signed at a later time. I did not [sign it] when I re- ceived the card. O'Brien further testified that she "really [did not] recall" the statement at all, and on cross-examination, she indi- cated that the statement had been mailed to her with the language already filled in, and that, further, the instruc- tions were merely to fill in some additional job informa- tion and sign and return the statement to the Board. Marie Renaud-Marie Renaud is presently employed with the Respondent and has been continuously since April 1975. She testified that she found the card on her desk, read and filled it in, and signed it on September 15. On cross-examination, she was asked if she had been told that the card was to have an election, and she answered "Yes." She added that this purpose was explained to her by Supervisor Dorothy Gambino. On redirect examina- tion she was asked whether or not anyone told her that by signing the card she would authorize the Union to bargain with the Respondent on behalf of the employees. Her response was 'No, they said, something about they needed so many cards in order for them-the Union-to come in and talk with us and explain what was going to happen." Renaud also signed a Board affidavit which she received in the mail, and when questioned about this affi- davit or statement on redirect examination, she gave the following response: Well, at the time I was signing it because it was that I did [sign] that card . . . I probably didn't read it that carefully. I signed it because it they had to have so many cards in, in order to have an election. Martha Paulovich-Martha Paulovich is no longer em- ployed by the Respondent, but was from late October to June 6. Her testimony was very brief. Paulovich indicat- ed that she read the card and thereafter signed it on No- vember 11, and gave it to another employee. Regarding the purpose, she stated, "Well, they said it was to get- well-to help get the Union in." Paulovich also signed and mailed back a Board affidavit. Debra Reaid-Debra Reaid is presently employed by the Respondent and has been since October 1976. She testified that she received the card from employee Susan Morgan. 46 She read the card and thereafter filled it in, signed it on October 29, and later mailed it to the Union. On cross-examination, Reaid was asked if "Susan Morgan" told her that the only purpose of the card was to get an election so that the employees could find out whether a union would come in and represent them, to which she replied, "Yes." Reaid also signed a Board affi- davit, and after reading it again she indicated that it did not change her testimony regarding the purpose for which she signed her union authorization card. Gail Ronan-Gail Ronan is presently employed by the Respondent and has worked for the Respondent continu- ously since August 1975. She received her card from Richard Dennis, read and filled in the card, signed it on September 5, and thereafter mailed it to the Union. On cross-examination, Ronan testified that Supervisor Doro- thy Gambino worked in her area and supported the Union. She was also asked, on cross-examination, if she had been told that the only purpose of the card was to see whether there "could be an initial meeting with the Union so that [the employees] could hear what the Union had to say." to which she replied as follows: That was the understanding I had. I was told that the Union was not very-didn't do very well when they tried to organize previously and that they wanted-they needed a show of cards-support before they could come in and have a meeting. Ronan was further asked on cross-examination if she, by signing the card, intended to authorize a union to repre- sent her without an election, to which she replied, "No." Ronan also received a Board affidavit in the mail, but she modified it before returning it. She indicated that she felt the Board was "putting words in her [mouth]," so she clarified the precontained language by bracketing that language and referring the bracketed portion to the following statement, which she added to the affidavit: The bracketed statement is not correct. I only sent in this card because it was the one that was given me as a means of getting the Union Rep. to come and meet with us. I just wanted to see what they had to say. Patricia Vigneau-Patricia Vigneau is presently em- ployed by the Respondent and has worked for the Re- spondent continuously since August 1973. Vigneau testi- 46 Employee Michelene King, on the contrary, testified that she gave cards to three other employees, including Debra Reaid. The other two employees were Susan Morgan and Brenda Mathias. King testified that when she gave these cards to the three employees, she informed them that the purpose of the cards were in effect to see what the Union had to say. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fied that she actually signed two union authorization cards, one on September 3 and one on October 29. She initially testified that although she filled out and signed the first card, she did not really read it, but in later testi- mony she conceded that she had to read much of the card to actually fill it in, but that she did not understand the card to mean that she designated the Union to be the collective-bargaining agent for the employees. She added that she thought the card was only for information and to obtain a later election, if employees wanted it. This first card was apparently lost, resulting in the execution of a second card, which she conceded that she did read, fill in, and sign. Vigneau also testified that she received three different Board affidavits, but that she did not sign and return any of the three because she did not feel they were correct or accurate. Dewayne Herrero-Dewayne Herrero is presently em- ployed by the Respondent and commenced his employ- ment in April 1976. Although now a "materiLal control supervisor," he did not hold a supervisory position on the date of the election (January 26). Herrero testified that he received a card in the mail, read the card and filled it in, and signed it on November 11, and gave the card to employee Geraldine Forte at work. Herrero added that Forte called him earlier by telephone and asked him to sign the card, "to afford [him] the right to decide or to vote, at a future date, on whether [he] wanted to be represented by a bargaining unit or not." Herrero confirmed that this is the reason why he signed the card. Marlene Stanislaw-Marlene Stanislaw is presently em- ployed by the Respondent and has been a 'keypunch leader" since 1973. Stanislaw testified that she received her card from Beverly O'Brien, read it, filled it in, and signed it on September 16, and then mailed it back to the Union. On cross-examination, she testified that she gath- ered from hearing other employees talk that the purpose of the card was to get a vote. Stanislaw further testified that Supervisor Dorothy Gambino encouraged employ- ees to sign cards in order to get a vote. Stanislaw also