The Singer Co.

THE SINGER COMPANY 765 WE WILL NOT coercively interrogate our employees about their union activities. WE WILL NOT ask any employee to campaign against a union. WE WILL NOT make any gifts to employees to influence them to vote against a union. WE WILL NOT interfere in any way with our employees' union activities. WE WILL NOT interfeie with the right of our employees to make a free choice in any election ordered by the National Labor Relations Board. WE WILL offer to Lois Farrow and Ethel Gordon immediate and full rein- statement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay suffered as a result of the discrimination against them. WE WILL NOT discourage our employees from joining or supporting Laundry, Dry Cleaning & Dye House Workers' International Union, Local 218, or any other union, by firing any of our employees. CROWN LAUNDRY & DRY CLEANERS INC. AND GULF LINEN SERVICE INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) 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, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 527-6391. Climate Control Division, The Singer Company (formerly Remington Division , The Singer Company) and Sheet Metal Workers International Association , AFL-CIO. Cases 3-CA- 2485, 0611, 2741, and 3-RC-3590. August 26, 1966 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION On March 29, 1966, Trial Examiner Samuel Ross 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 certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. The Trial Examiner also found that certain objections to the election filed in Case 3-RC-3590 warranted setting aside the election of May 12, 1965. Thereafter, the Respondent and the General Coun- sel filed exceptions to the Trial Examiner's Decision and briefs in support thereof. 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 proceeding to a 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 rulings are hereby affirmed. The Board has considered the Trial 160 NLRB No. 69. 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner's Decision, the exceptions, the briefs, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommendations, with the following modifications. 1. We agree with the Trial Examiner that the Respondent engaged in conduct which interfered with, restrained, and coerced its employ- ees in violation of Section 8(a) (1)' of the Act and that the Respond- ent's discharge of Nicholas Pingryn was discriminatorily motivated in violation Section 8(a) (3) and (1).' 2. We agree with the Trial -Examiner that the election held on May 12, 1965, should be set aside because of the Respondent's unlaw- ful interference with its employees' free choice to select a bargaining representative. The Trial Examiner neglected, however, to recom- mend that a new election be conducted. We shall so order.2 [The Board adopted the Trial Examiner's Recommended Order and set aside the election held in Case 3-RC-3590.] [Text of Direction of Second Election omitted from publication.] 1 In agreeing with the Trial Examiner's conclusion regarding Pingryn's discharge, we need not rely upon his finding that McCormick 's testimony was untrue as to whether Respond- ent's Exhibit 2-B was all in his own handwriting (TXD, footnote 13). The record is not clear whether McCormick was referring to Exhibit 2-B or 2-C. 2 The Respondent requested the Board to reopen the hearing in Case 3-RC-3590 be- cause its complement of employees has expanded since the holding of the prior election as a result of the merger of the Remington Division with Electromode Division of Friden, Inc., to form the Climate Control Division. We find no merit in this contention, as the appropriate bargaining unit of "all production and maintenance employees" remains the same for the new election. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges filed by Sheet Metal Workers' International Association, AFL-CIO (herein called the Union), on November 13, 1964 (Case 3-CA-2485), April 13, 1965 (Case 3-CA-2611), and August 26, 1965 (Case 3-CA-2741), the General Counsel issued -a consolidated complaint on June 30, 1965, later amended on Sep- tember 21, 1965, alleging that Climate Control Division, The Singer Company (herein called the Respondent or the Company), formerly Remington Division, The Singer Company,' interfered with, restrained, and coerced employees in the exer- cise of rights guaranteed by the Act, and discharged and refused to reinstate two employees, Nicholas Pingryn and Benjamin Smith, because they joined and assisted the Union, and thereby violated Section 8 (a)( I) and (3) of the Act .2 The Respond- ent filed an answer to the amended consolidated complaint denying the com- mission of unfair labor practices. On May 12, 1965, an election was conducted by the Board's Regional Director on the Union's petition in Case 3-RC-3590. On May 17, 1965, the Union filed timely objections to the conduct of the election . On June 30, 1965, the Regional Director issued an order directing a hearing before a Trial Examiner on the Union's objec- tions 9, 10, 14, 16 and 20, consolidating Case 3-RC-3590 with the complaint of 'This was the name of the Respondent Company before it merged with Electromode Division of Friden, Inc., a wholly owned subsidiary of The Singer Company, and the new name listed in the caption was adopted for the combined operation. 2 The complaint was further amended at the hearing to eliminate the allegation of dis- crimination in respect to the discharge of Benjamin Smith whose case had been informally settled by the parties. THE SINGER COMPANY 767 unfair labor practices against Respondent "for purposes of hearing, ruling, and decision," and providing that "thereafter Case No. 3-RC-3590 be transferred to and continued before the Board in Washington, D.C." Pursuant to due notice, a hearing was held in Auburn, New York, on Septem- ber 29, 30 and October 1, 1965, before Trial Examiner Samuel Ross. Upon the entire record in the case 3 and my observation of the witnesses and their demeanor, and after due consideration of the briefs filed on behalf of the General Counsel and the Respondent, I make the following: FINDINGS OF FACT 1. COMMERCE The Respondent, a New Jersey corporation, maintains a principal office and plant at Auburn, New York, where it is engaged in the manufacture and sale of air conditioning equipment and related products. During the past year, a representative period, the Respondent sold products valued in excess of $50,000 which were shipped from its plant in Auburn, New York, directly to places in States other than the State of New York Upon the foregoing admitted facts it is found that the Respondent is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The settlement agreement and the principles applicable thereto The complaint in this proceeding is based on three charges of unfair labor prac- tices allegedly committed by the Respondent. The first of these charges (Case 3- CA-2485) was