Jeffrey Mfg., Division

JEFFREY MANUFACTURING DIVISION 33 Jeffrey Manufacturing Division, Dresser Industries, Inc. and United Steelworkers of America, AFL-CIO. Cases 11-CA-7051, 11-CA-7337, I 1-CA-7596, and 1 l-RC-4116 March 3, 1980 DECISION, ORDER, AND DIRECTION BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On July 25, 1979, Administrative Law Judge Stanley N. Ohlbaum issued the attached Decision in this consolidated proceeding. Thereafter, the Re- spondent filed exceptions and a supporting brief, the General Counsel filed exceptions and a sup- porting brief, and the Charging Party filed excep- tions and a brief in support thereof. Subsequently, the Respondent filed an answering brief in opposi- tion to the exceptions filed by both the General Counsel and the Charging Party. 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,' and conclusions of the Administrative Law Judge only to the extent consistent herewith. 2 1. The Administrative Law Judge found, and we agree, for the reasons stated by him, that the Re- spondent violated Section 8(a)(1) of the Act by in- terrogating employees regarding their union activ- ity; by creating the impression of surveillance of employees' union activities; by soliciting grievances from employees in order to deter them from select- ing the Union; by threatening employees with the reduction of existing benefits if the Union was se- lected as their collective-bargaining representative; and by threatening to close the plant and terminate l The Respondent asserts that the Administrative Law Judge's resolu- tions of credibility, findings of fact, and conclusions of law are the result of bias. After a careful examination of the entire record, we are satisfied that this allegation is without merit. There is no basis for finding that bias and partiality existed merely because the Administrative Law Judge re- solved important factual conflicts in favor of the General Counsel's wit- nesses. As the Supreme Court stated in .L.R.B v. Pittsburgh Steamship Company, 337 U.S. 656, 659 (1949), "T]otal rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact." Furthermore, it is the Board's established policy not to overrule an ad- ministrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings 2 The General Counsel has excepted to the Administrative Law Judge's recommendation that interest on backpay be computed at a rate other than the 9 percent requested by the General Counsel. We find no merit in that exception See Florida Steel Corporation, 231 NLRB 651 (1977) 248 NLRB No. 7 employees if the Union was selected as the collec- tive-bargaining representative. The Administrative Law Judge further found, as part of this consolidated proceeding, that the chal- lenge to the ballot of William R. Ford, Jr., be sus- tained; that the challenge to the ballot of Walter Ray Whitacre be overruled and his ballot opened and counted; and that the Respondent interfered with the election by engaging in certain objection- able conduct.3 We agree with these findings of the Administrative Law Judge. 2. In addition to the violations of the Act found above, the Administrative Law Judge found that on May 25, 1977, 4 the Respondent discharged em- ployee Terry Boyter in violation of Section 8(a)(3) of the Act. We agree with the Administrative Law Judge's finding, as amplified herein. ' The underlying facts, as found by the Adminis- trative Law Judge and more fully set out in his Decision, are as follows: On May 10, Boyter, who had been employed by the Respondent for approximately 6 years, met with Alfred L. Motley, a union staff representative, in order to discuss the prospects of attempting to organize the Respondent's plant. The following day, Boyter, along with approximately six other employees, attended another meeting with Motley, at which time they all signed authorization cards on behalf of the Union. Thereafter, Boyter actively and openly began soliciting other employees to sign such cards. Most of these solicitations oc- curred in the Respondent's parking lot after work- ing hours. According to the credited testimony of employee Ernest Gunnells, Boyter was observed engaging in such activity on Friday, May 13, by Factory Superintendent Ted Eller. As found by the Administrative Law Judge, Boyter was unlawfully interrogated regarding his union activities by Eller on May 16. On the follow- ing day, Eller once again approached Boyter at work and, after first interrogating him regarding the Union, he told Boyter that he (Eller), was sorry to have let everyone down and he didn't "think we needled] a third party . . . to talk to ev- erybody . . . if you've got a problem." Eller then asked Boyter what his problems were. When Boyter indicated that Maintenance Foreman 3 On October 27, 1977, an election was conducted among the employ- ees in the appropriate unit at the Respondent's Belton, South Carolina, facility. The tally of ballots showed that 65 ballots were cast for, and 63, were cast against, the Petitioner; there were 4 challenged ballots, a number sufficient to affect the results of the election. (In an unpublished Decision and Order in Case I -RC-4416 dated February 0, 178, we adopted, pro formao, the Regional Director's recommendation that the challenge to the ballot of Larry Burgess be overruled ) All dates refer to 1977 unless otherwise indicated Accordingly. we also adopt the Administrative Law Judge's conclu- sion that Boyter is an eligible voter and that his ballot should be opened and counted. 34 DECISIONS OF NATIONAL LABOR RATIONS BOARD Lowden was one of his problems, Eller told him to speak to Plant Manager Zwick about Lowden. In response to Boyter's inquiry as to how he knew about the Union, Eller said, "I just know," and fur- ther responded by stating that he had known about it for 2 weeks.6 Despite Eller's unlawful conduct, Boyter was not dissuaded from engaging in union activity but rather that afternoon continued to so- licit cards. On May 25, the date he was discharged, Boyter left his work station in Department 915 (machine shop, small assembly area) at or about 12:30 and went to the lavatory. On his return to his lathe, he stopped at the water fountain near the maintenance area where Prince, another employee, spoke to him and cautioned him against speaking of union activ- ity in front of fellow employee Whitacre, because he would report such statements. As Boyter turned to leave, James Matheson, the foreman in Depart- ment 914 (structural welding, fitting and assembly), came up and asked him if there was a problem with his machine. Boyter responded by asking him, "What the hell is it to you?" When Matheson di- rected Boyter to return to his machine, Boyter ex- claimed, "Why don't you kiss my damn ass?" 7 Boyter nonetheless immediately returned to his lathe, where he learned for the first time from Eller that the regular foreman in Department 915, Kay McCurry, had left early that day and that Matheson was substituting for him. During the se- quence of events described above, Boyter had been away from his lathe for 20 minutes at most. At approximately 2:45 p.m. Matheson told Boyter to report to Eller's office where, in addition to Eller, the Company's personnel director, Frank Ford, was present. At this meeting, Ford told Boyter that he could not speak to supervisors that way. Boyter replied by stating that he had used such language in the past.8 Ford then told Boyter 6 The Administrative Law Judge found that the Respondent violated Sec 8(a)(1) of the Act by Eller's above-noted interrogation and solicita- tion of grievances He dismissed the allegation, however, that the conver- sation also violated Sec. 8(a)(1) of the Act in that it created an impression of surveillance We agree with the violations found by the Administrative Law Judge. We also find, however, that Eller's response to Boyter's in- quiry clearly implies that the Respondent's knowledge of union activity had been acquired through surveillance. Accordingly, we conclude that Eller's remark created the impression of surveillance in violation of Sec 8(a)(1) of the Act. Since the Administrative Law Judge found other in- stances of this violation, his recommended Order requires the Respondent to cease and desist from such conduct Thus, our finding of this violation does not affect that portion of the remedy. 7 Administrative Law Judge credited Boyter's testimony that at the time he uttered this remark he was unaware that his own foreman, Kay McCurry, had left early and had asked Matheson to fill in for him TFhe Administrative Law Judge credited the testimony of Boyter and Gunnells to the effect that the language used by Boyter to Matheson was not unusual in the Respondent's plant The Administrative Law Judge noted at least three occasions where language of this type had been used by employees toward supervisors without discipline being imposed. he would have to be terminated and thereupon summarily discharged Boyter. As fully discussed by the Administrative Law Judge, the Respondent's witnesses who testified as to the asserted reasons for discharging Boyter varied somewhat in their explanations. In brief, Eller assigned as the reasons Boyter's three previ- ous warnings for being away from his machine and the use of "profane remarks to his supervisor" on the day of his discharge, which constituted a fourth offense. 9 Eller testified that the decision to dis- charge Boyter was a joint decision between him- self, Personnel Director Ford, and Matheson." Ford indicated, however, that the Respondent's resident manager, Zwick (Eller's supervisor), di- rected him to discharge Boyter if he could not suf- ficiently explain his actions that day. Acccording to Ford, he explained to Boyter that, in view of the Respondent's "Instructions for Administering Dis- cipline," the Respondent had no alternative but to discharge him. Contrary to Eller, Ford's testimo- ny clearly indicates that Boyter was not discharged for the remarks to Matheson; rather, he was dis- charged solely for being away from his work sta- tion. In this regard, however, Matheson testified that there is no restriction against employees using the water fountain and, as noted by the Adminis- trative Law Judge, the Respondent made no con- tention that employees must have permission to use the lavatory facilities or utilize them on an assigned schedule. In finding that the Respondent violated Section 8(a)(3) of the Act by discharging Boyter, the Ad- ministrative Law Judge noted the following: (1) Boyter's activity in card solicitation and other union organizational activities which was open, un- concealed, and admittedly known by the Respon- dent; (2) the Respondent's demonstrated animus to- wards the Union's organizational attempt; (3) the summary nature of the discharge in a manner that I The three previous warnings were dated October 30, 1975, July 22, 1976, and April 28, 1977 Eller indicated that it was the Respondent's policy not to give employees copies of such warnings. McCurry testified that with respect to the first to warnings he did not give Boyter a copy of the warning or even show it to him. Rather, McCurry merely told Boyter that he was being "written up." With respect to the third inci- dent, the Administrative Law Judge credited Boyter's testimony that, after first threatening him with a 3-day suspension, McCurry relented and told him,"Well, I'm going to let you go this time. I'm not even going to write you up. You're a good man. I'd hate to lose you." 'o Matheson testified, however, that he did not, in fact, recommend Boyter's discharge and further testified that, even if he had been Boyter's regular foreman, he would not have recommended his discharge for the above-described incident. i" The Administrative Law Judge noted, however, that, under the above-cited personnel policy, discharge is not required after the accumu- lation of three written conduct reports for the same offense, but rather can be considered, along with other forms of discipline. In this connec- tion, the Administrative Law Judge also noted that McCurry, Boyter's regular foreman, testified explicitly that there was no rule requiring an employee's discharge for a fourth offense. JEFFREY MANUFACTURING DIVISION 35 appears contrary to the Respondent's practice, since neither Boyter's regular foreman, McCurry, nor his substitute foreman, Matheson, recommend- ed such action; (4) the vulgar expression used by Boyter was not unusual in the Respondent's plant and was not intended as an act of insubordination, since he did not have knowledge of Matheson's role as his substitute supervisor; and (5) the distin- guishable, if not conflicting, reasons assigned for the discharge by Eller and Ford. In adopting the Administrative Law Judge's con- clusion, we emphasize that our agreement with him is based on our view that, after thoroughly analyz- ing the Respondent's asserted reasons for the dis- charge, the Administrative Law Judge has in fact found those reasons to be only a pretext for its un- lawful discriminatory purpose. By our agreement with the Administrative Law Judge's conclusion we do not, of course, condone the use of vulgar language to supervisory person- nel. Such expressions, however, must be viewed in the context in which they occur. The Board has long recognized the fact that obscene or vulgar language is used in the industrial sphere. 12 The General Counsel has established in this case that such language has even been employed toward su- pervisors in the past without any discipline being imposed against the offending employee. We hardly think, then, that the Respondent can rely on such language as a ground for discharge in the in- stant situation since (1) Boyter was unaware that Matheson was acting as his supervisor at the time he uttered his remarks and (2) the remarks were not delivered in a threatening or insubordinate manner inasmuch as Boyter returned immediately to his lathe after his exchange with Matheson.13 Moreover, Matheson himself testified that he, in fact, did not recommend Boyter's discharge for such language. Perhaps more importantly, although Ford relied on Boyter's remarks to Matheson as grounds for discharge at Boyter's termination inter- view, at the hearing he testified that those remarks did not play a part in the decision to discharge Boyter. Accordingly, we find that the Respondent seized upon Boyter's remarks to form a portion of its pre- textual reasons for discharging Boyter. Since we conclude that the discharge was motivated by dis- criminatory reasons, we find, in agreement with the 12 See, e.g. Passaic Crushed Stone Co.. Inc.. 206 NLRB 81, 85 (1973), and cases cited therein. 13 Thus, this case is clearly distinguishable from Cannon Electric Com- pany, 151 NLRB 1465 (1965), on which the Respondent places great reli- ance. The facts in that case reveal that the profane language employed by the discharged employee toward his supervisor was part of a pattern of insolent and insubordinate conduct Administrative Law Judge, that it violated Section 8(a)(3) and (1) of the Act. 14 3. Although the Administrative Law Judge found that the unfair labor practices committed by the Respondent were sufficient to warrant the re- medial bargaining order requested by the General Counsel, he refused to grant such relief on the ground that the Union had not been designated as bargaining representative by a majority of the em- ployees. The Administrative Law Judge arrived at this determination by first finding that, according to the parties' stipulated unit compositions as of September 16 and October 25,' 5 and his findings regarding the inclusion of Boyter and Whitacre and the exclusion of Ford, there were 133 unit em- ployees as of the former date and 138 as of the latter. The Administrative Law Judge then found that, of the 80 authorization cards introduced into evidence by the General Counsel, 14 of the cards did not constitute valid designations of the Union as bargaining representative. 6 Accordingly, he concluded that the Union never had achieved ma- jority status as it obtained only 66 valid cards, and he therefore found it unnecessary to consider the validity of the remaining authorization cards that are contested by the Respondent. Contrary to the Administrative Law Judge, we find, for the reasons set forth below, that the Union had in fact obtained a majority of valid authorization cards by Septem- ber 16 and maintained that status as of October 25. The record indicates that all 80 authorization cards submitted by counsel for the General Coun- sel contain clear and unambiguous language indi- cating that the signers authorized the Union to rep- resent them for the purpose of collective bargain- ing.' 7 In concluding that the 14 cards solicited by Boyter, Fant, and Elmer Kelly were invalid desig- nations, the Administrative Law Judge found that the totality of the circumstances surrounding the card solicitations by the three above-noted individ- 14 We do not agree, however, with the Administrative Law Judge's observation that Boyter's discharge may also be considered as objection- able conduct even though it occurred prior to the filing of the petition See Sunnyland Packing Co., 227 NLRB 590, 591 (1976). '5 September 16 is the stipulated date of the Employer's receipt of the Union's request to bargain. October 25 was 2 days before the representa- tion election. '" The Administrative Law Judge invalidated the 11 cards solicited by Terry Boyter (George M. Jordan, William D Spruell, Joey L Turner. Samuel D. Lindsay, Roy P. Hall, Sam F. Hanks, Benjamin Cobb, Larry W Horne, Ernest E. Gunnells, Coley D Prince, and Lester M Orin) 2 cards solicited by Herman Fant (Darrell B Foster and Daniel Fant)L and I card solicited by Elmer L. Kelly (George Kelly) 7 The language of the card is as follows: I hereby request and accept membership in the UNITED STEEL- WORKERS OF AMERICA, and of my on free will hereby au- thorize the United Steelworkers of America, its agents or representa- tives, to act for me as a collective bargaining agency in all matters pertaining to rates of pay, wages, hours of employment, or other conditions of employment, and to enter into contracts with my em- ployer covering all such matters. 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD uals "[were] of such character at least arguably to indicate that the purpose of the cards was designed for or essentially limited to petitioning or voting purposes in an election." 8 In so finding, the Ad- ministrative Law Judge noted that, "The testimony of important General Counsel witness Boyter in regard to those cards is certainly not clear, con- vincing, or persuasive to the contrary." In the Ad- ministrative Law Judge's view, Boyter's testimony, when considered in conjunction with the other rel- evant testimony regarding the solicitations of the 14 cards, led to the conclusion that counsel for the General Counsel had not met his burden of estab- lishing the validity of the cards. We recently set forth the standards by which we determine the validity of authorization cards, as follows: 19 In N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), the Supreme Court approved Board law on determining the validity or inva- lidity of authorization cards, as set forth in Cumberland Shoe Corporation, 144 NLRB 1268 (1963), enfd. 351 F.2d 917 (6th Cir. 1975), and reaffirmed in Levi Strauss & Co., 172 NLRB 732 (1968). The Court described Board law in the following terms (395 U.S. at 584): Under the Cumberland Shoe doctrine, if the card itself is unambiguous (i.e., states on its face that the signer authorizes the Union to represent the employee for collective bar- gaining purposes and not to seek an elec- tion), it will be counted unless it is proved that the employee was told that the card was to be used solely for the purpose of ob- taining an election. With respect to employees who sign cards upon alleged misrepresentations as to their purpose, the Court said, "[E]mployees should be bound by the clear langauge of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disre- gard and forget the language above his signa- lR Specifically, the Administrative Law Judge relied on (1) Boyter's testimony that he stated the purpose of the card as follows: "I told them that this was not a union card. I said 't doesn't mean that you are join- ing the union, it is just to petition for the union, to get a vote for the union.' I said that 'you would have to have 60 percent or better before we could get the union in here, or the government in here to, petition them' I said that it could help your wages, better benefits; I said, 'but you would have to negotiate everything you worked for if the Union did go in' "; (2) Herman Fant's testimony that he told his son, Daniel Fant. that "the sole or only purpose" of the card was to get an election and that, when Darrell Foster returned his signed card to Fant, Foster stated that he would help them get a vote but that he would not join the Union; and (3) Elmer Kelly's testimony that he told his brother George Kelly that the card was "for nothing but an election" "g Keystone Pretzel Bakery, Inc., 242 NLRB No 77 (1979). ture." (395 U.S. at 606.) The Court cautioned the Board not to apply the Cumberland Shoe rule mechanically, and quoted with approval the Board's langauge in Levi Strauss, supra, that "It is not the use or nonuse of certain key or 'magic' words that is controlling, but whether or not the totality of circumstances surrounding the card solicitation is such as to add up to an assurance to the card signer that his card will be used for no purpose other than to help get an election." (395 U.S. at fn. 27.) Although the Administrative Law Judge re- ferred to the proper standard, we find that, in cer- tain instances, he erred in its application. We note that counsel for the General Counsel established, through both authenticating testimony and the un- ambiguous language on the face of the authoriza- tion card, the prima facie validity of the cards in issue. The Administrative Law Judge appears to have required that, in addition, at least with respect to the cards solicited by Boyter, there be clear and convincing evidence that the solicitor did not engage in any misrepresentation as to the purpose of the cards. We do not agree with the imposition of such a standard of proof. Applying the proper standard, we find that, while Boyter's multiple comments, set forth above, allude, in part, to the use of the card for an election, they do not contro- vert the language of the card nor misstate its pur- pose. 20 Thus, in the absence of testimony by indi- vidual employees that statements made to them by Boyter added up to an assurance that the card would be used for nothing other than an election, we will consider the card valid. In the first instance, we note that all of the em- ployees whom Boyter solicited and who testified at the hearing indicated that they read the card before signing. With respect to what Boyter said to them, they testified as follows: S. D. Lindsay testified that Boyter told him the card was to "get a union representative to come down and talk to employees" and that it did not mean he was joining the Union. According to Lindsay, Boyter also discussed the possibility of the Union bringing better benefits and wages. Roy Hall testified that Boyter told him that "he was trying to get enough people to sign cards to get an election." On cross-examination by counsel for the General Counsel, however, Hall recalled that Boyter told him that the cards indicated union support. 