Standard Coil Products, Inc.

STANDARD COIL PRODUCTS, INC. 899 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and ( 7) of the Act. [Recommendations omitted from publication in this volume.] STANDARD COIL PRODUCTS, INC. and UNITED AUTOMOBILE WORKERS Or AMERICA, AFL. Case No. 7-CA-536. June 95,1952 Decision and Order On August 30, 1951, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of the Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other al- leged unfair labor practices, and recommended dismissal of these al- legations of the complaint. Thereafter, the Respondent and the Gen- eral Counsel filed exceptions to the Intermediate Report and support- ing briefs, and the Respondent filed a reply brief. The Respondent also filed a motion to reopen the record in this proceeding to require a representative of the Board, Field Examiner Porterfield, to produce all written documents and notes given to him by witnesses for the General Counsel and to testify with respect to conversations with such witnesses, for the purpose of showing that those witnesses who testified with respect to an incident of alleged sur- veillance by Personnel Manager Howard on October 26, 1950, had never informed Porterfield of these facts and that they therefore must have fabricated their testimony with respect to this incident." The General Counsel filed objections to this motion. The granting of the Respondent's motion lies solely within the discretion of the Board, as the documents requested by the Respondent are confidential and are not available for public inspection.2 Moreover, representatives of the ' The documents and evidence requested by the Respondent were obtained by Field Examiner Porterfield during his investigation of the Union ' s objections to the election held on October 27, 1950, in Case No. 7-RC-1144 , and not during the investigation of the instant proceeding . The Union's objections were sustained and, on December 12, 1950, the Regional Director ordered this election set aside. 2 Section 102 .89 (b) of the Board's Rules and Regulations, Series 6, as amended, pro- vides that "all files, documents , reports, memoranda , and records pertaining to . . . the investigation or disposition of charges or petitions during the nonpublic investigative stages of proceedings . . . and all matters of evidence obtained by the Board or any of its agents in the course of investigation, which have not been offered in evidence at a hearing before a trial examiner . . . or have not been made part of an official record by stipulation, . . . are . . . confidential and are not matters of official record or available to public inspection, unless permitted by the Board , its chairman , the general counsel, or any regional director." 99 NLRB No. 131. 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board, such as a field examiner, are not permitted to produce such documents or to testify with respect thereto or with respect to any matters coming to their knowledge in their official capacity, except with the written consent of the Board or the General Counsel .3 We believe that no useful purpose would be served by permitting the pro- duction of the documents requested by the Respondent or the testi- mony of the field examiner with respect to his conversations with these witnesses. To reopen the record for this purpose would be, as the Trial Examiner concluded, no more than a fishing expedition. Particularly is this so where, as here, most of the witnesses who testified to the October 26 incident of surveillance did not themselves inform Field Examiner Porterfield of this incident or give any documents or notes to him, but, instead, reported this incident to Union Representative Schrader. The extent of these witnesses' disclosure to Schrader and the resulting action by Schrader of passing along any or all of this in- formation to the field examiner, in the form of documents or notes made by these witnesses or in Schrader's own 'written statements, clearly do not reflect upon the credibility of the witnesses who testi- fied with respect to this incident at the hearing and who were cross- examined by the Respondent with respect to such testimony. Accord- ingly, the Respondent's motion to reopen the record is hereby denied. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed 4 The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,5 conclusions, and recom- 8 Section 102 90 of the Board's Rules and Regulations, Series 6, as amended, prohibits any representative of the Board from producing or presenting "any files, documents, reports, memoranda , or records of the Board " or from testifying "with respect to any information, facts, or other matter coming to his knowledge in his official capacity or with respect to the contents of any files , documents , reports, memoranda , or records of the Board . . . without the written consent of the Board or the chairman of the Board .. . or the general counsel See General Armature d• Manufacturing Co , 89 NLRB 654, enfd. 192 F. 2d 316 ( C. A. 3, 1951 ), where the Board and the court held that the respondent had not been denied due process by the refusal of a field examiner, subpenaed by the respondent , to testify at the hearing where the respondent had made no effort to obtain the consent of the Board or the General Counsel to this testimony. 4 At the hearing, the Trial Examiner denied a motion made by the Respondent, sub- stantially similar to its later motion to the Board to reopen the record , to require Field Examiner Porterfield to produce all documents and notes relating to the October 26 incident of surveillance . In its brief, the Respondent contends that the Trial Examiner's denial of this motion constitutes reversible error. As Section 102.90 of the Board's Rules and Regulations, footnote 3, Supra, prohibits a field examiner from producing such docu- ments without the permission of the General Counsel, the Trial Examiner was without authority to grant, and properly denied, the Respondent 's motion. General Armature cI Manufacturing Co., footnote 3, Supra. s The Intermediate Report contains two misstatements of fact or inadvertences, neither of which affects the Trial Examiner 's ultimate conclusions or our concurrence therein. However, we note the following corrections : ( 1) The Trial Examiner inadvertently stated that the Union filed its petition for certification on July 29 , 1950 , instead of on September 29, 1950; and ( 2) in discussing Howard's presence at a gas station on the evening of September 20, 1950, the Trial Examiner referred to Howard as the Union's personnel manager rather than as the Respondent's personnel manager. STANDARD COIL PRODUCTS, INC. 901 mendations of the Trial Examiner to the extent indicated below and with the following additions and modifications : 1. For the reasons hereinafter stated, we find, as did the Trial Examiner, that the Respondent's postponement of the wage increase at its Bangor plant was not violative of the Act. The facts surround- ing the deferment of the wage increase are as follows : In July 1950, International Union of Electrical, Radio & Machine Workers, CIO, began an organizational campaign at the Respondent's Bangor, Michi- gan, plant. Early in September 1950, the charging union, United Automobile Workers of America, AFL, herein called the Union, also attempted to organize the employees of this plant. The Union held its first meeting on September 11, 1950, and on September 29 filed its petition in Case No. 7-RC-1144. On September 18, before the Union's petition was filed, but during the unions' organizational campaigns, the Respondent, at a meeting of its board of directors in Chicago, decided to grant wage increases up to 10 cents an hour to all employees of its Chicago plants. The question of granting a wage increase to its Bangor plant employees was also discussed at this meeting, but, upon the advice of the Respondent's attorney who was present at the meeting, the Respondent decided that, in view of the unions' organiza- tional campaigns, the granting of any increase at its Bangor plant would be withheld until after the representation issue had been re- solved.6 The Respondent granted a 10-cent an hour increase to em- ployees of its Chicago plants on October 1. On October 5, Plant Manager Adams, in a speech to all employees of the Bangor plant, stated : I am making this statement in answer to many inquiries by our employees about a wage increase. At a meeting of the board of directors, . . . held in mid- September, your board decided on a substantial wage increase for all employees in its Chicago and Bangor Plants. Based on that action, a 100 per hour increase has gone into effect in our Chicago Plant starting October 1st of this week. We have been advised by the attorney for the Company that we cannot put into effect any wage increase in our Bangor Plant while there is pending here effort by the unions to organize this Plant. It is our attorney's legal opinion that if we allow you this wage increase at this time the unions will charge your Company with an unfair labor practice before the National Labor Rela- tions Board. 