received a Board affidavit but she did not send it back to the Board. She further indicated that, after a period of time, a "woman" at the Board called her to inquire why she had not returned the statement, and she responded merely by saying that she was refusing to execute it and return it. Arline J. Fillie-Arline Fillie is presently employed by the Respondent and has been since November 6, 1973. She is an accounts payable clerk, and her supervisor is Mimi Sentineal. Fillie testified that she supported the Union and handed out authorization cards. She obtained her card from Richard Dennis, after which she read and filled in the card, signed it, and mailed it back to the Union on September 8. Regarding the purpose of the card, Fillie testified as follows: [The cards were] a chance for us to join together and have somebody else speak for us as a union, and try to help us with all our problems . . . with the Company . . . [to] at least give us a chance to vote and see how everybody really felt . . . [and if] everybody wanted the Union, then it would be in. Mary Mondon-- 4 7 Mary Mondon's testimony was very short. She i:, presently employed by the Respondent and merely testified that she received the card at the ini- tial union meeting of October 28, read it and filled it in, signed it at the meeting, and gave it to International Representative Poole before the end of the meeting. Geraldine A. Forte-Forte's testimony was also very short. She is presently employed by the Respondent and has been since December 1975. She testified that she read the card, filled it in, and signed the card on October 28. C. Evaluation of Evidence and Testimony and Initial Conclusion 1. Generally-an overview There are approximately 35 employees involved in the subject unit of Respondent's salaried clerical employees at its Southgate plant.48 At least 25 signed authorization cards were obtained between September and November and prior to the filing of the election petition on Novem- ber 18.4 9 The Union desired a significant showing in cards because of its election loss in mid-1975. The Re- spondent's production and maintenance employees were organized and represented by a UAW local but it is clear (if not conceded) that the Respondent did not want its salaried clerical employees organized. However, with one alleged exception (in July 1976), the Respondent's al- leged preelection misconduct did not commence until less than I week prior to the January 26 election. There also had been no demand for recognition or bargaining from the Union. The representation case (7-RC-13976) had a long history of litigation commencing with the pe- tition on November 10, 1977. The complaint in this case was issued on March 30, 1977, and thereafter and, on November 30, 1977, it was consolidated with certain pos- telection objections which had been filed in the represen- tation case. Yet, subsequently, and formalized at the commencement of the hearing in this case, the General Counsel moved to amend the complaint by additionally alleging a refusal to bargain and the requested remedy of a bargaining order. The case was then open to the re- quirement of showing a proper card majority and took on ramifications far greater than those which were origi- nally and apparently contemplated. The result, 37 wit- nesses, 60 exhibits, many with multiple pages, and a pro- tracted and expanded hearing. My ultimate denial of the General Counsel's amendment adding an alleged viola- tion of Section 8(a)(5) of the Act (refusal to bargain) does not, in my opinion, prohibit the requested remedy " Mondon was initially called to testify on matters other than her union authorization card. Counsel for the General Counsel inadvertently forgot to present Mondon's card for authentication during her testimony and her recall for this purpose only was allowed later in the case over the objection of counsel for the Respondent. 4n These employees actually worked in one of several buildings which comprised the Southgate complex. They are all "office" employees. The eligibility or Excelsior list contained 35 names. Only two names on the list were challenged. One was sustained and one denied, resulting in 34 unit employees. "4 An additional (26th) card was signed by employee Martinez on De- cember 25. The card of Gambino and Moore are not applicable as both were determined to be supervisors, thus leaving 24 total cards for deter- mination in this case AMERICAN SUNROOF CORPORATION 765 of a bargaining order, predicated on, among other things, the showing and proof of a proper card majority.5 0 Re- garding the cards, the General Counsel had an apparent- ly unexpected testimonial problem in the employees' pur- pose or reason for their execution, which placed a slight cloud over the proceeding from the beginning. 2. The individual instances alleged (a) The July 1976 pay raise of employee Moore with reference to the new pension plan Paragraph 15(a) of the complaint alleges that some time in August 1976, the Respondent conditioned the employees' receipt of pension benefits upon their ceasing support for the Union. The evidence reflects that the in- cident in fact occurred in July, and not August. Debra Moore testified she had concluded that certain other em- ployees had received raises because of renewed talk about the Union. Moore was the only witness in the case who testified that the renewed organizational efforts started as early as July. Union Representative Poole him- self testified he was first contacted on August 13, and only thereafter distributed cards. 51 Moore felt that she had not received a raise because the Respondent had concluded she was ineligible to vote. In pursuit of her raise, Moore first went to her supervisor, Makuch, and then to Secretary-Treasurer Portelli. Portelli denied that other raises were due to union activity, and the two became engaged in a conversation about the Union, Moore expressing support for unions and pointing out certain "broken promises" which had been made prior to the 1975 election. According to Moore, Portelli then made reference to a new pension plan showing Moore a folder of papers, and indicating he did not think a union could get something like this. Soon after the conversa- tion, Moore did receive a raise. Makuch was also pre- sent, and, in testimony, both he and Portelli denied that there was any reference to any pension plan. Without reaching any credibility issue here, and as- suming that Moore's version was true and accurate, in my opinion Portelli's reference to and remarks about the pension plan were far short of any violation of Section 8(a)(1) of the Act. Moore's engagement in conversation about unions was voluntary and solicited by her. Portelli was simply rebutting Moore's "broken promises" remark. His personal opinion about what the Union could do or get, in the context of this conversation, I find, did not constitute even a threat to withhold a benefit conditional upon the ceasing of union activities or support. Additionally, the