Freskeeto Frozen Foods, Inc.

342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Freskeeto Frozen Foods, Inc. and Local 474, Amalgamated Meat Cutters & Food Employees Union, AFL-CIO. Cases 3-CA- 2773 and 3-RC-3750. June 15,1966 DECISION AND ORDER On April 12, 1966, Trial Examiner Milton Janus issued his Deci- sion 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 cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that Respondent had not engaged in certain other unfair labor practices alleged in the com- plaint and recommended that those allegations be dismissed. In addi- tion, the Trial Examiner recommended that the challenge to one ballot be overruled and that the ballot be opened and counted and a revised tally prepared. Thereafter, the Respondent filed exceptions and a supporting brief.2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case ton three-member panel [Members Fanning, Brown, and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. The Board adopted the Trial Examiner's Recommended Order, with the following modifications : [1. Add the following to paragraph 1(c) of the Trial Examiner's Recommended Order and to the last full paragraph of the Appendix : [... 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 in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959.] 1 After making his finding in the representation proceeding with respect to the challenge and objections filed therein , the Trial -Examiner severed that case from the complaint proceeding and transferred it to the Regional Director for further processing 9 Respondent's. request for oral argument is hereby denied, as the record and brief ade- quately present the issues and positions of the parties. 159 NLRB No. 37. FRESKEETO FROZEN FOODS, INC. TRIAL EXAMINER'S DECISION AND REPORT ON OBJECTIONS TO ELECTION AND CHALLENGED BALLOT STATEMENT OF THE CASE 343 In Case 3-CA-2773, a charge and an amended charge were filed on October 20, 1965, and January 18, 1966, respectively, by Local 474, Amalgamated Meat Cutters & Food Employees Union, AFL-CIO against Freskeeto Frozen Foods, Inc. In Case 3-RC-3750, a petition was filed by Local 474 on September 13, 1965, for an election among Freskeeto's employees. The parties entered into an agree- ment for consent election which was approved by the Regional Director for Region 3 on October 11, 1965. An election by secret ballot was held October 18, 1965, in a stipulated unit of drivers, freezer men, and loaders. The tally of ballots showed that four ballots were cast for Local 474, four ballots were cast against representa- tion, and one ballot, that of Edward Hook, Jr. was challenged by the Board agent because his name did not appear on the eligibility list. On October 20, Local 474 filed objections to conduct affecting the results of the election and on November 29, 1965, the, Regional Director issued an order directing hearing on one of these objections, and on the status of Edward Hook, Jr., whose ballot was determinative in the election. The next day, November 30, 1965, the Regional Director issued his complaint in Case 3-CA-2773 and with it an Order consolidating the two proceedings for pur- poses of hearing, ruling, and decision by a Trial Examiner. Thereafter, on Janu- ary 20, 1966, the Regional Director issued an amended complaint and order con- solidating cases, superseding the earlier complaint and order, in which he specifically directed that following the decision of the Trial Examiner, Case 3-RC-3750 be severed and transferred to him for further processing.' The amended complaint alleges that Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act by various specified conduct, and that it laid off or discharged Edward Hook, Jr., on or about September 18, 1965, and Edward Hook, Sr., on or about January 7, 1966, because they had joined or assisted Local 474 or had engaged in other con- certed activities for the purpose' of collective bargaining or other mutual aid or pro- tection. The answer to the amended complaint denies any violation of the Act. Upon due notice a, hearing in, the consolidated proceeding was held before Trial Examiner Milton Janus, on February 8 and 9, 1966, at Ellenville, New York. All parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence. Briefs have been filed by the General Counsel and the Respondent .2 Having considered the entire record in these consolidated cases, and the briefs, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, herein called the Company or Freskeeto, is a New York corpora- tion, engaged at, its Ellenville, New York, plant in the sale and distribution of frozen food and related products. During the past year, it purchased goods and materials valued in excess of $50,000 which were delivered to its plant from points outside the State of New York. The Company admits, and I find, that it is engaged in commerce within'the meaning of. Section 2(6) and (7) of the Act. 1 The agreement for consent election which the parties entered into, provides inter alia that the determination of the Regional Director shall be final and binding upon any question, including questions as to the eligibility of voters, raised by any party relating in any manner to the election, and that "the method of Investigation of objections and challenges , including the question whether a hearing should be held in connection there- with, shall be determined by the Regional Director, whose decision shall be final and binding." 3 The General Counsel's motion to correct certain minor errors in the transcript is hereby granted. ' 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED The Charging Party, Local 474, Amalgamated Meat Cutters & Food Employees Union , AFL-CIO, is and has been at all material times a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Union's campaign to organize Freskeeto's employees began in the latter part of August 1965, when Hennig, an organizer for Local 474, introduced him- self to Edward Hook, Sr., a truckdriver for the Company, while the latter was making a delivery to a customer in Poughkeepsie. At Hennig's request, Hook, Senior, spoke to a number of employees at the plant about union representation, and arranged for them to meet Hennig at a hotel in a nearby town. Four employees came to the meeting, held on August 23, 1965, and signed authorization cards. In the following weeks a few more signed cards were obtained, and on September 13, 1965, the Union filed a representation petition. Under the agree- ment for consent election, all drivers, freezer men, and loaders employed during the payroll period ending October 2, 1965, were eligible to vote. The election of October 18, resulted in a tie vote, with the ballot of Edward Hood, Jr., son of Edward Hook, Sr., being determinative. Hook, Junior's employment had been terminated on September 18, 1965, allegedly for discriminatory reasons. A. Interference, restraint, and coercion Most of the incidents alleged in the complaint to constitute violations of Section 8(a)(1) involve conversations with Bernard Dickman, president of the Company. As Dickman denied much of the substance