6 The facts with respect to the September 18 meeting of the Respondent's board of directors are based upon the minutes of the meeting , a certified copy of which was intro- duced into evidence by the Respondent. 215233-53-58 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I am authorized to tell you that this contemplated wage in- crease was decided upon because economic conditions make it fair that it be paid to you and it was not intended to influence you one way or another on these pending union questions. . . . I am authorized to tell you that there will be granted to you a substantial increase as soon as our attorney informs us that the problems presented by the union's request to represent you has (sic) been finally resolved one way or another. . . . I promise, however, on behalf of the Company that you will be granted a substantial wage increase whether or not you finally decide you wish to be represented by the union. We cannot however, put that increase into effect until the union question is finally settled... . On October 18, a consent-election agreement was signed and, on October 27, an election was conducted among the Respondent's Ban- gor employees, which the Union lost. On October 30, the first regular workday after the election, the Respondent informed the employees at its Bangor plant that, effective as of 8 a. in. that day, they had been granted a 10-cent an hour wage increase. The General Counsel asserts that, in mid-September 1950, the Re- spondent, solely for economic reasons, granted a wage increase of 10 cents an hour to all employees of its Chicago and Bangor plants, to become effective on October 1; and that, in order to discourage its Bangor plant employees from becoming members of and supporting the Union, the Respondent postponed the effective date of this in- crease at its Bangor plant, thereby violating Section 8 (a) (3) and 8 (a) (1) of the Act. The Respondent contends, on the other hand, .that it deferred all consideration of a wage increase for its Bangor plant employees until after the election had been held and that, there- fore, no wage increase was ever withheld. It argues, further, that, even if an increase had actually been withheld, the Respondent's con- duct would not be violative of the Act, as the Respondent acted in good-faith reliance on the advice of its counsel, "who stressed the possibility that such an increase under the then decisions of the Board would constitute an unfair labor practice." Although, as pointed out above, there is some dispute as to whether or not the wage increase was actually decided upon before the repre- sentation election, we, like the Trial Examiner, find it unnecessary to resolve this conflict. Thus, even if, as the General Counsel con- tends, the Respondent actually postponed the effective date of the increase at its Bangor plant because of the pendency of the unions' organizational campaigns, there is nothing in the record to support the General Counsel's position, in effect, that the Respondent did so because the employees at this plant were engaging in concerted activity STANDARD COIL PRODUCTS, INC. 903 protected by the Act.7 On the contrary, the facts support the Re- spondent's contention that, in postponing the wage increase, the Re- spondent acted in good-faith reliance on the advice of its counsel and was motivated by a desire to avoid violating the Act rather than to 'penalize its employees for engaging in protected concerted activity. Thus, in Adams' October 5 speech to the employees, he clearly stated that the wage increase was being postponed because of the Respond- ent's fear of violating the Act if it did otherwise, and he assured the employees that the increase would be granted as soon as the repre- sentation issue was resolved, regardless of the results of the election. Moreover, it cannot be said that the Respondent's fear of violating the Act if it granted the wage increase on October 1, while the Union's representation petition was pending, was unfounded or was not a real one. This was not a situation where the raise under consider- ation was one which was regularly or periodically granted or one which the employees normally expected to receive.8 Indeed, under the circumstances, the Respondent might well have been unwilling to take the risk of being able to justify before this Board the granting of such an increase at that time. Nor do we find any merit in the General Counsel's further conten- tion that, even if the Respondent acted in good faith in deferring the wage increase, its conduct violated Section 8 (a) (3) of the Act be- cause the effect of postponing the increase was to discourage union membership and activity. This is not to say that under certain cir- cumstances, where the natural and necessary effect of an employer's action is the discouragement of union activity, and the employer takes no action to abate such consequences,, the Board may not dispense with an affirmative showing of unlawful motive and infer that the employer intended the natural consequences of its acts.9 However, this is not ' The General Counsel contends that Adams ' statement to a group of employees, 4 or 5 weeks after the election, that the increase could have been granted sooner had there been no union activity, is proof of the Respondent's unlawful motive in postponing the wage increase. In view of our findings infra, that Adams' post-election statement was merely a reaffirmation of the statements made in his October 5 speech, we find no merit in the General Counsel's contention. 9 The General Counsel relies upon Bonwit Teller, Inc., 96 NLRB 608, in support of his position that the Respondent's asserted fear of violating the Act did not justify the with- holding of the raise. That case, however, involved the withholding of regular, semi- annual wage increases assertedly because of the respondent 's fear of unfair labor practice charges if it granted any increases during a union 's organizational campaign . Moreover, although the Trial Examiner found this withholding to be violative of the Act , the Board did not actually reach that issue because of the proscription imposed by Section 10 (b) of the Act. 9 See Sullivan Dry Dock & Repair Corporation, 67 NLRB 627, at 635 , where the Board held that the withholding of a regular , annual bonus , assertedly because of the respondent's fear of violating the wage Stabilization Act if it granted the bonus , constituted a viola- tion of Section 8 (3) of the Act. In support of his contention that the Respondent's motive in postponing the increase is irrelevant, the General Counsel relies primarily on the Sullivan case and particularly on the following language of the Trial Examiner in overruling the contention of the respondent in that case that its reliance on the advice 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such a case. Here, the Respondent's failure to grant the wage increase on October 1 did not result in a change in the terms of employment of its Bangor plant employees, as it did not deprive the employees of an increase which was regularly granted or one which the employees nor- mally expected to receive. Therefore, the deferment of the increase did not have the natural and necessary effect of discouraging union membership and activity. The General Counsel argues, in fact, that if the Respondent had not made its October 5 announcement with re- spect to the postponement of the wage increase, the employees would not even have known of the granting or deferment of the raise. More- over, even assuming that the natural consequence of the postponement of the increase, standing alone, would have been the discouragement of union activity, we find