Plaskolite, Inc.

754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Furber indicated to the Company that membership in the local and not local residence was to be the criterion. I am not of the opinion that the record would support the conclusion that the General Counsel has sustained the burden of proving that Respondent sought to have the Company give job preference based upon the criterion of membership in Respondent with the resulting discharge of the three Charging Parties because of their nonmembership status. I cannot probe Furber's mind to determine whether he desired to obtain job preference for members of Respondent and realized that he could accomplish it by the pretext of asking for preference on the basis of residence, since the effect would be the same. The only testimony in the record which sheds any light on whether it was or was not a pretext was Floryan's testimony of his conversation with Furber in early November which would indicate that, at least at that time, Furber, in urging a preference for local men, was not using it as a pretext to secure preference for Respondent's members. The Respondent concedes that it caused the discharge of the two Aliens and Smith, but contends that the reason therefor was not their lack of membership in Respondent but their lack of residence in the area and that its conduct based on such motivation was not in violation of the Act. Absent any finding of pretext or sham, I am of the opinion that preferential hiring or job retention based upon an objective criterion such as area residence, particularly in the construction industry, would not be violative of the Act. The legislative history of Section 8(f)(4) of the Act with reference to employment priorities in union agreements in the con- struction industry demonstrates that such an objective criterion is to be permitted. In Senate Report No. 187 on S. 1555, of April 14, 1959, it is stated: "Such criteria as are spelled out in the bill are not intended to be a definitive list but to suggest objective criteria which shall be applied without discrimination. Thus it is per- missible to 'give preference based upon seniority, residence or training. . Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, p. 424. The Supreme Court, in Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Los Angeles-Seattle Motor Express) v. N.L.R.B., 365 U.S. 667, indicates that discrimination in employment, as such, by employer or union is not outlawed, but that the validity depends on the "true purpose" or "real motive." In the absence of a finding herein that the motive of Respondent was to seek job preference for its members, I do not believe it appropriate to find a violation of the Act, even though Respondent's conduct resulted in a benefit to its members. General Counsel's brief is silent on this point. In view of the above findings and conclusions, it appears appropriate to recommend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. Plaza Builders, Incorporated , is engaged in commerce within the meaning of the Act. 2. Respondent is a labor organization within the meaning of the Act. 3. The Respondent has not committed unfair labor practices as alleged in the complaint. [Recommendations omitted from publication.] Plaskolite, Inc. and Textile Workers Union of America, AFL- CIO. Cases Nos. 9-CA-2233 and 9-RC-4225.1 Novelmber 27, 1961 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION On June 30, 1961, Trial Examiner Samuel Ross issued his'• Inter- mediate Report in Case No. 9-CA-2233, finding that the Respondent i Because the findings in the unfair labor practice proceeding effectively dispose of the issues in the representation case, the Board hereby orders that Cases Nos. 9-CA-2233 and 9-RC-4225 be, and the same hereby are, consolidated for purposes of decision. 134 NLRB No. 63. PLASI(OLITE, INC. 755 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 Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Interme- diate Report and a supporting brief. Pursuant to a stipulation for certification upon consent election in Case No. 9-RC-4225, an election by secret ballot was conducted on September 14,1960, among the employees in the stipulated unit. Upon conclusion of the balloting, the parties were furnished a tally of bal- lots which showed that, of approximately 52 eligible voters, 18 cast valid ballots for and 28 against the Petitioner, and 6 cast challenged ballots. The challenged ballots were insufficient to affect the election results. However, the Petitioner timely filed two objections to conduct affecting the results of the election. Thereafter, the Regional Director issued his report on objections to election on October 28, 1960, in which he recommended that one of the two objections filed be sustained and that the election be set aside and a new election directed. The Em- ployer filed timely exceptions to the report. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Members Rodgers, Fanning, and Brown]. Upon the entire record in these cases, the Board finds : 1. The Employer is engaged in commerce within the meaning of tL^ Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The following employees, as stipulated by the parties, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees employed by the Em- ployer at its Columbus, Ohio, plant, excluding office clerical employees, guards, professional employees, and supervisors as defined in the Act. The Board has reviewed the rulings made by the Trial Examiner at the hearing in Case No. 9-CA-2233, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has con- sidered the Intermediate Report, the exceptions and the brief 2 in Case 2In its brief, Respondent contends that since the Union herein did not file any excep- tions to the Regional Director 's recommendation to overrule one of its objections, the subject matter of that objection cannot be considered in the instant unfair labor practice proceeding under the doctrine of•re8 judicata- ' We find , no,mbrit- in_this contention as it appears, inter alia, that the reason for ' the Regional Director's action was the fact 'that no evidence in support of the objection was submitted and that, accordingly , as the facts were never litigated in the representation proceeding, there was not a final determination of the issue on the merits . New Orleans Laundries, Inc, 114 NLRB 1077, 1080. 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No. 9-CA-2233, the report on objections to election, and the Em- ployer's exceptions thereto in Case No. 9-RC-4225, and upon the en- tire record in both of the foregoing cases, consolidated herein, hereby adopts the findings, conclusions, and recommendations of the Trial Examiner 3 and the Regional Director,4 respectively. , 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 Respondent, Plaskolite, Inc., Columbus, Ohio, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in and activities on behalf of Textile Workers Union of America, AFL-CIO, or any other labor organiza- tion of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment, except to the extent permitted by the proviso to Section 8(a) (3) of the Act. (b) Coercively or otherwise unlawfully interrogating its employees in respect to their union membership, activities, or desires. (c) Promising or granting wage increases or other economic bene- fits, or threatening employees with layoff, discharge, or other economic reprisals, for the purpose of discouraging union membership or adherence. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Textile Workers Union of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to en- gage in other concerted activities for the purpose of collective bar- 3 The Trial Examiner found that the following statements did not constitute a violation of Section 8(a) (1) of the Act: (1 ) A statement by Respondent's President Dunn, to the effect that if the Union succeeded, there would be a strike that might last all NN inter in which event Respondent would hire replacements from "the employment office to break the picket lines," ' and employees who did not abandon the strike would have no jobs; and (2) a statement by Foreman Day just before the election at which time he laughingly said to employee Smith, "You ' have had it. I know you was at the (union ) meeting " As to ( 1), the Trial Examiner concluded that this statement was a prediction of what "might" follow if the Union won the election and that it did not exceed the permissible bounds of employer communication . As to ( 2), the Trial Examiner concluded that these remarks were made in a "joking vein" and were not coercive, or indicative of surveillance of union meetings by the Respondent . As no exceptions were taken thereto, the Trial Examiner's findings and conclusions in this connection are adopted pro forma. 4 As no exceptions were taken to the Regional Director's recommendation that Peti- tioner's objection No. 2 be overruled, such recommendation is adopted pro forma But cf supra, footnote 2 However, as we agree with the Regional Director 's finding that the Employer's posted notice respecting "physical examinations and other protections of that sort" constituted a clear threat of reprisal against the employees if they voted for the Petitioner, we find Petitioner 's objection No 1 to have merit and we shall set aside the election conducted on September 14, 1960, and direct that a second election be conducted. PLASKOLITE, INC. 757 gaining or other mutual aid or protection, or to refrain from engaging in such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to William O. Friend immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of the dis- crimination against him, as provided in the section of the Intermedi- ate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its plant at Columbus, Ohio, copies'of the notices at- tached hereto marked "Appendix." I Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by an authorized representative of the Respondent, be posted by the Respondent immediately upon receipt thereof and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Ninth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. IT Is FURTHER ORDERED that the election in Case No. 9-RC-4225, held on September 14, 1960, be, and it hereby is set aside and that Case No. 9-RC-4225 be, and it hereby is, remanded to the Regional Director for the Ninth Region, for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of bargaining representative.6 5In 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 " 'Any new election shall be conducted among employees in the unit found appropriate who are employed during the payroll period immediately preceding the date of issuance of the notice of election In the event the Respondent Employer fails or refuses to comply with the terms of the Order in Case No. 9-CA-2233, the Regional Director, upon the written request of the Petitioning Union, is authorized to conduct the new election directed herein. 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX 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 Labor Manage- ment Relations Act, as amended, you are notified that : WE WILL NOT discourage membership in, or activities on behalf of, Textile Workers Union of America, AFL-CIO, or any other labor organization, by discharging or refusing to reinstate any of our employees or in any other manner discriminating against our employees in regard to their hire or tenure of employment, or any term or condition of employment, except to the extent per- mitted by the proviso to Section 8(a) (3) of the Act. WE WILL NOT coercively or unlawfully interrogate our em- ployees regarding their union membership, activities, or desires. WE WILL NOT promise or grant wage increases or other economic benefits, or threaten our employees with layoff, discharge, or other economic reprisal, for the purpose of discouraging union membership or adherence. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to join or assist Textile Workers Union of America, AFL-CIO, or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, and to refrain from any or all 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 employ- ment, as authorized by Section 8 (a) (3) of the Act. WE WILL offer to William O. Friend immediate and full rein- statement to his former or a substantially equivalent position, without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suf- fered as a result of the discrimination against him. All our employees are free to become or remain or to refrain from becoming or remaining members of Textile Workers Union of America, AFL-CIO, or any other labor organization. PLASKoLITE, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. PLASKOLITE, INC. INTERMEDIATE REPORT AND RECOMMENDED ORDER 759 STATEMENT OF THE CASE Upon a charge of unfair labor practices duly filed against the Respondent, Plas- kolite, Inc., herein called Plaskolite or the Company, the General Counsel of the National Labor Relations Board issued a complaint dated January 5, 1961 , alleging that Plaskolite had engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and ( 3) of the National Labor Relations Act, as amended ( 61 Stat. 136, 73 Stat. 519), herein called the Act. In substance, the com- plaint alleges that during the pendency of a petition filed by Textile Workers Union of America, AFL-CIO, herein called the Union, for certification as the exclusive collective-bargaining representative of Respondent's employees, Plaskolite interfered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act, by interrogating employees regarding their union sympathies and attendance at union meetings, promising wage increases if the Union lost the Board election, and threatening employees with discharge and other reprisals if the Union was successful. The complaint further alleges that on November 16, 1960, Plaskolite discharged em- ployee William O . Friend because of his membership in and activity on behalf of the Union. Pursuant to due notice, a hearing was held before me in Columbus, Ohio, on February 13 and 14, 1961. All parties were represented at the hearing by counsel and were afforded full opportunity to be heard , to introduce evidence, to examine and cross-examine witnesses, to present oral argument, and to file briefs. A brief has been filed by Respondent which I have fully considered. Upon the entire record of the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. COMMERCE Plaskolite, an Ohio corporation, is engaged at Columbus, Ohio, in the manufacture and sale of custom plastic products. During the calendar year 1959, a representative period, Plaskolite shipped products valued in excess of $100,000, from its plant in Ohio