occurrence of the entire incident ap- pears to fall beyond the 6-month period required by Sec- tion 10(b) of the Act. The charge was filed February 4.52 Thus, and in order for the incident to be covered in 0 To have concluded otherwise would, of course, have been far and away the easiest disposition of this case As indicated earlier, my reversal and denial of the 8(a)(5) amendment was based on the Board's recent De- cision in R. J Causey Construction Co.. 241 NLRB No. 156, involving the 6-month limitation period in Sec 10(b) of the Act. I cannot deny, howev- er, that the lack of any request or demand for bargaining by the Union had some small influence in my decision. s' Gambino testified that the organization started in "late summer 52 The charge did not specifically mention the incident, and the first date of alleged misconduct contained in the charge was January 24. after August 4. As indicated above, the complaint reads "sometime in August." During her testimony, Moore was asked if she had a conversation with Portelli "in about July or August of 1976," to which she replied "yes," but soon after qualified her answer by adding "I believe it was in July." Both Portelli and Makuch placed the conversation in July. Thus, I further find that the al- legation is barred by the 6-month limitation period con- tained in Section 10(b) of the Act. (b) The January threats by Plant Manager Moody and Supervisor Gambino of more onerous working conditions (timeclocks) and the loss of the pension plan Paragraph 15(c) of the complaint alleges improper threats by Moody and Gambino by indicating to employ- ees Forte and Mondon that the employees would be on the timeclock or would have to punch in and out, and would not be eligible for the new pension plan if the Union prevailed. Gambino's alleged statements were made to Mondon on January 20, when the two, together with employee Fessler, had lunch in a local restaurant. Mondon testified that earlier Gambino had supported the Union but subsequently changed and that Gambino stated she learned at a management meeting that, if the Union were voted in, the employees would not be eligi- ble for the new plan and would have to punch a time- clock. Gambino and Fessler essentially denied that the remarks were made, indicating that most of their talk concerned their children. I credit the testimony of Mondon here over that of Gambino and Fessler. All three continued in their employment with the Respon- dent. Gambino had been a strong supporter of the Union, had supported the Union in conversations with numerous other employees, including Mondon, and had solicited union authorization cards, but had done an abrupt turna- bout in this support. Fessler was, and had been all along, strongly against the Union. Fessler and Gambino were good friends and had eaten lunch together often. Their union sympathies had finally merged, thus negating Fessler's (and Gambino's) alleged reason why Gambino would never mention the Union around her. The election was but 6 days off and Gambino had much "repair work" to do because of her late and sudden change in support.5 3 I find that Gambino's remarks were made es- sentially as related by Mondon and as alleged in the paragraph 15(c) of the complaint, and that, under the cir- cumstances, the remarks were violative of Section 8(a)(1) of the Act. 53 Gambino's position in this case was somewhat unique and unusual Although she testified that she had "always" considered herself a super- visor. her status as such was in legal controversy up until the commence- ment of the hearing in this case, when her status as a supervisor (together with Mimi Sentineal) were stipulated Her supervisory authority did not appear to be as significant as that of other supervisors or management personnel who testified in this case, and, as a supervisor, she definitely appeared to have an unusually close and daily contact and rapport with as many as 17 other employees who worked in her area Her action and influence regarding the union authorization cards will be discussed later herein. However, her one-time strong union support and related activi- ties, in light of her supervisory status, were never really explained in the record of this case. 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plant Manager Moody's alleged remark (confirmed only to the timeclock reference) involved a conversation he had with employee Forte the day before the elec- tion. 54 According to Forte, Moody told her she was not eligible to vote because she was a "plant" clerk. Forte disagreed and pointed out that she was on the "eligibility list." Forte initially testified that Moody followed his "eligibility" statement by commenting that if the Union came in, they would no longer be considered salaried employees and would have to punch in and out on a ti- meclock. In cross-examination, she conceded Moody ac- tually said, "You wouldn't particularly like to punch a ti- meclock would you?" In his testimony, Moody admitted his "eligibility" remark but denied he actually stated that the Union's success would result in a timeclock at Re- spondent's facility for salaried employees, although he acknowledged discussions with Forte about the fact that the Ford Company there was a "salaried union" and those employees had to punch a timeclock and "weren't in the best position in the world." I find the "eligibility" remark was made, as admitted, and I further credit Forte in her late description of Moody's timeclock remarks in the form of a question. The thrust of Moody's denial of the timeclock remark involved the fact that he did not mention the Respondent specifically. He admittedly had mentioned the timeclock in connection with Ford sala- ried employees, and the implication of such a remark, by the plant manager, is clear. I thus and further find that Moody's timeclock reference or statement to Forte on January 25 was a threat that their use would result if the Union became the employees representative, and violated Section 8(a)(l) of the Act. 55 (c) General Foreman Kanalos' discharge threat to employee Forte prior to the election Paragraph 15(e) of the complaint alleges that in "late January" Kanalos threatened Forte "with the likelihood of discharge" to "dissuade" employees from supporting the Union. Forte testified initially that the week of (and before) the election General Foreman Kanalos came to her office area and remarked "something to the effect that anyone who had doings with the Union was going to be fired." In cross-examination, Forte conceded that Kanalos made no reference to the Union, but did state "you'll probably be fired anyway." Kanalos denied making any such remark. Forte here, and for the second time, qualifies and changes her direct testimony in cross- examination. 