that the Respondent, by notifying its em- ployees at the time of the reason for the deferment and by assuring them that they would receive a raise regardless of the results of the forthcoming election, effectively abated such an effect. Accordingly, we conclude that, by postponing the wage increase at its Bangor plant from October 1 until October 30, the Respondent did not violate Section 8 (a) (3) or 8 (a) (1) of the Act. 2. We also find, in agreement with the conclusion of the Trial Ex- aminer, that the Respondent did not violate the Act by informing its employees of the contemplated wage increase and of its deferment. As stated above, on October 5, 1950, Plant Manager Adams addressed the Respondent's Bangor plant employees, assertedly "in answer to many inquiries by [the] employees about a wage increase." Adams in- formed them that the Respondent had decided to grant a substantial increase, but that the increase could not be put into effect during the unions' organizational campaigns because, as the Respondent's attor- ney had so advised, the granting of an increase at the Bangor plant at that time would subject the Respondent to unfair labor practice charges. Adams stated, however, that the increase would be granted as soon as the representation matter was resolved and regardless of the results of the election. The Trial Examiner concluded that Adams' of its attorney , even though such advice may have been incorrect, precluded an inference of intent to discourage union membership : . . , the natural consequences which would be expected to flow from the Respond- ent's . . . action was the discouragement of self-organization of employees. This effect was reasonably known and, without anything done to abate it, must be pre- sumed to be intended . Under such circumstances it is unnecessary to find affirma- tively a motive to interfere with unionization ; in fact, such motive may be absent. .. . However, the Board's findings in that case did not turn on this rationale , as the Board concluded that the respondent's asserted fear of violating the wage Stabilization Act was a mere pretext for its action in withholding the bonus from the timekeepers, and that the respondent's conduct, in according disparate treatment to its timekeepers, was motivated, not by any honest doubt concerning its rights under the wage Stabilization Act, but by the fact that the timekeepers , unlike its other employees , were represented by a union. F STANDARD COIL PRODUCTS, INC. 905 announcement was "a proper and factual response" to inquiries by the employees and that it was therefore not violative of the Act. The General Counsel has excepted to these conclusions contending, first, that the evidence does not establish that the employees made such in- quiries and, second, that even if the employees had asked about the raise, such inquiries would not justify the Respondent's announcement at that time. We find no merit in the General Counsel's contentions. Although the General Counsel asserts that there is no other evidence to support a finding that the Respondent's Bangor plant employees inquired about a raise, Adams' credited testimony to that effect was neither controverted nor impugned. Similarly, Adams expressly stated in his October 5 speech that he was making the announcement in answer to such inquiries. Accordingly, we find, as did the Trial Examiner, that the employees at the Bangor plant, having learned of the raise granted at the Respondent's Chicago plant,10 inquired about that raise and asked Adams whether they, too, would receive an increase; and that, in answer to these inquiries, Adams delivered his October 5 speech. Furthermore, we find that all announcement directed to answering such inquiries, if devoid of unlawful purpose and within the prescribed limits of Section 8 (c) of the Act, did not run afoul of the Act." We find nothing in the record to support the General Counsel's contention that the Respondent made the October 5 announcement for the purpose of discouraging union activity or for the purpose of influencing the decision of its employees in the election of October 27. Although Adams' statement with respect to the contemplated wage increase was made while the Union's representation petition was pend- ing, and only 3 weeks before the election, the Respondent could hardly have chosen any less critical time to make this announcement .12 Thus, the Respondent's determination with respect to the wage increase was made on September 18 and the Chicago raise, which apparently gave rise to the inquiries at the Bangor plant, did not go into effect until October 1. Moreover, on October 5, when Adams made his announce- 10 The record reveals that there is some interchange of employees between the Respond- ent's Chicago and Bangor plants. li The Board and the courts have repeatedly held that , although an employer is not foreclosed from announcing or granting economic benefits during a union's organizational campaign or during the pendency of a Board-ordered election, "what is unlawful under the Act is the employer's granting or announcing such benefits ( although previously deter- mined upon bona fide ) for the purpose of causing the employees to accept or reject a representative for collective bargaining." (Emphasis supplied.) Hudson Hosiery Com- pany, 72 NLRB 1434, at 1437; quoted with approval in: Joy Silk Mills, Inc., 85 NLRB 1263, at 1287 , enfd. 185 F. 2d 732 (C. A. D. C., 1950) ; Bonwit Teller, Inc., footnote 8, supra. 12 But cf. Hudson Hosiery Company, footnote 11, supra, where the employer waited more than a month after it had decided to grant wage increases to inform its employees, 2 days before the election , that the increases , already decided upon, were being postponed because of the pending election , but would be granted as soon as possible. 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment, no election date had yet been set. That the speech preceded the, election by only 3 weeks was caused by the fact that all the interested parties were able to agree upon a consent election on October 18, al- most 2 weeks after the wage announcement. Under these circum- stances, we find that the Respondent's announcement with respect to^ the wage increase was not deliberately timed to influence the decision of its employees in the election of October 27.13 Nor do we find any- thing in the language of the announcement itself that is either sug- gestive of any unlawful purpose or beyond the protected scope of Section 8 (c) of the Act. We conclude, therefore, on the basis of the entire record, that the Respondent's October 5 statement regarding the wage increase was not violative of the Act.- 3. We agree with the Trial Examiner's conclusion that the Re- spondent independently violated Section 8 (a) (1) of the Act. In adopting the Trial Examiner's conclusion, however, we rely solely on the following preelection conduct of the Respondent's supervisors :15 (a) Personnel Manager Howard's presence in front of the Union's meeting place on October 23 and October 26, 1950. The Respondent asserts that Howard's presence in front of the Union's meeting place on the evening of October 23 was incidental, to the personal errands which Howard daily performed after work and that, in view of the small size of the town of Bangor and the fact that the Union's meeting was being held in the center of town, Howard could not have avoided passing by the Odd Fellows Hall, where the Union's meeting was being conducted. The record establishes, how- ever, that Howard did not merely pass by the Odd Fellows Hall, but that he stopped in front of the entrance to the hall and remained there, talking to the employees entering the hall, for 10 to 25 minutes. More- over, Howard informed the employees, during these conversations, that he was "counting noses" of those who were attending the. meet- n But Cf. Queen City Values, Inc, 93 NLRB 1576; Minnesota Mining & Manufacturing Company, 81 NLRB 557; Wilson & Co., Inc, 77 NLRB 959. at 971, and cases cited in footnote 11, supra, where the Board relied primarily on the timing of the announcement in concluding that economic benefits were announced for the purpose of influencing the deci- sion of the employees in a representation election. In all these cases, with the exception of Minnesota Mining & Manufacturing Company, the announcement was made after the election was scheduled and not more than a week before the election was held. In the Minnesota case, the conduct occurred in the interval between the hearing on the rep- resentation petition and the issuance of the Board's Decision and Direction of Election 14 Bonwit Teller, Inc., footnote 8, supra, where the Board held that an employer's pre- election announcements of pending wage increases did not contain any threat of reprisal, as there was nothing in these announcements "to suggest that the pending wage increases would be withheld beyond the date of the election, or that they would not be granted if the [union] won the election." 