20 Hedstrom Company, a subsidiary of Brown Group. Inc., 223 NLRB 1409 (1976), enforcement granted in part, denied in part, and remanded in part 558 F.2d 1137 (3d Cir. 1977); Federal Stainless Sink Div. of Unarco Industries. Inc., 197 NLRB 489, 494 (1972). JEFFREY MANUFACTURING DIVISION 37 According to Ernest Gunnells, Boyter told him that, "If we can get enough cards signed, we can get a union representative here to explain the Union to us, and maybe we can get a vote on it." Joey Turner testified that, after Boyter gave him a card, he read it and asked if it were true that it allowed the Union to bargain for him. According to Turner, Boyter replied, "No, it was just to get the union to come in and talk to us." On cross-ex- amination, however, Turner indicatd that, before he signed the card, Boyter stated that, if the Union came in, there would be a possibility of improve- ments in wages, benefits, and treatment by supervi- sors. George M. Jordan testified that Boyter told him "this is the card for the union" and, if enough cards were obtained, the Union "would come down and petition for votes; in other words, they could pass out literature." William Spruell testified that after he read the card which Boyter submitted to him, he asked Boyter, "Does this mean we are joining the Union?" Boyter replied, "All this will do is to get the union representative to show we are interested in talking to the union." The testimony of Lester Orvin reveals that Boyter did not make any representations to him, but merely gave him a card which Orvin read, signed, and returned. The testimony of Larry Horne is to the same effect. After examining this testimony, and noting spe- cifically that all eight of these employees read the card, we find nothing in the totality of the circum- stances to indicate that Boyter deliberately and clearly directed employees to disregard the express language of the cards, or otherwise assured them that these cards would be used for no purpose other than to get an election. 21 Accordingly, we find the cards of these eight employees to be valid. Likewise, we shall count the cards of Benjamin Cobb and Coley D. Prince, since the record re- veals that they read the cards before signing and, as we have indicated above, we do not find Boyter's general statement as to what he told em- ployees, standing alone, sufficient to invalidate oth- erwise properly authenticated cards. 2 2 21 The Great Atlantic Pacific Tea Company, Inc., 230 NLRB 766 (1977) (Champion's card); Peerless of America, Inc. v. N.L.R.B., 484 F.2d 1108 (7th Cir. 1973), enfg 198 NLRB 982 (1972). We find the instant case distinguishable from Bookland. Inc., 221 NLRB 35 (1975). There, the Board invalidated a card that had been so- licited with the statement that "the only thing the card was for was so that the Union could keep in touch with us through literature of what was going on in the Union itself"In that case, however, the solicitor also denied, in response to a direct question by the signer, that the card meant that the employees wanted a union and, more importantly, the signer never read the card 22 We agree with the Administrative Law Judge's finding that the cards of employees Samuel Hanks, Daniel Fant, Darrell Foster, and As noted above, after finding that 14 of the Union's authorization cards were invalid, the Ad- ministrative Law Judge determined that the Union never attained majority support among the employ- ees in the appropriate unit and thus he did not make findings or conclusions as to the validity of the remaining cards contested by the Respon- dent.2 3 Having reversed the Administrative Law Judge's finding with respect to 10 of the cards found invalid by the Administrative Law Judge, we must address the validity of the remaining con- tested cards. The Respondent challenges the validity of the cards of J. R. Gunnells, James Williamson, Theo- dore Thompson, James Shaw, and Robert Gun- nells, all of whom were solicited by employee Larry Horne. At the hearing, Horne testified that he received blank cards from Boyter on the morn- ing of May 12. He distributed the cards to several employees, telling them to read the cards and sign them if they wished. He unequivocally denied ever stating that the cards' only purpose was to get an election. J. R. Gunnells' testimony corroborates Horne's. Gunnells testified that Horne told him to read the card, sign it, and return it, all of which he did. Wil- liamson testified that he could not recall exactly what Horne told him and that he did not read the entire card before signing and returning it. We shall count both cards. With respect to Wil- liamson's card, there is nothing in the circum- stances surrounding the solicitation of the card to indicate that he was assured that the card would be used for no purpose other than to get an election. The absence of evidence indicating that Williamson read the entire card does not, in our view, compel a conclusion that he did not intend to designate the Union as a collective-bargaining representative. 2 4 We shall also count the cards of Robert Gun- nells, James Shaw, and Theodore Thompson, none of whom testified at the hearing. However, as set forth above, Horne's testimony does not reveal any improper solicitations. The Respondent also contends that the card of R. D. Bell is invalid because it was improperly so- licited. According to Bell's testimony, he received a card from Ernest Gunnells, who told Bell that George Kelly cannot be counted as valid designations After carefully re- viewing the relevant testimony, we are of the view that the totality of the circumstances surrounding the solicitation of these individuals added up to an assurance that the signer's card would be used for no purpose other than to help get an election 23 Of the 80 authorization cards introduced into evidence by counsel for the General Counsel the Respondent challenges the validity of 29 As each of the remaining 51 cards admitted into evidence vwas identified and authenticated on the record, we find that they may be relied on to deter- mine the Union's representative status 24 Keystone Pretzel Bakery, Inc., supra 38 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD the card did not mean that he was joining the Union but that "it was just to get a representative to explain the purpose of the Union to us at a meeting." Bell then read the card, signed it, and re- turned it to Gunnells. We do not find Gunnells' statement as to the purpose of the card sufficient to cancel the unambiguous language on the card, which Bell read, indicating that the signer autho- rizes the Union to act as a collective-bargaining representative. Accordingly, we shall count Bell's card as valid. The Respondent objects to the validity of the cards of James A. Cobb and Walter Palmore on the basis that the General Counsel's witnesses failed to authenticate the date on which those cards were signed. In addition, the Respondent chal- lenges the card of Jimmy R. Curry on the basis that his name was printed on the card rather than written and the solicitor did not witness Curry's execution of the card. The date on Cobb's card is May 11, 1977, while the testimony of Evans, who solicited the card, re- veals that Cobb executed the card on May 12, 1977. It is clear that such a minor variance will not affect the validity of a properly authenticated card. 25 The card signed by Palmore is dated September 31, 1977. Evans' uncontradicted testimony indi- cates, however, that Palmore signed the card at his home on September 13, 1977. The back of the card bears a marking that it was received by the Board's Regional Office on September 16. On the basis of Evans' testimony and the date stamp on the card, we find that it was executed on September 13, 1977, and that the date listed on the card is an in- advertent error. As we indicated with respect to Cobb's card, such a variance does not affect the validity of a properly authenticated card and there- fore we shall count both of the above-noted cards toward the Union's majority. With respect to the Respondent's challenge to the card of Curry, the record reveals that Curry testified at the hearing and identified his card and signature. Accordingly, his card is not rendered in- valid merely because he printed his name rather than wrote it in script, and it is certainly not invali- dated because the solicitor did not witness his sig- nature. 26 25 The Board has held that if there has been competent testimony as to its execution, even the absence of dates altogether will not affect the va- lidity of an authorization card. See James Innaco, d/b/a Skyline Transport. 228 NLRB 352 (1977), and Clark Products, Inc.. Subsidiary of Nopco Chemical Company, 160 NLRB 23, 31 (1966), enfd. 385 F.2d 396 (7th Cir. 1967). 26 See McEwen Manufacturing Company and Washington Industries, Inc., 172 NLRB 990 (1968), enfd. 419 F.2d 1207 (D.C.Cir. 1969), cert. denied 397 U.S. 988 (1970). The Respondent challenges the validity of the card of Richard Thompson, who is illiterate, on the ground that it was improperly solicited. Evans, while he was at Thompson's house on May 14, told him that the purpose of the card was to "try and get the union in down there" and that "most of the fellows down at the mill had signed one." In addi- tion, Thompson's wife, who was present at the time, read the contents of the card to her husband. Whether, as Evans testified, Thompson then signed the card himself or, as Thompson testified, his wife signed the card at his direction, is not a critical consideration since, in either case, it is clear that Thompson's signature was intended by him to show support for the Union. 2 7 The fact that Thompson did not read the card himself but rather had it read to him does not diminish its validity. The only requirement with respect to an employee who cannot read English is that the purpose of the card be adequately communicated to him. 28 We find that this requirement was met herein and we further find that none of the statements made by Evans act to invalidate the card. Accordingly, we shall count it toward the Union's majority. In view of our findings above, we conclude that the Union represented a majority of the Respon- dent's employees as of September 16, 1979.29 4. Although the Administrative Law Judge was of the view that the Respondent's unfair labor practices were sufficiently severe to warrant the is- suance of a bargaining order, in view of his finding that the Union never attained majority status, he did not impose one. Rather, in fashioning a remedy, the Administrative Law Judge recom- mended that the challenged ballots of Boyter and Whitacre, as well as the ballot of Burgess (the chal- lenge to which was withdrawn), be opened and counted and that a certification of representative issue if the revised tally of ballots resulted in a ma- jority being cast for the Union. In the event that the revised tally of ballots did not result in a ma- jority being cast for the Union, the Administrative Law Judge recommended that a second election be directed. As noted above, we agree with the Administra- tive Law Judge's recommendations regarding the challenged ballots. We also agree with his recom- mendation that a certification of representative issue if the Union prevails in the election. Having found that the Union did obtain majority support, 27 Essex Wire Corporation, 188 NLRB 397, 416 (1971) (Janik's card). 1" Ruby Concrete Company, 213 NLRB 724, 727 (1974), and cases cited therein. 29 As of that date, the Union had obtained 71 cards in the unit of 133 employees. In view of our finding that the Union attained majority status, we find it unnecessary to address the validity of the cards of Elmer Kelly, James Greer, Jimmy Sonefelt, William King, and Josh Smith. JEFFREY MANUFACTURING DIVISION 39 however, we further find that the unfair labor practices committed by the Respondent also war- rant the issuance of a bargaining order and we shall so provide. 30 The record reveals that the Respondent em- barked on its course of unlawful conduct on May 16, shortly after it first obtained knowledge of the Union's organizational campaign, and continued that course up to the very date of the election, Oc- tober 27. During this period, the Respondent's agents engaged in 13 separate instances of interro- gation; solicited grievances; created the impression of surveillance of employees' union activities; threatened one employee with the loss of existing benefits; and threatened the closure of the plant and the termination of employees if the Union was selected as the collective-bargaining representative. Additionally, the Respondent violated the Act by its unlawful discharge of Boyter, the Union's pri- mary adherent, on May 25. We find that the Re- spondent's campaign of unfair labor practices had "the tendency to undermine majority support and impede the election processes."31 After duly con- sidering the matter, we further find that the possi- bility of erasing the effects of the Respondent's unfair labor practices and of ensuring a fair election by the use of traditional remedies is slight and that employee sentiment, once expressed through au- thorization cards, would be better protected by the issuance of a bargaining order. A bargaining order is warranted here not only to protect employer free choice, but also to insure that the Respondent does not profit by its own wrongdoing. 3 2 Since the Re- spondent's unlawful conduct commenced in May 1977, prior to the Union's attainment of majority support, we shall date the bargaining order as of September 16, 1977, the date we have found that the Union obtained majority status. 33 30 The Great Atlantic & Pacific Tea Company. supra; see also Case. Inc., 237 NLRB No. 60 (1978). 3 NL.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 614 (1969). 32 Case, Inc.. supra: Gary Maughan and Michael Walsh, et al., a Califor- nia Limited Partnership, d/b/a The Holding Company, 231 NLRB 383 (1977), and cases cited therein. 33 Bandag. Incorporated, 228 NLRB 1045 (1977). Members Penello and Truesdale do not believe that the issuance of a bargaining order from this date is precluded by the absence of a violation of Sec. 8(a)(5) and (1) of the Act as of that time. See Beasley Energy, Inc d/b/a Peaker Run Coal Company Ohio Division #1, 228 NLRB 93, 97 (1977). Although Chairman Fanning would normally agree with this date be- cause it is also the date of the Respondent's rejection of the Union's demand for recognition, under the circumstances of this case he is unable to do so In Chairman Fanning's view, in the absence of a violation of Sec. 8(a(5) of the Act, the Board is not empowered to order bargaining as to past unilateral decisions and actions. See his concurring opinions in Beas- ley Energy. Inc., d/b/a Peaker Run Coal Company, Ohio Division #1, 228 NLRB 93 (1977), and Hambre Hombre Enterprises, Inc., d/b/a Panchi- to's, 228 NLRB 136 (1977). In the instant case, the charge alleging that the Respondent violated Sec. 8(aX5) and (1) of the Act by refusing the Union's demand for recog- nition on the above-noted date was not filed until April 25, 1978. Chair- ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Jeffrey Manufacturing Division, Dresser Industries, Inc., Belton, South Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their or other employees' union membership, affiliation, views, sympathies, activities, or other protected concerted activities, in interference with, restraint, or coercion of their exercise of any right under the National Labor Relations Act, as amended. (b) Creating the impression of surveillance, in violation of said Act, over its employees' union or other protected concerted activities under the Act. (c) Soliciting grievances from its employees so as to coerce or restrain them, in violation of said Act, from union membership or activity or attempt to bargain collectively, or so as to interfere with their exercise or attempted exercise of any right under the Act. (d) Threatening, expressly or impliedly, the ces- sation, cancellation, withdrawal, removal, discon- tinuance, loss, or diminution of any existing job-re- lated economic benefit or working condition privi- lege, or threatening adverse alteration of job status, or threatening that negotiation with a union would be based upon withdrawal or cancellation of em- ployees' existing job-related benefits and working condition privileges, or threatening closure or dis- continuance of its plant, or threatening any other form of reprisal, for union adherence, support, voting, selection of a union as collective-bargaining representative, or in the event of unionization. (e) Discharging, terminating the employment of, laying off, furloughing, suspending, or otherwise in violation of the Act altering the employment status of any employee, or threatening so to do, or failing or refusing to recall, reinstate, or rehire any em- ployee, because he or she has exercised or proposes to exercise or continue to exercise any right under the National Labor Relations Act, as amended; or directly or indirectly so doing, or threatening to do man Fanning is of the view that the Union's demand for recognition was continuing in nature and, because Sec. 10(b) of the Act precludes the Board from finding an unfair labor practice with respect to conduct oc- curring more than 6 months prior to the filing of the charge, that the Respondent violated Sec. 8(aX5) and (1) of the Act by refusing to recog- nize that demand on October 25, 1977; and that the Board's bargaining order should be dated as of that date. Since the Respondent has engaged in unfair labor practices of a suffi- ciently egregious nature as to demonstrate a disregard for its employees fundamental statutory rights, we adopt the Administrative Law Judge's order requiring the Respondent to cease and desist from in any other manner infringing upon the rights guaranteed to its employees by Sec 7 of the Act. See Hickmort Foods. Inc., 242 NLRB No. 177 (1979). 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD so, so as to discriminate in regard to the hire, tenure, or terms or conditions of employment of any employee because he or she exercises or pro- poses to exercise or continue to exercise such right or engage in such activity. (f) Directly or indirectly engaging in any of the foregoing actions or activities or any like or related act in order to dissipate the collective-bargaining representational status of its employees' lawfully designated collective-bargaining representative, or for the purpose of causing its employees to discon- tinue or refrain from exercising their right to bar- gain collectively with the Respondent, or other- wise so as to interfere with, restrain, or coerce its employees in the exercise of their rights under the Act, or so as to prevent, impede, or interfere with free and fair election processes of the Board under the Act. (g) In any other manner interfering with, re- straining, or coercing employees in the exercise of their right of self-organization; to form, join, or assist any labor organization; to bargain collective- ly through representatives of their own choosing; to engage in concerted activities for the purposes of collective bargaining or other mutual aid or pro- tection; or to refrain from any and all such activi- ties. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act: (a) Recognize, effective from the date beginning September 16, 1977, and, upon request, bargain col- lectively and in good faith with the United Steel- workers of America, AFL-CIO, as the exclusive representative of all employees in the appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. The appropriate bargaining unit is: All production and maintenance employees employed by the Employer at its Belton, South Carolina, facility, excluding office cleri- cal employees, guards and supervisors. (b) Offer to Terry Daniel Boyter immediate, full, and unconditional reinstatement to his former job (or, if that position no longer exists, to a substan- tially equivalent job) with the Respondent, without prejudice to his seniority and other rights, privi- leges, benefits, and emoluments, including but not limited to any pay and wage rate increases to com- parable employees since the Respondent's termina- tion of Terry D. Boyter; and make Terry D. Boyter whole for any loss of income, benefits, and emoluments (including overtime, holiday and vaca- tion pay, and time off, and hospitalization, medical and other insurance claims and benefits, both per- sonal and derivative and dependents, if any, and expenditures in lieu thereof during any noncover- age period until his reinstatement hereunder), to- gether with interest, in the manner set forth in "The Remedy" portion of the Administrative Law Judge's Decision. (c) Expunge from all of the Respondent's books and records any entry or mention indicating or to the effect that the termination of Terry D. Boyter was because of any work or work-related fault, de- ficiency, or shortcoming on his part or based upon contravention or infraction of any of the Respon- dent's rules, requirements, or policies; and refrain from making any such report or statement volun- tarily or in response to any inquiry from any em- ployer, prospective employer, employment agency, unemployment insurance office, or reference-seeker or inquiry. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its Belton, South Carolina, plant copies of the attached notice marked "Appen- dix." 3 4 Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by the Respondent's authorized repre- sentative, shall be posted in said premises by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 11, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. DIRECTION It is hereby directed that the Regional Director for Region 11 shall, within 10 days from the date of this Decision, Order, and Direction, open and count the ballots cast by Terry Boyter, Walter R. Whitacre, and Larry Burgess in Case 11-RC-4116, and prepare and serve on the parties a revised tally of ballots. If the revised tally reveals that the Peti- tioner has received a majority of the valid ballots a4 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 " --- JEFFREY MANUFACTURING DIVISION 41 cast, the Regional Director shall issue a Certifica- tion of Representative. However, if the revised tally shows that the Petitioner has not received a majority of the valid ballots cast, the Regional Di- rector shall set aside the election results, dismiss the petition, and vacate the proceedings. APPENDIX NOTICE TO EMPL OYEES POSTED BY ORDER OF THE NATIONAI LABOR RELATIONS BOARD An Agency of the United States Government After a hearing, the National Labor Relations Board has found that we violated the National Labor Relations Act, as amended, and has ordered us to post this notice. We will abide by the follow- ing: As employees, the National Labor Relations Act gives you these rights: To engage in self-organization To form, join, or help unions To bargain collectively through represen- tatives of your own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WII.L NOT question you in violation of the Act, concerning your union membership, affiliation, sympathies, desires, activities, or other rights or actions guaranteed to you under the National Labor Relations Act. WE WI.L NOT, in any violation of the Act, create the impression that your union or other protected concerted activities are under our surveillance. WE WlLt. NOT solicit grievances from you so as to interfere with, restrain, or coerce your exercise of your rights to join or act through a union, bargain collectively with us, or any of your rights under the Act. WE WILL NOT, in violation of the Act, threaten to discontinue any of your existing employment benefits, or to close down our factory, or to retaliate in any other way against you or your jobs, for joining a union or engaging in union activity, or for voting for a union, or for attempting to bargain with us collectively or exercising or asserting any other right you have under the Act, or in the event United Steelworkers of America, AFL- CIO, or any other union of your choice is se- lected by you as your bargaining representa- tive. WE WILL NOT discharge, terminate, lay off, furlough, suspend, refuse or fail to reinstate, recall or rehire, or in any way change the job status of any employee because he or she en- gages in union activity, or exercises, tries to exercise, or continues to exercise any right under the National Labor Relations Act. WE WIL. NOT refuse to recognize or bar- gain with United Steelworkers of America, AFL-CIO, as the exclusive representative of all employees in the bargaining unit described below. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed by Section 7 of the Act. WE WII.LL recognize, effective from the date beginning September 16, 1977, and, upon re- quest, bargain collectively and in good faith with United Steelworkers of America, AFL- CIO, as the exclusive bargaining representative of all the employees in the bargaining unit de- scribed below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an un- derstanding is reached, embody such under- standing in a signed agreement. The appropri- ate bargaining unit is: All production and maintenance employees employed by the Employer at our Belton, South Carolina, facility, excluding office clerical employees, guards and supervisors. WE WILL offer Terry D. Boyter immediate, full, and unconditional reinstatement to his former job, with full seniority and other rights, benefits, and emoluments, just as if we had not discharged him on May 25, 1977; and WE WILL pay him, with interest, for all wages and benefits lost by him because of that discharge. WE WILL also expunge from Terry D. Boyter's records any indication that he was discharged for any work-related fault, and WE WILL NOT so inform any other employer, pro- spective employer, employment agency, unem- ployment insurance office, or reference-seeker or inquiry. All our employees are free to join, or to refrain from joining, United Steelworkers of America, AFL-CIO, or any other labor organization. JEFFREY MANUFACTURING DIVISION, DRESSER INDUSTRIES, INC. 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION PRELIMINARY STATEMENT; ISSUES STANLEY N. OHIBAUM, Administrative Law Judge: This consolidated proceeding' under the National Labor Relations Act, as amended, 29 U.S.C. 151, et seq., was heard before me in Greenwood and Greenville, South Carolina, on 13 hearing days between March 29, 1978, and February 6, 1979,2 involving over 60 witnesses and 180 exhibits. All parties participated throughout by coun- sel, who were afforded full opportunity to present evi- dence and arguments, as well as to file post-trial briefs, received from all of the parties by April 30, 1979. The voluminous transcript (12 volumes), exhibits, and briefs, aggregating over 2,500 pages, have been carefully con- sidered. The principal issues presented are whether Respondent Employer violated Section 8(a)(1) of the National Labor Relations Act, as amended, through coercive interroga- tions of employees concerning their union sympathies and activities, creation of the impression of employer surveillance over those activities, soliciting employee grievances with a purpose of undermining the Union's organizational campaign, and threatening employees with reprisals for union activity; Section 8(a)(3) and (I) by dis- charging an employee for union activity and failing and refusing to reinstate him; and Section 8(a)(5) and I by failing and refusing to bargain collectively with the Charging Union, United Steelworkers of America, AFL- CIO, as exclusive representative of an appropriate bar- gaining unit of Respondent's employees. Also presented Complaint issued July 29, growing out of charge filed May 27, 1977. On October 31, 1977, the Board's Regional Director for Region 11 indefi- nitely postponed the hearing of this case, rescheduling it on November 18, 1977, for February 15, 1978. Case I -CA-7337: Consolidated com- plaint (consolidating this case with Case 11-CA-7051) issued on January 9, 1978, growing out of charge filed December 7, 1977, as amended Janu- ary 5, 1978. On January 12, 1978, the Regional Director consolidated the two foregoing cases with Case 11 RC-4416, that disposition and the Re- gional Director's accompanying Report on Objections and Challenges to a Board-conducted election held on October 27, 1977, being affirmed by the Board on February 10, 1978. Accordingly, hearing of the foregoing consolidated cases was commenced before me on March 29, 1978, but was thereafter, on application of General Counsel, adjourned sine die pending investigation of allegedly interrelated new charges. Subsequent- ly, complaint was issued in Case 11 l-CA-7596 on July II11, growing out of charge filed April 25, 1978. On General Counsel's motion dated July 19, all of the foregoing cases were consolidated by my order of October 13, 1978, which also granted General Counsel's motion of September 22, over Respondent's opposition of October 5, to amend the earlier consoli- dated complaint (Cases I -CA-7051 and 11-CA-7337), and preserved to Respondent the right to interpose any and all germane defenses and con- tentions relating thereto. (Respondent had, by cross-motion served August 28, moved to dismiss Case I -CA-7596 or alternatively for sum- mary judgment therein. The effect of my order of October 13 was to pre- serve to Respondent all of its defenses and contentions raised or suggest- ed in its cross-motion.) My order of October 13 also scheduled resump- tion of the hearing on November 1, 1978. On November 22, 1978, at my suggestion, General Counsel moved to merge all of the allegations of all of the foregoing complaints into a single superseding ("second amended") consolidated complaint (with yet further amendments), which I allowed, with leave to Respondent to interpose a single superseding amended answer, which it did on December 1, 1978. Case I -RC-4416, referred to above, involves issues the same as or interrelated to issues in the forego- ing complaint (CA) cases, as well as determinative challenges to ballots Unless otherwise specified, dates are 1977 throughout this Decision 2 With an 8-month intervening recess necessitated by the circumstances described in fn. 1, supra. is the question of the appropriate remedy for any unfair labor practices committed by Respondent.3 Upon the entire record and my observation of the tes- timonial demeanor of the witnesses, I make the follow- ing: FINDINGS AND CONCI USIONS I. JURISDICTION At all material times, Respondent has been and is a Delaware corporation, with a plant in Belton, South Carolina, for manufacture of mining industry conveyor components. During the representative calendar year im- mediately preceding issuance of the second amended complaint, Respondent manufactured and shipped, di- rectly in interstate commerce, to points outside South Carolina, products valued in excess of $50,000. I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), (7) of the Act; and that at those times the Charging Party Union has been and is a labor organization as defined in Section 2(5) of the Act. 11. AI.IEGED UNFAIR LABOR PRACTICES;FACTS AS FOUND After some necessary background, the matters with which we are here concerned will be considered chrono- logically as they occurred. A. Background: Respondent's Business, Its Organizational Hierarchy, and Its Employees' Attempts to Exercise Rights Under the Act Jeffrey Manufacturing Division of Dresser Industries, Inc., a Delaware corporation, maintains a mining indus- try over-and-underground conveyor components factory in Belton, South Carolina, the only corporate location in- volved in this particular case. The following Chart 4 is a schematic representation of the organization and managerial/supervisory hierarchy of Respondent's Belton plant, based chiefly on the testi- mony of Respondent's witnesses, at the times here mate- rial: 5 The supervisory status of William Riley Ford, Jr., (de- partments 911 and 912) and Walter Ray Whitacre (de- partments 911 and 913) is in issue and will be considered infra, section VI, "The Representation Case." B. Commencement of Respondent's Employee's Attempts To Exercise Rights Under the Act An attempt, renewed attempt, or continuing attempt to organize Respondent's Belton plant production and main- tenance employees for collective bargaining, under the Act, commenced in February 1977,6 when Respondent's a As already indicated (fn 1, supra), interrelated issues arising out of the October 27 Board-conducted statutory election are also here by con- solidation. [Omitted from publication.l Resp. Exh. 26 is a scale drawing of the Belton plant. 6 Respondent's witness and Foreman McCurry testified that he over- heard union talk among Respondent's employees in the lunchroom as early as 1975 or 1976. JEFFREY MANUFACTURING DIVISION 43 department 915 (machine shop) lathe operator Terry Daniel Boyter began telephoning United Steelworkers Pittsburgh headquarters on that subject. After a few more exploratory overtures, that Union's staff representa- tive and organizer, Alfred L. Motley, met personally with Boyter and several of his Belton plant coworkers at a nearby Anderson, South Carolina, motel on May 10, (1977). The progress of that unionizational attempt, including the promptly ensuing May 25 job discharge of Boyter- who had been in Respondent's employ for over 4 years and who undoubtedly, as borne out by Respondent's own witnesses, was the sparkplug and chief activist in the employees' unionization attempt-will now be shown. C. May When Union Representative Motley first met with Boyter on May 10 to discuss organization of Respon- dent's Belton plant employees, Boyter was accompanied by only one fellow worker. It was decided to hold a fur- ther meeting the next day, May II, which was attended by about a half-dozen employees, all of whom signed union bargaining authorization cards, additional such cards being distributed for signature by other employees. Boyter, aided by a few others, thereafter, actively and openly-to the conceded knowledge of Respondent's su- pervisory and managerial officials-began soliciting other employees to sign these union bargaining authorizational cards. On May 13 (Friday), Boyter turned over to Motley an orginial batch of at least 42 cards, in the com- pany parking lot, where he (Boyter) was observed doing so, as well as soliciting and obtaining the signature of an- other employee, Ernest E. Gunnells, on one of the cards, by Belton Factory Superintendent Eller through a plant window. 7 On the following workday, Monday, May 16, while at work, Boyter was approached by Factory Superinten- dent Eller who asked him, "How are you doing? How's your extracurricular activities going?" When Boyter an- swered, "What are you talking about," Eller replied, "You know what I'm talking about," to which Boyter responded, "They're going OK." This account by Boyter is not effectively disputed by Eller, who testified merely that he was unable to "remember" such a discussion. Preferring Boyter's better recollection, firmly adhered to on cross-examination, over Eller's defective recall, I find this instance of interrogation, alleged in paragraph 7(a) of the complaint, 8 established. On the same day, May 16, according to Respondent's employee Larry Horne, then employed in department 914,9 Horne was also approached at work by Factory 7 Established by credited testimony of Respondent's department 914 welder-fitter Ernest E. Gunnells (in its employ over 10 years), corrobo- rated by credited testimony of department 914 employee Larry Horne as well as of Boyter. 8 All complaint references are to the second amended consolidated complaint. 9 When he testified at this hearing, Horne was still in Respondent's employ. That circumstance, we have been instructed, weighs in favor of such a witness' credibility, since he testifies at risk of employer displeas- ure and retaliation Georgia Rug Mill. 131 NLRB 1304. 1305. fn. 2 (1961). Superintendent Eller, who inquired, "What is the prob- lem?" Horne countered, "What probelm?" Eller then asked, "Why is everybody signing those cards?" Horne answered, "I don't know." Eller pursued, "Why did you?" Horne indicated he was being paid less than he thought he deserved. Eller responded, "[I can't] under- stand why 46 people had signed them."10 Eller's testimo- ny regarding this episode, persuasively recounted by Horne, is that he is unable to "recall" it but he denies he ever "ask[ed]" Horne whether he had signed a card or told him that he "could not understand why 45 people had signed union cards." Considering Eller's at least par- tially defective recall, Horne's persuasive testimonial de- livery, and comparing the testimonial demeanor of the two witnesses as observed, I credit Horne's described testimony and find unlawful interrogation (complaint par. 7 (a)) as well as creation of the impression of surveil- lance, through Eller's purporting to advise Horne that he knew exactly how many union cards had been signed (complaint par. 7(b)), established. The complaint (par. 7(b)) further alleges that on May 16 Respondent's foreman, McCurry, also created the im- pression of surveillance of union activities. General Counsel's evidence concerning this consists of the testi- mony of employees Horne and Boyter. Horne testified that, shortly after Factory Superintendent Eller had indi- cated to him (as described above) awareness that 46 union cards had been signed, Horne asked the depart- ment 915 foreman, McCurry, how Eller knew there were 46 cards, to which McCurry responded that he did not know. Later that morning, when Horne saw Boyter at McCurry's desk, Horne remarked to McCurry, "Kay [McCurry], tell Terry [Boyter] how many cards we have got," to which McCurry replied, "46 cards." Boyter's account of this episode is essentially the same as that of Horne. Although McCurry's account is substantially dif- ferent, even crediting Horne's account, as corroborated by Boyter, I do not find the allegation that McCurry created the impression of surveillance sustained, inas- much as, for aught that appears, McCurry's knowledge as to the purported number of union card signers was de- rived from Horne and, when Horne later asked McCurry to tell Boyter (in Horne's presence), McCurry merely re- peated what Horne had told him (McCurry). Under these circumstances, crediting Horne's (and Boyter's) ac- count, it would be strained and unreasonable to find that McCurry created (to Boyter) the impression of surveil- lance over union activities about which Horne himself had informed McCurry and then later asked McCurry to pass on to Boyter. I accordingly find this alleged in- stance, by McCurry, of creation of the impression of sur- veillance, not sustained, and grant the motion of Respon- dent's counsel, upon which decision was reserved at the hearing, to dismiss the same. (In his post-trial brief, Gen- eral Counsel moved to delete the allegation. The motion is granted.) The testimony of Respondent's supervisors and manag- ers establishes that they were aware of the union card so- enfd. as modified 308 F.2d 89 (5th Cir. 1962); Witz v. B. A. C Steel Prod- ucts. Inc., 312 F 2d 14. 16 (4th Cir. 1963). 'o On cross-examination, Horne adamantly and convincingly denied he mentioned 46" to Eller--"No, sir, no way" 44 DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD licitational and organizational activities described, and that Respondent waged a seemingly determined counter- campaign to keep or wean away its employees from union affiliation. For example, on May 17, on the heels of the inception of the union organizational drive, Re- spondent held plant rallies of groups of employees, ad- dressed by its top management officials Etchberger (Etchburger) and Zwick, as well as Franklin Ford, at which there was displayed a 24- by 18-inch enlarge- ment' of the union card, with some of its words under- lined, and employees admonished not to sign. 2 Accord- ing to Company Personnel Director Frank Ford, Etch- berger and Zwick told the assembled employees that "We [have] a good operation [and don't] need any out- side people." Employee Horne's query, "If the union couldn't do us any good, why [is the Company] fighting it," elicited the management response that "[We don't] want any third parties around [here]." And, further ac- cording to Personnel Manager Ford, the Company not only conducted preelection meetings with its employees but also posted counterunion notices on its bulletin board(s). ' 3 The complaint (pars. 7(a), (b), and (c)) alleges that on May 17, following the incidents already detailed, Fac- tory Superintendent Eller engaged in further improper interrogation and solicited employee grievances in order to undermine the organizational campaign, and also con- veyed the impression of surveillance over union activi- ties. As to these, Boyter testified that on that day Eller once again approached him at his workplace and in- quired of him, "How is the union going?" To Boyter's answer, "It's going OK," Eller rejoined, "Well, I'm sorry to have let everybody down . . . [I don't] think we need[ed] a third party . . . to talk to everybody . . . if you've got a problem." Certainly it is reasonable to regard this as at least an implied assurance-designed to keep the Union out and drive a wedge between it and its adherents, as is familiar to the Board in its accumulated industrial relations administrative experience-that the employees' existing problems would be taken care of if the employees forsook the Union. Pursuing this further, Eller then asked Boyter what his problems were. Point- ing to Maintenance Foreman Lowden (Lauden), Boyter said, "That's one of the problems right there," with Eller suggesting that if he felt Lowden was a "bastard" Boyter should inform PLant Manager Zwick (Eller's superior) about him, as well as about Foreman Matheson (whom Boyter had also mentioned). When Boyter asked Eller if he could get the employees more money, Eller said he did not know. To Boyter's query of how Eller knew about the Union, Eller replied, "I just know" and had known about it for 2 weeks. That afternoon, after work, " Ford testified that it was he who prepared and delivered the cn- largement to Plant Manager Zwick 12 While Personnel Director Ford denies the employees were told not to sign, I credit the contrary testimony of General Counsel witness Horne, indicating they were so admonished-particularly considering the undoubtedly purposeful display or the blowup of the selectivcly under- lined card (Ford professes inability to recall what was underlined) and Ford's own testimony that Etchberger and Zwick pointed out to the (en- ployees that "We Ihave] a good operation [and don't] need aily outside people." :' It is not here asserted that such postings were unlawful. Boyter continued soliciting employees to sign union col- lective-bargaining authorizational cards. Concerning this episode, Eller testified that he was unable to recall any conversation with Boyter on or around May 17, although in general terms he denied ever asking any employee anything about union activities. 4 Preferring the straightforward testimony of Boyter to Eller's professedly deficient recollection and, on com- parative testimonial demeanor as observed, preferring Boyter's account to Eller's denial, I find the allegations in question concerning interrogation and soliciting em- ployee grievances '5 established by a fair preponderance of substantial credible evidence, but I do not regard and therefore do not find the allegation as to creating the im- pression of surveillance as established in this instance. Credited testimony of Respondent's welder-fitter Ernest E. Gunnells, in its employ for over 10 years,t 6 es- tablishes that about a week and a half after he signed his union collective-bargaining authorizational card, i.e., on or about May 22, he was approached at work by Fac- tory Superintendent Eller, who inquired of him, "Well, what do you think about this union thing?" Although Gunnells answered "Well, Ted, I really don't know,"' 7 Eller persisted, "Do you think we need one," to which Gunnells indicated that he would weigh the matter care- fully.' The complaint (par. 7(a)) lists this as another in- stance of unlawful interrogation. Eller denies he ever asked Gunnells about a union or any employee anything about union activity. Upon the basis of demeanor obser- vations, I prefer and credit the testimony of Gunnells, a highly impressive witness, over that of Eller, who re- peatedly throughout his testimony professed recollective deficiency or weakness, as well as a tendency toward evasiveness and hedging. I accordingly find the allega- tion sustained. The complaint further alleges (par. 7 (a)) that still an- other instance of improper interrogation occurred, in late May or early June, by Respondent's foreman, Matheson. Concerning this, Respondent's long-term (over 9 years) employee Ronnie Lawson, still serving under Mathe- son,' 9 testified that on the occasion in question, during work Matheson remarked to him, "Boy, this place is get- ting in a mess, isn't it," eliciting from Lawson the ques- tion, "Well, what are you talking about, the union," drawing from Matheson the response, "Yes, the way 14 Eller recalled a conversation-certainly seemingly not the one re- counted by Boyter--in which Boyter faulted Lowden for "standing over the employee" too much, and in which Eller indicated he (Eller) had dis- cussed it with Lowden's supervisor and hoped it would clear up. ', Concerning solicitation of enmployee grievances as violative of the Act, cf., e.g, NIL.R.B. v F.xchange Parts Company. 375 U S. 405, 409 410 (1964); Hedstrom Company v. N.L.R.B., 558 F 2d 1137, 1142 (3d Cir 19771; .VLR.B. v Ithe Brovhill Company, 514 F 2d 655, 657 (th Cir. 1975); Landis 1ool Co.. Dniiion of/ Liton Industrie v N L. R. B. 460 F 2d 23. 