to places outside of said State. On the foregoing admitted facts, I find that Plaskolite is engaged in interstate commerce within .the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Textile Workers Union of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Union's organizational activities The Respondent operates a small job plastic products plant in Columbus, Ohio. On August 2,1 the Union commenced its campaign to organize Respondent's em- ployees. On that day, employee William O. Friend, the alleged discriminatee, obtained about 12 to 15 union authorization cards and within about 3 days signed and obtained the signatures of other Plaskolite employees thereto. Friend then turned over the executed cards to William Dyndur, the Union's field representative, and obtained an unspecified additional supply to which he also solicited and procured the signatures of Respondent's employees. Commencing with about the middle of August, the Union held weekly meetings of Respondent's employees, generally on Wednesday. B. The Union's petition to represent Respondent 's employees On August 22, the Union filed a petition with the Board for certification as the collective-bargaining representative of Respondent's production and maintenance em- ployees? On September 8, Respondent and the Union executed a stipulation for certification upon consent election. The election, which was held on September 14, resulted in a vote of 18 for the Union , 28 against, and 6 challenged ballots. On September 21, the Union filed "formal objections to [the ] conduct of the com- pany . . . affecting the results of the election .... " The objections were based 1 Unless otherwise noted, all dates herein refer to the year 1960 2 Case No. 9-RC-4225. The petition for representation alleges that a request for recog- nition was made on August 19 and refused by Plaskolite on the same day. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on alleged oral and written threats of the Respondent to its employees, "to fall back on physical examinations and other protections of that sort," and to require its em- ployees to take IQ tests if the Union succeeded in the election .3 On October 28, the Regional Director issued his report on objections to the election, concluding that the letter of Respondent to its employees dated September 12 "constitutes clearly a threat to impose upon employees [the] requirements of physical examinations `and other protections of that sort' if they selected the petitioner [Union] as their collective bargaining representative," and the Regional Director recommended that the Union's objection in this respect "be sustained and that a new election be directed." 4 On November 14, Respondent filed with the Board its exceptions to the Regional Director's report on objections. The Board has not yet issued its decision on the issues thus raised. C. Interference, restraint, and coercion Coincident with the filing of the Union's petition for certification, Respondent undertook a campaign to bring about the defeat of the Union at the Board's elec- tion. In furtherance of this objective, Respondent held a series of meetings with the employees on August 31 and September 6 and 12, at which President Donald G. Dunn and Vice President Norris Olson urged the employees to vote against the Union. In addition, Dunn, Olson, and foremen of Respondent, spoke individually to the employees at their work stations in furtherance of the same objective. The General Counsel contends that some of the Respondent's statements and interro- gation of employees constitute interference, restraint, and coercion of employees in the exercise of rights guaranteed by the Act, in violation of Section 8(a) (1) of the Act. The alleged violations fall generally into four categories, as follows: threats of physical and IQ examinations if the Union was successful, promises of a raise if the Union was defeated, other threats, and interrogation. The record in respect to these alleged violations of the Act shall be considered seriatim. 1. Threats of physical and IQ tests if the Union won President Dunn and Vice President Olson testified that most of their employees came to Respondent from the rural areas of West Virginia, Kentucky, and southern Ohio, were unskilled, had no prior industrial experience, and comparatively little formal education. Dunn testified in this connection, "If he could walk in the door, he was hired." Before the Union's advent into Respondent's plant, the Company gave some of its employees simple "Job alertness tests." These were tests of the meaning of simple words and mental arithmetic. So far as the record shows, these tests were not compulsory, but were given in connection with the consideration of employees for better jobs. None of Respondent's employees were requested to take physical examinations either to get or to retain employment with Respondent. Shortly before the Board election, Dunn and Campbell told some of Respondent's employees that if the Union won the election, the Company would require its employees to take both physical and IQ tests. In this connection, employee Friend credibly testified that Dunn said that if the Union "did get in there," Respondent would require employees to take physical and IQ tests, and "a lot" of employees "wouldn't pass." Employee Sexton gave similar testimony which I credit, and he also testified that Dunn said that "they [Respondent] couldn't have fat men or physically unfit men working on the saws." tEmployee Spriggs testified that at a meeting of employees called by Respondent just before the election,5 either Dunn or Olson said, "If the Union got in, they would have to give IQ tests and physical examinations to make sure the men were qualified for the job he would be on." Similarly, employee Chandcas Bowe testified that a week or two before the election, Dunn said, "He was going to shut down the plant for one day . to take IQ tests or physical examinations . . . if the union came in," and that the test "was pretty rough." Dunn admitted in his affidavit given to the Board agents who investigated this case, that he told employees that if the Union came in Respondent "would have to do more of this [IQ] testing than we had done before." He denied that he told any employees that a lot of them would not pass the tests. He also denied that he told s The complaint in this case alleges, sister alsa, the same conduct as violations of Sec- tion 8(a) (1) of the Act. 4 The Union submitted no evidence on its objections based on Respondent's allegedly similar oral threats, and the Regional Director recommended that this objection "be overruled." 