16 As no exceptions have been filed to the Trial Examiner's failure to find that the Respondent further violated Section 8 (a) (1) of the Act by Cortright's statement to employees Harden and Shepherd that the plant might close if the Union won the election, or by Shine's interrogation of employee Snyder, we deem it unnecessary to pass upon these issues. STANDARD COIL PRODUCTS, INC. 907 ing.'6 Under these circumstances, we find that Howard's presence in front of the Odd Fellows Hall on the evening of October 23 was deliberate and constituted surveillance of the Union's meeting, in violation of Section 8 (a) (1). With respect to the Union's meeting on the evening of October 26, the record reveals that Howard arrived at the Odd Fellows Hall, where the meeting was being held, shortly after 5 p. in., before the meeting started, and that he was seen there by employees leaving the hall, after the meeting ended, at approximately-6 p. m. Accordingly, we conclude that Howard's unexplained presence in front of the Odd Fellows Hall for an extended period of time on the evening of October 26, when coupled with his admitted interest in "counting noses" at the October 23 meeting, also constituted surveillance of the Union's meeting, in violation of Section 8 (a) (1) 17 (b) Plant Manager Adams' statement, in his speech of October 25, 1950, that if the employees refused to pay "special assessments" to the Union after a majority of the employees had voted for the Union, the Respondent could not keep these employees in its employ even if it wanted to. The Respondent contends that this statement, even though based upon a misinterpretation of the law, was an expression of opinion protected by Section 8 (c) of the Act. Unlike the Trial Examiner, we find it unnecessary to determine, in the abstract, whether "a state- ment of the law by a layman is . . . an expression of . . . opinion under Section 8 (c)." It is sufficient in this case, and we find, that Adams' statement is not protected by Section 8 (c) of the Act as it contained a clear threat of reprisal.'s .(c) The following instances of interrogation, threats of reprisals, and promises of benefits by the Respondent's supervisors : (1) Yates' interrogation of employee Helm as to whether Helm was going to vote for the Union ; and her threat to employee Myers that, if the Union won the election, the Respondent would move its plant to Chicago. (2) Cortright's interrogation of employee Hollman as to whether Hollman was in favor of the Union, and her interrogation of employee Newell with respect to Newell 's reasons for wanting the Union and her husband's attitude toward the Union; Cortright's threat to Holl- man that, if the Union won the election, she could not keep Hollman 1e Although the Trial Examiner did not find it necessary to fix the exact date on which the "counting noses" remark was made , we find , as the record establishes , that this remark was made on October 23. 17 The Regional Director's failure to mention this incident in his report on objections in Case No 7-RC-1144 in no way impugns the credibility of the witnesses who testified to this incident of surveillance. 's Intertown Corporation (Michigan ), 90 NLRB 1145, at 1178-1179. 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in her department as the latter was too slow a worker; and her threats to employee Hunt that, if the Union won the election, the employees would be "worse off" and that the Respondent would move the plant out of town. (3) Stedman's promises of benefits, including an improved bonus system, greater holiday, vacation, and overtime benefits, and a 10- cent an hour wage increase, contingent on the Union's losing the election, to employees Hunt, Pearson, Harden, Wines, and Wanecek; his interrogation of employee Harden and two other employees with respect to their feelings about the Union; his interrogation of em- ployee Wines as to why she was in favor of the Union and as to which of the other employees favored the Union; and his request to Wanecek that she try to talk Wines out of voting for the Union. (4) Gunnarson's interrogation of employee Wines as to whether Wines had changed her mind about voting for the Union, and her in- terrogation of employee Youngblood with respect to the latter's feelings about the Union. (5) Babor's interrogation of employee Samilson as to her reasons for favoring the Union. (6) Meeker's interrogation of employee Youngblood as to the lat- ter's feelings about the Union. The Trial Examiner found that the Respondent further violated Section 8 (a) (1) of the Act by Adams' statement to a group of em- ployees, 4 or 5 weeks after the election and after the wage increase had been granted, that the employees could have received this increase sooner had there been no union activity. We do not agree. We find nothing in Adams' post-election statement which is inconsistent with the statements made in his October 5 speech, explaining the reasons for the Respondent's failure to grant the wage increase before the election. Rather than viewing this statement, as the Trial Examiner did, as "a clear indication of loss as the result of [union] activity," we find that Adams' post-election statement was merely a reaffirmation of his earlier explanation to the employees, which we have found was not violative of the Act. Accordingly, we conclude that the Respondent did not thereby violate Section 8 (a) (1) of the Act. Order Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Standard Coil Products, Inc., Bangor, Michigan, its officers, agents, successors, and assigns, shall : STANDARD COIL PRODUCTS, INC. 909 1. Cease and desist from : (a) Engaging in surveillance of its employees' self-organizational activities; interrogating its employees concerning their union sympa- thies and the union sympathies of their fellow employees, their reasons for wanting a union, and how they intend to vote in a Board-conducted election; promising its employees benefits, including higher wages, an improved bonus system, and greater holiday, vacation, and overtime benefits, if they reject the Union in a Board-conducted election; threatening to move its plant if the Union should win an election; threatening its employees with economic reprisals, including loss of employment, if the Union should win an election and if, after the Union wins an election, the employees should refuse to pay "special assessments" to the Union; and attempting to induce its employees to discourage their fellow employees from voting for the Union in a Board-conducted election. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Automobile Workers of America, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requir- ing membership in a labor organization as a condition of employment, as authorized in amended Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at its plant in Bangor, Michigan, copies of the notice attached hereto and marked "Appendix A." 19 Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by'the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Seventh Region, in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT Is FuRT$ER ORDERED that the complaint, insofar as it alleges other violiazis,of the Act, be,,and it hereby is, dismissed. w In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT engage in surveillance of our employees' self- organizational activities; interrogate our employees concerning their union sympathies or the union sympathies of their fellow employees, their reasons for wanting a union, or how they intend to vote in a Board-conducted election; promise our employees benefits, including higher wages, an improved bonus system, and greater holiday, vacation, and overtime benefits, if they reject UNITED AUTOMOBILE WORKERS OF AMERICA, AFL, in a Board- conducted election; threaten to move our plant if UNITED AUTO- MOBILE WORKERS OF AMERICA, AFL, should win a Board-con- ducted election; threaten our employees with economic reprisals, including loss of employment, if UNITED AUT01VIOBILE WORKERS OF AMERICA, AFL, should win a Board-conducted election and if, after it wins an election, our employees should refuse to pay "special assessments" to UNITED AUTOMOBILE WORKERS OF AMERICA, AFL; or attempt to induce our employees to discourage their fellow employees from voting for UNITED AUTOMOBILE WORKERS OF AMERICA, AFL, in a Board-conducted election. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organiza- tion, to form labor organizations, to join or assist UNITED AUTO- MOBILE WORKERS OF AMERICA, AFL, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in amended Section 8 (a) (3) of the Act. All our employees are free to become, remain, or to refrain from becoming or remaining, members of the above-named union or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with amended Section 8 (a) (3) of the Act. STANDARD COIL PRODUCTS, INC., Employer. By ------------------------------------ (Representative ) ( Title) Dated -------------------- STANDARD COIL PRODUCTS, INC. 911 This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order The complaint herein, as amended at the hearing, alleged that the Respondent violated Section 8 (a) (3) of the National Labor Relations Act, as amended, 61 Stat. 136, by postponing a wage increase to its employees in order to dis- courage union membership and support, and Section 8 (a) (1) of the Act by said alleged act and by surveillance of union meetings ; interrogation concerning union membership, sympathy, and activities ; threats to close and move the plant and to transfer employees union-and promise of benefits if-the Union were rejected in a pending election ; informing employees of the postponement of the wage increase; discriminatorily prohibiting prounion employees from conversing during working hours ; and informing employees that union authorization cards would be subject to the Respondent's inspection. The answer denied the allega- tions of unfair labor practice and declared that the wage increase was postponed pending the election on the advice of counsel. A hearing was held before me at Bangor, Michigan, on July 31 and August 1, 1951. Pursuant to leave granted to all parties, briefs were thereafter filed by General Counsel and the Respondent. Upon the entire record in the case and from my observation of the witnesses, I make the following : FINDINGS OF FACT 1. THE RESPONDENT'S BUSINESS AND THE LABOR ORGANIZATION The Respondent, an Illinois corporation with plants in Illinois, California, and Bangor, Michigan, manufactures and sells radio and television parts, electrical windings, and similar articles. In the conduct of its business in Bangor, the Respondent during 1950 purchased raw materials valued at more than $500,000, of which more than 95 percent was purchased and shipped from points outside the State of Michigan to Bangor. During the same period, the Respondent sold .products of its Bangor plant valued at more than $1,000,000, of which more than 135 percent was sold and shipped to points outside the State. It was admitted, and I.find, that the -Respondent is engaged in commerce within the meaning of the Act, and that the Union is a labor organization and admits to membership employees of the Respondent's Bangor plant. II. THE UNFAIR LABOR PRACTICES A. The alleged violation' of Section 8 (a) (1) On July 29, 1950, the Union filed with the Board a petition for certification. The first organizational meeting was held 5 or 6 miles out of Bangor on September 11, 1950. The second meeting was held in town on September 20. McDonnell, husband of one of the employees,' testified that, while waiting for his wife who was attending the Union's first meeting in town, he saw Howard, the Union's personnel manager, at a gas station on the corner directly across the 3 "Independent," so-called, as distinguished from "derivative" violation of Section 8 (a) (1). There is no need for distinction, and none will be made, between the currently employed, the discharged, and those in layoff status. All were employed at the time of the respective events mentioned. 912 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD street from the Legion Hall, where this meeting was held ; and that Howard remained there for approximately 15 minutes watching the hall. Howard denied that he was guilty of surveillance on this occasion. He ex- plained that he lived down the block from the gas station, and that he frequently visited the proprietor, who was his friend. Howard's home is located on the same block as the gas station. It is down the side street *which runs off at a right angle, and the block is a short one in that direction.* s (McDonnell testi- fied that Howard's home is a "full block" from the gas station.) It does not appear that Howard was at the gas station when employees entered or left the meeting place. In any event, I am not satisfied that he was "watching" the meeting, and I find that no surveillance was committed in that connection. I do not credit Gallup's testimony that Howard observed the Legion Hall meeting from the hotel across the street. McDonnell testified further that on the same day he saw three supervisors seated at a table in the window of a restaurant almost directly across the street from the Legion Hall. Two of these supervisors testified that (with a third supervisor whom McDonnell did not name, but not with the third party to whom he did refer and who denied that she was in the group during this period) they daily stopped for coffee at this restaurant or for ice cream or a soft drink else- where, depending on the weather. They denied that they sat "in" the window of the restaurant. *The restaurant was the nearest to the Respondent's plant. The structure has a store front with a plate glass window 6 feet wide. Inside and behind this window is a platform which is 1 foot high and extends back for some 5 feet ; the table at the window was located behind this platform.* 4 How long these supervisors were in the restaurant on this occasion, and whether they were there when the employees entered or left, does not directly appear from McDonnell's testimony. De Kreek, another employee who was active in the Union's organization campaign, testified that as she emerged from the Legion Hall with Schrader, the Union's regional representative, she saw two of the supervisors in the restaurant across the street. Schrader did not testify that he saw the supervisors. It is doubtful that De Kreek could see and recognize people seated at a table in a building some 90 feet away and several feet behind a window. Considering those circumstances and the supervisor's explanation of their presence there, I find that they were not guilty of surveillance. Nor do I credit McDonnell's testimony that each of them later declared in his hearing that she knew everyone in her line who had gone into the meeting. Union meetings were held on October 23 and 26, 1950 (a consent election was conducted by the Board on October 27) at the Odd Fellows Hall, which is on Main Street, 11/2 blocks west of the Legion Hall and 2 blocks west of the Respondent's plant. On the 26th, one meeting was called for 4 p. in. for night shift workers, who were due on the job at 5 p. in., and a second was held shortly after 5 p. m. for day shift employees. Several employees testified to seeing Howard in front of and immediately adjacent to the meeting hall on both dates. Howard explained that he daily shops on Main Street at or about 5 p. in., and that he calls for his mail at the post office, which is across the street from the Odd Fellows Hall. He testified that he stood in front of the hall between 5 and 10 minutes on October 23, joked o with four or five employees and said something about lending his moral - e Between"the, asterisks 'are-facts which I noted ,° and which were 'agreed to by -the respec- tive attorneys , on a view which I took of the premises at the close of the bearing at the request of and accompanied by counsel and representatives of the respective parties. 4 See footnote 3. 