24 25 (3d Cir 19721, crt denied 409 US 915; N...R.B. v Crown Can Company, 138 F 2d 263, 267 (8th Cir 1943), cert denied 321 US. 769 (1944). " See fn. 9, upra (iutunnells had already signed a uniion card Cf Bonnie Bourne. an in- dividual d/h/u Bourne Co. v L.R.B. 332 :.2d 47, 48 (2d Cir 1964), that a false or c',asive answer by all employer I al employer question about union menimbership or activity hetokens he restraintful and coercive quality of the employer inquiry. See Ih pr lu See fn 9, rupra. JEFFREY MANUFACTURING DIVISION 45 people are running around here trying to get these [union] cards signed . . What do you think about it?" Lawson replied, "Well, I don't know too much about the union, I never have worked for one before." 20 Matheson echoed that neither had he. Matheson, a witness who im- pressed me unfavorably-in part because of his uncon- vincing denial that he never reported to his superiors the union activities he knew or had heard about, and his un- convincing denial that he knew or asked what the plant conferences of management with employees during the union campaign were about, and his further unconvinc- ing assertion that there was no management discussion concerning the Union-denies any conversation with Lawson other than "just talking about the strike [of] coal miners." In contrast, Lawson impressed me, as I ob- served his testimonial demeanor, favorably and his words rang true to my ears. I accordingly find the complaint allegation in question established. May 25: Discharge of Terry Boyter On May 25, after 6 years of employment with Respon- dent, its employee Terry Boyter, the linchpin of its em- ployees' union organizing attempts, was precipitately dis- charged, under circumstances which will now be de- tailed. Boyter entered Respondent's employ, at its Belton fac- tory, as an automatic machine (button-pressing) operator, progressing to a radial drill press and then an engine lathe, where he funtioned for 2 years in department 915 (machine shop, small assembly area) under Foreman McCurry. Boyter's work history, prior to his advent into union activism in exercise of rights assured to him by Federal law, appears to have been unremakable, includ- ing occasional reminders to him, as well as to other em- ployees-to some perhaps more frequently than to Boyter-by McCurry, "All right, let's go back to work." Boyter's testimony that he never received or was shown any written warning or expression of work deficiency or dissatisfaction, is consistent with the testimony of Re- spondent's managerial and supervisory officials that it was not company practice to do that. Boyter's testimony that his production was at times "over 100%" likewise accords with that of Respondent's witnesses, and his tes- timony is unchallenged that even Factory Superintendent Eller commented favorably on his production. On May 5, according to Boyter, 21 at or about 11:28 a.m. on the clock-2 minutes before the half-hour lunch- time-he, as other employees regularly, proceeded to wash his hands before lunch. He did not interrupt pro- duction to do so; if he had started his next work task, it would have run into his lunch period. On this particular occasion, however, Foreman McCurry accosted him and directed him to return to work. When Boyter pointed out he could do nothing in the 2 (or less) minutes re- maining before lunchtime, McCurry insisted he return to work and added that he would be suspended for 3 days if he declined to comply. When Boyter brusquely indi- cated he would not return under the circumstances, 21 See Bourn,. fn 17 1, supra I aw.son ariound hen signed a union card z1 The department '15 flireman, McCurr, ntr,a places the episode about to be described on April 28. McCurry instructed him to accompany him to Factory Superintendent Eller's office, where, after the situation was aired, Boyter complained that McCurry was "riding my back." According to Boyter, after saying that a first warning called for a 3-day suspension, the second for 2 weeks, and the third for discharge,2 2 Eller told McCurry to "do what you want," jocularly admonished both of them "Don't y'all fight," and then left. Thereafter, when McCurry indicated he would impose on Boyter a 3-day suspension without pay, Boyter told him that in that case he would not return to his job, reminding McCurry that it could take him a half hour to hone or braze a tool, or even hours to make a tool-Boyter makes and repairs his own tools, instead of taking them to the 200-foot distant toolroom to await repairs-thereby presumably econo- mizing on planttime as well as cost. Boyter also remind- ed McCurry that it had always been customary for em- ployees to wash up a few minutes before lunch, without any question raised about it previously. To this, accord- ing to Boyter, McCurry replied, "well, I'm going to let you go this time. I'm not even going to write you up. You're a good man. I hate to lose you." Accordingly, after lunch, Boyter returned to work-with the threat- ened 3-day suspension rescinded or not imposed. 2 3 Later that day, Factory Superintendent Eller again commented favorably to Boyter on his work, adding that McCurry "just doesn't understand the way you work." The events of May 25 preceding Boyter's discharge early that afternoon were as follows, according to Boyter, whose version is substantially consistent with that of Respondent's witnesses, as will be shown. Around 12:30 he went to the bathroom. On his way back to his work area, he took a sip of water at the fountain near the maintenance area, whence an identified fellow employ- ee 2 4 beckoned him and cautioned him not to talk about union activities in the presence of Whitacre, who would report it. As Boyter turned to leave, he observed the de- partment 914 (strutural welding, fitting, and assembly) Foreman, Matheson, standing there. Matheson asked Boyter if there was anything wrong with his machine. Boyter said no. When Matheson thereupon directed him to return to his area, Boyter blurted out, "Why don't you kiss my damn ass?" 2s Boyter insists that he was un- aware that his own foreman McCurry, was temporarily away and had asked Matheson to fill in for him. 26 Fol- 22 Boyter insists he knows of no application, other than his own case here, of any such policy. 23 Respondent has produced no Boyter timecard or record for April 28 (or May 5) or the ensuing days to the contrary Indeed. Boyter's time- card for the week ending May I (Resp Exh. 33), covering the 3 days following April 28 (when, according to McCurry, the incident in ques- tion occurred), shows he worked every day that week for a total of 47 hours (including hours of overtime); and his timecard for the week of May 8 (Resp. Exh 35). covering the 3 days following May 5 (when Boyter insists the incident occurred), likewise shows he worked all 5 days for total of 40 hours. Both timecards bear McCurrs's initials as foreman 24 Prince called by neither side, Boyter's testimony in this aspect thus standing unllcntradicted 25 [toyter nevertheless thereupon returned to his department (915). ' I credit Bhoyter as to this, particularly since not only was no ei- dence adduced to the contrary, but, s oill he shossn both McCurry and Matheson testified BoHler had not been so informed by them Boyter kilt.. f onlN on,, prior ,iccasion, around a ear preiousls, when Mathe- Continued 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lowing this incident, Boyter returned to his area, where he asked a fellow employee where McCurry was and was told he had left early. Around 2:45 p.m., Boyter was summoned by Matheson to Factory Superintendent Eller's office, where, in addition to Eller, Company Per- sonnel Director Frank Ford was present. After indicat- ing to Boyter that he could not speak to supervisors that way (and Boyter pointing out he always had), 27 Ford stated, "[We're] going to have to exterminate [you]" and summarily discharged him then and there. The testimony of Boyter, a witness who weathered grueling cross-examination, as well as that of other wit- nesses, indicates that he was the spearhead and sparkplug of the union organizational campaign at the Belton plant. It may be of interest to compare the level of union card signing among the Belton plant employees before and after Boyter's discharge, as shown by the following chart: 28 Respondent's accounts of and explanation for its dis- charge of Boyter are as follows. As has been noted, Boyter worked in the Belton fac- tory machine shop (department 915), under Foreman McCurry, who was temporarily away on the afternoon of May 25. Respondent claims that, in McCurry's ab- sence, the adjoining department 914 (structural welding, fitting, and assembly) foreman, Matheson, was temporar- ily in charge of department 915, although Boyter persua- sively and credibly denies awareness that McCurry was away or Matheson in charge, and Factory Superinten- dent Eller acknowledges that McCurry had been in earli- er on the day in question and Eller concedes ignorance of whether Boyter was made aware that Matheson was temporally filing in for McCurry. According to Eller, around 1:30 p.m. on May 25, Matheson reported to Eller that after he (Matheson) ob- served Boyter in the maintenance department following a 20-minute absence from the machine shop, Matheson asked Boyter whether he had any machine problems and Boyter said no; that Matheson thereupon directed Boyter to return to the machine shop, whereupon Boyter told Matheson to "kiss my God damn ass." When-still ac- cording to Eller-Eller questioned Boyter about this, Boyter admitted making the remark but denied aware- ness that Matheson was substituting as his supervisor in temporary authority over him at the time. Later that day, a "group decision" was made by Eller, Personnel son may have temporarily substituted for McCurry, the usual practice in case of McCurry's absence from department 915 being for senior machine shop employee Hanks or Jordan to substitute for him. 27 Boyter insists that language of the type he employed to Matheson- even in the absence of awareness that Matheson was temporarily filling in for McCurry-was usual in the Belton factory In this, Boyter is support- ed not only by credited testimony of other employee witnesses, but also, as will be shown, to a degree by some of Respondent's witnesses. Thus, Ernest E. Gunnells, in Respondent's employ at Belton for 14 years, heard another, identified employee-still working there and not contradicting him although called by Respondent as a witness-in all earnestness call Foreman Matheson a "lying son of a bitch," as well as Boyter tell Fore- man McCurry to "go to hell," without any disciplining; and Horne de- scribed the Belton factory patios as including the expression "mother f- er" and Boyter on various occasions calling Foreman Matheson a "son of a bitch," without disciplining. In any event, as will also be shown, Per- sonnel Director Ford testified unequivocally that the language used by Boyter had nothing to do with his discharge 28 [Omitted from publication I Director Frank Ford, and Matheson to discharge Boyter, and that decision was summarily executed, resulting in Boyter's discharge tout suite after 6 years of employment. Eller assigns as the reason for Boyter's discharge the al- leged fact that this was his "fourth offense," he having allegedly been given three previous warnings 29 (Octo- ber 30, 1975-G.C. Exh. 3; July 22, 1976-G.C. Exh. 4; and April 28, 1977-G.C. Exh. 2) and one on the day of his discharge (May 25, 1977), use of "profane remarks to his supervisor" (Eller, G.C. Exh. 5), constituting him a "fourth offender." 30 As to the alleged first of these "warnings," in 1975, Eller was concededly not involved, and Boyter's fore- man alone allegedly spoke to Boyter, whereas on the al- leged second occasion (1976) Eller spoke to Boyter. As to the alleged third occasion (April 28, 1977), Eller testi- fied that he personally attempted to straighten out the "conflict" between Boyter's foreman McCurry and Boyter, the latter having complained to Eller that McCurry was "riding my back," and Eller not wanting to see Boyter discharged and apparently even overruling an alleged recommendation of McCurry that he be sus- pended for 3 days for not "stayfing] on his job." (It is noted that this was around the time of the flareup of in- tense union organizational activity by Boyter.) 31 Eller concedes that Boyter was a good machinist, per- forming efficiently as such, during the entire 6 years of his employment; and that, indeed, his work efficiency rating at times even exceeded 100 percent. Concerning the use of "profane remarks" in the Boston factory, Eller maintains that, although profanity is not unusual there, "profanity" of the type attributed to Boyter and consti- tuting the alleged trigger for his discharge is unusual and intolerable because it smacks of insubordination. As to Eller's knowledge of union organizational activity at Belton in general and on Boyter's part in particular, Eller denies awareness on April 28 of either, within a context, however, of also testifying that he is unable to "recall" whether on or before that date (April 28) Boyter spoke to him about a union. Eller concedes, how- ever, that in May he not only heard rumors of union ac- tivity in the plant from Foreman McCurry and other foremen, but had direct personal knowledge of it 29 There are said to have been two additional "warnings" to Boyter, in his personnel file-one dated June 24, 1971 (G.C. Exh. 8) and one dated June 29, 1971 (G.C. Exh. 7). Eller conceded these had no bearing on Boyter's discharge. so Eller disclaims knowledge of whether Boyter was given copies of these warnings, and asserts it is not his Company's policy to do so. It is noted that the photocopy supplied by Respondent to the Board's investi- gator of Boyter's alleged "3d warning" of July 22, 1976, does not indicate any "previous warning" to Boyter, whereas the alleged original of that form produced at the instant hearing (i.e., C.P. Exh. 3) does, suggesting that the notation to that effect (i.e., checked box) on the alleged original was made after a photocopy not containing that notation was supplied by Respondent to the Board. Eller concedes, as does Personnel Director Ford, that it was not the Company's policy to furnish copies to employ- ees of written warnings placed in their file-notwithstanding the ambigu- ous words "Has employee received other reports" (emphasis supplied) on those report forms (e.g., G.C. Exh. 5). Finally, Respodnent's witness Matheson, who signed the terminal disciplinary report form on Boyter (G.C. Exh. 5), conceded that the checkmarks in the boxes on that form were nor on it when he signed the form. si According to Ford, Respondent's disciplinary warning system (G.C. Exh. 6) was revamped in late 1977, subsequent to Boyter's discharge. JEFFREY MANUFACTURING DIVISION 47 through seeing union handbills there early that month (May), and that he was specifically aware of Boyter's participation in union card solicitation; and that within "an hour or less" after he learned it he (Eller) reported it to his superior, Resident Manager Zwick,3 2 as well as to Personnel Director Ford (who, Eller says, seemingly di- rected the Company's antiunion campaign). Unlike Factory Superintendent Eller, Personnel Direc- tor Ford (who has functioned in that capacity since 1967) brought Respondent Resident Manager Zwick (Eller's superior) into the Boyter discharge picture: al- though Eller swore the decision to discharge Boyter was the joint decision of only himself, Ford, and Boyter's temporary fill-in foreman, Matheson, Ford testified that it was Zwick who directed that Boyter be discharged if he had no explanation.3 3 Ford supports Boyter's testimo- ny that Boyter insisted to Ford, too (as well as to Eller), that "I [Boyter] didn't know that Jim [Matheson] had anything to do with me" on the occasion in question. 3 4 According to Ford, he told Boyter that in view of the Company's appicable personnel policies as set forth in its "Instructions for Administering Discipline" (G.C. Exh. 6), the Company had no alternative other than to dis- charge Boyter.3 5 Personnel Director Ford concedes he was aware of Boyter's union activities prior to his discharge and that he was specifically so informed by Respondent's chief executive official, Etchberger (Zwick's superior), on 32 I have grave difficulty in crediting Eller's testimony that, although he was aware of the names of employees, including Boyter, who were involved, he did not share this information with Zwick, and that Zwick did not then and there ask him what employees were involved; and that Zwick never indicated to him what his (Zwick's) course of action would be. Later during cross-examination, Eller added that at a subsequent meeting with Zwick, the week after he made the foregoing report to Zwick, Eller furnished Zwick with a list of about a half-dozen employ- ees, including Boyter, implicated in union card solicitation. Notwithstand- ing the foregoing, at one point Eller testified he had no "knowledge" on May 25 (the date of Boyter's discharge) of union activity on Boyter's part; I discredit this. 33 This would seem to be at an extremely lofty level-indeed, near the very top-of Respondent's managerial hierarchy, particularly in view of Eller's testimony that not even he (Eller) ordinarily became involved in employee discipline. A more probable explanation for the extraordinary involvement of such high-level managerial personnel as Zwick and Eller, more in line with the Board's accumulated generations of specialized ex- perience in the world of industrial relations, is Boyter's preeminence in union organizational card-solicitational activity among the Belton plant employees, marking him as a prime target for liquidation from its em- ployment. 34 On cross-examination. Ford conceded he gave no consideration to this, indicating that, to Boyter's knowledge, Matheson was "a pan of the management of the company." a It is, however, noted that this statement by Ford to Boyter does not appear to be accurate, since under the "Instructions for Administering Discipline" cited by Ford (G.C. Exh. 6), discharge is not required but is only to be "considered." and even then, usually but not invariably, only after accumulation of three written "unusual conduct" reports "for the same offense." Indeed, during cross-examination, Ford conceded that under the cited personnel policy (G.C. Exh. 6), applicable at the time of Boyter's discharge, Boyter's discharge was not required, and, further, that-notwithstanding the cited written policy, Boyter's discharge was not recommended by his foreman (McCurry) since his foreman was not in the plant at the time and was not involved in the incident resulting in that discharging. Ford leaves unexplained this conceded departure from practice, in bypassing the discharged employee's foreman (McCurry), or-since Boyter's discharge took place on the afternoon of May 25- why he could not have waited until the following morning to consult with Boyter's foreman (McCurry). May 16-a little over a week prior to Boyter's dis- charge-who told Ford that Etchberger had learned from Eller during the previous week that "there were some union cards in'the place" and (also from Eller in the ensuing days) about Boyter's specific role in those activities. It will be recalled (supra) that it was on May 17 that Etchberger, Ford, and Zwick held roundups of groups of employees, displaying the enlargement of a union card with underlingings and informed them that, "We [have] a good operation [and don't] need any out- side people." Also contrary to Eller, Ford testified explicitly that Boyter was not discharged for "profanity" or the words he used to Matheson, but only for being away from his work station. However, as to this, as established by cred- ited testimony of Boyter, he was away from his work- place for only an extremely short interval for the pur- pose of relieving a toilet need, and his return to his workplace was momentarily interrupted only to take a sip of water at the fountain and to respond to a brief beckoning call from a fellow employee-neither individ- ually nor in the aggregate shown to be proscribed or un- usual activities or work absences nor of such a nature as to render believable the rigorous penalty imposed upon him. Without explanation, neither Zwick nor Etchberger testified, thus leaving unresolved any conflicting testimo- ny of their subordinates concerning their role in the dis- charge of Boyter or in any other circumstances of the case. Concerning Boyter's discharge, the department 914 (not Boyter's department 915) foreman, Matheson-in Respondent's employ for 17 years-testified that on the afternoon in question (May 25) he was temporarily over- seeing department 915 (Boyter's department) at the re- quest of its Foreman McCurry made to him shortly before noon. According to Matheson, between 12:30 and 1 p.m. he first noticed Boyter walking to the water foun- tain, about 10 minutes later "talking" with a fellow em- ployee in the aisle,3 6 and some minutes later in the main- tenance department. There, when he asked Boyter if he had a machine problem, Boyter first inquired of him, "What the hell is it to you?"3 7 When Matheson there- upon directed Boyter to return to his machine-without, for aught that appears, informing Boyter that Matheson was temporarily acting as Boyter's supervisor in the ab- sence of McCurry-Boyter extended the aforementioned inelegant osculatory invitation to Matheson. Matheson testified that, when he displayed his report (G.C. Exh. 5) of this incident to Eller, Eller instructed him to take it to Ford, who later called him in, with Eller there, and asked him to summon Boyter, whom Ford discharged then and there, stating to him, "You know we can't tol- a6 It is not suggested by Respondent that its employees may not talk to each other, or go to the fountain or toilet without permission or only on schedule. 37 This seems a hardly likely response if Boyter had known Matheson was in charge, even temporarily. The response suggests, rather pique on the part of Boyter prompted by his seemingly not unreasonable belief that Matheson was officiously intermeddling in a situation not only not calling for intervention by anybody but also none of his concern - 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD erate this3 8 . . You're terminated as of now." Conced- ing that "cuss words are used all over the shop" between employees and supervisors, 3 9 including habitually by Boyter, Matheson draws an attempted distinction be- tween Boyter and others in that regard, characterizing Boyter's tone as "demanding," in contrast, for example, to Jerry Gunnells, whom Matheson respects as "a Chris- tian boy, and he goes to church." Matheson concedes there is no restriction against employees' going to the fountain for a drink; and that he neither heard McCurry inform Boyter, nor that he (Matheson) informed Boyter, that Matheson was substituting for McCurry. Matheson explained that other foremen, as well as Factory Superin- tendent Eller himself, had on occasion also temporarily filled in for the department 915 foreman, McCurry. After first denying knowledge of any union activity by Boyter prior to the latter's discharge, on further cross-examina- tion Matheson acknowledged that he had heard "rumors," from a professedly unremembered source, as to such activity but not as to Boyter's involvement. 