of these conversations, thus putting in issue his credibility against that of his employees and former employees who were called as witnesses by the General Counsel , I shall sum- marize the testimony of these witnesses, then that of Bernard Dickman, and conclude with my credibility resolutions and reasons therefor. Other Section 8(a)(1) allegations involve conversations with Howard Dickman, secretary of the Company, and Bernard's brother. These will be included in the summaries of testimony as outlined above. Further allegations of Section 8(a)(1) conduct which do not depend on resolutions of credibility will be considered separately. Edward Hook, Sr., the employee with whom the Union's initial contact has been made, testified that on September 16, 1965 (a day or two after Respondent was notified of the petition), Bernard Dickman invited him into his office after he had checked in at the end of his trip, and asked him if he had signed a union card. Hook said he had not, and Dickman then asked him if he was going to sign a card. Hook said he was thinking about it. Dickman then began talking to him about his son, Edward Hook, Jr., who was a part-time employee, and told him to get him under control as he was working with the Union. Dickman then said, according to Hook, Senior, that he would close the plant before he would accept the Union. Hook also testified that on a number of occasions between September 16 and the election, a month later, Dickman asked him what he was going to do about the Union, and Hook answered that he was still thinking about it. Hook, Senior, broke both hands while out hunting on Thanksgiving Day, 1965. He was unable to work from that date to sometime early in January 1966, at which time, according to the complaint, he was terminated because of his union activity. That issue will be considered later, but the facts as to Hook's inability to work are set out here because of the conversation which took place on November 30, when Hook went to the plant to pick up his last paycheck. The wages due him amounted to about $56; but Hook also owed the Company about $54 for groceries which he had bought from it during the past few weeks. Hook testified that Dickman told him he had to clear his cash box because the Union had come in, and gave him only the $2 balance owed him. The next evening, Dickman telephoned Hook to tell him that he had not deducted the $54 because of his union activities. Edward Hook, Jr., was working as a warehouseman and loader when the Union's organization drive began in August 1965. He testified that on September 16, 1965, Bernard Dickman observed him talking to the union organizer, Hennig, outside the plant. When he reported for work a few minutes later, Dickman asked him what the union man had said to him , and told him not to fool around with the Union because it could not do much for him as a student . On Saturday, September 18, Dickman told him he would not need him any longer, but loaned him some money FRESKEETO FROZEN FOODS, INC. 345 which Hook, Junior, had requested in order to buy school clothes. A little more than a week later, Hook, Junior, went to the plant to repay part of this loan. Dickman called him into his office, asked him why he was showing the union man where his employees lived, remonstrated with him because he and his father were ringleaders in the union campaign despite Dickman's financial help to the family, and finally asked him if he had signed a union card. Elting Markle is a driver who had signed an authorization card for the Union and had attended a number of its organizational meetings. He testified that early in September, Bernard Dickman asked him if he had talked to the union man, if he had signed one of its cards, and how he intended to vote. Dickman then told him that the last union to seek representation of his employees hadn 't made it, and that he would close his doors before he would permit a union in his shop. Markle also testified that Dickman had said in the same conversation that he had always taken care of the boys. Dickman again asked him the following week how he was going to vote, and Markle answered as he had before, that he was going to vote with the boys. The response displeased Dickman, since he immediately set Markle on a menial clean- ing job. Sometime after the election, Markle had a friendly conversation lasting over an hour with Howard Dickman, in the course of which Howard said there were cer- tain men who were worth a raise but he could not give them one . Howard also said, according to Markle, that if the boys had come in and talked to the Dickmans before going to the Union, they might have been able to iron out their complaints. Late in November, according to Markle, he and Paes, another company driver, and the two Dickmans discussed grievances and union activities, in the course of which Bernard Dickman again referred to the Hooks as the union ringleaders, pointed out his right to fire employees for minor derelictions, said that he had" a big lawyer in the city who just loved to fight this type of case, and that he was going to win. Howard then said to him that the whole thing could be licked if all the boys signed a petition. Immediately after this group conversation, Bernard Dickman repeated to Markle, as they walked to their cars in the parking lot, what Howard had said about licking the whole thing if the boys would get up a petition and send it to the National Labor Relations Board. Bernard also told him that the petition should say that they did not want anything more to do with the Union. Two weeks later, Bernard Dickman asked Markle if he had told the union organizer about their earlier conversation, and then said that he would deny everything. John Paes, a driver, had signed an authorization card at the first union meeting on August 23, 1965. Paes testified that Bernard Dickman, in a conversation in mid-September, told him he had seen the union organizer around the plant, and that if the Union came in, he would close his doors. He also testified that on the Saturday before the election, Dickman asked him if he could not speak to the boys about the Union. Late in November, after Howard Dickman's return to work after a long illness, he and Paes drove together visiting customers and making deliveries. During this day-long trip, Howard suggested to him while listening to Paes' recital of his grievances over long hours and working conditions that nothing could be done unless the Union could be gotten out as the other union had been .3 Paes also corroborated Markle's testimony that Bernard Dickman had told the two of them, in a conversation in late November, that it was not his policy to fire employees, but he could make it miserable for them and fire them for any little reason. Thomas Mansfield was a driver who worked for the Company a few months in the fall of 1965. He was eligible to, and did vote in the October 18 election. Ber- nard Dickman gave him a ride downtown in his car sometime before the election, asked him if he was going to vote and what he thought about the Union. Mansfield said he did not care much about any union, and a while later in the same conversa- tion, Dickman said that those fellows who went along with him would not be sorry afterward. On two occasions thereafter, Dickman asked him if he had signed a union card. 3 As I intend to say more about another union's previous attempt to gain recognition from the Company, I hereby take official notice of the Board's records In Case 3-RC-3206 involving a petition filed by Teamsters Local 445 on July 3, 1963, for a unit of the Com- pany's truckdrivers and helpers . An election was held , pursuant to a consent election agreement, on August 23, 1963, and the tally of ballots shows that the Petitioner was selected by a majority of the employees voting It was thereafter certified by the Board on September 4, 1963. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Will Tyner worked for the Company evenings as a regular part-time warehouse- man from September through November 1965. He was called as a witness by the General Counsel and first testified that when he applied to Bernard Dickman for employment, Dickman told him about the job and what it paid, and then mentioned that the employees were having "a struggle for union recognition in the plant." Tyner said he wasn't interested one way or the other, and Dickman replied that it was up to him. The General Counsel then offered in evidence an affidavit which Tyner had given to a Board agent during the investigation of this proceeding. I refused to permit receipt in evidence, but allowed General Counsel to at- tempt to refresh Tyner's recollection by having Tyner read the statement. Tyner made a grudging and only partially successful effort to read what had been written down by the Board agent, but had been signed by him. He then testified, repeating his previous testimony, that Dickman had mentioned the struggle for union recogni- tion, but now added that Dickman had also asked him if he was interested or con- cerned about the Union. Tyner immediately followed this by saying that he did not recall anything being discussed about the Union. Bernard Dickman: In direct examination by his counsel, Dickman admitted that shortly after he received a copy of the Union's petition he asked Markle if he had signed a union card, and on some other day had asked Hook, Senior, the same question. He also admitted engaging in a conversation with Markle and Paes, presumably the one that they testified took place late in November, but his testimony leaves it unclear whether union activities were discussed. Dickman specifically denied, however, that he told any of his employees at any time that if the Union were selected he would close his plant, or that he was going to beat the Union. On cross-examination by the General Counsel and the Charging Union, a number of discrepancies between his testimony and his previous statement, or between his testimony on direct and on cross-examination were disclosed.4 These discrepancies between testimony and prior statement or modifications of testimony on further examination do not, in their totality, impress me as proving Bernard Dickman's unreliability under oath in and of themselves. However, it is apparent that the reports of both Hooks, Markle, Mansfield, and Paes as to their conversations with Bernard Dickman cannot be reconciled with his versions of the same conversations or with his denials that they ever took place. Howard Dickman corroborated his brother's testimony that the latter had told Hook, Senior, in Howard's presence that his reason for reclaiming the entire $54 which Hook owed was that he did not want the Union to think he was trying to influence his men. Howard also denied that he had said to Paes that nothing could be done to satisfy his grievances unless the Union could be gotten out, or that he had suggested to him or to Markle that the employees get up a petition against the Union. Findings as to Credibility Bernard Dickman admitted asking Hook, Senior, and Markle if they had signed union cards, and admitted asking Hook, Junior, why he was showing the union organizer where his employees lived. I consider it most unlikely that Bernard Dick- man's interest in the Union's progress would be so easily or quickly satisfied. He had had an earlier experience with a union seeking representation, had agreed to an election then, as he did here, had seen that union win the election, but had never signed a contract with the certified union, under circumstances not explored in this proceeding I consider it highly probable that Dickman would try to help history 4 (a) On direct, Dickman testified that when he deducted the $54 from Hook, Senior's last pay he told him he was doing so because he did not want the Union to feel that he was trying to influence his men in any way. Dickman's statement to a Board agent was to the effect that he said nothing to Hook as to why he was deducting the full amount owed him, and that his undisclosed reason for reimbursing himself was that he did not think Hook would be back at work for a while; (b) on the stand, Dickman denied that he had asked Hook, Junior, why he was interested in the Union, while his statement reads that when Hook, Junior, came to pick up his last paycheck, he may have asked him why he was interested in the Union; (c) on cross-examination, he admitted that he had asked Hook, Junior, why he was showing the union man where his employees lived; (d) he admitted asking Hook, Senior, Markle, and Paes if they had signed union cards , although his statement says that he never asked Hook, Senior, that question and doubts that he asked it of any employees since they wouldn't, have told him the truth anyway. FRESKEETO FROZEN FOODS, INC. 347 repeat itself, and the testimony of Markle and Paes that both Dickmans suggested that the employees get up a petition disavowing the Union lends support to that supposition.5 The testimony of the two Hooks, Markle, Mansfield, and Paes, based on numer- ous and largely separate incidents, show a uniform and 'persistent pattern of con- duct by the Dickmans in opposition to the organizing activities of their employees, and is thus mutually corroborative and trustworthy. Based on the foregoing, the entire record, and the comparative demeanor of the witnesses, I credit the testimony of the Hooks, Markle, Mansfield, and Paes as to what Bernard and Howard Dickman had said to them about the Union and their inquiries as to their employees' activities or sentiments with respect to the Union. Findings and Conclusions as to Section 8(a)(1) Allegations The complaint alleges the following as independent violations of Section 8(a)(1) by Respondent, acting through its Agents Bernard or Howard Dickman. (a) Interrogation of employees and prospective employees concerning their union membership, activities, and desires. In accord with Bernard Dickman's admissions and my resolutions of credibility, I find that between the filing of the petition and the date of the election, Bernard Dickman asked Edward Hook, Sr., on a number of occasions if he had signed a union card and what he was going to do about the Union; inquired