5 According to Dunn, this occurred on September 12. The election, as aforestated, took place on September 14. PLASKOLITE, INC. 761 Sexton that physical and IQ tests would be required if the Union "got in." Dunn further testified that just before the election, he became aware of a rumor in the plant "that sounded like we were making a threat out of this physical examination business." Accordingly, "to make clear that it was not intended as a threat in any way," on the day before the election, Dunn allegedly told the men that some of them "may have to take physical examinations or some other kind of tests." Dunn also testified that he prepared a letter to the employees in regard to the tests, placed one copy on the plant bulletin board, and distributed copies to all of the employees. In addition, he held meetings of the second and third shift employees on September 12 at which he read the letter verbatim to the employees. The letter read in part as follows: If we are obliged to comply with the restrictive limitations of a union contract, in order to insure ourselves of a good work force, we may have to fall back upon physical examinations and other protections of that sort. Although asked, Dunn was unable to explain what he meant by "other protections of that sort." He testified that the reason physical examinations would be required was that the Union's propaganda had unfavorably compared Respondent's insurance plan with that at a large plant represented by the Union, and since Respondent anticipated that a like plan would be demanded of it by the Union, it would be necessary for a small plant like Respondent to have physical examinations of its employees to qualify for a low group insurance rate. I do not credit Dunn's denials or explanations. The only source of the rumor regarding the IQ and physical tests-which Respondent would require if the Union won the election, quite obviously was that created by Dunn's statements to the em- ployees noted above. If, as Dunn testified, his purpose was to make clear that no threat of the employees' job security was involved in the tests, there was nothing in the letter or in Dunn's testimony to allay such fears. The letter did not conform with Dunn's testimony that only "some" employees would be required to take the tests, and Dunn was unable to explain, although asked, how he could achieve a lower insurance rate unless all the employees were examined. Moreover, it is also quite obvious that unless employees who proved to be physically unfit on examination were eliminated, a lower insurance rate could not be effected. Under all the circumstances, I regard both the oral and written statements that employees would be required to take physicals if the Union got in as coercive. I like- wise so regard Respondent's statements in regard to the IQ tests which, prior to the Union's advent, were not compulsory. Implicit in the statements is the inference, which I make, that employees who could not pass would be terminated "in order to insure ourselves [Respondent] of a good work force," as stated in Respondent's letter. Accordingly I conclude that by the threat to require physical and IQ exami- nations if the Union won the election, Respondent interfered with, restrained, and coerced employees in violation of Section 8(a) (1) of the Act .6 2. The promise of a wage increase In July 1960, Respondent employed about 50 employees who were paid on an hourly rate basis plus a bonus paid quarterly, depending on the volume of Respond- ent's business, and whether, according to Respondent's formula for its computation, one was earned. In the first quarter of 1960, a bonus was earned and paid to Respondent's employees. However, because of poor business, .no bonus was earned or paid in the quarter which ended June 30. During this period, Respondent dealt with its employees in respect to wages, grievances, and other working conditions through the medium of monthly meetings with employee departmental representatives allegedly selected by the employees in each of Respondent's departments? At the monthly meeting held about the middle of July, the employee representatives requested that Respondent give the employees a 10-cent per hour raise in lieu of the quarterly bonus. Vice President Olson re- 6I reject as without merit, Respondent's contention that the statements to employees that IQ tests and physicals would be required if the Union won the election, "were mere predictions of probable consequences rather than a threat." I likewise reject its conten- tion that under the doctrine of res judzcata, no finding of unfair labor practice can be based on the foregoing because the same conduct was the basis of the Union's objections to the election which is presently pending determination by the Board Cf. New Orleans Laundries, Inc, 114 NLRB 1077, 1086, and cases cited in footnote 10. 7 This method of employee representation was later abandoned by Respondent on advice, of counsel. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sponded that he would discuss the matter with President Dunn and would report to them at the August meeting. After such discussion, Dunn announced at the meeting with the employees' representatives, held about August 15, that the bonus plan would be terminated at the end of the current quarter (September 30), and a wage adjustment would be made then. According to both Dunn and Olson, the amount of such wage adjustment was neither decided by them nor reported to the employees' representatives at that time. According to employee Spriggs, after the Union filed its petition for certification, Dunn told the employees on or about September 6 at one of the meetings called by Respondent in connection with the election campaign, that the Company was plan- ning to give employees a pay raise of 20 cents per hour, as well as "better paid holi- days" and "better insurance," but could not do it then until the union matter "was all settled." Sexton testified that Dunn told the employees about 3 days after the election that they would get a 20-cent raise "if the Union didn't get in." Friend testified that at the said postelection meeting, Dunn told the employees a 20-cent raise would be forthcoming if the Union "left them alone" and there was "no union shop." Employee Bennett E. Smith testified that before the election, Dunn said something about doing away with the bonus and replacing it with a 20-cent raise "if they would ask the Union to forget about the election." Dunn testified that after the election, on or about September 21, he announced to the employees that there would be a wage adjustment "provided we had no further difficulties with the Union." Dunn explained that by the foregoing, he meant that "the Union did not file charges about the election itself," and the results were "certi- fied as official." Dunn testified that he also told Respondent's employees that no pay raises could be made at that time. Dunn further testified that about October 14, he told the employees that if the Union gave Respondent a statement agreeing thereto, he would give a pay adjustment immediately in accordance with a schedule which he then distributed to the employees. Dunn also told the employees that absent agreement from the Union, the wage adjustment would be put into effect as soon as "all the problems" were settled, by which he meant "that the election [was] certified as final" and "that the Union was no longer in the picture." In addition to the promise of a wage increase, on October 14, Respondent gave each of its employees a bonus of $25 in cash for the third quarter of 1960, although admittedly no bonus had been earned during that period. In respect to the bonus, Dunn testified that in August he had told the employees that business was good and that "it looked like [there] was going to be a very good bonus pay." He further testified that business in September "fell off . .. very seriously" and that as a result, no bonus was earned for the quarter, but "morale in our shop was at an all-time low because of the election . and the