40 While stoutly denying that he ever reported or even spoke about union activity to anybody-not even to his immediate superior Eller or his own brother Preston Matheson (a union activist, of whom Foreman Jim Math- eson says it "would be hard for me to believe" he was involved in union matters)-and while also incredibly denying he was aware of what management was talking to the employees about during the four or five 30-40- minute employee assemblages it convoked during the union campaign, Matheson made it a point to remark that "I don't want no part of the union. I can't under- stand the union . . . I [don't] believe in it." Characteriz- ing Boyter, however, as "a real good worker ... a good machinist," Matheson testified explicitly that he did not recommend his discharge, and that, if Boyter had been working for him as foreman on the aforedescribed inci- dent, he would not have recommended his discharge.41 Finally, McCurry confirmed that he was not present on the afternoon of May 25 when Boyter was discharged and was not involved in that decision. McCurry has been in Respondent's employ for about 12 years, including the past 5 as foreman of department 915, machine shop small assembly area. Although McCurry characterizes the work efficiency of Boyter (who worked directly under him for about 2 years preceding his discharge) as "round 100 percent," 42 he has faulted him in the past for some- times leaving his machine unattended "more" than other 39 Ford's testimony. recounted above. will be recalled that Boyter's language to Matheson played no role in his termination 19 Including the words "hell" and "damn" by female employee Sara Mahaffey (McHaffey)-described by Horne as "Rowdy . She cusses everybody out"--these, however, being expressions which Matheson would not categorize as a "cuss word . . in my terminology." '40 In view of the quantitative level and open aid unconcealed nature of those activities by Boyter, coupled with the fact that Matheson was one of only four foremen at the time I regard this as difficult to believe. 41 This testimony by Matheson may be contrasted to that of Eller. .supra, that the decision to discharge Boyter was a "group decision" of a group including Matheson Eller in no way indicated in his testimony that Matheson interposed a dissenting opinion. 42 But, according to McCurry. "any good operator" could attain 100 percent or even higher efficiency, since "the standards were lax." If this is true, it is surprising why Respondent has failed to revise what appears to be its unconventional definition of "100 percent " employees, within a context of his (Boyter's) having a work habit spetrum of "good" to occasionally "extreme- ly poor." McCurry allegedly "warn[ed]" Boyter when he was away from his work an excessive time-once in 1975 (G.C. Exh. 3) and once in 1976 (G.C. Exh. 4), but on neither annual occasion did he give Boyter a copy of the warning or even show it to him, merely allegedly telling him he was "writing [you] up." Allegedly on April 28, 1977-this is the occasion which Boyter insists (supra) occurred on May 5-McCurry wrote out a "warning" to Boyter's file after McCurry observed Boyter cleaning his hands just before lunchtime, employ- ees being required, according to McCurry, to wash up during and not before their 30-minute lunchtime. After McCurry directed Boyter to return to his machine, al- though McCurry is "not sure" whether Boyter indicated to him there was nothing to do in the few minutes inter- im before lunch, McCurry instructed Boyter to accompa- ny him to Factory Superintendent Eller's office, where McCurry imposed on Boyter a 3-day suspension without pay and allegedly told him privately that he would give him "one last chance" and "terminate him" in case of "any more incidents."4 3 According to McCurry, when he had to leave work for personal reasons around noon on May 25, he asked the neighboring department 914 foreman, Matheson, to "look after my department" during his brief absence. Matheson concedes that, al- though on previous occasions he had notified department 915 employees of somebody else (e.g., Hanks or Jordan) who would be filling in for him during his absence, on this occasion (May 25) he did not so inform the employ- ees.44 McCurry learned about Boyter's discharge when he (McCurry) returned the following morning. McCurry concedes he could have suspended for 3 days, rather than discharged, Boyter for the episode here involved,4 5 and that Boyter was not the only employee who left his machine unattended on occasion.4 6 Also according to McCurry, there is no company rule or policy 4 7 requiring an employee to be discharged for a "fourth offense." His "absolute denial of knowledge of union activity at the plant before Boyter's discharge impresses me as incredi- ble,4 8 and is seemingly inconsistent with other portions of his testimony. 43 This differs sharply from Boyter's account, as described above, that McCurry assured him he would not even "write you up." On compara- tive demeanor observations and because, in marked contrast to Boyter, McCurry was vague and evasive and even demonstrated truculence during his testimony, I credit Boyter. Furthermore, Boyter's timecards lend support to Boyter's version, recounted supra, including fn 23, that McCurry rescinded (or did not impose) the 3-day suspension under the circumstances shown. McCurry agrees he told Boyter to return to work after lunch. 44 McCurry claims he told Department Coordinator Donnie Hill. Since, without explanation. Donnie Hill did not testify. there is no indica- tion that Hill passed on this alleged information. 45 But cf. statement of Personnel Director Frank Ford to Boyter and fn. 35, supra. 46 It is noted that there is no contention that Boyter left a running ma- chine unatended on the occasion in question. 4 But cf testimony of Factory Superintendent Eller, supra. 48 Again, as in the case of Matheson (supra, fn. 40), I find this hard to believe. for the same reasons and the fact that, as testified by Respondent Personnel Director and witness Frank Ford, the top management of Re- spondent as early as May 17 was conducting working time meetings with Continued JEFFREY MANUFACTURING DIVISION 49 After careful evaluation and consideration of the cir- cumstances constituting and surrounding the discharge of Boyter, within the frame of reference of the record as a whole including issues of credibiity based on testimonial demeanor, I am persuaded and accordingly find that his discharge was not because of any work-related fault, shortcoming, or discrepancy, but that it was at least in substantial and controlling part because of his preeimin- ent role in attempting to bring about that unionization and collective bargaining at Respondent's Belton plant which Respondent so strongly opposed. In arriving at this determination, I have given weight to the following among other considerations (including, as I have said, credibility, to the extent pertinent, based on my observation of comparative testimonial demea- nor). To begin with, Boyter was an at least satisfactorily productive employee of comparatively long standing in Respondent's employ at Belton (6 years), with an alleged "disciplinary" record of at worst a few aberrations- some in the nature of ancient history, seemingly resur- rected for defense of this case-not shown to be remark- able or extraordinary at the Belton plant. Even Respon- dent's witnesses characterize him as an efficient lathe- man. Vulgarisms and "profanity" were not unusual at Belton, any more or less, apparently, than they are in many if not most industrial plants, rough factory speech rather than polite tearoom talk being the rule rather than the exception in such an environment. Furthermore, Boyter's expression to Matheson was not intended as an insolent, insubordinative challenge, since Boyter- through no fault on his part-did not know that Mathe- son was substituting for his foreman, McCurry; and, in that context, it perhaps cannot be said that his offhand expression was clearly unfitted to the occasion, since Boyter not unreasonably assumed that Matheson was of- ficiously dabbling in a trifling matter not of his concern and in any case without justification or significance. Moreover, the particular factory idiom utilized by Boyter, particularly in this day and age with its prevail- ing language style, cannot be regarded-particularly within the context of the Belton factory idiom-as un- usual, much less as "profane," 4 9 and certainly not such as credibly to have warranted summary dismissal after 6 years of continuous employment with a commendable performance record. Finally, notwithstanding Factory Superintendent Eller to the contrary, Ford explicitly dis- groups of employees, emphasizing blown up and underlined wording on the union cards being openly distributed and signed. It is difficult for me to accept that McCurry (as well as Matheson and Respondent's few other foremen) were oblivious to all of this. In this connection, note has been taken of McCurry's admission that he attended two supervisory meetings concerning the Union. one possibly prior to Boyter's discharge. 49 Cf. e.g., in this regard, NL.R.B. . Thor Power Tool Company, 351 F 2d 584 (7th Cir. 1965). enfg 148 NLRB 1379 (1964); United States Postal Service. 241 NLRB No. 61 (1979): Merryweather Foam Latex Com- panvy. 214 NLRB 686, 694-695 (1974); Guerdon Industries, 199 NLRB 937, 940 (1972) Berl Pekin Corporation, 181 NLRB 1025 (1970), enfd. 452 F 2d 205 (7th Cir 1971); Butcher Bv Refrigerator Door Company, 127 NLRB 1360 (1960). enfd. 290 F.2d 22 (7th Cir 1961) Ni P. Nelson Iron Works, Inc., 80 NLRB 788, 795-96 (1948); he Bettcher Manufacturing Corpora- lion, 76 Nl.RB 526, 527, 532-537 (1948). See also NLR.B v M & B Hedwear Co., Inc., 34 F2d 170, 174 (4th Cir. 1965) Caputo % Salz- handler, 316 F 2d 445 (2d Cir 19h3), cert denied 375 US. 946 claimed Boyter's langauge on the described occasion as the reason for his discharge. The summary nature of Boyter's discharge, after his long tenure of employment, and-seemingly contrary to Respondent's own practice-without recommendation of Boyter's own foreman, his absent regular foreman, McCurry, or even of McCurry's temporary stand-in Matheson (who expressly conceded he not only did not but would not have recommended Boyter's discharge)- is likewise highly suspicious, as is the extraordinarily and perhaps unprecedentedly high level of top managemnet at which the matter was handled. Also noteworthy are the distinguishable, if not conflicting, reasons for Boyter's discharge now suggested by Ford as distin- guished from Factory Superintendent Eller. Boyter's pre- eminence in union card solicitation, as well as leafleting and other organizational activities which he had the lawful right under the Act to engage in at Belton, was open, unconcealed, and well known to Respondent, which was and remains-as is its right, in turn, through lawful means-opposed to the unionization of its plant with the corollary necessity for collective bargaining with its employees which unionization of the plant would impose. As has often been pointed out, union leadership and activity frequently lends substance to a discharge whose basis might otherwise seem equivocal. 5 0 In my view, that is true here so far as Respondent's dis- charge of Boyter is concerned. Indeed, under the cir- cumstances shown and in the total context of the entire case, it is the only explanation which fits all of the facts and "stand[s] under scrutiny." N.L.R.B. v. Thomas W Dant, Robert E. Dant, et al., d/b/a Dant & Russell, Ltd., 207 F.2d 165, 167 (9th Cir. 1953). I am convinced and find that the other reason or reasons assigned by Respon- dent, to its private file, to Boyter at the time of his dis- charge, and to me at the hearing, were and are pretex- tuous, the real reason being Boyter's immediately preced- ing burgeoning and seemingly dramatically successful union organizational activity in exercise of his federally guaranteed rights. D. June According to the complaint, following its May 25 dis- charge of Boyter, Respondent continued its interrogation of employees regarding their union sympathies and ac- tivities; including on June 8 (complaint, par. 7(a)). Con- cerning the latter, Respondent's first-shift roller assem- bler, Herman Fant, who continues in its employ after 13 years,5 t testified credibly that he participated in the union organizational campaign and attended all but one of the union organizational meetings, including that of June 7. On the morning after that (June 7, as well as each other) meeting, at work, his deprtment 913 fore- man, ray Douglas Lindsay (Lindsey), questioned him about whether he had attended the union meeting the night before. Each time Lindsay so questioned him, Fant replied that he had attended the meeting. Lindsay flatly no N.L.R.B. v Davidson Rubber Companv. 305 F 2d 166, 169 (st Cir 1962): NL.R.R v .VNabors, 16 F.2d 272, 275-276 (5th Cir 1952). cert denied 344 U.S. 865 See also N.L.R.B. v Elias Brothers Big Boy, Inc.. 325 F 2d 360, 366 (6th Cir 1963) "' Cf fi 9. upra 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD denies this, incredibly claiming that, with only a single exception he "never heard the word 'union' during work time" mentioned by any of his employees (later modified to "only Herman Fant"), while conceding on cross-ex- amination that "a couple of times" he told department 913 employees at their work machines that "we didn't want a union, and we didn't need one." I observed Herman Fant to be a believable witness, while, regretta- bly, I am unable to say as much for Lindsay in at least those aspects of his testimony relating to Fant, whom he has known for over 12 years and whom I believe he questioned about his union meeting attendance as tell- ingly narrated by Fant.5 2 I accordingly find the alleged episodes of interrogation as recounted by Fant, including that on June 8, established as alleged in the complaint. Notwithstanding the discharge of Boyter on May 25, union organizational activity (pamphleting and card sign- ing), including by Boyter, continued at and off the plant in June as well as thereafter, but with the dramatic dro- poff in union card signing shown above (sec. III, C, chart) after Boyter's discharge. E. July Another union organizational meeting occurred on July 26. As has just been found (D, supra), following 53 each of those meetings, the department 913 foreman, Ray Douglas Lindsay, questioned his subordinate, first-shift roller assembler and unit member, Herman Fant-a long- term employee in its employ for over 13 years-about his attendance there. For reasons already explicited, a second instance of interrogation of Fant by Lindsay on this subject, on or about July 27 as alleged in the com- plaint (par. 7(a)), is likewise found to be established by the same fair preponderance of substantial credible proof. F. August Union card collective-bargaining authorizational solici- tation, as well as organizational meetings (G.C. Exhs. 26 52 The testimony of Respondent's witnesses Burgess, Hill, and Cason is not inconsistent with that of Herman Fant, since they each testified they never heard Lindsay question Fant. Moreover, Fant did not testify that they were present when Lindsay questioned him as indicated, except Bur- gess on occasion. As to the latter, I nevertheless credit Fant over Bur- gess' disclaimer of having heard Lindsay question Fant. Burgess conced- ed that his workplace was about 30 feet distant from that of Fant and not within earshot, and also that his (Burgess') duties as setup man required him to wander around the department. According to Burgess, he was among thse who teased or "pick[ed]" at Fant for being "a union man" and for seeing his car at union meetings. 53 In his testimony concerning the first of these episodes, Fant indicat- ed it, as well as the others, occurred the day after the meeting-close to a year prior to his testimony here. Although Fant's timecard (Resp. Exh 32) indicates he had a sick day on July 27, the date specified in the com- plaint for this particular incident, I do not regard this as a sufficiently significant "variance" to require dismissal of this allegation, since the complaint alleges the dates set forth to have been "on or about" and since, for reasons already explicated, I credit the substance of Fant's testi- mony that he was indeed questioned concerning his attendance at union organizational meetings, on the following mornings (in the case of July, it could well have been on the morning of his return to the plant after miss- ing a day for illness), in preference to Lindsay's sweeping, blanket denials and unconvincing protestations of relative ignorance of the union activity openly caried out among the employees and openly opposed by manage- ment. and 27), continued in August 4 A further incident of in- terrogation of Fant by Lindsay is alleged (complaint, par. 7(a)) to have occurred on August 31, following the union meeting of August 30 (G.C. Exh. 27). For reasons already set forth (D and E, supra), I find this allegation likewise established. G. September Union card collective-bargaining authorizational solici- tation continued among Respondent's Belton employees in September. On September 15, the Charging Party Union by certi- fied mail demanded that Respondent recognize and bar- gain with it as the duly authorized collective-bargaining representative of a majority of Respondent's Belton fac- tory production and maintenance employees. It was stip- ulated at the hearing that this demand was received by Respondent on September 16. The demand has at no time been honored. The complaint alleges, the answer admits, and I find the following to be a unit of Respon- dent's Belton factory employees appropriate for collec- tive bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed by Respondent at its Belton, South Carolina, facility, excluding office clerical employees, guards and supervisors. 5 5 On September 16, the Union filed with the Regional Director its petition for statutory election and certifica- tion as exclusive collective-bargaining representative of Respondent's Belton factory production and maintenance workers. 56 The complaint further alleges (pars. 11, 12, 13, 14, 15, and 18) that, although on and since September 15 the Union has been selected and designated by the employ- ees of the foregoing unit as their exclusive collective-bar- gaining representative and has requested Respondent to bargain with it as such, Respondent has refused to bar- gain, thereby violating Section 8(a)(5) and (1) of the Act. These allegations, substantially denied (except for ad- mitted refusal to bargain) by Respondent, will be consid- ered infra. 54 Also in August, according to Foreman McCurry, two of his subor- dinates (Spruell and Jordan) asked him whether and how they could get out of the Union After checking with Personnel Director Ford, on the basis of what Ford told him, McCurry advised these employees they could do so by filing a paper to that effect in their company personnel files. McCurry testified he is "absolutely positive" this occurred after Boyter was discharged. Although both Spruell and Jordan were called by Respondent to testify as its witnesses, neither corroborated the forego- ing, nor was any resignation or withdrawal document produced nor testi- mony to that effect offered. 5" Although this description of the appropriate unit, as thus admitted in Respondent's answer, is copied from the complaint (par. 10), it is noted that the "unit agreed to be appropriate" is described as follows in the January 12, 1978, report (fn. 1) of the Regional Director: All production and maintenance employees at the Company's Belton, S.C. plant, excluding all office clerical, professional and technical employees, all guards and/or watchmen, and supervisors as defined in the Act. 5e The parties' Stipulation for Certification Upon Consent Election was approved by the Regional Director on September 30. JEFFREY MANUFACTURING DIVISION 51 H. October The complaint (pars. 7(a) and (d)) alleges further inci- dents of improper supervisory interrogation, by Respon- dent's department 911 foreman, Chester Mason, as well as its department 913 foreman, Ray Douglas Lindsay; and also of threats, by Mason as well as Factory Super- intendent Eller, of reprisals to employees for engaging in union activities, all in mid-October, shortly before the statutory election held that month under Board auspices. Regarding these, credited testimony of Respondent's former welder Sammy Lee Dodson establishes that in mid-October he attended an employer-convoked assem- blage of plant employees addressed by General Manager Etchberger, who, after reviewing all the existing employ- ment advantages of which he indicated the employees were beneficiaries, impressed upon the audience that they should appreciate that the Company had been good to them, and that they did not need and would fare better without a union; and also 57 that any employee caught talking about a union or passing out union cards would be "fired immediately on the spot." Later that day, Dodson, who was then attending or enrolled in a technical training course at company expense, inquired of Factory Superintendent Eller if the Company would be hurt if there were to be a strike. Eller's response was that not only the Company but also the employees would be hurt. Eller then asked Dodson if he had yet completed his (welding) school enrollment. When Dodson said he had, Eller remarked that if the plant became unionized all of Dodson's benefits "would be taken away" by the Company. Still later the same day, while at work in his department, Dodson was ap- proached by his foreman, Mason, who asked him, "Sammy, what do you think about the union?" To Dod- son's answer, "I really don't know that much about it,"5 8 Mason replied, "Well, I'm glad you don't ... " adding that a union could "cut down your pay" as well as result in reduction or elimination of existing employee benefits including schooling, overtime, and vacations, as well as in "the plant . . . close down." On the heels of this, after several prior turndowns, Dodson was-about a week before the statutory union representation election held under Board auspices-given a raise, with Foreman Mason reminding him, "Sammy . . . you couldn't walk to the union people and ask for a raise, could you? . .. I can help you with all your problems, and you can come to me about your raise." Following this, Plant Superin- tendent Eller asked him if he had gotten his raise, re- marking to Dodson, "Well, I hope you understood."5 9 Further regarding these allegations, Respodnent's former department 912 employee David A. Brooks testi- fied credibly that in mid-October, a day after he s; Dodson was unsure whether Etchberger said this on this particular occasion or at some other time. ' Dodson had been one of the early union card signers (May 13: G.C Exh. 43). See Bourne, fn. 17, supra. 