of Edward Hook, Jr., whether he had signed a union card and what Hennig, the union organizer, had said to him; asked Mansfield what he thought about the Union, and on other occasions, asked him if he had signed a card; and asked Markle if he had talked to the union man, if he had signed a card, and how he intended to vote. Dickman had no legitimate concern with whether his employees had signed union cards, how they intended to vote, or with whom they had spoken. Such inquiries of a substantial number of the employees in the plant, during the course of the Union's campaign, would, I find, tend to interfere with, restrain, and coerce them in the exercise of their right to support the Union and to participate in its efforts to be selected as their bargaining representative. The interrogations, moreover,. occurred in the context of other violations of Section 8(a)(1), as found later herein, and are thereby additionally tainted by the coercive aspects of those viola- tions also. The evidence with respect to what Bernard Dickman told Will Tyner when the latter applied for employment is less clear. Tyner testified that Dickman had men- tioned "a struggle for union recognition in the plant," and had asked him if he was interested or concerned about the Union. Tyner followed this with his state- ment that he did not recall any discussion about the Union, but this does not seem to me to be a retraction of what he had just said, but rather his personal under- standing that a discussion is more extensive than a single statement or question. I find that Dickman asked Tyner if he was interested or concerned about the Union. An inquiry of a prospective employee, during a union campaign, so obviously designed to elicit information about his union sentiments, is an interference with the applicant's right to be selected or rejected for employment without regard to how he might vote in the election. I find the inquiry of Tyner to be a violation of Section 8(a)(1). (b) The implication by Bernard Dickman that he was keeping under surveillance the meetings and activities of the Union. The two dates on which whatever conver- sations are encompassed by this paragraph of the complaint are said to be Octo- ber 6 and November 30, 1965. I find no evidence in the record relating to such conduct as occurring on or about either of these dates. However, a week or so after Hook, Junior, was terminated on September 18, I find that Bernard Dick- man asked him why he was showing the union organizer where his employees lived. Dickman's remark indicates that he wanted Hook to know that his activities were either being observed by a company agent or were being reported to the Company by someone who knew that Hook was cooperating with Hennig. An implication that an employee's contacts with a union representative are being observed and noted is violative of Section 8(a)(1). e Paes also testified that be had been employed at Freskeeto during the prior union' campaign in 1963, and that some of the employees had signed a petition to get the Union out. 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Offers, promises, and grants of wage increases, improved hours of work and other benefits in working conditions. Before the election, Bernard Dickman told Mansfield that those fellows who went along with him would not be sorry after- ward. He told Markle that he had always taken care of the boys, during a con- versation in which he had asked him if he had signed a union card, and that he would close his doors before he would permit a union in the shop. Although his statement to Markle that he had always taken care of the boys might, standing alone, be regarded as a noncoercive reminder of past benefits, its joinder with a threat to close the plant would convey to Markle the advantages which he and the other employees might gain if the Union were rejected. I find that these remarks of Dickman to Mansfield and Markle were promises of benefits conditioned on rejection of the Union, and are violative of Section 8(a)(1). This paragraph of the complaint also alleges that Bernard and Howard Dickman promised or granted benefits on various dates in late November and early Decem- ber 1965. The evidence bearing on this allegation indicates that Markle and Paes were dissatisfied, because after driving all day they were, in their view, required to work evenings in the warehouse. They were also unhappy over the fact that they were being charged for laundering of their uniforms, while Paes had an individual complaint about the length of his route on Fridays. Paes aired his complaints to Howard Dickman on their daylong trip after Dickman's return to work from a long illness, and he and Markle followed it up a few days later in their meeting with the two Dickmans. Shortly thereafter, Bernard Dickman hired two part-time employees for evening work in the warehouse, and adjusted Paes' Friday route by eliminating a particular delivery which he had been making. With additional help in the warehouse, Markle, and Paes were allowed to work fewer evenings. I am satisfied that these adjustments of grievances were made without regard to any effect it might have on the employees' support of the Union. Dickman had also adjusted Paes' route a few months before the organizational campaign began, in response to Paes' request, and on a number of occasions had settled the grievance of individual employees. To foreclose an employer from adjusting the working conditions of particular individuals when necessary or desirable in his business judgment solely because a representation or complaint proceeding is pending is an unnecessary restriction unless such adjustments can reasonably be said to be an interference with the employees' organizational rights.6 I recommend the dismissal of this particular allegation of the complaint. (d) Solicitations, instructions, and requests of employees to withdraw their sup- port of the Union or to encourage other employees to do the same. There are four incidents which come within the purview of this allegation. Before the election, Bernard Dickman told Hook, Senior, that his son was helping the Union and that he ought to keep him under control. During the same period, Dickman asked Paes to speak to the boys about the Union during the conversation in which he asked Paes to think of the Dickmans in deciding how to vote. An employer interferes with the right of his employees to join or support unions by soliciting some of them to use their influence over others to accomplish his objective of defeating their organization and representation.? Late in November, both Dickmans told Markle that the whole union thing could be licked if the boys were to get up a petition that they didn't want anything more to do with the Union. To the same effect, Howard Dickman suggested to Paes that nothing could be done about improving working conditions unless this union could be gotten out like the other union had been. Although the Company apparently made no effort to draw up such a petition for the use of its employees, its instieation of employees to do so is violative of Section 8(a)(1).8 (e) Warning employees that Respondent would close its plant if they did not refrain from assisting and supporting the Union I find that Bernard Dickman told Hook, Senior, Markle; and Paes in separate conversations, after learning of the Union's petition, that he would close the plant if the Union got in. Such warn- ings or threats are a clear restraint of employees in the exercise of their Section 7 rights. e Cf. Am,box, Incorporated, 146 NLRB 1520 , 1521 , enforcement denied on this point, 357 F 2d 138 (C.A. 5). 