election being protested." There- fore, he testified, "we decided that we had to do a number of things to change the attitude among the employees . and so one of the things that we did was .. . we gave each man $25 in cash and said that this was the farewell bonus." The complaint alleges that the aforedescribed promise of a wage increase by Respondent is a violation of Section 8(a)(1) of the Act. Respondent asserts that since the wage increase had been promised to Respondent's employees before "the advent of the Union," Dunn's later repetition of the promise did not constitute a violation of the Act. The fallacy in Respondent's assertion is that Dunn did more than merely repeat the promise of a wage increase made before the advent of the Union, but conditioned the raise first upon the repudiation by the employees of the Union at the election, and, after the election, upon the Union being out of the picture. Respondent was under no legal impediment to granting and paying the wage increase requested by its employees merely because of the filing of the union petition, but it could not lawfully utilize the promise of increased wages or other benefits to bring about the defeat of the Union. As the Board has frequently held: It is fundamental that the Act precludes employers from utilizing their economic power in any manner for the purpose of discouraging their employees from becoming or remaining members of a labor organization, or of interfering with their selection of bargaining representatives. By this we do not mean that an employer is 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 grantinn or announcing such benefits (although previously determined upon bona fide) for the purpose of causing the employees to accept or reject a representative for collective bargaining.8 g Hudson Hosiery Company, 72 NLRB 1434,1436; see also True Temper Corporation, 127 NLRB 839, 842-844, Intermediate Report adopted without comment by the Board. PLASKOLITE, INC. 763 Applying this principle to the facts of the instant case, I find that the Respondent promised the wage increase to employees and the additional paid holidays and better insurance for the purpose of discouraging support of the Union. In this respect, I regard the following as significant: (1) Although the employee repre- sentatives had asked Respondent for a raise of only 10 cents per hour before the Union's advent, Respondent promised 20 cents, double the amount asked for, after the Union's intrusion into Respondent's plant, (2) before the Union entered the picture, no request had been made by the employees for more paid holidays or better insurance, yet Respondent promised both during the pendency of the Union's petition for representation; 9 (3) Respondent's payment of an unearned bonus to employees was admittedly motivated, inter alia, by the "election . . . and the protest to the election"; (4) Respondent's open hostility and the active campaign to defeat the Union, including, as hereinbefore found, threats to require physical and IQ examinations if the Union won the election; and (5) the credited testimony of Respondent's employees and Dunn's admissions which clearly disclose that payment of the promised wage increase was dependent on the Union's removal from the scene. Accordingly, I find that the Respondent, by promising a 20-cent wage increase in September and October 1960, interfered with, restrained, and coerced employees in violation of Section 8(a) (1) of the Act.lo 3. Other threats Friend testified that he was told by Dunn that if the Union succeeded, there would be a strike that might last all winter in which event Respondent would hire replacements from "the employment office to break the picket lines," and employees who did not abandon the strike would have no jobs. I regard this statement of Dunn's as a prediction of what "might" follow if the Union won the election, and as his explanation of the law in respect to replacement of economic strikers. I therefore am not persuaded that this statement was a threat to discharge striking employees or that it otherwise "exceeds the permissible bounds of employer communication."" Accordingly, I conclude that this state- ment did not constitute a violation of Section 8(a)(1) of the Act. Friend also testified that Foreman Campbell told him that if the Union got in, the men "would have to work harder," and that Campbell also said in this connection, "They [the employees] made their bed, let them lie in it." Campbell admitted that he "probably did" say the foregoing. I regard this statement as a threat to impose more onerous working conditions upon the employees if they chose representation by the Union, and therefore, a violation of Section 8(a)(1) of the Act. Employee Smith, a reluctant witness for the General Counsel, testified after ref- erence to his affidavit given to the Board and with much prodding, that Dunn angrily told him that he had received complaints from supervisors that Smith was "agitating union," that Dunn "cussed" him, said that "he could do away with my job," and that Smith "had no seniority to go back to another job." Dunn denied that he ever accused Smith of agitating for the Union. He admitted that on the occasion referred to by Smith, he had reprimanded him and had said, "by virtue of this union situation, you have no license to run through this plant talking to every Tom, Dick, and Harry and do no work. I don't care anything about the Union or what it did, it doesn't give you the right to be off of your work station 6 hours out of 8." Dunn further testified that he warned Smith that continuation of the foregoing would result in discharge. Dunn admitted using profanity to Smith and using the word "agitating," but he denied using the word "union." In view of the "union" situation in Respondent's plant and Respondent's hostility to the Union, it is obvious that Dunn was referring to "union agitating" in his talk with Smith. Moreover, Dunn's denial that he used the word "union" is belied by his testimony, quoted above, in which he used the word ",union" twice. I regard it inconceivable that Respondent, or any employer, 9 Even If I were to accept Dunn's confused testimony regarding, the date when-he spoke to employees regarding the wage adjustment and assume that the promise was made on October 14, at the time when Dunn passed out the proposed new wage schedule, the Union's petition for representation was then still pending on objections to the election which had been filed on September 21 10 Since not alleged in the complaint, I shall not base any findings of unfair labor practices herein on the promise of additional paid holidays and better insurance, or on the payment of the unearned bonus n Orange Premium Stamps, 127 NLRB 1491, 1493. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would tolerate and not promptly discharge any employee who spent 6 out of 8 hours away from his job. I therefore regard Dunn's version of this conversation as incredible, and conclude that he was threatening Smith with loss of employment because of his "union agitat- ing," and not for soldiering on the job. Accordingly, I conclude that thereby Re- spondent violated Section 8 (a) (1) of the Act. Smith also testified that before the election, Foreman Robert Day 12 laughingly said to him, "You have had it. I know you was [sic] aL the [union] meeting." Day admitted that he may have said the foregoing to Smith, but testified it was said "in a kidding way." Day further testified that he had never attended union meetings. Smith admitted that he thought Day was guessing about his attendance at the union meeting. In view of the joking vein in which it occurred, I do not regard the foregoing remarks of Day to Smith, either as coercive, or indicative of surveillance of union meetings by the Respondent. I thereupon conclude that these remarks did not violate Section 8(a) (1) of the Act.13 4. Interrogation According to the credited testimony of Friend, following one of the meetings with employees, Vice President Olson accused him of being a "liar," "talking out of one side of [the] mouth to the company and out of the other side . . . to the Union," and of being "for the Union all the way." Several hours later, Friend was similarly accused by President Dunn of being "two faced," "all the way for the Union," and of "attending the [union] meetings." 14 Friend admitted to Dunn that he "might be" for the Union,,and told him that he had never denied attending union meetings . Thereupon Dunn asked Friend whether he had attended the union meeting that day, and on Friend's affirmative reply, Dunn asked, "Who all was there." 15 Friend evaded supplying the requested information by replying, "I didn't go to see who was there. I went to hear what was said." Friend also credibly testified without contradiction that about I month before his discharge by Respondent on November 16, Foreman Campbell asked him how he would vote if there was a second election, and that when Friend replied that he would vote for the Union, Campbell said, "I think you are for the damn Union all the way." 16 Employees Thomas Sexton and Chandcas Bowe testified credibly that 2 or 3 weeks before the Board election, each of them was separately asked by Dunn what he thought of the Union. Sexton replied that he had nothing "to say about it." Bowe said he did not know at that time.17 Employee William A. Jewell testified credibly and without contradiction that he was asked by Foreman Fred Day how he "felt about the Union," and that on an- other occasion when he [Fred Day] was kidding about the way that I was going to vote for the Union," Day said, "I know that you are for the Union." Employee Jerry K. Reed also testified without contradiction that on an unspecified date before the election, his foreman, Fred Day, asked him whether he had signed a union card, and that when he replied in the affirmative, Day asked, "Jerry, how do you feel about the Union?" 18 In view of Respondent's active campaign to defeat the Union and its promises and threats which, in themselves, constituted unfair labor practices, I find and conclude that the above-described interrogation of employees interfered with, restrained, and is This is not the same person as Foreman Fred Day bereinbefore mentioned. is Geo . Byers Sons, Inc, 111 NLRB 304, 306, footnote 4. 14 In the context of Respondent's open hostility to the Union, I regard the accusations of Olson and Dunn that Friend was "two faced," "for the Union all the way," and "attending union meetings," as a form of interrogation intended to cause Friend either to admit or deny his union adherence or sympathies. is Both Olson and Dunn admitted that they had discussed the Union with Friend at his work station in furtherance of Respondent's campaign to defeat the Union, but denied categorically the statements and interrogation which Friend attributed to him. I do not credit their denials. is Campbell admitted that he might have asked Friend how be would vote if the elec- tion came up again. 17 Dunn denied that he asked Sexton or any other employee what he thought of the Union . I do not credit his denial. is Foreman Fred Day was not called by Respondent to deny the above testimony and no explanation was offered for his failure to appear. PLASKOLITFI, INC. 765 coerced employees in the exercise of guaranteed rights, and thereby Respondent violated Section 8(a)(1) of the Act.19 D. The discriminatory discharge of William O. Friend Friend was hired by Respondent as a saw or cutoff man on September 24, 1958, and received a starting wage rate of $1.40 per hour. His application for employ- ment 20 with Respondent disclosed that his formal education terminated at the third grade. He worked for Respondent until November 16, 1960 , when he was dis- charged by Respondent, allegedly because he was unable to fill out his "daily work reports, or to fill out production contracts on the boxes " that he packed. During the period of his employment by Respondent, Friend received regular periodic wage increases, the last of which, received about 6 weeks before his discharge, brought his rate to $1.70 per hour. Respondent admits that Friend was a satis- factory employee in all respects other than his inability to fill out the daily work- reports. As hereinbefore reported , Friend was active in the Union's effort to organize Respondent's employees, and solicited and secured the signatures of a substantial number of employees to union authorization cards. In addition , Friend attended the regular Wednesday meetings of the Union, and acted as observer for the Union at the Board election held on September 14. As hereinbefore found, during Re- spondent's campaign to defeat the Union, its principal officers, Dunn and Olson, accused Friend of being a liar, two faced, talking out of both sides of his mouth in respect to the Union, and attending union meetings . In addition, as found above, Dunn interrogated Friend as to who attended a union meeting , threatened that if the Union "got in" there would be IQ tests and physical examinations which a lot of employees would not pass, and promised a wage increase and other benefits if "the Union was no longer in the picture." Friend was unable to read and he could write only his signature, some initials, and numbers . Friend's limited knowledge in this respect was known to Respondent "for a long time." Until October 17, however, Friend's regular job required very little ability in this regard, for the only reading and writing that he did was to fill out some blank spaces on the ends of the cardboard boxes into which he packed the plastic tubing or products which he had sawed or cut off. Specifically, the blank spaces stamped on the box and which Friend was required "to fill out" were as follows: Date- ------------------------------------------ Shift No------ Machine operator ____________________________________ Cut By--------------------------------------------- Box No------- Inspected By---------------------------------------- Customer------------------------------------------- Part No-------------------------------------------- Color---------------------------------------------- No. Pes------- Friend credibly testified that he could and did fill in all the spaces except the name of the customer, the part number or product, and the color. These were done either by the assistant foreman or the employee who made the boxes . Evidently Friend's performance in this respect was satisfactory since there is no testimony that he was ever advised of or reprimanded for any shortcomings in respect to filling out the information required on the box ends. On October 14, Respondent announced to its employees that commencing with Monday, October 17, it would require its cutoff men to complete and turn in, at the end of each shift, a mimeographed daily production report. According to the notice to the employees announcing the introduction of the new form , the reason for its adoption was complaints from two customers of the receipt of merchandise "below minimum standard," and Respondent's inability to determine who was the cutoff man on the job. The new form , according to Respondent's officers, Dunn and Olson, had been recommended in early 1960, but had not been put into effect then because of the alleged urgency of other matters . Coincident with the adoption of the new form, Friend was transferred by Respondent from the second shift, where he had worked for almost 2 years, to the first shift . Dunn testified that because of Friend's "problem of reading and writing ," he was being put on the first shift because there "more supervisors were available and would be able to help him." le American Furniture Company, Inc , 118 NLRB 1139, 1140. 