59 In recounting this episode, one is ineluctably remined of the lan- guage of Mr. Justice Harlan, for a unanimous court, in N.L.R.B. v. Ex- change Parts Company, 375 U.S. 405, 409 (1964), analogizing to "the sug- gestion of a fist inside the velvet glove" and that "Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged." (Brooks) was apparently observed by Foreman Mason and Factory Superintendent Eller talking to Union Rep- resentative Motley right outside the factory after Brooks had clocked out, Foreman Mason approached him at his workplace and asked him, "What do you think about this union that is going on down here," drawing from Brooks the answer, "Well, I really don't know, you know,""" followed by Mason's response, "Well, the best thing to do [is) to vote 'no,' . . . we don't need a union" and that "we had more benefits now than a lot of plants had." Mason followed up on this by asking Brooks, "How do you think you are going to vote?" I Finally, there are additional alleged incidents of inter- rogation of Herman Fant by Foreman Ray Douglas Lindsay, on October 25, 26, and 27, again following the union organizational meetings on the preceding days of October 24 and 26; as well as on October 26, I day before the election, when Lindsay asked Fant at his workplace if he was a union man, this time eliciting from Fant the response that he had changed his mind about the Union,6 2 with a similar exchange on the morning of the election, October 27, with Factory Superintendent Eller, who asked him, "You're going to vote our way, aren't you," to which Fant responded, "Yes, sir." 63 Concerning the foregoing, so far as material to the complaint allegations under immediate consideration, Factory Superintendent Eller testified that, in a context of discussion with Dodson of the Company's being will- ing to underwrite the expense of training Dodson as a welder, he (Eller) was unable to "recall" whether men- tion was made of the Union, although he professedly did remember not telling Dodson of loss of school benefits in the event of unionization. While Eller concedes Dodson received a double pay raise (both a within-grade and a merit) during the unionizational campaign, according to Eller these were due only to improved attendance. As for Foreman Mason, while denying he ever questioned Dodson or Brooks concerning their union views, he (Mason) likewise (as Eller) professed inability to "recall" any conversation with Dodson on the subject of reduc- tion or loss of company benefits in the event of unioniza- tion. 6 ' Like Eller, Mason claims Dodson's double raise just before the union election was unrelated to the Union (or to any talk about the Union, which he denies), but was because of work improvement. I was favorably impressed with the testimonial demea- nor of Dodson and Brooks, while left with residual doubts about Mason because of his sweeping denials coupled with his professedly deficient powers of recall, within a context of selective recollection. Accordingly preferring and crediting the described accounts of Dodson and Brooks concerning Mason, as well as that of Dodson and Fant in preference to the broad denials within a context of selectively professed failures to "recall" by Eller, and the additonal incidents of interro- 60 Brooks was also an early union card signer (May 13: G.C Exh. 129) See Bourne, n. 17, supra 6' Emphasis supplied e2 See Bourne. fn 17. supra. e6 Ibid 64 Mason conceded that he had on one occasion informed Dodson (al- legedly in response to the latter's inquiry) that striking employees could be permanently replaced 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gation of Fant by Lindsay following union organizational meetings, for reasons already set forth, it is found that, with the exception of interrogation by Factory Superin- tendent Eller in mid-October (complaint par. 7 (a)- moved in General Counsel's post-trail brief to be deleted, the motion being hereby granted) these further episodes of interrogation, as well as of economic threats, essential- ly as set forth in the complaint, 65 have been established by a fair preponderance of substantial credible evidence on the record as a whole. Within a context of continued union organizational ac- tivities and company-convoked counterunion assem- blages of employees and bulletin board counterunion postings, a statutory election under the Act took place at Respondent's Belton factory on October 27. That elec- tion resulted in a vote of 65 in favor of union representa- tion and 63 opposed, with 5 (subsequently reduced to 3) ballots challenged and unopened. Those challenges, as well as union objections to employer conduct allegedly affecting the election results, are considered infra. Upon the foregoing findings 66 and the entire record, I state the following: CONC.USIONS OF LAW A. Jurisdiction is properly asserted in this proceeding. B. It has been established by a fair preponderance of substantial credible evidence upon the record as a whole that, under the circumstances described and found in sec- tion II, supra, on or about the following dates, as alleged in paragraphs 7(a), 15, and 17 of the second amended consolidated complaint, Respondent through its follow- ing agents, supervisors, and officials interrogated its fol- lowing employees, in violation of Section 8(a)(l) of the Act: 1977 Date or Approximate Date Agent/Super- visor/Official Ted A. Eller Ted A. Eller Ted A. Eller Ted A. Eller James Matheson Ray D. Lindsay Ray D. Lindsay Ray D. Lindsay Chester Mason Chester Mason Ray D. Lindsay Ray D. Lindsay Ted A. Eller Employee Terry Boyter Larry Hornme Terry Boyter Ernest E. Gunnells Ronnie Lawson Herman Fant Herman Fant Herman Fant SamTy Lee Dodson David Brooks Herman Fant Herman Fant Herman Fant (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) (13) May 16 May 16 May 17 May 23 Late May or early June June 8 July 27 August 31 Mid-October Mid-October October 25 October 26 October 27 C. The evidence fails to establish that, as alleged in paragraphs 7(a), 15, and 17 of said complaint, in or about mid-October 1977 Factory Superintendent Ted A. Fller interrogated any employee in violation of Section 8(a)(1) of the Act. D. It has been established by a fair preponderance of substanital credible evidence upon the record as a whole that, under the circumstances described and found in sec- tion 11, supra, on or about May 16, 1977, as alleged in paragraphs 7(b), 15, and 17 of said complaint, Respon- dent through its factory superintendent, Ted A. Eller, created the impression of surveillance by it over the pro- R6 And also lure of economic benefits to Dodson my Miaon, about week before the October 27 election, not alleged in the c mplainlt hut comprising Unioni Objection 7 to employer conduct affectilng the lectioni outcome. see he Representation Case, infra tected concerted union activities of its employees, in vio- lation of Section 8(a)(l) of the Act. E. The evidence fails to established that, as alleged in paragraphs 7(b), 15, and 17 of said complaint, on or about the following dates, Respondent through its fol- lowing agents, supervisors, or officials created the im- pression of surveillance by it over the protected concert- ed or union activities of its employees, in violation of Section 8(a)(1) of the Act: Department 915 Foreman Kay McCurry on May 16, 1977, and Factory Superinten- dent Ted A. Eller on May 17, 1977. F. It has been established by a fair preponderance of substantial credible evidence upon the record as a whole that, under the circumstances described and found in sec- tion 11, supra, on or about May 17, 1977, as alleged in " 'Recapitulated il appended chrlt, Appendix A [()OInitted frmntt publi- ctillll i JEFFREY MANUFACTURING DIVISION 53 paragraph 7(c) of said complaint, Respondent through its factory superintendent, Ted A. Eller, solicited grievances from employee Terry Boyter in an effort to undermine its employees' protected concerted union organizational campaign, thereby violating Section 8(a)(1) of the Act. G. It has been established by a fair preponderance of substantial credible evidence upon the record as a whole that, under the circumstances described and found in sec- tion II, supra, in mid-October 1977, as alleged in para- graph 7(d) of said complaint, Respondent through its fac- tory superintendent, Ted A. Eller and its foreman, Ches- ter Mason, threatened employees with economic reprisals in their employment in the event of unionization as a consequence of engaging in union activities, thereby vio- lating Section 8(a)(l) of the Act. H. It has been established by a fair preponderance of substantial credible evidence upon the record as a whole that, under the circumstances described and found in sec- tion II, supra, and as alleged in paragraphs 8, 9, 15, 16, and 17 of said complaint, on May 25, 1977, Respondent discharged, and has at all times since then failed and re- fused to reinstate, its employee Terry Boyter, because he engaged in concerted activities, protected under the Act, with other of Respondent's employees, for the purpose of collective bargaining and other mutual aid and protec- tion, including membership in and activities on behalf of United Steelworkers of America, AFL-CIO, Charging Party in this proceeding, thereby violating Section 8(a)(3) of the Act. I. Respondent's said discharge of, and its continuing failure and refusal to reinstate, its employee Terry Boyter, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7, thereby violating Section 8(a)(l) of the Act, as alleged in said complaint. J. The aforesaid unfair labor practices and each of them have affected, affect, and unless permanently re- strained and enjoined will continued to affect, commerce within the meaning of Section 2(6) and (7) of the Act. K. The appropriate collective-bargaining unit of Re- spondent's employees herein is: All production and maintenance employees em- ployed by Respondent at its Belton, South Carolina, facility, excluding office clerical employees, guards and supervisors. 7 L. Respondent's first and second defenses in its answer should be overruled and dismissed. 6 8 THF RMNIDI),' Remedy of the unfair labor practices here found re- quires issuance of a cease-and-desist order and reinstate- ment of unlawfully discharged employee Terry Boyter to his former job (or, if it no longer exists, to a substan- "' Further conclusions of law affecting this unit are contained in "The Remedy." iifra 'I These defenses mercli allege affirmaflisely , in general terms, that the complaint "fails to state a laini upon hich relief can hbe granted" (first defense) which is patently insufficient and incorrect as s a matter of law; and that Respondenlt dtnis, enlgaging in an' unfair labor practice (seond defense). the conrtrar 5 h;laing hecn established herein Respondet's addi- tional special defenscs are conslidered inira. under "l'he Remedy tially equivalent job), without prejudice to his seniority and emoluments,69 together with backpay and interest, computable as explained in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), F W Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).70 Respondent should also be required to preserve and make available to the Board's agents its records for backpay computation and compliance deter- mination; and to post the usual information notice to em- ployees. 7 In view of the serious nature of Respondent's sum- mary elimination of its long-term employee Terry Boyter when he embarked on his right to engage in union orga- nizational activity, within the context of its other unfair labor practices designed to keep the Union out of its plant by interfering with, restraining, and coercing its employees in the exercise of their federally guaranteed right to bargain collectively, while the Union assertedly represented a majority of the unit employees through valid representational designation cards even before the statutory election (complaint, pars. 10-15 and 17-19), General Counsel and the Charging Party Union seek a Gissel 72 bargaining order without the possible necessity 73 for a rerun election here. While I am of the view that Respondent's unfair labor practices, particularly its summary discharge of chief union organizational activitist Boyter, under the circum- stances shown, would merit a Gissell bargaining order,7 4 the necessary predicate for such an order, in the circum- stances here shown, under existing Board policy, is that the Union have attained demonstrable majority member- ! Including, but not limited to, any uage rate as well as in-grade and longesity increases in the interim, calculated as if he had not been termi- nated iS In the instant case, once again as for a considerable time, General Counsel urges, with a strongly supportive showing in a supplemental brief, that interest on backpaly be calculated at the more realistic rate of q percenlt (loweer, the Board has consistently to date declined to allow interest at that rate Persuasive as General Counsel's contentions appears to me to be and much as the situation may require, it is for the Board and not me to make such a change in its policy. Cf. Hansen Cakes, Inc, 242 NLRB No. 74 (1979) 7 1 Since discriminatory discharge of the leader of the employvees' orga- nizational drive strikes directly at "the ery heart of the Act" (.4 Kra- jewski Manufacturing Co., Inc., 180 NLRB 1071 (1970)). Respondel should be required to cease and desist from violating the Act In any ay N.L.R.B. v. Ent'rstle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941). 72 ;VL.R.B. v. Girrsel Packing Co. Inc., 395 US 575 (1969). 73 "Possible necessity," in view of the October 27 election oulcome. which, as indicated above, stands as potentially favorable to the Union by a vote of 65 to 63, with 4 ballots-subsequently reduced to 3, but still possibly determinative of the election outcome-challenged The election outcome thus teeters in balance, dependent on the resolution of those challenges. If the remaining valid ballots when opened and counted should turn the election outcome against the Union, the Union will hase lost the election, and a rerun election would in that eent depend on whether or not union objections to employer conduct said to have affect- ed the election were sustained-if sustained, a rerun election would be required. If, on the other hand, less than two votes against union repre- sentation were to result from the valid unopened ballots, the Union would in that event have won certification. The challenges and objec- tions are considered nfra, "The Representation Case" 74 .V.L.R.B. s Sitton Tank Company, 467 F2d 1371, 1372 (th Cir. 1972); A'L.R.B. v Kostel Corp. d/bla Big Ben Shoe Store, 440 F.2d 347, 352 (7th Cir 1971 ); I..R B s Lou De Young .Marker Basket. Inc.. 430 F2d 912, 915 (th Cir 1970) But cf. .VL.R.B. s. Pilgrim Foods. Inc. 591 F 2d 10)1(st Cir 1978) 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ship or representational status prior to a statutory elec- tion under the Act. 7 5 Careful appraisal of the record here persuades me that such showing has not been made by clear, satisfactory proof. Notwithstanding the firm, strong, and credible tes- timony of various card solicitors-notably, employee Clyde Evans-as well an an imposing array of credible employee card signers that they (the signers) were in- formed of, read, and understood the purposes of the card they signed as stated in its wording, and that they re- cieved no indication that the cards were limited to the purpose of a statutory election, nevertheless the testimo- ny of principal card solicitor Terry D. Boyter, as well as of other card solicitors and signers, in my opinion raises sufficient residual doubt in the other direction to "dises- tablish" any claimed union collective-bargaining repre- sentational majority, as claimed herein, to warrant a bar- gaining order without an election. Thus, the principal union card solicitor, Boyter, testi- fied, on his own his direct examination, that when he so- licited card 76 signatures and distributed 15 or 20 cards to other7 7 employees for solicitation: I told them that this card was not to join the union, it was to petition for the union, to get the union in so that we could have a vote, and that we had to have 60% or better of the cards, people signing the cards before the union would petition to the gov- ernment, and then we could have an election. (Em- phasis supplied.) While Boyter denies, in response to a leading-type ques- tion on direct examination, telling them "that the only reason for their signing the card would be to get an elec- tion," he also testified that: I explained it to them about it [i.e., the card] didn't say that you were joining the union,' s it was just to petition for the union. [Emphasis supplied.] I told them that this was not a union card. I said, "it doesn't mean that you are joining the union,78 it is just to petition for the union, to get a vote for the union." I said that "you would have to have 60 per- cent or better before we could get the union in here, or the government in here, to petition them." 75 It would seem that this requirement would not come into play in case of a demonstrated majority after the election, in the context of a continuing recognitional/bargaining demand. Cf. Gissel, 395 U.S. at 614; First Lakewood Associates, etc. v. N.L.R.B., 582 F.2d 416 (7th Cir. 1978). ;a The language of the cards themselves is clear: I hereby request and accept membership in the UNITED STEELWORK- ERS OF AMERICA, and of my own free will hereby authorize the United Steelworkers of America, its agents or representatives, to act for me as a collective-bargaining agency in all matters pertaining to rates of pay, wages, hours of employment, or other conditions of em- ployment, and to enter into contracts with my employer covering all such matters. 77 There is no testimony by Boyter as to what he himself was told when he signed his own card. What he told others, according to his own testimony, about to be quoted, may afford a clue. ?a But cf. the wording of the card, fn. 76, supra "I hereby request and accept membership in the [Union] ... ." I said that "it could help your wages, better bene- fits"; I said, "but you would have to negotiate ev- erything you worked for if the union did go in" [emphasis supplied] .... Joey Turner [a fellow employee] was walking up and wanting to know what was going on, and so I told him that we were signing cards to petition the union...." On cross-examination, Boyter testified: Q. And you told all of the employees who signed their card that this was not really a union card but a petition, is that correct? A. A petition for the union. Q. A petition for the union? A. Yes. A. I said that we had to have 60 percent of the people there, their cards, we had to have 60 percent or better before the union would petition for the gov- ernment. [Emphasis supplied.] A.... I said that they were not joining the union, that it wasn't a union card." In addition to his own card, Boyter identified 11 such cards solicited by him directly,7 9 plus 15 to 20 distribut- ed by him with such explanations to others,8 0 for solici- tation by the latter, or a total of at least II or 12 and potentially as many as 32 such cards. In addition to the union card solicitor, Boyter, Union Organizer Motley himself testified that he told employ- ees at the organizing meeting on June 7 (at which Herman Fant and Ronnie H. Lawson signed cards) that "the quicker we got the majority of the cards, the quicker we could get the election, and be on our way to being represented by the United Steelworkers of America" (emphasis supplied); and, also, that at the organizational meeting on June 16 (at which Randolph Ligon and James L. Greer signed cards) he told 15 to 20 employees essentially the same thing. Of the foregoing employees, Greer testified credibly that Motley told the employees at the meeting that the cards "would be used for an elec- tion." Still another union card solicitor, Herman Fant, seemingly conceded in his testimony that in soliciting the card for unit employee Darrell B. Foster (as well as the card of his son Danny Ray Fant) he told the latter that "the sole [or "only"] purpose of the card was to get an election"; and that, in surrendering the card to Fant, Foster specified that it was "for them to get equal rights for a vote." (emphasis supplied). Yet another card solici- tor, Elmer L. Kelly (now a foreman) testified that he told his brother George W. Kelly that the card was "for nothing but an election" (emphasis supplied). Of the unit employees card signers themselves, with- out necessity for going through the entire large list (80 including Boyter), William D. Spruell testified that, after he had signed a card on solicitor Boyter's assurance that it did not "mean joining the union" but only to "show the union that we are interested in talking to them about 1 I.e., those of George M. Jordan, William D. Spruell, Joey L. Turner, Samuel D. Lindsay, Roy P. Hall, Sam F. Hanks, Benjamin Cobb, Larry W. Horne, Ernest E. Gunnells, Coley D. Prince, and Lester M. Orvin. 