6 This is the first and only discharge remark (or threat) that is alleged in this case, and this is the only alleged violation involving General Foreman Kanalos. Such discharge threats were thus out of charac- ter with the course and pattern of the Resporldent's pree- lection activity. Forte had just received a good evalua- '4 Moody had previously worked for the Ford Company before his employment with the Respondent. At the time he gave testimony in this case, he was back at Ford as a plant manager. Forte continued with the Respondent. '5 Moody's eligibility remark to Forte was not alleged is a violation in the complaint. 56 The first time was regarding Moody's timeclock remarks on Janu- ary 25, and I found that the claimed statement, as modified, was made and as such still constituted a violation of the Act. Both changes were after Forte was shown her Board investigative affidavit. tion from Plant Manager Moody, followed by a $50-per- month raise, yet she testified she made no response or in- quiry to Kanalos (or apparently anyone else) regarding the alleged remark, which under the circumstances, would have been extremely serious and disturbing. The context of the remark itself ("you'll probably be fired anyway"), as reflected in Forte's second and final rendi- tion, is uncertain especially after Forte added that no ref- erence to the Union was made. Other than his actual em- ployment status, I can find no reason to discredit Kana- los. I am also hard put to discredit Forte here, but I do, to the extent that any discharge or termination statement was made by Kanalos with the intent, or even remote (or outward) implication that such remark was made in the context of union support or a union election victory. I thus find no violation as alleged in paragraph 15(e) of the Act. (d) Employee Forte's retroactive pay raise The granting of a pay raise to employee Forte the day before the election is misconduct alleged in paragraph 15(f) of the complaint. The raise was $50 per month, ret- roactive to December 1. Forte had previously inquired about a raise and was apparently expecting one, having recently undergone and received a good evaluation and recommendation from Plant Manager Moody. However, she further testified that she had received a $25 raise in September and was not actually due a raise until I year from that time. Employee Relations Manager Elzerman, who personally informed her of the raise, testified that she had been due an evaluation and possible raise on De- cember I because that was the yearly anniversary of her employment. He further explained that as a new manage- ment employee, one of his jobs was to update delinquent personnel actions and that such was the case with Forte's raise. Much is in the record about the raise, and, after giving due consideration to all of the relevant evidence on the subject, I am satisfied and find that both the Re- spondent and Forte felt she had earned the raise, that she expected it, and that it was properly made retroactive to December 1. It is the timing of the raise that is question- able. Forte was a known union supporter, and the very same day Plant Manager Moody had ventured his opin- ion to her that she was not eligible to vote. I find it more than coincidence, resulting from bringing current delin- quent personnel actions, that Forte was granted the raise the day before the election, and was informed of the raise by Employee Relations Manager Elzerman, himself, who at that time also knew that Forte felt uneasy about her image with the Respondent because of her union support. Elzerman told Forte that the raise was "above average," and assured her that no one would be fired be- cause of their union support. Further, since the raise was properly retroactive and well earned, as was urged by the Respondent, and had already been decided upon by Moody and Elzerman, a delay in informing Forte until after the election would not have been the denial or withholding of any benefit. I find that informing Forte of the raise the day before the election was calculated to in- fluence her vote and sympathies against the Union, and thus in violation of Section 8(a)(1) of the Act as alleged in paragraph 15(f) of the complaint. AMERICAN SUNROOF CORPORATION 767 (e) The voting eligibility of employee Moore on the date of the election (January 26) As employee Debra Moore was leaving to vote, her eligibility was questioned by Industrial Relations Man- ager Polocki. 57 According to Moore, Polocki told her she should not vote, to which Moore replied that she had received a letter from the Union instructing her to vote, and that her eligibility would be determined later. Polocki then telephoned Moore's supervisor, Labor Re- lations Manager Makuch, and asked him if Moore's eligi- bility had been resolved. According to Moore, when Po- locki finished the call, he again told her not to vote, indi- cating that it would look bad for her department. 5 8 Moore then asked if this meant she may be fired, to which Polocki replied "no." Moore left and voted. Po- locki acknowledged the conversation and its subject matter, but denied he mentioned Moore's department, and, in fact, alleged that Moore (herself) stated that her voting" dosen't look good for the personnel office." Po- locki also denied that he told Moore not to vote, that, on the contrary, he told her to go ahead and vote, explain- ing that he was only stating his own opinion of her eligi- bility after having read the Board's election notice (con- taining a description of the unit). Moore supported the Union and this was known to both Polocki and Makuch. She had voted successfully in the 1975 election, and she testified that her job had re- mained the same. In my opinion the ultimate success of the challenge to Moore's eligibility (and vote) plays no role in my disposition of the alleged violation here. I find that Moore honestly or sincerely either thought she was eligible, or hoped she was eligible. In any event, there is no dispute over the fact that she had a right to vote, without intimidation. By the same token, the Respon- dent, of course, had the right to question Moore's eligi- bility, but not in the ultimate manner in which it was done. I credit Moore over Polocki here, regarding the "department" statement and Polocki's remarks that Moore should not vote. The voting had actually started and Moore was not on her way to vote. Polocki knew both of these facts, and further had either concluded, or suspected, that Moore would vote for the Union because of her previous support. It was also clear that Moore was bound and determined to vote and Polocki had early on in the incident indicated (or reiterated) his opinion of her eligibility. Why then, and thereafter, did Polocki fur- ther hold up Moore to reach her supervisor, Makuch? Of what use or value would Makuch's possible concurring opinion be at this late hour? If Polocki was so convinced that Moore was not eligible, what was the purpose of pursuing the matter further (or at all) at this late hour? These are, in my opinion, questions of some weight in determining the matter, and I cannot find adequate an- swers in the record to any of these questions. With Moore's credited testimony, and given the circumstances of the incident, in my opinion the alleged violation was s7 Moore's eligibility had been in question for some time. She was not on the eligibility list and was challenged by a Board agent. The issue cen- tered around a unit question, and not supervisory status. The challenge was ultimately upheld and her vote was not counted. 