2° General Counsel's Exhibit No 3 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Friend testified that when he was advised of the transfer, he told Dunn that the latter was preparing "to fire him," which Dunn denied, saying that he had known of Friend's inability to read and write "for a long time," and that the purpose of the transfer was "so that there would be more employees there . . . to help him .. . fill out the reports and box ends 21 Dunn announced the adoption of the new form to the employees on October 14, at the same meeting at which he also announced the promise of a 20-cent wage increase provided "the Union was no longer in the picture," and the payment of a $25 farewell bonus which the employees had not earned. Dunn admitted that at this meeting he told the employees: That Bill Friend was complaining . .. that this system of daily work reports that we had just put into effect was a system designed to get him and I said publicly to all employees that this was ridiculous, that we were not spending the money or going to all the trouble to set up a system as elaborate as this, which was designed months and months before, just to get some employee, and that I wish that he, Bill Friend would stop thinking this kind of thing and would try to cooperate and learn how to work within the confines of this system." The new form was used by Friend from October 17 until November 16, when he was discharged. Friend credibly testified that when he received the form each day, it was already filled out up to the line designated "Saw man" and that he inserted his name on that line and filled out the balance of the form, except for "comments," which he was unable to do. Friend further testified that on October 17, the first day the form was used, he was shown how to complete it by another employee, when Foreman Robert Day told the latter to desist and that he or the assistant foreman would fill it out because "he didn't want a mistake on it." Friend also testified that no one ever asked him to fill out "comments," and that when asked for "comments," he gave them orally to the assistant foreman who picked up the report. Friend also credibly testified that he was given no other help in connection with the form or its completion. Other employees corroborated Friend and credibly testified that when they received the form, it had already been partly completed by their assistant fore- man in respect to the name of the customer, the material, part number, order number, length, and tolerance, and that on occasions when they were busy with production, the assistant foremen picked up and completed the other parts of the form as well. Employee Sexton credibly testified that the form takes only 2 minutes to complete. The highest estimate of the length of time required to fill out the report was 3 to 5 minutes.22 During the period between October 17, when Friend was transferred to the first shift, and November 16, the date of his discharge, Friend was never advised by Respondent that his daily production reports were not satisfactory, and he was never advised that he must learn to read and write or be discharged. On November 16, Dunn called Friend into his office, handed Friend a letter notifying him of his discharge, and said, "Here are your walking papers." 23 The question presented for consideration is whether Respondent reluctantly dis- charged Friend because of his inability to read and write, or whether it was motivated by hostility to the Union and Friend's leading role in the latter's support. I conclude that the latter was the reason for Friend's discharge. 21 Friend testified that in the same conversation, Dunn accused him of "playing around with the Union too long," and asked Friend if he wanted "to get fired or laid off " I do not credit Friend's testimony in this regard because the accusation and threat are com- pletely inconsistent with Dunn's professed motive for the transfer, "to help him " More- over, it is extremely unlikely that Dunn would have impliedly admitted antiunion motiva- tion from the transfer by such an accusation and threat, even if that was his real reason 22 Foreman Robert Day testified that he explained to Friend how the report was to be made out, that Friend asked him for help "maybe a dozen times," and that he also saw Friend asking help from other employees on a number of occasions I do not credit his testimony because I credit the uncontradicted testimony of Friend and other employees that the form was partially completed when the employees received it, and that it was with Friend's ability to execute, except for "comments" 22 Dunn admitted that this procedure was unusual, but explained that he was making a record because he expected that Friend would file charges that his dismissal was a viola- tion of the Act Friend testified that Dunn said on this occasion, "Hi there, old Union man," "You know that we never did want a Union around here," and "We are not going to have another one around if I can help it " Under the circumstances, it is extremely unlikely that Dunn would have thus, in effect, admitted antiunion motivation for the discharge, and I therefore do not credit Friend's testimony quoted above. PLASKOLITE, INC. 767 Friend was concededly a satisfactory employee in all respects before the advent of the Union. Indeed, Foreman Campbell admitted that Friend "could do a little bit better of a job than some other people." 