9 Whether on this or another occasion he "counted ( 42 or 43) noses" need not be de- termined ; but he did make statements to that effect. STANDARD COIL PRODUCTS, INC. 913 support to their campaign. Whether for 5 or 10 minutes, or 25 as otherwise testified, Howard's presence at the meeting hall, aside from shopping or other personal duties which he may have performed on Main Street that day, con- stituted interference with the employees' organizational activities, and I so find.° Howard denied that he went to Odd Fellows Hall on October 26, although he thought it "likely" that he was on Main Street. He did not recall meeting any employees there at about the time of the meeting, and denied that he spoke with any. Various employees, arriving singly or in pairs, testified to his presence in front of the meeting hall on October 26, and some to seeing him there on both the 23rd and the 26th. I find that Howard was on Main Street on October 26, while not engaged in shopping or other normal and proper pursuits, and remained in front of the meeting hall (there can be no question of knowledge of the scheduled meeting) thereby interfering with employees' organizational activities.' In a speech to all employees 8 on August 23, 1950, during the early part of the Union's organization campaign, Adams, the plant manager, declared that after a Union files authorization cards with the Board "the company then has the right to question whether or not these are actually cards of the employees and generally has the signatures on the cards compared with those on the pay- roll checks." It is not correct to say that the company has the signatures com- pared, and the statement that it does, with its suggestion of company exami- nation o of union authorization cards, constitutes interference with employees' union activities. An employer may not submit to employees a distorted picture of procedure which represents secret organization activities as becoming notorious, and information properly withheld as available to all. The offense is aggravated when combined with the employer's expression, itself lawful, of union disfavor for now that disfavor attaches to the activity of the employee which putatively will come to the employer's notice. That Adams did not mean that the Respond- ent would itself verify the signature does not lessen the interference inherent in his remarks. In another speech, on October 25, Adams, referring to union "special assess- ments," stated, ". . . and if you refuse to pay this assessment after the majority of you have voted for the union, we cannot hold you in your job even though we wish to do so." The clear import of this statement overlooks the requirements to be met before a valid union-security agreement may be entered into, and the further fact that assessments, unlike dues and initiation fees, are not mentioned in the proviso in Section 8 (a) (3) of the Act. A statement of the law by a layman is not an expression of views, argument, or opinion under Section 8 (c) of the Act. Incorrect and tending to deter employees from engaging in organization activities, it constitutes interference. 9 Some evidence was submitted to show that such interference actually occurred as dis- tinguished from the reasonable tendency to interfere; the latter is itself violative of the Act. (Goodall Company, 86 NLRB 814 ) '+ As for the Regional Director's omission , in his report on objections to the election, of reference to surveillance on October 26, that is no more indicative of what was reported in that connection and binding in this proceeding than are the conclusions therein con- tained; and the Respondent would strenuously object to receipt or consideration of those conclusions. Nor is a fishing expedition warranted to inquire whether a given witness reported such surveillance especially since the witness in question (Schrader) could not testify of his own knowledge and others, who could, did so testify. 8 There were approximately 550 during the period August-October 1950; there are considerably fewer at present. 9 On the payday following, employees were for the first time asked to sign their name and clock number on a check list. 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In October 2610 issue of "The Bangor Advance," the local weekly, appeared a full-page advertisement which was sponsored by a "Citizens Committee" and which, generally urging that the employees vote against the Union in the election scheduled for the 27th, concluded with a warning that the plant might be closed. The advertisement violates Section 8 (a) (1) of the Act, but we must consider the Respondent's responsibility for it. General Counsel did not claim that the Respondent sponsored the advertisement ; he argues that there was "ratification." Howard testified that on the evening of October 24 the newspaper editor called and told him about the forthcoming advertisement and invited him to come to see it. Howard went to the newspaper office, read a proof, and told the editor that he "didn't like it." It does not appear whether Howard's dislike was directed toward the entire advertisement or toward only a paragraph which appeared to be critical of the Respondent. The paper was distributed free outside the plant on October 27 by newsboys who were not the Respondent's employees. Adams purchased several copies, picking them up from the table where they are usually left, at the entrance to the building. At least eight copies were also distributed inside the plant by a newsboy, that number being handed out free in the toolroom.11 This slight distribution by the newsboy inside the plant, and the greater one outside, do not warrant a finding that the Respondent adopted or ratified the advertisement and thereby violated the Act 12 With respect to violation by promise of benefit and by inquiry concerning union membership and voting intent, there were many instances of such viola- tion. (The Respondent's opposition to organization activities was made clear to its employees.) While the respective supervisors generally denied making the inquiries and promises, discussion between supervisors and employees con- cerning union matters is admitted. Gunnarson testified that she had not asked employees "directly" how they felt about unions. Cortright "never asked anyone [whether she was a member of the Union]. If they offered the information to [her,] all right." According to Yates, everybody was interested in a raise, and she discussed it with some of her girls. Stedman participated in the "gen- eral discussion throughout the plant in regard to wage increases and union activities." I credit the testimony of the employees and the admissions of the supervisors in this connection, and find the following instances of interrogation and promise of benefit (and concomitant threat) by supervisors: Yates asked Helm whether she was going to vote for the Union ; Cortright twice directed a similar inquiry to Holtman and threatened that if the Union got in she would not keep her in the department because she was slow (this was not denied) ; Cortright told Hunt that conditions would be worse and the shop would move out of town if the Union got in ; Cortright'3 asked Newell why she was for the Union and what her husband thought about it ; Babor asked Samilson why she was for the Union ; Gunnarson asked Wines whether she had changed her mind about voting for the Union ; Gunnarson and Meeker inquired concerning Youngblood's 10 The paper was printed and available on the evening of the 25th. "Union handbills were distributed off the Respondent's property ; but in bad weather, distribution was made on its property, but outside the building . It was further testified that handbills were brought into the plant , but not distributed there. 12 Contrast L d H Shirt Company, Inc., 84 NLRB 248, with Empire Pencil Company, 86 NLRB 1187. See also Salant d Salant, Incorporated, 87 NLRB 215; Bibb Manufac- turing Company, 82 NLRB 338 ; Vermont American Furniture Corporation, id at 408. 11 If the testimony be credited, Cortwright's offer to provide a bandaid for Speicher if the latter would vote against the Union would not be considered to have been seriously made, and would not constitute interference. It would further indicate Cortright's attitude and activity , of which there is sufficient proof. STANDARD COIL PRODUCTS, INC . 