58 Makuch remembered the phone call and testified that he told Po- locki that Moore was "definitely" free to vote. proven. I find that Polocki's actions and remarks to Moore were intimidating and threatening in nature, and interfered with her "right" to vote, and thus violated Section 8(a)(1) of the Act as alleged. (f) The postelection conversation (January 27) of employee Moore with Chief Steward Dennis Paragraph 15(h) of the complaint alleges that the day after the election (January 27) Makuch, Moore's supervi- sor, and Employee Relations Manager Elzerman improp- erly "threatened" Moore with "unspecified reprisals" be- cause of her union support and activities. On that date, Moore had left her office, gone out into the plant, and had a conversation with Chief Steward Richard Dennis. They were seen talking by Manager of Manufacturing Services Patrick Brockway, who immediately reported it to Makuch. Makuch then paged Moore, who immediate- ly came to his office. Elzerman was also in, or soon thereafter arrived in Makuch's office. According to Moore, Makuch warned her not to go out into the plant or shop again on company time, claiming that she was "holding .. . employees up." Moore became very upset, started to cry, and accused Makuch and Elzerman of harassing her. Makuch and Elzerman then assured Moore they were not harassing her and indicated they were going to forget everything, that the incident would not affect her job, and that from then on they would consider that there was never any election. Elzerman tes- tified that the reason he confronted Moore was he had heard she felt the Company was out to "get her," and that he wanted to dispell her fears, explaining to Moore that, although her performance had dropped off prior to the election because of "personal problems" and "union activity," she had been a good employee and that the past would, in effect, all be forgotten. Makuch testified that Brockway called him and asked what Moore was doing in the shop, complaining that Moore was talking to Dennis, and "holding [him] up." Makuch responded by telling Brockway he would find out, and then he paged Moore. Brockway confirmed the call to Makuch, and indicated that it was unusual for Moore to talk to anybody in the shop, although there was no rule against it. Brockway also indicated it was unusual for the other (office) "girls" to stop in the shop because "the guys whistle . . . and all that." It is not my function here to pass on the propriety of the Respondent's manner of discipline here. My sole job is to determine whether or not the evidence supports a finding that Makuch and Elzerman "threatened" Moore with "unspecified reprisals" because of her conversation with Dennis or because of her past union activity. By Moore's account, she went to Union Steward Dennis to "protect" herself because she felt she was going to get fired. The General Counsel's theory behind this alleged violation is somewhat obsecure.a a Notwithstanding this, 19 It could be argued that Moore's conversation with Dennis (who did not testify in this case) was protected concerted activity because she was seeking some kind of union protection through Dennis as chief steward of the Union representing the production employees. Yet, nothing about this subject was mentioned in argument or in the General Counsel's brief. Continued 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD my overall problem here is in isolating or finding any threat of "unspecified reprisals." There were none, except if one were to stretch the point and consider that the entire incident and conversation equated to or consti- tuted such a threat. This, I feel, would be in error. Thus, I find no violation of Section 8(a)(1) in this instance. (g) The January 24 letter to employees The January 24, 1-1/2 page letter to the salaried em- ployees, signed by Elzerman, is the basis of an alleged violation in paragraph 15(d) of the complaint, in that it "implied" loss of salaried status "and the benefits that went with this status" if employees supported the Union. I find, in fact, that it did, by clear implication, tanta- mount to almost certainty. The letter mentions the new handbook for "salaried" employees as "better" than a union contract. Also, at the time of receipt of the letter, the employees knew about the new pension plan for "sal- aried" employees only. Having this knowledge, the letter goes on to state "If a Union is voted in, you are no longer a 'Salaried Employee."' The letter comes to an end with a slight bit of double-talk. On one hand, it in- forms the salaried employees that they "are part of man- agement," but adding that the new handbook was "a statement of policy and principal by management" for salaried employees. The concept of loss of status here was, in my opinion, inaccurate. It conveys as a fact the loss upon union representation. It assumes that one fol- lows the other. Such is not the case. Nor was it an abso- lute fact that benefits would be lost upon union represen- tation. The true and damaging message of course is the one who gives or grants could and would take away. I find, as alleged, that portions of the letter and its timely disbursement constituted a violation of Section 8(a)(l) of the Act. (h) Threats of loss of eligibility of pension plan Paragraph 15(b) of the complaint alleges that Secre- tary-Treasurer Portelli improperly threatened the loss of the pension plan when he briefly mentioned the new and forthcoming plan at the second "handbook" luncheon meetings of January 21. Employee Arline Fillie testified that Gambino asked if the new pension plan would apply to them if they "became a union," to which either Elzer- man or Portelli replied "definitely no." Portelli, Elzer- man, and Polocki all testified that the subject did come up and that Portelli's reply was that the new plan only applied to "non-bargaining unit" employees. Labor Rela- tions Manager Makuch testified that nothing was said about "unions," but he did indicate the subject of eligibil- ity came up at the January 25 formal pension plan pre- sentation, and Elzerman responded by indicating the plan was only for "non-bargaining unit" employees, as the plan itself recites in the beginning. I find that the subject of eligibility did come up, at both the January 21 lun- cheon meeting and the January 25 "breakfast" meeting. The exact verbiage used to respond to these questions I think is unimportant. It is absolutely clear the employees were in effect told that if they became represented by The specific allegation in the complaint does make reference to the broad Sec. 7 rights of the Act. the Union, which of course would involve bargaining