7 Mid-State Beverages, Inc., 153 NLRB 135. s Florence Printing Co., 145 NLRB 141, 144 , enfd. 333 F.2d 289 (C A 4) FRESKEETO FROZEN FOODS, INC. 349 (f) Threatened its employees with loss of employment or other economic bene- fits or would cause them to quit their employment if they did not refrain from sup- porting the Union. During the conversation in late November in which the two Dickmans, Markle, and Paes participated, Bernard Dickman told the two employ- ees that it was not his policy to fire employees but that if he wanted to he could always find some little reason to do so. In the context of Dickman's remark dur- ing the same conversation that the Hooks had been the ringleaders in the union campaign, and the suggestion made the same evening by both Dickmans - that an employee petition would lick the union problem, I find that Bernard Dickman's statement about his discharge policies would reasonably tend to cause employees to fear for their jobs if they continued to support the Union . I find this to be a viola- tion of Section 8(a)(1). (g) Deprived an employee of the benefit of paying for his purchases over a pe- riod of time because of his support of the Union . The allegation relates to Respond- ent's set-off of the amount which Hook, Senior, owed for groceries against the pay due him after his accident . When Dickman paid him the $2 balance due, he said, according to Hook, Senior, that he had to clear his cashbox because the Union had come in. Dickman's testimony on this point is that he deducted the full amount owed because he did not want the Union to feel that he was trying to influence his men in any way. Whichever version is accepted it appears that Dickman was aware of the Union and Hook's relationship to it. What Dickman would have done under the same circumstances if Hook had not been active in the union campaign can only be conjectured . Dickman also knew or suspected that Markle was a union adherent, yet he permitted him to pay off a grocery debt by small weekly deductions. Dick- man had also extended credit to Hook, Senior, over the past few weeks at a time when Dickman was just as aware of Hook, Senior 's union sympathies as he was on November 30. Although Dickman's treatment of an injured employee may seem harsh and unfeeling, I cannot say that it was in reprisal for Hook 's union activities. Since Dickman had no way of knowing how long Hook might be incapacitated, he may have acted solely from motives of prudence in recouping the full amount owed him. I cannot say, on this record, that Dickman would not have taken the same action with respect to any employee who was forced to take an indefinite leave of absence. I therefore recommend the dismissal of this allegation. (h) Informed employees at the plant parking lot on or about December 1 that it would not recognize or bargain collectively with the Union under any circumstances. I find no evidence to sustain this allegation either on the date specified or at any other time . I shall recommend its dismissal. (i) Interfering with the right of employees to participate or not to participate in the election of October 18. The election was scheduled to begin at 6:30 p .m., the time that Tyner was scheduled to start work. He testified that as he approached the entrance to the plant, Bernard Dickman saw him and told him that he had to go in and vote. Tyner demurred, and Dickman then said, in Tyner's words, "You better go, in, or else they will come out and get you." The paragraph does not allege that Respondent engaged in improper electioneer- ing at the polls by coercing Tyner to cast his ballot against the Union . The thrust of the allegation is, rather, that an employer violates Section 8(a) (1) by strongly urging an employee to vote in a Board election even if he does not tell the employee for whom to vote. Two important principles are in tandem here-one, that all. employees within the unit should be urged to exercise their franchise and, two, that employees who are in fact indifferent to the outcome of the election or are, for other reasons, reluctant to vote, should not be overborne in their refusal to vote by a party to the proceeding . I find that Tyner was not in fact coerced into voting against his firm convictions by Dickman's statement that "they" would come out to- get him. Though Tyner was at first reluctant, he eventually decided to vote after speaking to the Board agent who , according to Tyner, encouraged him to do so. I shall recommend the dismissal of this paragraph of the complaint. B. The discriminatory discharges The complaint alleges that Edward Hook, Jr., was laid off or discharged on September 18, 1965, and Edward Hook, Sr., on January 7, 1966, because of their activities on behalf of the Union. The Company had eight employees , classified as drivers or warehousemen, on the eligibility date, October 2, and the election date , October 18, 1965, not counting 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hook, Junior, whose status as an eligible voter depends on whether he was termi- nated for discriminatory reasons. Of the eight admittedly eligible employees, six were regarded as full-time men working days and some evenings, and two as regu- lar part-time men working evenings in the warehouse. There is a seasonal upswing in business during the summer, and it has been the practice of the Company to hire students for full-time day work during their summer vacations. The Company also has a fluctuating need during the rest of the year for extra work in the ware- house loading trucks for the next day's deliveries. Edwark Hook, Jr., worked for the Company during the 1964 summer season. He then returned to Ellenville High School as a third year student. About the first of May, 1965, some 6 weeks before the end of the school year, he asked Bernard Dickman for a job, explaining that he was thinking of dropping out of school because his family needed financial help and because of his own poor school record. Dickman hired him, and he worked evenings part-time for 2 weeks until he finally left school. From mid-May on, he worked full time to the end of the school year and through the summer vacation period. Three other young men were also hired for the summer, and left about Labor Day to return to their schools. Hook, Junior, however, although he also returned to school, worked evenings the week ending September 11, in which Labor Day fell, and the follow- ing week, ending September 18. He averaged about 11 hours in each of these 2 weeks. On Saturday, September 18, Dickman told Hook he no longer