80 I.e., Larry W. Horne and Coley D. Prince. JEFFREY MANUFACTURING DIVISION 55 the union coming into the plant . . . to show that we are interested in talking to the union to get them down here and see what they have to say," when he voiced some misgivings to Boyter after signing the card, Boyter again reassured him that "it [the card] would not be considered as a vote . .. .if we had enough, we could bring it up for a vote; if we had enough cards" (emphasis supplied). Unit employees Joey L. Turner, Samuel David Lindsay, and Ernest E. Gunnells similarly testified, credibly, that in soliciting their cards Boyter told them that "all it means [is] to get the union in to come in and talk to us" (Turner), "just to get a union representative to come down and talk to the employees" (Lindsay), and "If we can get enough cards signed, we can get a union representative here to explain the union to us, and maybe we can get a vote on it" (E. E. Gunnells; employee Roy D. Bell testified to the same effect) (emphasis supplied). Unit employee Roy P. Hall testified credibly that in soliciting his signature Boyter informed him that "[I am] trying to get enough people to sign cards to get an election" (emphasis supplied). Unit employee Sam F. Hanks testified that when, in connec- tion with Boyter's soliciting him to sign a card, he speci- fied to Boyter that "it doesn't mean that I will vote for it or against it," Boyter's response was, "Fill it out so that we could get a vote to try to get the union in" (emphasis supplied). The testimony of unit employee Jimmie R. Sonefelt indicates that, although card solicitor Boyter did not state the card was "only" for an election, he did say it was "just to get an election started, or a vote" (emphasis supplied). Unit employee Danny Ray Fant testified that his father, Herman Fant, solicited his card signature by telling him, "It doesn't say that the union was coming in, but if they had a certain number that they would have enough for an election to have a vote" (emphasis supplied). His father, Herman Fant, conceded in his testimony that in soliciting his son's card he told his son that "the only purpose of the union card [is] to obtain an election" and that his son told him after he thereupon signed the card that he would not join the Union if it got in. While the Supreme Court's admonition in Gissel is un- mistakable that an employer who has enaged in substan- tial violations of the Act in the interregnum between a union's seeking bargaining representational status and the outcome of a statutory representation election may by its actions forfeit the right to insist upon an election to de- termine the representation question and instead invite im- position of an electionless bargaining order as the next reasonable alternative, as the Supreme Court itself indi- cated, at least ordinarily this hinges upon the union's "majority" status.8 S The question remains, "majority" for what? I take this to mean majority for either union mem- bership or for union collective-bargaining (without, nec- essarily, an election) purposes. Such a majority has simply not been established here, in view of the de- scribed testimony of Boyter and others, necessitating the subtraction or not counting of at least the cards solicited by Boyter, Herman Fant, and Elmer L. Kelly, and the Roy P. Hall and Sam F. Hanks cards, from the alleged majority. The gross union card count (i.e., counting all cards as valid), as of September 16 (stipulated date of Employer's receipt of Union's September 15 recogni- tional/bargaining request), and as of October 25 (2 days before the statutory election of October 27) here is: Basis 82/; 83/ September 16 82/ October 25 82/ Excluding Boyter, but including Ford and Whitacre 79/133 : 59% 79/138 : 57% Including Boyter, Ford, and Whitacre 80/134 : 60% 80/139 : 58% Excluding Boyter, Ford, and Whitacre 79/131 : 60% 79/136 : 58% Including Boyter, but excluding Ford and Whitacre 80/132 : 61% 80/137 : 58% Including Boyter and Whit- acre, but excluding Ford 80/133 : 60% 80/138 : 58% "' Gissel, 395 U.S. at 596-597 and 614. No claim is advanced here of extraordinary circumstances necessitating extension of or exception to such a requirement on the theory that but for the Employer's actions the Union would have attained majority bargaining authoriational (as distin- guished from mere representation-election authorizational) status. Nor has such proof been adduced here. Nor will it be speculated here as to what extreme circumstances might impel the Board to issue an electionless bar- gaining order where no actual card majority at any time has been estab- lished; cf. United Dairy Farmers Cooperative Association, 242 NLRB No. 179 (1979); Gissel, 395 U.S. at 613-614. s In each case, fractional numerators indicate gross total of union cards signed, denominators indicate total unit employees (with "basis" specifications shown), and percentages to closest percent. Figures are based upon all union cards in evidence and stipulated unit compositions on September 16 and October 25 (O.C. Exhs. 14 and 15), with parties' indicated provisons thereto, and other stipulations of record. an The status (rank-and-file or supervisory) of Ford and Whitacre, in issue here, is considered in sec. VI, "The Representation Case.," infra. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find that, in view of the aforequoted testimony of the card solicitors and signers, at least the 11 cards solicited by Boyter (including Roy P. Hall and Sam F. Hanks), the 2 by Herman Fant (i.e., Darrell B. Foster and Danny R. Fant), and the card by Elmer L. Kelly (i.e., George W. Kelly) should not be counted, as they have not been established to have been executed and delivered for a purpose other than to procure a statutory election. It is apparent that if even only these 14 cards-comprising only two-thirds of the above 21 84 cards-do not, as I find, because of not meeting required standards of burden of proof and persuasion, merit being counted as union membership or bargaining authorizational creden- tials even without an election, and are therefore subtract- ed from the figures shown on the foregoing chart of gross card count, the Union did not have a majority of employee membership or "authorizational" (i.e., bargain- ing authorization even without an election) cards in the unit: Basis 85/ September 16 85/ October 25 8/; 86/ Excluding Boyter, but including Ford and Whitacre 65/133 : 49% 65/138 : 47% Including Bcyter, Ford, and Whitacre 66/134 : 49% 66/139 : 47% Excluding Boyter, Ford, and Whitacre 65/131 : 50% 65/136 : 48% Including Bcyter, but excluding Ford and Whitacre 66/132 : 50% 66/137 : 48% Including Bcyter and Whit- acre, but excluding Ford 66/133 : 50% 66/138 : 48% In considering whether to allow a Gissel electionless bargaining order, it is necessary, upon the basis of the total record in the particular case, to strike an important balance-that between, on the one hand, by withholding such an order, "rewarding" an employer who by his sub- stantial unfair labor practices during the interval while I.e., Terry D. Boyter, I employees solicited by Boyter as testified by him (George M. Jordan, William D. Spruell, Joey L. Turner, Samuel D. Lindsay, Roy P. Hall, Sam F. Hanks, Benjamin Cobb, Larry W. omrne, Ernest E. Gunnells, Coley D. Prince, and Lester M. Orvin) as quoted above; Herman Fant, Ronnie H. Lawson, Randolph Ligon, and James L Greer (based on testimony of Union Organizer Motley, as re- counted above); Darrell B Foster (based on his testimony as well as that of Herman Fant); Roy D Bell; George W. Kelly; Jimmie R. Sonefelt; and Danny R. Fant. awaiting the election has destroyed any reasonable prob- ability of the election outcome as a genuine reflection of the employees' true representational desires, thereby jus- tifying resort to the less preferred but still acceptably re- liable alternative of a card count as the litmus; and, on the other hand, the danger, by imposing such an order without an election, of foisting an unwanted union on a "8 With the same footnote provisos and explanations as in the immedi- ately preceding chart, supra, fns. 82 and 83. s8 It is noted that Respondent's Excelsior list (G C. Exh. 16) has six fewer names than the stipulated list of employees on October 25 (G.C. Exh. 15). These are (with their stipulated dates ol hire according to the stipulated October 25 list (G.C. Exh. 15). E. D Brown (10/24). M. A. Davenport (10/10), T. L Fleming (10/6). R. J McKee (9/27). R. H. Pace (9/28), and J C Robinson (10/21) JEFFREY MANUFACTURING DIVISION 57 majority of unit employees who have not even by argu- able cards opted for it. If, by rote mechanical count or because of necessary elimination of some cards as not genuine or unreliable, there is no card majority, the basic predicate underlying the Gissel electionless bargaining order-i.e., the cards as a less but still acceptably reliable indicator of the employees' desires (Gissel, 395 U.S. at 595-600 and 601-604) is undermined, leaving no basis for such an order.8 7 I am, of course, aware of the time-honored Board rule that-at any rate absent circumstances which I believe were present here, including at the very best equivocal testimony involving such expressions, concededly used, as "petition . . . the government" and "election," in the context of assuring employees that they were not "join- ing" or becoming "members" (despite the wording of the cards) and that the cards were "not union cards"-fail- ure to limit the use of such cards "solely" or "only" to an election does not preclude their use for other pur- poses,88 and much more recent instruction from the Su- preme Court that this may extend even to an electionless bargaining order.s 9 However, I am also aware of the Board's,9 0 as well as the courts',9 ' caution that the "rule" involving such words as "solely" or "only" is not to be applied mechanically, but that resort is necessary to the "totality of circumstances surrounding the card so- licitation"9 2 even though, in that process, delving into employees' subjective thoughts, afterthoughts, and post- signing ruminations is to be avoided.9 3 In the instant case, however, no such delving is required. As has been shown, in my opinion, card solicitors' own descriptions and explanations to a sufficient number of employees, to induce their execution of the cards in question, con- firmed if needed by testimony of those as well as other employees, were of such character at least arguably to indicate that the purpose of the cards was designed for or essentially limited to petitioning or voting purposes in an election. The testimony of important General Counsel witness Boyter in regard to those cards is certainly not clear, convincing, or persuasive to the contrary. When added to the aforequoted testimony of other witnesses, the conclusion is in my opinion compelling that General Counsel has failed to meet the burden of proof and per- 87 Whether or not it would under given circumstances suffice (cf. Gissel, 395 U.S at 613-614), in the instant case there is neither showing nor contention that but for Respondent's unfair labor practices a true ma- jority of cards would have been attained. See fn. 81, supra. ¢8 Cumberland Shoe Corporation, 144 NLRB 1268 (1963), enfd. 351 F.2d 917 (6th Cir. 1965); principle reaffirmed in Levi Strauss & Co., 172 NLRB 732 (1968), which met with Supreme Court approbation in Gissel. supra, under its analysis there explicated. 89 Gissel, 395 U.S. at 584 and 606-609. 90 Levi Strauss d Co., supra, fn. 7 (1968), quoted with approval in Gissel, 395 U.S. at 607-608; Keystone Pretzel Bakery, Inc., 242 NLRB No. 77 (1979). "i Gissel, 395 U.S at 607-608 and fil 27. l2 Ibid. 9 GseL, 395 U.S at 608 See also Texaco, Inc. v. ArL.R.B., 436 F.2d 520, 524 (7th Cir 1971): A'L.R.B. . ..4merican 4rt Industries, Inc., 415 F.2d 1223, 1228-29 (5th Cir. 1969), cert denied 397 U.S. 990 (1970); In- ternational Union of Electrical Radio and Machine Workers AFL-CIO [S.. C Manufacturing Company] .V\L.R.B., concurring opinion of Jus- tice Burger 352 F.2d 361 at 363 364 (D.C Cir. 1965), cerl. denied 382 U.S. 902 (1965); V.L.R.B. v. Cumberland Shoe Corporation, 351 F2d at 920; Levi Strauss, 172 NI R at 734 735 suation which are his9 4 in regard to these cards-not re- quiring or warranting an affirmative finding in this re- spect by the trier of fact in this administrative proceed- ing, or, consequently, justifying the extraordinary remeby of a Gissel electionless9 5 bargaining order. The application for such an order should, accordingly, in my opinion, upon the facts and the law and in the exercise of discretion, be disallowed in this case.96 THE REPRESENTATION CASE We turn now to the representation case (Case I -RC- 4416), here by consolidation, in which certain challenges to ballots (by both the Petitioner Union and the Employ- er) and objections (by Petitioner Union) to alleged em- ployer conduct affecting the election results have been referred here for hearing and recommendations to the Board. A. Challenged Ballots As has been indicated, the result of the October 27 election stands at 65 votes in favor of Petitioner Union and 63 against, with 4-subsequently reduced to 3, but still determinative-ballots challenged. These are the bal- lots of Terry D. Boyter, challenged by the Employer as no longer in its employ and for that reason ineligible to vote;9 7 and the ballots of William Ford and Walter Whi- tacre, challenged by Petitioner Union on the basis that their supervisory status excluded them from the bargain- ing unit and therefore rendered them ineligible to vote. The challenged ballots remain unopened and uncounted. 1. Terry D. Boyter In view of the finding and disposition in the compan- ion consolidated complaint case, supra, that Boyter's dis- charge was an unfair labor practice in violation of the Act by Respondent/Employer, Boyter was entitled to vote in the election, and his ballot should be opened and counted. 98 94 Administrative Procedure Act, 5 U.S.C. Secs. 556(d) and 706(2)(E): Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 230 (1938); Willa- point Oysters. Inc. v. Ewing, 174 F.2d 676, 690, 691 (9th Cir. 1949); ,L.R.B. s. Bell Oil & Gas Co., 98 F.2d 406, 410 (5th Cir. 1938); ;LR.B. v A. S. Abell Co., 97 F.2d 951, 958 (4th Cir. 1938); Attorney General's Manual on the Administrative Procedure Act 75 (1947). 95 e., without resort to the balloting results in the October 27 elec- tion. g9 This disposition of the application for the Gissel bargaining order remedy renders it unnecessary to pass on Respondent's third, fourth, fifth, sixth, and seventh defenses in its answer, which will accordingly be dismissed as moot. Also in view of this disposition, it is likewise unneces- sary to address other important questions involving the validity of certain specific cards, such as those which, while allegedly filled out by employ- ees, were not signed (G.C. Exh. 33: James . Mercer; G.C Exh. 58: Jimmy R. Curry; G.C. Exh. 80: Roy Hall; G.C Exh. IIl: Gordon A White), or. seemingly printed rather than signed (G.C. Exh. 47: Jim Brown Latimer; GC. Exh. 51: Betty J. Pruitt; G C. Exh. 55: Robert Crosby Edwards; G.C. Exh. 56: Willie Louise Jackson). Of the forego- ing, only employees Curry and Hall testified; other cards were identified by their solicitors 97 Challenged also by the Board agent as not appearing on the Em- ployer's Excelsior list. 9" Siou.s (Citv Brewing Company, 85 NLRB 1164. 1166 (1949). 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. William R. Ford, Jr. The ballot cast by William (Billie) R. Ford in the Oc- tober 27 election is challenged by Petitioner Union on the ground of Ford's then supervisory capacity, present- ing the issue here. Much testimony, on both sides, as well as some documentation, was adduced on the ques- tion. The Employer's burnout operator Clyde Evans, in its employ for over 13 years,99 testified credibly that Ford was the person who told him what to do and from whom he took orders as his "boss" in department 912 (welding and assembly) in 1977, until Ford's replacement by Thompson at the start of 1978; and that, in connec- tion therewith, Ford (as Thompson subsequently when he replaced Ford) gave him daily instructions, time off, and job-related warnings or admonitions, during Chester Mason's tenure as foreman of both departments 911 (steel, fabrication) and 912 (welding and assembly). Around March 1977-while Ford, according to the Em- ployer's "Personnel Job Record" (Resp. Exh. 7) held the formal job title of "Dept. Co-ordinator"'°° on its "Indi- rect Payroll"'t°t-Ford and many as 10 other depart- ment 912 employees were instructed by that depart- ment's foreman, Chester Mason, "not to look to [me- i.e., Mason] any longer . . . for any work, or any in- struction ... [but] to look to Mr. Ford . . . that Mr. Ford was in charge of [you] .... [You] receive [your] orders from Billie Ford." From then on, after Ford "took over" from Mason, Evans' work was no longer as- signed to him by Mason but by Ford, Evans went to Ford with his job problems, Ford authorized procure- ment of materials needed by Evans, Ford alone had a desk in department 912, and Ford walked around over- seeing the employees of that department.' 0 2 Evans was explicit in his testimony that, from the time of Mason's foregoing announcement to the department 912 employ- ees through the time of the election, Mason spent less time in that department and that Evans as well as the other department 912 employees took their work orders from Ford and carried them out-just as they previously g See fn. 9, supra. '00 According to the Employer's "Job Rating Specifications" and "Job Description" for the position of "Departmental Coordinator" for "Dept. 911 & 912" (Resp. Exh. 30), that person is among other things "Responsi- ble for the movement of materials through departments in accordance with operation sequences and production schedules to insure an uninter- rupted flow of work and to assure that progress conforms with overall manufacturing planning and shipping dates"; he also "Perform[s] liaison between the Production Control Department Foreman, et al., to assist in clearing difficulties and delays," "Followls] up on rush orders, schedule changes, material shortages and other conditions affecting schedules," "May be required to work in other areas, depending on workload and production requirements," and is only "Under general supervision," These responsibilities and this status, involving correlative powers, could well place their possessor within the supervisory ambit as broadly defined by Sec. 2(11) of the Act. 101 As described by the Employer's factory superintendent, Eller, and its foreman, Mason, employees on the Employer's "indirect payroll" are "non-production employees," whose pay, unlike that of rank-and-file pro- duction employees, is charged to their department as departmental over- head (instead of being translated directly into job-time/materials compo- nents of customer billings). 101 Ford also moved materials around by forklift if nobody else was available-i.e., forklift operator Brinson, who also took orders from Ford. had from Mason. 103 Evans credibly recounts requesting time off from Ford, in order to be with Evans' wife in the hospital, in or around September (1977)-about 7 hours-with Ford authorizing that absence on the spot, and Evans reporting to Ford on his return. Although, according to Evans, subsequent to the election he ob- served Ford on occasion setting up a machine in depart- ment 911, he had not observed Ford doing this (except a bulldozer on occasion in department 912) between the time of Mason's aforedescribed announcement and the time of the election.' 0 4 Also according to Evans, the nature of Ford's duties changed when Thompson re- placed him in supervisory status in department 912 in January 1978. But, between the time of Mason's aforede- scribed announcement through the time of the election, Evans' testimony is clear and credible that Evans regard- ed and treated Ford's directions to him as his employer's orders required to be carried out by him. Evans' testimony concerning Ford is essentially cor- roborated by that of the Employer's former department 912 employees Dodson and Brooks, who also swore they worked under Ford. However, Dodson and Brooks place the date of Mason's announcement to department 912 as in or around September, at some time before the election. Thus, Dodson (who in October worked in de- partment 911 as well as 912) testified credibly that the department 912 foreman, Mason, announced to that de- partment's employees that thenceforward they would get their instructions and orders from Ford (rather than from Mason, as previously). At the same time, Ford was en- trusted with keys to the departmental cabinets and draw- ers.' 0°5 Although the highest pay grade in department 912 was a 7 (with Dodson a 4), Ford alone occupied grade 9.106 After Mason's announcement, Dodson went to Ford, instead of to Mason, for equipment and materi- als authorizations. As in the case of Clyde Evans (supra), Dodson's testimony is utterly clear (and credited) that after Mason's aforedescribed announcement Ford (in- stead of Mason) directed Dodson as well as the other de- partment 912 employees what to do and they complied with his orders.'0 7 Furthermore, after Mason's an- nouncement, Dodson went to and obtained any desired time off from Ford instead of Mason. On one occasion during this period, Dodson heard Ford admonish an identified employee (Wilson), "If you can't do the job, you can go home," whereupon the employee left. When 103 Ford also distributed, to department 912 employees, work packets which he assembled or processed, containing documentation needed to carry out customers' orders, to which Ford added appropriate shaping templates and determined which orders were to be done by each employ- ee as well as the priorities to be accorded to each order (although a "rush" order would be so marked on the accompanying documentation). 104 Evans occasionally observed Foreman Chester Mason also setting up machines, including before and after Mason's aforequoted announce- ment to department 912 employees. '0O Dodson also testified, like Clyde Evans (supra), that thencefor- ward, in contrast to previously, Ford operated a forklift only in the ab- sence of the forklift operator. o10 Confirmed by Factory Superintendent Eller in his testimony, al- though Eller indicated there was no employee in department 912 at grade 7 either, thus placing Ford three grades above the next highest ranking employee there. 'I' Dodson's testimony also indicates that after the election Ford did setup work and was later replaced in his supervisory capacity by Thomp- son-who was trained by Ford. JEFFREY MANUFACTURING DIVISION 59 Dodson asked Ford what was wrong, Ford answered, "He [Wilson] didn't do [the job] and I told him to go." 10 8 The Employer's former department 912 employee David A. Brooks, in its employ for about 4 years and an impressive witness, similarly testified credibly that in September (or early October) Mason assembled all de- partment 912 employees and anounced to them that "[You] will be taking [your] work orders from Billy Ford. .... He [will] be in charge of anything that [you] needed, tools or equipment, and if [you have] any prob- lems. . . see him." Prior to this, these had been Mason's functions. Around mid-October, shortly before the ele- tion, Brooks witnessed a discussion between Ford and department 912 employee Wilson-the same one as testi- fied about by Dodson, (supra)-wherein Ford told Wilson that he would do what Ford told him to do or get another job; and, after Wilson visited Factory Super- intendent Eller or Foreman Mason, Wilson complied.' 0 9 Brooks has also on a number of occasions, the same as other employees (for example, William C. King'10), re- quested and obtained time off from Ford. On several oc- casions when Brooks asked Mason for time off, Mason referred him to Ford," ' as also did Factory Superinten- dent Eller on an occasion when Brooks asked Eller di- rectly.l 12 Ford has also distributed Brooks' paychecks to him, in Mason's absence. When Ford directed him to move from one job to another, Brooks complied, since in Brooks' words, Ford "was in charge of the department." Brooks also confirms that Ford, like or together with Mason (only), had a departmental desk to which-as well as the departmental equipment cabinet-only Ford and Mason had keys. As in the cases of Clyde Evans and Dodson, Brooks' testimony is clear and convincing that, from and after Mason's aforedescribed announcement to department 912 employees concerning Ford's changed status, Brooks took orders from Ford and carried them out since he regarded Ford as his superior, whose direc- tions he was obliged to carry out in view of Mason's di- rective concerning Ford's authority. Testifying on the other side were several of the Em- ployer's witnesses. Its department 914 layoff tableman, Samuel D. Lindsay, in its employ for over 12 years and formerly a department 912 welder, testified that prior to the election Mason was foreman of 2 adjacent depart- ments, 912 as well as 911, with Ford running a machine in department 911 and nothing to do with department 912; ' that department 911 (covering an area of 100 by Lo8 Without explanation, Wilson was not produced to dispute this testi- mony of Dodson. 