unit membership, they would not be covered or eligible for the plan. The clear implication was that, if the em- ployees selected the Union, they would not only lose out on the new plan, but may well end up with no plan at all, because the resulting employer's duty to bargain with the Union regarding the employees' terms and conditions of employment. Here and again there is, in effect, the grant of a new and significant benefit, almost on the eve of the election and which, as it turns out, was to be ret- roactive to January 1. The choice thereby presented to the employees involved the prospect of losing this sig- nificant benefit within days if the Union won. The real and true impression gained here by the employees, I find, was that intended by the Respondent. It was, simply, here it is, and if you vote union we will take it away in several days. I find a violation of Section 8(a)(l) of the Act as alleged in paragraph 15(b) of the complaint. (i) The new pension plan and handbook The pension plan was new, innovative, and costly for the Respondent. It had been worked on for several years, although I do find that there was increased activ- ity toward its completion in the last half of 1976.60 This plan appears to have been the Respondent's biggest weapon used in its preelection activities and campaign, and the timing of its announcement (barely 24 hours before the election), together with its retroactivity, are most significant in this case. This retroactivity (to Janu- ary 1) was in effect an excuse or reason put forth by the Respondent for its timing. The Respondent's fiscal year ended February 28. The plan had to be announced 30 days prior to February 28, in order for the Respondent to take advantage of a tax advantage for contributions to the plan within the fiscal year of the plan's existence. This economic reason or excuse appears, I conclude, minute or even contrived when compared not only to the overall cost but to the very substantial affect and in- fluence it could rightly be expected to have on the em- ployees and their vote. The plan could well have been announced January 27 or 28, or, if economy was the keynote, even later with a starting date at the com- mencement of or slightly into the new fiscal year. The plan was a last-minute and unexpected windfall to most of the employees, and to indeed face its possible and im- mediate loss with a union vote suddenly attached much greater significance to the choice of such a vote. 6 The new handbook for salaried employees, announced and distributed at the January 20 and 21 luncheon meet- ings, was of somewhat less significance than the pension plan, but nevertheless, I find was a benefit to the em- ployees, and one which they had wanted (and been promised) for at least a year and a half, going back to 6o The brokerage firm of Alexander & Alexander was well respected and, notwithstanding this increased activity, there is no evidence in this case of any collusion between that firm and the Respondent to accelerate completion of the plan because of the upcoming election. 6' The question was raised as to whether the plan had actually been submitted to the IRS for approval. Beauchamp assumed that it had, al- though he stated that this would have been the responsibility of the Re- spondent's accountant (who did not testify in this case). However, the lack of the plan's ultimate implementation would have been left to deter- mine There is no such evidence in the record. AMERICAN SUNROOF CORPORATION 769 the period prior to the June 1975 election. It is unrebut- ted in this case that the handbook contained a few if any new benefits or significant changes in the Respondent's personnel practices. However, the desirability and need for such a handbook by the employees is understandable and undisputable. Elzerman was told to and did embark on what may be characterized as a "crash" program or project to complete the handbook over the Christmas holidays. The Respondent placed unusual emphasis and attention on the handbook, not only presenting it at a luncheon meeting attended by the management, but taking virtually an entire half-day in the process. The handbook and its contents were limited, of course, to only "salaried" employees, and its lack of application (or loss) should union representation result from the election, I find, was made clear during and throughout the 6-day preelection period. I find, as alleged in paragraphs 15(i) and (j) of the complaint, that the timing of the institution, announce- ment, and distribution of the pension or retirement plan, and the handbook, were calculated to influence employ- ees to vote against the Union, and thus violative of Sec- tion 8(a)(l) of the Act. 62 3. The union authorization cards The Union was contacted on August 13, and soon thereafter cards began to be circulated. The first and only real organizational meeting was held by Internation- al Representative Poole on October 28. Even at that meeting, Poole failed to state that one purpose of the cards was to designate the Union as the employees' bar- gaining representative. The thrust of his remarks were directed toward an ultimate election. The cards were cir- culated in various ways. Poole mailed some to "con- tacts" after he was contacted August 13. Some cards were signed at the October 28 union meeting, and blank cards were also distributed at that meeting. Chief ste- ward Dennis from the production department (or shop) handed out some cards, as did employee Michelene King and Supervisor Dorothy Gambino. Cards were handed out personally and placed on desks. Most were signed later and, after receipt, were mailed back later by the card signed in a self-addressed, attached envelope. Over and above Poole, of those who handed out cards, only three gave any testimony as to what they explained or told the prospective card signer regarding the purpose of the card. Supervisor Gambino testified she stated ". . . so we could have a meeting to see what these people had to say, and [ifJ they would help." 63 Employee King gave "e As the Supreme Court said in N L.R. B. v. Elxchange Part Co., 375 U.S. 4)5, 409 (1964): 'he danger inherent in wsell-limed increases in beinefits is the sugges- tion of a fist inside the vtrlset glo'e Employees are not likely to miss the inference that the source of hbenefits nw conferred is also from which future benefits nmust flow and which may dry up if not obliged See also iagara Wires, Inc., 24) N.RB No 185 (1979); and Serv-'- Stores, Inc., 234 NL.RB 1143 (1978). "' Gambino's psitiron as a "supervisor. " as pposed to her involve- ment in supporting the Unionil most of the campaign, adds additional clouds over the cards In addition Ito passing out cards and urging sup- port for the niion, her activities in this regard had more than minor sig- nificance, salice she had daily access a aa superisor,r to at llst 17 cm- a similar answer. Steward Dennis testified he gave cards to five employees but said nothing about the purpose be- cause they "seemed to