needed him, and Hook, Junior, has not worked for the Company since that time. It was on or about September 16 that Dickman first learned of the Union's petition for an election. The foregoing recital of events is not in dispute. There are, however, different versions of what was said and done when Dickman hired Hook, Junior, in May, and again during the summer, and in the period following Labor Day, which bear on the intentions and motives of the two participants. These must be resolved in order to determine whether Hook, Junior, was a regular employee when he was terminated, or was a casual, temporary employee who was retained from week to week after Labor Lay without any real expectancy of continuous employment. Hook, Junior, testified that in mid-June he told Dickman he was considering going back to school in the fall, and that Dickman then said he was thinking of putting on a part-time crew to work evenings in the warehouse and Hook could have a job during the school year on such a crew. Later that summer, Hook decided to return to school, and he testified that Dickman asked him if he would consider working evening part-time. School began on the Thursday after Labor Day, and Hook worked 3 or 4 evenings that week as well as the following week. Dickman testified that he has a policy against using students to work while school is in session; that during the week September 4-11, in which Labor Day fell and school began, he needed some extra help, and asked Hook, Junior, if he could come in for a few nights without its interfering with his school work. On Satur- day, September 11, Dickman said that he heard that Ingham, one of his full-time warehouse employees, was going into the hospital, and since he would be short- handed the next week, he asked Hook, Senior, whether his son could come in and help out while Ingham was away. When Dickman learned that Ingham would be able to return to work the next week, he told Hook, Junior, that he would not need him any longer. Hook, Senior, denied that Dickman had asked him if his son could work while Ingham was out. I do not credit Dickman's account which tends to show that Hook, Junior's regular employment ended Labor Day because he intended to return to school, and that he worked the next 2 weeks part-time only under special circumstances which established no reasonable expectancy of regular employment. I have previously credited Hook, Senior's testimony that Dickman told him during the week ending September 18, that he should keep his son under control because he was working for the Union. I find that Dickman had intended to keep Hook, Junior, on as a part-time employee during the school year but changed his mind when he learned that Hook, Junior, was aiding the Union's campaign. In addition to the reasons I have given for discrediting Dickman generally, including his demeanor, there are certain objective circumstances which tend to show that Hook, Junior, would have been kept on as a regular part-time employee after September 18, if it had not been for Dickman's discovery that he was working with the Union. When the summer vacation period ended and the students returned to school, Respondent retained two adults, Charles Storm and Leonard Byrd, as regular part- FRESKEETO FROZEN FOODS, INC. 351 time employees. Byrd left at the end of September and Tyner was hired as his replacement. Storm and Tyner were eligible to, and did vote in the October 18 election. No one was hired as a replacement for Hook, Junior, after he was ter- minated, a fact supporting Respondent's contention that it had no further need for the work he had been performing in the warehouse. But the force of this conten- tion is considerably dissipated by the fact that the drivers, who had done little or no evening work in the warehouse during the summer, were enlisted after Labor Day into working a considerable number of evening hours in the warehouse after their regular driving work. Whether or not their evening work was truly voluntary, as the Respondent argues, or was imposed on them, as Markle and Paes testified, need not be determined. The relevant point is that Respondent needed their services because it had terminated Hook, Junior, and did not want to hire a replace- ment for him at that time. My conclusion that Respondent had a continuing need for workers in the warehouse to help load trucks for the next day's deliveries is further supported by the fact that when Markle and Paes were permitted to cut down their evening work early in December; the Respondent had to hire two new regular part-time employees for the warehouse. Based on the foregoing, I find that Respondent intended to keep Hook, Junior, on as a regular part-time employee after Labor Day even though he had returned to school, and would have done so if Dickman had not learned that he was actively supporting the Union.9 Edward Hook, Sr. On Friday, January 7, 1966, Hook was released by the doc- tor who had treated his broken hands. The doctor told him he could return to work but should take it easy for a few days. Hook then went to the plant and related this to Bernard Dickman. Hook's job requires him to do a lot of driving, and to lift and carry boxes up to 80 pounds in weight. According to Hook, Dickman told him he would have to check with his lawyer before he could permit Hook to return to work. Dickman denied saying anything about his lawyer, testi- fying rather that Hook had told him he could come back but could only do a limited amount of work, and that he then told Hook it would be impossible for him to lift heavy packages without hurting himself, and that Hook should bring in a doctor's certificate that he could now do everything his work required. If Hook's version is to be credited, Dickman was conditioning his return to work on whether the company lawyer would give his approval. Why a" lawyer's approval should be needed, Hook had no way of knowing since Dickman had not told him his reason for such a condition. Hook's testimony about a lawyer's approval was corroborated by Reape, president of Local 474, who testified that he telephoned Dickman, either that Friday or the following Monday, to ask him why he had not put Hook back to work. According to Reape, Dickman said nothing about a doctor's certificate, basing his refusal to take Hook back on the fact that he needed his lawyer's approval, and that the lawyer was then out of town. Although he denied Reape's testimony about a lawyer, Dickman admitted that his attorney was in fact out of town at that time. It may be that Dickman was hon- estly concerned over whether Hook could properly carry out his driving and lifting work if he returned on Monday, January 10, in view of Hook's admission that he had to take it easy for a few days. Did Dickman utilize this legitimate concern in order to avoid, for discriminatory reasons, making any further inquiry into whether Hook might not be able to perform his work satisfactorily by the following Mon- day or very soon thereafter? Dickman had hired a temporary replacement for Hook at the time of his accident, and Dickman would not have been inconvenienced if Hook had been permitted to return'a day or so later. In his examination of Bernard Dickman, the General Counsel brought out that the three summer students who left before Labor Day, did not have deducted from their pay a State imposed disability insurance contribution, but that the payroll records of Storm and Hook, Junior, show such a deduction . The General Counsel urges me to draw the inference therefrom that Respondent regarded Hook, Junior; as a regular employee like Storm, and not as a vacation employee . The evidence, in my opinion, is too inconclusive to be relied on for such an inference. I note that there is no evidence that Byrd or Tyner who were admittedly regular part-time employees, were also subject to this contribution, nor am I satisfied from the record that Hook, Junior, was subject to the insurance pro- gram during the summer. There is no evidence relating to the scope of the insurance program from which I might deduce who was supposed to be covered under it and who was excludable. 