109 As noted above, without explanation Wilson was not produced to controvert this. 0 Although King was produced as a witness by the Employer, in no way did he controvert this testimony of Brooks. " ' Undisputed by Mason, testifying as the Employer's witness. " 1 Unrecollected by Eller, testifying as the Employer's witness. " 3 Brooks also confirms that, after Mason's announcement, Mason spent "very little"-perhaps only one-fourth-of hi time in department 912, in contrast to dividing his time 50-50 between the two departments, 911 and 912, which he previously directly supervised. '4 In this and other respects, the testimoy of Lindsay and other wit- nesses, as well as that of General Counsel's witnesses, appears at odds with the handwritten data on Ford's "Personnel Job Record" (Resp. Exh. 7), the accuracy of which or the precise degree of its reflection of 170 feet) consisted of 15 to 25 employees, and depart- ment 912 (covering 50 by 180 feet) consisted of 12 or 13 employees-each covering a large area, and both togeth- er encompassing a huge area. According to Lindsay, there came a time when Mason assembled the depart- ment 912 employees and announced to them that Ford was "going to work with [you] and if [you have] any problems to go and see Billie [Ford], and if he could not solve [your] problems to come and see [me]." Thereafter, when Lindsay completed a job he went to Ford (instead of to Mason, as previously) and asked Ford "what job he wanted done next." Ford would tell him what to do, and he complied. In Lindsay's words, Ford would "just give us a job and we go on and do it." Lindsay testimonially expressed his understanding that, following Mason's an- nouncement, in Mason's absence it would have been Ford from whom authorization for leave or early depar- ture would be requested and who would authorize it. Lindsay testified that, prior to Mason's announcement, he and other department 912 employees took their prob- lems to Mason; and also that after Mason's announce- ment, when Ford directed him to drop what he was working on and switch to a "rush order" which Ford as- signed to him, Lindsay complied, and that at no time has he (Lindsay) declined to do anything Ford told or asked him to do. Lindsay, still testifying as Respondent's wit- ness, also testified that, following Mason's announce- ment, Ford as well as Mason alone had keys to the de- partment 912 tool and equipment cabinet; and that, fol- lowing Mason's announcement, department 912 employ- ees went to Ford to obtain authorizations for supplies, with Ford signing not only his own name but also that of Mason. ' 5 William R. Ford, Jr., the individual whose supervisory status at the time in question is here in issue, is the nephew of the Employer's personnel director, Frank Ford. Ford's version of the department 911 and 912 fore- man, Mason's, announcement to department 912 employ- ees (which Ford dates in April) is that Mason informed the employees Ford "would be the leadman in 912" and instructed the employees that if they had any "welding" problems they were to see Ford,1 16 but on "personal" problems to see Mason, and that Ford's mission and re- sponsibility were to "make sure that everybody had work." According to Ford, he would usually but not in- variably receive from Mason a list of jobs to be done; on the actual facts of what Ford actually did has not been independently es- tablished. "I In view of the foregoing testimony of the Employer's witness Lindsay, as well as of other of the Employer's witnesses, and the credited testimony of General Counsel's witnesses Evans, Dodson, and Brooks as recounted above, I reject contrary testimony of the Employer's witness William R. Osborne-an unprepossessing witness whose demeanor im- pressed me adversely-to the general effect that, as a department 912 welder, his work was assigned to him personally by Mason and that Ford "ain't never talked to me about jobs" and never did more than place things on his workbench without ever so much as saying anything to him, as unworthy of belief; as also I regard his testimony that he sought out Mason directly to find out what to do and did not regard himself as obliged to do anything Ford wanted him to do (but consider his testimo- ny that Ford never indicated he wanted him to do anything), since Mason (and not Ford) was his immediate superior and so indicated to him, and that in Mason's absence he did not go to Ford but to another departmental head for permission to leave early. I" This alone could import supervisory status on the part of Ford. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD those occasions when he did not receive such a list, he (Ford) himself decided what work was to be done, him- self assigning the work to employees. Ford checked the employees' work to see if it was done right; if not, he would take it up with the employee or himself make the necessary correction. Ford concedes that Mason did not indicate to him (Ford) which jobs were to be done by each employee, but left that to Ford; and that Ford would also report to Mason substandard employee per- formances. When counel for General Counsel attempted on cross-examination to probe into examples of such re- ports, Ford blocked the inquiry with the response, "My memory is not too good." He did, however, recall an oc- casion (seemingly the one described by General Coun- sel's witnesses Dodson and Brooks, (supra) when em- ployee Wilson declined to do the job assigned him by Ford, and Ford directed him to report to Mason."' Ford testified he is unable to suggest why Wilson came to him (Ford) rather than to Mason with the refusal."" Ford's attempted self-deprecation of the significance of any report or recommendation he might make to Mason concerning any employee's insubordination or other work performance deficiency is incredibly-considering what Ford himself testified Mason announced to the em- ployees-supported by Mason, who testified that he would not have given any weight to any such report from Ford, testimony which I reject since it is belied by the case of Wilson, as well as by the testimony of Fac- tory Superintendnent Eller himself, who conceded that, if Ford was faced with an insubordinate employee and so reported to Mason, Mason would have been expected to back up Ford and to give weight to Ford's report. Ac- cording to Ford, during the period here in question he met two or three times daily with Mason, to review jobs on hand and work priorities for the department-hardly the sort of meetings held or topics discussed with a rank- and-file workhand. According to Ford, the job title of "Departmental Coordinator" was used interchangeably with that of "forklift operator," which Ford seemingly claims he was-as well as "setupman" and "leadman"- at the time here in question. Ford asserts that he was only a "forklift operator" at a time when the Employer's "Personnel Job Record"(Resp. Exh. 7) shows he was a "Departmental Coordinator." If, on the other hand, as Ford swears, the job duties of forklift operators are the same as those of departmental coordinators, then Ford's actual powers and responsibilities at the time here in question, if he continued in fact to be a forklift operator, may well for that reason, considering the Employer's "Job Kating Specifications" and "Job Description" for the job of departmental coordinator (Resp. Exh. 30, in part quoted supra, fn. 100) have been at the supervisory level. With regard to authorizing early work departures of department 912 employees, Ford concedes that those employees have indeed sought such permission from him, I" Although Ford denies he indicated to Wilson that he would lay him off, I credit the aforedescribed essentially mutually corroborative tes- timony of Dodson and Brooks in this respect. 1ls Of course, the ready explanation-under Ford's own testimony, supra-would appear to be that Mason had previously instructed the de- partment 912 employees to go to Ford with their work (i e, welding) problems-as indicated above, itself suggesting supervisory status on the part of Ford but he claims the requests were invariably referred to Mason. Ford is unable to explain why, if Ford lacked au- thority to deal with such requests, the employees came to him, rather than to Mason. I credit the aforedescribed testimony of General Counsel's witnesses, as well as that of Respondent's witness Lindsay, that Ford was looked to and did in fact grant such leaves. 19 In addition to what has already been described, Ches- ter Mason, in the Employer's employ for 16 years and at the time he testified here the foreman of department 914 (structural welding, fitting and assembly; mining termi- nals), testified that at the times here material, during 1977, he was foreman of both departments 911 and 912, devoting only about 1 or 2 hours of his 8-hour day to department 912. Mason provides yet another version of his announcement (which he says occurred toward the end of April) to department 912 employees concerning Ford: according to Mason, he told them only that Ford would be their "setupman, setting up the jobs for them; and if they [had] any personal problems, bring them to me" (emphasis supplied). Mason concedes that, at this time, and with the previously expressed approbation of Factory Superintendent Eller, Ford in fact relieved Mason of some of Mason's department 912 "duties" in order to afford Mason more time to carry out other re- sponsibilities; and that, among other things, Ford was given the responsibility of checking the work quality of the employees of department 912, and of reporting defi- ciencies to Mason, who would attach sufficient signifi- cance to those reports to assure the taking of necessary corrective measures. And, according to Mason, from and after his aforedescribed announcement to the department 912 employees, Ford became an "indirect payroll-i.e., a "nonproduction"-employee, whose pay, unlike that of rank-and-file production employees, was charged to the department as departmental overhead and not linked di- rectly to work-output billings. In addition to such of his testimony as has already been described, Factory Superintendent Eller testified that at the time in question (October election) Ford was a "setupman."12 0 While Eller disputes that Ford pos- sessed the "authority" to tell other employees what to do, Eller concedes he is ignorant of the authority actual- ly exercised by Ford or announced by Mason to the de- partment 912 employees to be vested in Ford. Although Eller testified that Mason was "supposed to" (emphasis supplied) tell Ford what to direct other employees to do, he conceded that Ford could and did assign employees to jobs "on his own." Eller concededly had no knowl- edge of what authority Ford in fact exercised or purport- ed at the direction of Mason to exercise vis-a-vis other 9 Ford confirms that subsequent to the election he became a welding setupman: and that (as corroborated by Factory Superintendent Eller) Theodore Thompson became department 912 foreman at the beginning of January 1978-thus, apparently, for the first time formally separating the previous joint foremanship of departments 911 and 912 into two separate foremanships. According to Ford, Thompson was, in turn, succeeded as department 912 foreman by McCurry in February 1979 120 This seemingly runs contrary to credited testimony of various other witnesses, described above, and seems open to question in view of Ford's actual duties, responsibilities, and activities Eller concedes that "only occasionally did Mr. Ford actually set up machine during the time of the union campaign"; and that Ford actually assigned jobs to welders JEFFREY MANUFACTURING DIVISION 61 employees, and it may be doubted that-particularly in view of Mason's announcement to them-the employees had any awareness of the subtle semanticism or legalism seemingly suggested by Eller at the hearing between technically unquestionable legal authority, and in fact ex- ercised authority, the employees being concerned with and reasonably understanding what they were told by a responsible managerial source (i.e., Mason) and what was apparent to them and the practice that thereafter in fact prevailed. Notwithstanding Eller's foregoing equivocal generalization concerning Ford's "authority," at a later stage of his testimony Eller himself conceded that-ap- parently to Eller's knowledge and with no indication that Eller or anybody else took countermeasures to halt it or to indicate Ford lacked such authority, exercised on its behalf 12 --Ford in fact assigned jobs to employees, selecting particular employees to do particular jobs; that Ford, as well as Mason, could designate particular jobs as "rush," in accordance with priorities established by the "front office" (i.e., neither Ford nor Mason). Ac- cording to Eller's testimony, from April 25 through the date of the election (October 27), Ford's work in depart- ment 912 consisted 75 percent of "departmental coordi- nating" 12 2 and 25 percent or less of setup work. 12 3 Finally, Factory Superintendent Eller testified that since Ford's designation on December 13, 1976, as an "Indirect Payroll" employee (Res. Exh. 7), Ford has re- mained in that category and has never since then been removed from or classified out of that classification.'24 Upon the record presented concerning William R. Ford, Jr., I am persuaded and find that the time here ma- terial he possessed sufficient attributes linking him with the Employer's management system to warrant his being regarded as a supervisor within the meaning of the Act,' 2 5 as well as the Employer's managerial/adminis- 1i Cf., e.g., Sec. 2(13) of the Act, Restatement (Second), Agency , § 228-230, 233 235 (1958); .VL.R.B. v. Link-Belt Company, 311 U.S. 584, 599 (1941); H. J Heinz Company v. V.L.R.B., 311 U.S. 514, 520-521 (1941); International Association of Machnists, Tool and Die Makers Lodge No. 35 [Serrick Corp.1 v. N.L.R.B., 311 U.S. 72, 79-80 (1940): The Bama Co., 145 NLRB 1141 (1964), enfd. 353 F.2d 320 (5th Cir. 1965). I22 See fn 100, supra. 123 In view of this other testimony, including that of Mason himself, to the effect that Mason spent no more than an hour or two on department 912-to which, on January 1, 1978, there was assigned its own separate foreman, Thompson-if Ford had no supervisory function there at the time in question, it would have left that department, unlike the others, essentially unsupervised or insufficiently supervised to have permitted it to operate with even a modicum of productive efficiency. i2 It will be recalled that the Employer's classification of "Indirect Payroll" is reserved for what it considers to be nonproduction jobs (fn. 101, supra). The admitted appropriate bargaining unit here is limited to "production and maintenance employees " Ford was concededly not en- gaged in "maintenance" work at the time here material. 25 I.e., Sec. 2(11), which, as has repeatedly been pointed out, is worded in the disjunctive, and requires no more than one of the powers or attributes therein enumerated. See, e.g., Amalgamatd Local Union 355 [Russell Motors] v N.L.R.B., 481 F2d 996, 999 (2d Cir. 1973), and cases cited; N'L.R.B. v. Elliott-Williams Co., Inc., 345 F.2d 460, 463 (7th Cir 1965); N.L.R.B. v. City Yellow Cab Company, 344 F.2d 575, 580 (6th Cir. 1965). See, generally, .. L.R.B. v. Swift d Company, d/b/a New England Processing Unit 292 F.2d 561, 563 (Ist Cir. 1961), quoted with approval in Marine Engineers Beneficial Association v. Interlake Steamship Co., 370 U.S 173, 179, fn 6 (1962). Thus, although, for example, Ford was not shown to have nor to exercise the power to hire (nor certain other powers listed in Sec. 2(11)), this does not rule him out as a supervisor. Credited proof shows, as I have found and repeat, that, for example, trative agent, 1 2 and sufficiently closely aligned with and allied to management in the execution of supervi- sory/administrative tasks as to create a conflicting wall of interest between him and the rank-and-file unit em- ployees of which he insisted at election time he was a member for voting and collective-bargaining purposes under the Act. For all these reasons, it is concluded and recommended that the challenge to his ballot should be sustained and that ballot voided, discarded unopened, and not counted in the October 27 election. 3. Walter Ray Whitacre The ballot of Walter Ray Whitacre (Whitaker) has also been challenged by Petitioner Union upon the ground of supervisory status. The proof fails to sustain the contention that Whitacre was a supervisor at the time here material. It does estab- lish that he was a night (i.e., second shift) setup man in departments 911 (steel fabrication) and 913 (idler shop), occasionally but rarely' 2 7 substituting or filling in for Night Foreman Eaves in his absence. Such occasional filling in for Eaves did not change Whitacre's job from that of setup man to that of supervisor;t 28 nor did the fact that Whitacre was entrusted with keys to the plant in order to lock it up on occasion in the absence of Night Foreman Eaves, Since it has not been established by substantial credible proof, as required, that at times here material Whitacre possessed supervisory status or was otherwise excepted from or not within the stipulatedx 2 9 appropriate bargain- Ford did have and exercise "authority, in the interest of the employer, to . . . assign ... or discipline other employees, or responsibly to direct them . .. or effectively to recommend such action" in the exercise of his "independent judgment" (Act, Sec. 2(11))-sufficient, in my estimation, to stamp him as a supervisor within the meaning of the Act. "Of course, the important things is the actual duties and authority of the employee, not his formal title." N.L.R.B. v. Quincy Steel Casting Co., Inc., 200 F.2d 293, 296 (Ist Cir. 1952). 2I Act, Sec. 2(13), which for purposes of administration of the Act, eases or removes the technicalities and stringencies of the common law agency concept. Cf., e.g., N.L.R.B. v. Solo Cup Company , 237 F2d 521 (8th Cir. 1956); Betts Baking Co., 155 NLRB 1313 (1965), enfd. 380 F.2d 199 (10th Cir 1967); Herb Sadler Budweiser Distributing Co., 153 NLRB 119 (1965). 127 l.e., perhaps as many as 3 days to a week, perhaphs three times a year, according to General Counsel's witness Ellison; not over 30 minutes per month, according to Night Foreman Eaves, with the possible excep- tions of a 2-week vacation in 1977; according to Whitacre, 5 or 6 days' vacation plus I week of plant shutdown per year 12s Cf, e.g., Complete Auto Transit. Inc., 214 NLRB 425, 426 (1974); E 1. Du Pont deNemours & Co., Inc., 210 NLRB 395 (1974). 129 The Employer's department 913 (idler shop) foreman (on both shifts, althought usually present only on first shift), Ray Douglas Lind- say, testified that Whitacre is classified as an "indirect payroll" on "non- production" employee. Factory Superintendent Eller's testimony con- firms that in Respondent's factory usage "indirect payroll" and non-pro- duction" employee are synonymous (see fn. 101, supra). Although the stipulated appropriate unit is confined (with the usual exception of super- visors, etc.) to "production and maintenance employees" (Whitacre was plainly not a "maintenance" employee), the Employer's classification of Whitacre as a "non-production" employee does not of itself eliminate him from the defined bargaining unit here, since it is apparent that the Em- ployer's usage of "non-production" is for its own internal billing, book- keeping, and audit purposes only (see fn. 101, supra); and that in common industrial relations usage and, therefore, for purposes of the Act, as a setup man Whitacre was actually engaged in production work, nor is any contention to the contrary here advanced As the Board has often point- Continued 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing unit, he was in my opinion eligible to vote in the Oc- tober 27 statuory election, and it is accordingly recom- mended that Petitioner Union's challenge to his ballot be overruled and that his ballot be opened and counted. Finally, with regard to the challenged ballots, Petition- er Union having withdrawn its challenge to the ballot of Larry M. Burgess and that challenge having on that basis been overruled by the Board in its February 10, 1978, Order, his ballot should be opened and counted. B. Objections to Conduct of Election Also referred here, by consolidation, are certain of Pe- titioner Union's objections to alleged employer conduct said to have effected the election results;'t3 viz, Objec- tions 1, 3, 4, 5, and 7, which may be recapitulated as fol- lows, with relationship if any to issues in the underlying unfair labor practices cases, supra, as indicated:1'3 ed out, it is not an employer's job title or classification, but what an em- ployee actually does, which is determinative of his supervisory or non- supervisory or other status for purposes of unit inclusion or exclusion under the Act. (While William R. Ford, Jr., supra, was according to his "Personnel Job Record" (Resp. Exh. 7) for a time, and according to the testimony of Factory Superintendent Eller continues to be, also classified as an "indirect payroll" or "non-production" employee, his recommended exclusion from the bargaining unit, supra, is based on his supervisory status.) I"O Objections 2, 6, and 10, and to "Other Acts and Conduct" having been overruled by the Board's February 10, 1978, Order, those objections are not here considered. 131 [Omitted from publication.] It is thus apparent that, except for Objection 7, which is unmentioned in the complaint but encompassed in sub- stance in the credited testimony of General Counsel wit- ness Dodson,'3 2 these objections of Petitioner Union to employer conduct affecting the outcome of the October 27, 1977, statutory election in case I l-RC-4416 in es- sence duplicate complaint allegations in the instant con- solidated complaint case which have been discussed and determined supra, selection II, H, and Conclusion of Law. To that extent, since the degree of proof necessary to sustain election objections is less than that to establish unfair labor practices,13 3 those objections' 3 4 should be sustained, requiring that election to be set aside in the event the overruled challenged ballots, when opened and counted, result in a majority tally against representation by Petitioner Union or in a tie vote, and that, in either of those events, a rerurn election should be conducted at an appropriate time. It will accordingly be so recommended to the Board. [Recommended Order omitted from publication.] 132 Supra, sec. II,H, and fn. 132. '33 Super Thrift Markets, Inc. /a Enola Super Thrift, 233 NLRB 409 (1977). Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1686-87 (1962). 134 Including Objection 7, for reasons expressed and findings made supra, sec. II,H.