know what the purpose was." Out of 24 cards, 19 of the signers testified in this case. Out of those 19, 15 were asked about the purpose and 14 testified essentially that they signed the card only to get an election.6 4 The cards and their purpose have been, to me, the most difficult issue in this case. The cards were single- purpose cards, that is on their face they explicitly autho- rized the Union only to act as the bargaining agent for the employees." s To conclude that many employees signed for a contrary purpose is not easy in light of Board authorities,66 but I feel constrained to do so in light of the total circumstances surrounding the card so- licitation, 67 and the testimony of at least 14 of the card witnesses.""8 I find that at least 14 of the 24 cards were signed for the sole purpose of obtaining the election which was held on January 26.6 9 111. THE UNIT There is no disagreement in this case to the appropri- ate unit of employees involved. As found and determined in the representation case (7-RC-13976), it is described as follows: All office clerical employees employed by American Sunroof Corporation, American Sunroof Manufacturing Company and Automobile Specialty Corporation, located at 18640 Reeck Road, 13400 Reeck Road and 13500 Reeck Road, Southgate, Michigan, who appear on the Employer's payroll for the biweekly period ending Sunday, December 26, 1976, but excluding Secretary to President, Sec- retary to Executive Vice-President and General Manager, Secretaries to Vice-Presidents, Secretary to Secretary-Treasurer, Secretary to Labor Rela- tions and Personnel Manager, Secretaries in Labor ployees who worked in her area. However in my opiniiii, Gambino's in- volvement is not the only and actual controlling factor in the determina- tion of the usefulness of the cards in this case regarding the fashioning of a remedy Thus. I feel that the full impact of her iniiolvement does not require complete examination and discussion in this Decision 64 The 15th employee (Martha Paulovich) indicated she signed the card to "help get the Union." Out of the 14 employees mentioned, and as indicated earlier, in my opinion only the testimony of two would possibly be interpreted otherwise. and here only because of slight inconsistencies not affecting credibility. There were leading questions from Respondent's counsel, and. indeed. by the General Counsel (normally on redirect ex- amination), but such was not always the case However. the pattern of responses was consistent and remained firm. 65 The Board in its investigation attempted to confirm this in mailing out the affidavits to card signers The results of this attempt were spotty and served as the first yellow light in this case However. even the re- sults of the affidavit canvas could not reasonably have forecasted the large number of employees who unexpectedly testified coiitrary tIo the stated purpose oil the face of the card itself So Curnlherland Shoe Corporation, 144 NIRB 12tS (193). 6i Levi Strauvss Co., 172 NLRB 732, fn 7 (1968) See also (;isil Packing Co., upru 6 I found n reason to discredit even I. much less all 14 of these wit- nesses on the subject of card purpose. 69 The effect of this finding will be discussed later herein, in the sec- lion of this Decision entitled "The Remedy " The attempts of the Re- spondent in this case to both add and withdraw members from the unit of employees invs oled will be discussed supra under the sectioln of this D)e- cision entitled "The Unit" 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Department, Labor Relations Assistants Coordinator of Salaried Personnel, Accountants, Auditors, Engineers, Purchasing Agents, Buyers, Administrative Assistants, Stylists, Illustrators, De- signers, Draftsmen, Lab Technicians, plant clerical employees, technical employees, professional em- ployees, managerial employees, confidential employ- ees, guards and supervisors as defined in the Act. The parties stipulated that the employees eligible to be included in the above unit were those found on the list of eligible employees submitted in the representation case and admitted into evidence in this case,7 0 as modified by the final results of challenges in the representation case, with certain exceptions. The Respondent maintained the right in this case to request deletion of several employees and to add additional employees which were not origi- nally listed. The General Counsel objected and I re- served ruling on the matter to this decision and allowed the evidence subject to the ruling. I have determined that it would be improper in this case to allow deletions or additions to the unit as urged by the Respondent and I thus have not considered the evidence on the subject found in the record. T I find the unit as above described to be limited to those listed employees, as modified by and in the representation case. Upon the foregoing findings of fact and initial conclu- sions, and upon the entire record, I hereby make the fol- lowing. CONCI.USIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The employees constituting an appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act are those contained in the unit as described in the section of this Decision entitled "The Unit." 4. On January 20 and 25, Respondent threatened em- ployees with more onerous working conditions (or the imposition of the use of timelocks) if the Union were se- lected as the bargaining representative in an up-coming election, in violation of Section 8(a)(1) of the Act. 5. On January 20, 21, and 25, the Respondent threat- ened employees with the loss of a newly implemented pension plan if the Union were selected o represent them in an upcoming election, in violation of Section 8(a)(l) of the Act. 6. On January 24 the Respondent threatened employ- ees with the loss of status as salaried employees, and fur- ther with concurrent loss of benefits that attached to that 70 The Exceior list This list contained 35 names and did not include Gambino and Sentineal, who had been the subject of controversy in the representation case but were stipulated as supervisors in the beginning f this case. After challenges, the list was reduced to 34. 