24 Respondent knew when it hired Friend that he had practically no formal education, and also knew, long before the Union's intrusion into Respondent's plant, that Friend's knowledge of reading and writing was meager. Nevertheless, he was able for 2 years to satisfy Respondent's limited requirements in this respect, for he filled out the box ends of the boxes he packed and was never reprimanded for any errors or shortcomings in this respect. Despite this, Respondent's self-serving letter notifying Friend of his discharge assigns as one of the reasons therefor, "Your inability . . . to fill out the production con- tents on the boxes that you are filling." On the record herein, there is no factual basis for this asserted reason for Friend's discharge. Dunn did not assign this as a reason for Friend's discharge when he was asked by the General Counsel why Re- spondent discharged Friend, and he replied that the only reason was Friend's inability to fill out the new daily work reports. I therefore conclude that this reason asserted for Friend's termination is false. We come then to a consideration of the only other reason asserted for Friend's dismissal, his alleged inability to fill out the daily work reports As noted above, these reports were inaugurated by Respondent after the Union filed its objections to the conduct of the election. Dunn announced the advent of these reports to the employees at the same time that he promised them a wage increase if the Union was out of the picture, which I have found was an unfair labor practice. At the same time, Dunn announced to the employees that the purpose of the new reports was not "to get" Friend. The coincidence of the initiation of the daily work reports at the identical time when Respondent was committing other unfair labor practices to defeat the Union, is capable of a strong inference, despite Dunn's protestations to the contrary, that this was a device which Respondent undertook to rid itself of a leading union supporter in the plant. This inference is also supported by the fact that the alleged recommendation to institute the new reports had been made 10 months earlier and not then followed 25 However, since I conclude that the record establishes the discriminatory nature of Friend's discharge without reliance on the inference that the daily work reports were inaugurated as a device to get rid of Friend, I do not rely on the inference. Friend was transferred to the first shift by Respondent allegedly because there was more supervision available to help him with his reports. As found above, in respect to most of the items which Friend would be unable to fill out, the reports were already substantially completed by the assistant foremen before they were given to the cutoff men. Friend, as found above, was able to complete the balance of the report except for the item "comments" which he supplied orally to his supervisors when asked. Significantly, he was never told that his daily work reports were deficient. Moreover, contrary to the assertion in Respondent's self-serving discharge letter, there was not an iota of testimony that it was necessary for any foreman "to stay over every day in order to complete your [Friend's] report," or that any foremen did so. Even if that was the case, such assistance was allegedly the reason for Friend's transfer to the first shift, and the completion of the report was a matter of only 2 to 5 minutes per day. Indeed, as I have found, these reports were frequently completed by Respondent's foremen when other sawmen were busy with production. In view of the foregoing, I find it impossible to believe that Respondent would dis- charge an otherwise satisfactory and capable employee for the reason asserted. My conclusion aforestated is also based on another consideration. If, as con- ceded by Respondent, it discharged Friend with regret, the question naturally arises, why Respondent did not transfer him to another job which required no reading and writing? Respondent's self-serving letter discharging Friend answered this ques- tion by asserting that Respondent "always followed the policy of departmental seniority," that it was therefore impossible to place Friend in another department, and that regretfully, it had no other choice but to discharge him. There is no credible evidence in the record of the existence of such a departmental policy. Dunn and Olson testified that such was Respondent's policy but their testimony in this regard contradicted their affidavits given to the Board's agent and I do not credit it. To the contrary, Friend credibly testified without contradiction that during his employment 24 For example, Friend was one of the employees to whom Respondent assignd the cutting of the difficult Sylvania tube job, any error in which would be costly to Respondent 25 I am not persuaded by Respondent's attempted explanation, that the delay was occasioned by the greater urgency of other matters. 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Respondent, he had worked on the drill press, ground material, cleaned ma- chines, took off and replaced dials on the machines, carried materials, loaded and unloaded trucks, and scrubbed floors. Other employees likewise testified that when- ever the occasion arose, they performed many different jobs in the plant. I conclude therefore that, contrary to the assertion in Respondent's letter and Dunn's and Olson's discredited testimony, there was no policy of departmental seniority in Respondent's plant which prevented Respondent from utilizing Friend on another job. For all the foregoing reasons, I conclude that Friend's limited ability to read and write was a pretextual device seized upon by Respondent to rid itself of one of the leading proponents of the Union in its plant, and that thereby Respondent discrimi- nated against Friend to discourage membership in and adherence to the Union, in violation of Section 8(a) (3) and (1) of the Act.26 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operation of the Respondent 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 com- merce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. Having found that William O. Friend was discriminated against in respect to his hire and tenure of employment, I shall recommend that the Respondent be ordered to offer him immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered because of the discrimina- tion against him, by payment of a sum of money equal to the amount he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings during said period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Com- pany, 90 NLRB 289, 291-294. I shall also recommend that the Respondent make available to the Board, upon request, payroll and other records to facilitate the deter- mination of the amounts due under this recommended remedy. In view of the nature of the unfair labor practice committed, the commission of similar and other unfair labor practices reasonably may be anticipated. I shall therefore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon rights guaranteed to its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Textile Workers Union of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of William 0. Friend, thereby discouraging membership in Textile Workers Union of America, AFL-CIO, Respondent has engaged in, and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By the foregoing conduct, and by interrogating employees in respect to their union membership, activities, and desires, promising wage increases, and threatening employees with physical and IQ examinations, discharge, and with more onerous working conditions, all to discourage the membership or adherence of its employees in Textile Workers Union of America, AFL-CIO, Respondent has interfered with, restrained,-and coerced employees in the exercise of rights guaranteed in Section 7 of the Act ad thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (I) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce. [Recommendations omitted from publication.] 28 The fact that Respondent did not discharge another observer for the Union does not detract from this conclusion. N.L.R.B. v. W C Nabors d/b/a W. C. Nabors Company, 196 F. 2d 272, 276 (C.A. 5).