915 attitude toward the Union ; Stedman 14 told Hunt that the work would be made easier if the Union did not get in, and on the same condition promised Pearson various benefits while telling her that her work was good ; he also asked Harden and two other employees what they thought of the Union, and made contingent promises of benefit; Stedman asked Wines why she was for the Union and whether she knew other girls who favored it, promised her and her friend, Wanecek, benefits if the Union did not get in, and asked the latter to pursuade Wines to forsake the Union.15 Myers, the janitor, testified that approximately a week before the election Yates told him that the Company would move to Chicago if the Union got in. Yates denied making any such threat, but declared that "a conversation started over the union, . . . [they] got into an argument, . . . [and each] expressed his feelings." I credit Myers, and find that Yates interfered by threat. Four or five weeks after the election and after a general increase had been granted, a group of employees met with Adams and requested another increase. In reply, he told them the increase received would have been granted sooner if there had been no union activity. Such a statement is a clear indication of loss as the result of such activity and constitutes an unlawful threat and interference with future organizational activities. Harden testified that she and Cortright, who was not her supervisor, were given a ride home by Shepherd, a machine shop employee, after work one day early in October 1950. It appears that Shepherd urged Cortright to buy an automobile and that the latter replied, according to Harden, that the shop would probably close down and that she was afraid of her job if the Union came in. Removed from the site of employment, on an automobile ride, during the course and as part of a personal discussion in which there appeared to be no suggestion of employee-supervisor relationship, Cortright was here expressing a fear, justified or not, of loss of her own job. There is no claim to the contrary. Of course, the eventuality which she feared would carry with it the loss of Har- den's job also. But under the special circumstances of this conversation, I do not find that Cortright's statement constituted a threat to Harden. Nor do I find violative of the Act, Gunnarson's remark, made to Harden and another employee during the week of the election, that the Respondent could shut the plant down if it wanted to. The atmosphere which prevailed is rec- ognized, but if Gunnarson indicated that her warning was connected with the Union's success, the record does not show it. Harden, it may be noted, was a sincere and careful witness 16 Myers testified that Howard told him, about 2 weeks before the election, to stop talking while he swept the aisles during the other employees' lunch hour. Howard testified without contradiction that he had reprimanded Myers pre- viously for talking too much and now did so again, pointing out that Myers was 14 Stedman is a time- and motion-study engineer . He not only studies production problems , but also settles them without intervention by higher management representatives. He has an office girl ( certainly a mark of authority in this plant ), and attends super- visor's meetings. Of all who were claimed to be supervisors, Stedman alone was omitted from the stipulation early entered into , but I find that he was regarded as and was such within the meaning of the Act. 15 Stedman did not deny all of the violations attributed to him Nor did he explain why he discussed bonus and other benefits with employees or why, whatever he had in mind, he told them only, as he testified, that benefits might be delayed by the presence of a third party. 16 A copy of notes which Harden had made and concerning which she had testified was read into the record during the course of her cross-examination. So far from being a "plant," these notes, produced only after insistence by the Respondent 's counsel, corroborate her testimony that she considered certain facts important and recorded them. - 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD neglecting his work. The record does not indicate that the restraint alleged was directed against discussion of the Union ; it was rather against Myers' permitting such or any other discussion to interfere with his work. Testimony was received concerning interrogation by Shine, a laboratory engi- neer. One of the supervisors is "occasionally" away, and Shine "usually" sub- stitutes for him. The supervisor appears not to have been away on the day in question. The record does not show that Shine was a supervisor within the meaning of the Act, or that his statements were attributable to the Re- spondent. With respect to postponement of the wage increase, infra, announcement of such increase followed inquiry by several employees and their reference to the increase granted in the Respondent's Chicago plant. The announcement was thus not provocative, but a proper and factual response to a situation the propriety of which will now be considered. B. The alleged violation of Section 8 (a) (3) In a speech delivered October 5, 1950, Adams told all employees that the Re- spondent's board of directors had decided on a "substantial wage increase" for all employees in its Chicago and Bangor plants, and that a 10-cent an hour in- crease had gone into effect in Chicago the beginning of that week ; but that on the advice of counsel that an increase was improper while the Union's organi- zation effort was pending, it would be postponed until the problems involved had been "finally resolved one way or the other." An increase was promised re- gardless of the outcome of the representation proceeding. A general 10-cent an hour increase was granted and made effective on October 30, the first regular workday after the election. To grant or to withhold benefits is unlawful if done with intent to discourage union membership. 17 General Counsel urges that because a wage increase may be announced and granted by an employer pending an election if it is not done to influence employees' organizational activities and voting,18 the withholding thereof constitutes an unfair labor practice even in the absence of proof of in- tent so to influence. Although denying the necessity of such proof of intent, General Counsel in effect relies on the withholding as proof per se. In fact, the complaint alleges that the effective date of the increase was postponed "to discourage union membership and support." But we must not overlook the condition ("if it is not done to influence ... ") above cited on granting such an increase, and the employer's burden of offering proof to meet the inference, that an attempt was indeed made to influence em- ployees thereby. Motives are weighed, and business custom or practice and pre- vailing economic conditions have been deemed to justify such increases ; the Re- spondent would therefore have to prove those or similar circumstances to sup- port its action." A refusal to assume that burden and to proceed at one's own peril is not discriminatory.20 17 Joy Silk Mills, Inc., 85 NLRB 1263. 18 Cf. Mallinkrodt Chemical Works, 79 NLRB 1399. 19 Spengler-Loomis Mfg. Co., 95 NLRB 243; Wilson & Co., Inc., 95 NLRB 882. 2° Cf. .Kansas-Nebraska Natural Gas Company, Inc., 90 NLRB 1423. No question has at any time been raised concerning the possibility of variation in the "substantial amount" promised on October 5, according to the outcome of the election. The testimony is con- flicting on this point : In his speech on October 25, Adams indicated to the employees that the amount had been agreed upon, while on the stand he declared that the amount was decided upon on October 28. The latter appears to find support in the advice of the Respondent's counsel at the corporate director's meeting that "`consideration [of a wage STANDARD COIL PRODUCTS, INC. 917 In the instant case , the union activities were commenced prior to the announce- ment of the prospective but deferred increase. The evidence indicates further that the increase was granted in the Respondent 's Chicago plant, employees at Bangorinquired of Adams concerning such increases , and the announcement followed such inquiries. This is not a case of increases previously expected but deferred because of a supervening election : the Respondent's burden to show that grant of an increase was proper would have been even greater.Z" As for proof of intent to influence the voting by withholding the increase, there is none. The Respondent's desire to persuade its employees to vote against 'the Union is clear. As found in the preceding subsection , that desire was at times expressed unlawfully. But it does not follow that the postponement of the in- crease was motivated by that desire , nor do I find that it was, especially since the Respondent acted upon advice in an attempt to avoid a charge of unlawful benefit. While that advice overlooked the possibility of lawfully granting an increase even pending the election , no improper motive may be charged in that connection '; and, as noted, the Respondent in any event could properly under the existing circumstances refuse to take the risk of allowing such a benefit at that time. If it be urged that because an antiunion attitude existed there was per se improper motivation in withholding the increase , it might as well be argued, if the increase had not been postponed , that the benefit was motivated by the same desire : in short, that since the Respondent declared its opposition to the Union, whatever action it took was discriminatory. (Post hoc, propter hoc.) Unless the postponement was per se improper and unlawful intent is presumed, .such intent has not been shown.