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I credit Hook and Reape that Dickman conditioned Hook' s return to work on his lawyer's approval rather than on obtaining a doctor's certificate. i° In crediting their testimony, it follows that Dickman was more intent on placing obstacles to Hook's return than he was in coming to a rational judgment on when Hook would be fully able to carry out his duties. Since Dickman knew that Hook had been a ringleader in the Union's campaign, his failure or refusal to allow Hook to return except under vague and unexplained conditions leads me to conclude that it was Dickman's opposition to the Union which motivated him in leaving Hook dangling with no assurance that he would ever be permitted to return to his job. Respondent's termination of Edward Hook, Sr., for this reason, was violative of Section 8 (a)(3). IV. THE REPRESENTATION PROCEEDING The Challenged Ballot: Having determined that Edward Hook, Jr., was a regu- lar part-time employee when he was unlawfully discharged on September 18, 1965, I also conclude that he was eligible to vote in the October 18 election. I assume that the Regional Director will open and count Hook, Junior's ballot on the basis of my finding as to his status when he was terminated and, if the ballot was cast for the Union, certify it as the representative of the employees in the appropriate unit. However, I call to the Regional Director's attention the fact that my finding as to Hook, Junior's eligibility to vote necessarily depends on my conclusion that he was also discharged for discriminatory reasons. If the Respondent takes exception to the conclusion, it is possible that the Board will not agree with me that Hook, Junior, was a regular part-time employee, but hold instead that he was only a summer student whose employment following Labor Day was casual and temporary, and that he was terminated on September 18 because Respondent had no further need for his services. It would then follow that Hook, Junior, was not eligible to vote and the challenge to his ballot should have been sustained." I point out this possibility with the suggestion to the Regional Director that he not open and count Hook, Junior's ballot until the Board issues its Order in the unfair labor practice proceeding. The Objections to the Election The Union filed three timely objections to conduct affecting the results of the October 18 election. Two of these were later withdrawn, and the only objection before me under the order directing hearing, of November 29, 1965, is as follows: The Employer, by its representatives, promised at least one of its employees that he would have steady and permanent employment if he voted against the union, and if he would attempt to induce fellow employees to also vote against the union. My study of the record has not uncovered any evidence relating to the substance of this objection, nor has the brief of the General Counsel been of any assistance on this point. However, there was objectionable conduct within the critical period between September 13 and October 18, 1965, as my findings of violations of Sec- tion 8(a) (1) make clear. Thus, within that period, Bernard Dickman warned Edward Hook, Sr., Markle, and Paes that he would close his plant rather than accept a union as the bargaining agent of his employees. Such a threat, even without the other instances of interference, restraint, and coercion of employees which I have found occurred prior to the election, would prevent the free and uncoerced choice by employees of the Union as their collective bargaining repre- sentatives. The fact that the conduct which I find has affected the results of the election was not alleged by the Union in its objections does not foreclose the Regional Director from setting the election aside. ". . . it is well established that the jurisdiction of the Regional Director in making post-election investigations is not limited to the specific issues raised by the parties." International Shoe Com- pany, 123 NLRB 682, 684. 10 I do so partly because it strikes me as more probable. that Hook would go to see the Union about his problem If Dickman had said he needed his lawyer's approval than if Dickman had told Hook to get a doctor's certificate. u It Is also possible that the Board may find that Hook, Junior, was only a casual em- ployee during his final 2 weeks of employment but that he was nevertheless terminated for discriminatory reasons. I have found no Board precedent which holds that a casual employee would be entitled to vote in an election because he was unlawfully discharged prior to the eligibility date of the election , and I do not pass on that Issue here. FRESKEETO FROZEN FOODS, INC. 353 Although the notice of hearing of November 29, 1965, neither requests nor requires me to make recommendations to the Regional Director for the disposition of the issues arising from the representation case, I note that the order consolidating cases, dated January 20, 1966, states that the two matters are "consolidated for purposes of hearing, ruling, and decision by a Trial Examiner." [Emphasis sup- plied.] In this somewhat uncertain state as to my proper role in making formal recommendations with respect to the challenged ballots and to conduct affecting the results of the election, I shall limit myself to severing Case 3-RC-3750 from the consolidated proceeding and transferring it to the Regional Director for Region 3 for further processing in accordance with those factual findings which the Regional Director considers are material and relevant to the representation matter. V. 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 operations 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 the free flow thereof. VI. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(3) and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I shall further recommend that the Respondent be ordered to offer immediate and full reinstatement to Edward Hook, Sr., and Edward Hook, Jr., to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges as employees. I shall further recommend that the Respondent make Hook, Senior, and Hook, Junior, whole for any losses they may have suffered because of the discrimination against them by payment to them of such sums of money as they would normally have earned as wages absent their discrimination. Backpay for Hook, Senior, shall be computed from January 7, 1966, and for Hook, Junior, from September 18, 1965, until the date of offers of reinstatement to them. Deductions shall be made from backpay payments to these employees of interim earnings on a quarterly basis in the manner provided by the Board in F. W. Wool- worth Company, 90 NLRB 289, to which shall be added interest at the rate of 6 percent per annum. Because the Respondent by its conduct violated fundamental employee rights guaranteed by Section 7 of the Act, and because there appears to be from the manner of commission of this conduct a disposition to commit other unfair labor practices, it will be recommended that the Respondent cease and desist in any manner from infringing upon the rights guaranteed 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. The Respondent, Freskeeto Frozen Foods, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 474, Amalgamated Meat Cutters & Food Employees Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act in the manner found herein, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)( I) of the Act. 4. By discriminating with respect to the hire and tenure of employment of employees Edward Hook, Sr., and Edward Hook, Jr., the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent did not engage in unfair labor practices other than as herein found. 243-084-67=vol. 159-24 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire -record in this proceeding, I recommend that Freskeeto Frozen Foods, Inc., Ellenville, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership of its employees in Local 474, Amalgamated Meat Cutters & Food Employees, AFL-CIO, or any other labor organization, by laying off, refusing to reinstate, or in any other manner discriminating in regard to the hire and tenure of employment of its employees except as permitted by the proviso of Section 8(a)(3). (b) Coercively interrogating employees and prospective employees concerning their union activities or sympathies; creating the impression among employees that their union activities were under surveillance; promising benefits to employees to induce them to reject the Union; soliciting employees to withdraw their member- ship or support of the Union or to encourage other employees to do the same; warning employees that it would close its plant if it became unionized; and threatening employees with loss of employment or with harassment if they con- tinued to support the Union. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self organization, to join or assist Local 474, Amalgamated Meat Cutters & Food Employees Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from engaging in such activities. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Edward Hook, Sr., and Edward Hook, Jr., full reinstatement to their former or substantially equivalent positions without prejudice to their rights and privileges, and make them whole for any loss of earnings suffered as a result of the discrimination against them in the manner described in the section entitled "The Remedy." Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon appli- cation in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. (b) Post at its plant at Ellenville, New York, copies of the attached notice marked "Appendix." 12 Copies of said notice, to be furnished by the Regional Director for Region 3, shall, after being duly signed by an authorized representa- tive of the Respondent, be posted by it immediately upon receipt thereof, and 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Upon request, make available to the Board or its agent for examination and copying, all payroll records, social security payment records, timecards, and per- sonnel records and reports, necessary to determine the amount of backpay due under the terms of this Order. (d) Notify the Regional Director for Region 3, in writing, within 20 days from the receipt of this Decision and Report what steps it has taken to comply here- with.13 IT Is FURTHER RECOMMENDED that the complaint be dismissed as to any alleged violations not herein found: - Case 3-RC-3750 is hereby severed from the consolidated proceeding, and trans- ferred to the Regional Director for Region 3 for further processing. " In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words " a Recommended Order of a Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals Enforcing an Order" for the words "a Decision and Order." '3 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order what steps Respondent has taken to comply herewith." THE GOLUB CORPORATION 355 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommended order of a trial examiner 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 discourage membership of our employees in Local 474, Amalgamated Meat Cutters & Food Employees, AFL-CIO, or in any other labor organization, by laying off, refusing to reinstate , or in any other manner discriminating in regard to their hire and tenure of employment, except as permitted by the proviso of Section 8(a)(3). WE WILL NOT interrogate our employees and prospective employees in a coercive manner concerning their union activities or sympathies, create the impression among our employees that their union activities are under sur- veillance, promise benefits to our employees to induce them to reject the Union, solicit employees to withdraw their membership or support of the Union or to encourage other employees to do so, warn employees that we will close our plant if it is unionized , or threaten our employees with loss of employment or with harassment if they continue to support the Union. WE WILL offer to Edward Hook, Sr., and Edward Hook, Jr., immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their rights and privileges, and will make them whole for any loss of earnings they may have suffered as a result of their layoffs. All our employees have the right to form, join, or assist any labor organization, or not to do so, and we will not in any manner interfere with, restrain , or coerce our employees in the exercise of these rights. FRESKEETO FROZEN FOODS, INC, Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) NoTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York 14202, Tele- phone 842-3112. The Golub Corporation, Central Markets Operating Co., Inc. and Amalgamated Meat Cutters, Butcher Workmen and Store Clerks of North America, District Union Local No. 1, AFL-CIO The Golub Corporation, Central Markets Operating Co., Inc. and Amalgamated Meat Cutters, Butcher Workmen and Store Clerks of North America, District Union Local No. 1, AFL-CIO. Cases 3-CA-2567 and 0654. June 15,1966 DECISION AND ORDER On February 11, 1966, Trial Examiner Stanley Gilbert issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor practices 159 NLRB No. 34.