7t Heritage Nursing Center, Inc.. 207 NLRB 826 (1973), citing, Pitrs- burgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941), and Rules and Regulations of the Board, Series 8, as amended, Secs. 102.67(f) and 102.69(c) In my opinion, this case does not fall within the Board's more recent ruling in Serv-U-Store. Inc., supra. status, if they selected the Union as their representative, in violation of Section 8(a)(l) of the Act. 7. On January 25, the Respondent granted an employ- ee a retroactive pay increase in order to dissuade said employee from voting for the Union in an upcoming election, in violation of Section 8(a)(1) of the Act. 8. On January 20 and 21 the Respondent announced and presented a new employee handbook to employees, and announced a new and forthcoming pension plan, only applicable to salaried or nonbargaining unit employ- ees, for the purpose of dissuading employees from voting for the Union in an upcoming election, in violation of Section 8(a)(l) of the Act. 9. On January 25, the Respondent announced, present- ed, and distributed a newly implemented pension or re- tirement plan to employees, applicable only to salaried or nonbargaining employees, for the purposes of dissuading said employees from voting for the Union in an upcom- ing election, in violation of Section 8(a)(l) of the Act. 10. On January 26 the Respondent interfered with an employee's rights under the Act in attempting to dis- suade said employee from exercising her lawful right to vote in a union election by expressing and stating to the said employee that she was not eligible to vote and should not vote, and that it would not look good for her department if she so voted, in violation of Section 8(a)(1) of the Act. 11. The improper and unlawful acts and conduct con- cluded above, and found herein, affected commerce within the meaning of Section 2(6) and (7) of the Act. 12. The Respondent has not otherwise violated the Act. THE REMEDY The General Counsel seeks a bargaining order in this case. The authority for such an order, as opposed to other more traditional remedies, in cases where an em- ployer's actions have the tendency to undermine major- ity strength and impede the election processes, is undis- puted, provided that there is a showing that at one point the Union had a majority. My earlier finding regarding 14 of 24 union authorization cards results in less than a majority showing for the Union as the bargaining repre- sentative of the employees. Until now, this finding would have been dispositive of the issue in this case by foreclos- ing the remedy of a bargaining order for lack of a major- ity. However, the full Board recently decided a case in- volving the lack of a majority, in which it ultimately re- fused to issue a bargaining order even though the em- ployee was found to have engaged in "outrageous" and "pervasive" unfair labor practices.7 2 Although there 72 United Dairy Farmers Cooperative Association of Pittsburgh, 242 NLRB No. 179 (1979) In this case, Chairman Fanning and Member Jen- kins would have issued a bargaining order based on language quoted in Gissel Packing Co., supra, from the lower Fourth Circuit Court of Ap- peals, which left open the possibility of imposing a bargaining order with- out need of inquiry into majority status. Member Penello refused issue to a bargaining order, maintaining the Board had no authority, and that the Supreme Court in Gissell did not place its stamp of approval on the Fourth Circuit's language Members Murphy and Truesdale, while indi- cating that the Board "may" have such authority, absent a majority, de- Continued AMERICAN SUNROOF CORPORATION 771 now appears to be some question about the dominant role a majority may play in certain cases, my decision here will be in accord with the ultimate outcome of United Dairy Farmers Cooperative Association, supra, and I shall not recommend a bargaining order in this case.7 3 Having found that the Respondent committed numer- ous unfair labor practices in violation of Section 8(a)(1) of the Act, as enumerated above, my recommended Order will require Respondent to cease and desist there- from, and, in view of their serious nature, to cease and desist from infringing upon the Section 7 rights of its em- ployees in any other manner and to post the usual no- tices. It will also be recommended that the election conduct- ed on January 26, 1977, in Case 7-RC-13976 be set aside and that the matter be remanded to the Regional Direc- tor for Region 7 for the purpose of conducting another election at such time and place he deems circumstances permit the free choice of a bargaining representative. Based upon the foregoing findings of fact, conclusions of law, the entire record in this matter, and pursuant to the provisions of Section 10(c) of the Act, I hereby issue the following recommended: ORDER 4 The Respondent, American Sunroof Corporation, Automobile Specialty Corporation, and American Sun- roof Manufacturing Co., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening emloyees with more onerous working conditions or the imposition of timeclocks, if they sup- port or vote for the Union in an election or if they sup- port any of the labor organizations. (b) Threatening employees with the loss of present or future benefits, including a pension or retirement pro- gram, if they support or vote for the Union in an elec- tion, or if they support any other labor organization. (c) Threatening employees with loss of status as sala- ried or nonbargaining unit employees, and with loss of other benefits of said salaried employees or nonbargain- ing unit employees if they support or vote for the Union in an election, or if they support any other labor organi- zation. dined to issue a bargaining order because they concluded other remedies were more suitable in the case. ?a In my opinion (without reservation), and given a majority in this case, a bargaining order would be appropriate under Gissel Packing Co., supra. 74 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. (d) Granting employees pay increases in order to dis- suade them from supporting or voting for the Union, or supporting any other labor organization. (e) Announcing, presenting, or distributing employee handbooks, pension or retirement plans, or any such benefits, or engaging in such conduct or activities and additionally indicating that said handbooks, pension plans, or other such benefits are only applicable to sala- ried or nonbargaining unit employees, for the purposes of dissuading employees from supporting or voting for the Union, or supporting any other labor organization. (f) Interfering with the rights of employees to vote in union elections by questioning their eligibility to vote while expressing the opinion that they should not vote, or that it would look bad for other departments or em- ployees. (g) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the purposes and policies of the Act: (a) Post at its Southgate, Michigan, facilities, in all buildings where office clerical and salaried employees work or may have occasion to enter, copies of the at- tached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's autho- rized representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in and about work areas and other areas as indicated above, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 7, 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 held on June 26, 1977, in Case 7-RC-13976 be, and it hereby is, set aside and that the case is hereby remanded to the Re- gional Director for Region 7 for the purpose of schedul- ing and conducting another election at such time that he deems circumstances permit the free choice on the issue of representation. [Direction of Second Election omitted from publica- tion.] 75 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."