` (Note must also be taken of the unchallenged testimony that "there were economic factors also " in connection with the delay of the increase at Bangor. Adams' later statement to a group of employees that the increase would have been received sooner if there had been no union activity, found, supra, to have constituted interference when uttered , did not prove the Respondent's motive increase ] be withheld until the determination of the representation proceedings. . . . The resolution there adopted provided that "such increase shall be considered upon the completion of the pending election regardless of the results of such election." The Respondent in its brief argues that the increase was not actually voted by its directors prior to the election , and postponed . This issue and the question of the Board's power to "grant that increase retroactively " need not be considered in view of the decision made on the question of law. s' Although the Union could not exculpate the Respondent for wrong committed, it did not, although it could without risk, encourage the Respondent to grant the increase by a statement that it would not itself charge an unfair labor practice it an increase were at once granted . Cf Wilson & Co., Inc., supra. a Support for this holding may be found in the recent case of Foley's Mill and Cabinet Works, 95 NLRB 743, where, in another type of situation in which an employer was called upon to decide which of two courses of action it should follow, the Board declared : Under the second proviso of Section 8 (a) (3) of the Act, the Respondent could not comply with the Union 's request and retain the benefit of immunity provided in the first proviso of that Section, if it had reason to believe that membership was not available to the employees whose discharge was requested on the same terms and conditions generally applicable to other members . Whether the Respondent 's position in the "back dues" question was the correct one is not in issue here. Suffice it to say that the Respondent's alleged contractual breach was consistent with its statutory obligation under this Section in order to avoid the commission of unfair labor practices, and, so far as the record shows, clearly not in furtherance of any design to interfere with or rid itself of the chosen representative of its employees. [Emphasis supplied.] For "statutory obligation " is substituted , in the instant case, the recognized obligation under previous rulings in point. In both cases, the respondents ' good faith rather than their accuracy in interpreting the law is in issue 215233-53 59 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 months earlier in the light of the circumstances and details connected with the postponement as fully brought out by General Counsel Despite his position in the plant, Adams occupied a subordinate status in connection with the earlier action, which was determined by the Respondent's board of directors. His later statement is contrary to the previously authorized remarks and does not reflect on the motive of the sponsors of those remarks and the action now under con- sideration. It may even be questioned whether, considering the events of the intervening period, Adams' statement in response to a request for a second in- crease, 4 or 5 weeks after the election, reflected his own attitude at the beginning of October.) It is argued further that, aside from intent, to permit postponement of benefits pending an election is to discourage employees from seeking certification of a representative. But employees may as readily be discouraged from seeking certification of a representative when an employer refuses to agree to a union- security clause or other terms of a proposed agreement. Such action does not ipso facto "discourage membership in any labor organization" even if it be as- sumed that it discourages employees from seeking certification of a representa- tive ; 23 it is not violative of the Act. The postponement of announced benefit was here determined upon regardless of union membership, whether of individual employees or the majority. I find no violation in this connection. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section II, above, occurring in connection with the operations described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 1V. THE REMEDY Since it has been found that the Respondent has engaged in and is engaging in certain unfair labor practices affecting commerce, I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. I shall recommend that the Respondent cease and desist from interfering with, restraining, or coercing its employees in violation of Section 8 (a) (1) of the Act by surveillance of union meetings; interrogation of employees concerning organizational activity ; threat and promise of benefit in connection with an election of a collective bargaining representative ; and any statement that union- authorization cards would be subject to the Respondent's inspection. , The interference, restraint, and coercion found herein indicate a purpose to limit the lawful concerted activities of the Respondent's employees. Such pur- pose is related to other unfair labor practices, and I find that the danger of their commission is reasonably to be apprehended. I shall therefore recommend a broad cease and desist order, prohibiting infringement in any manner upon the rights guaranteed in Section 7 of the Act. For the reasons stated in the subsection entitled "The alleged violation of Section 8 (a) (3)," I shall recommend that the complaint be dismissed insofar as it alleges violation of Section 8 (a) (3) of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following : - See also footnote 21. 0 SCOTT & WILLIAMS, INCORPORATED CONCLUsIONH OF LAW 919 1. United Automobile Workers of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By surveillance of union meetings ; interrogation of employees concerning organizational activity ; threat and promise of benefit in connection with an election of a collective bargaining representative ; and a statement that union- authorization cards would be subject to its inspection, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. The aforesaid labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 4. The Respondent has not engaged in unfair labor practices within the mean- ing of Section 8 (a) (3) of the Act. [Recommendations omitted from publication in this volume.] SCOTT & WILLIAMS. INCORPORATED and UNITED STEELWORKERS OF AMERICA, C. I. O. Case No. 1-CA-864. June 25,195R Decision and Order On September 12, 1951, Trial Examiner John Lewis issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' The Board 2 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and adopts the finding's, conclusions, and recommendations of the Trial Examiner. The Trial Examiner found that Victor Dyer was discriminatorily discharge in violation of Section 8 (a) (1) and 8 (a) (3) of the Act. We agree, particularly for the following reasons : In July 1950 I The Respondent has requested oral argument . In our opinion the record , 'the excep- tions, and brief fully present the issues and the positions of the parties . Accordingly, this request is denied. 2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [ Chairman Herzog and Members Houston and Murdock]. 99 NLRB No. 140.