settled by an agreement which was approved by the Regional Director on January 8, 1965. On June 30, 1965, upon his conclusion that Respond- ent had breached the settlement agreement by the conduct alleged as violations of the Act in Case 3-CA-2611, the Regional Director issued an order reopening Case 3-CA-2485, and vacating, withdrawing, and revoking his prior approval of the settlement. The Respondent contends that its postsettlement conduct was not unlawful, and that, therefore its presettlement conduct should not be considered. It is well settled that continuing violations of the Act will breach a settlement agreement involving unfair labor practices and will justify the Regional Director in going behind the agreement and proceeding with a complaint which covers unlawful conduct both before and after the settlement.4 In such a case, findings of unfair labor practices based on the earlier conduct are only justified where there is evidence of substantial unlawful conduct following the execution of the settlement agreement.5 However, conduct preceding the settlement may be used as background to establish the motive or object of the postsettlement activities which are alleged as unfair labor practices.6 3 The transcript of the testimony Is replete with many obvious errors and Inaccuracies. On November 18, 1965, the General Counsel moved to correct some of these errors. There being no opposition thereto, the motion is granted and the necessary corrections have been made in ink in the original transcript By a footnote to its brief , Respondent also moves to correct the transcript to add a statement , allegedly present in a letter , not in evidence, which the witness Laube was looking at when he testified . I have no Independent recollec- tion, either that the additional statement was uttered by the witness when he testified, or that the witness was reading from the letter. Moreover the material sought to be added is not responsive to the question which was asked. Accordingly , the motion is denied 4 The Wallace Corporation v. N L R.B , 323 U.S. 248, 253-255 ; International Brother- hood of Teamsters, Local 554 (Clark Bros . Transfer Company ) v. N L R B., 262 F 2d 456, 459-461 (C.A.D C.) ; Hudson Oil Company, 152 NLRB 1393. 5 Wooster Brass Company, 80 NLRB 1633 , 1635; Rice-Stix of Arkansas, Inc., 79 NLRB 1333, 1334 9 See Northern California District Council of Hod Carriers , 154 NLRB 1384 , footnote 1, which reverses the Board's earlier contrary rule in Larrance Tank Corporation, 94 NLRB 352. 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The commencement of union organizational activities at Respondent's plant On September 26, 1964, three of Respondent's employees met at Syracuse, New York, with William F. Laughlin, an organizer employed by the Union, and Ray- mond Wertz, an officer of the Union's local in Syracuse , and discussed the possibility of organizing Respondent's employees . Laughlin stated that he was willing to try again to organize Respondent 's employees if the latter indicated interest therein.? A first union meeting of the employees was held in Auburn, New York, on October 10, 1964. On October 15, 1964, the Union commenced distribution of a number of organizing handbills at the entrance to Respondent's plant. A second union meeting was held in Auburn on October 24, 1964. The Respondent reacted to the Union 's organizing campaign by systematically interrogating its employees regarding what they thought the Union could do for them that the Respondent had not, by having its officials make antiunion speeches to the employees at the plant, and by other conduct, all alleged in the complaint as unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. The said conduct was the subject of the settlement agreement in Case 3-CA-2485 which was approved by the Regional Director on January 8, 1965. C. The discriminatory discharge of Nicholas Pingryn One of the events responsible for the decision of the Regional Director to set aside the settlement agreement in Case 3-CA-2485 was the discharge by Respond- ent of Nicholas Pingryn on April 1, 1965, which the complaint alleges was moti- vated by Pingryn's union activity and to discourage membership in the Union. Pingryn was hired by Respondent on July 1, 1964, to work as a grinder and buf- fer. His initial starting rate was $1 .50 per hour. After 3 months, he was told by his foreman, Patrick McCormick, that he was doing "very good work," and was pro- moted to group leader and given a pay raise to $1.70 per hour. There is no con- tention that Pingryn's work was other than satisfactory, nor any that his conduct in the plant up to this date was improper. Pingryn was one of the Respondent's employees who, in September 1964, met Union Organizer Laughlin in Syracuse and solicited his interest in organizing the Respondent's employees . Pingryn signed a union authorization card, solicited other employees to do likewise, passed out handbills at the entrance to the plant, and on one occasion hired another person to do likewise. Pingryn was observed handing out handbills by Foreman McCormick. In addition, Foreman McCormick was told in October 1964 by employee Charles Culver that Pingryn had participated in the initial meeting at Syracuse with Union Organizer Laughlin .8 The Respondent does not contend that it was unaware of Pingryn's union activities, and the record is clear that it had such knowledge. 1. Interrogation and threats to Pingryn Coincident with the commencement of union activities by Pingryn , McCormick, the foreman on the night shift on which Pingryn worked, interrogated him exten- sively in respect to his interest in the Union , threatened him with possibile discharge, and suggested that he would receive an increase in pay without the Union if he waited a while . The record in this respect discloses that in October 1964 , shortly after Pingryn signed a union authorization card, McCormick had a long conversa- tion with him in the plant concerning the Union.9 According to Pingryn 's credited testimony, McCormick said, "What the hell was the idea of [Pingryn] trying to start a union," and "What are you going to get out of it?" Pingryn replied that "We were going to get a little more money [and] probably a little protection , like say seniority rights." McCormick then asked, "Do you think you are really going to get the Union in?" Pingryn replied, "Yes, I think so," and that he would prefer that it 7An unsuccessful effort to organize the Respondent 's plant had been made 1 year earlier See General Counsel's Exhibit 4-A. Culver, although admittedly a "company man" and opposed to the Union , had accom- panied Pingryn and employee Eugene Donald Riley to this meeting "to find out what I (Culver] can find out." 9 According to the credited testimony of Pingryn , and Eugene Donald Riley and Everett Gray, employees who observed Pingryn and McCormick talking , the conversation lasted over half an hour . For reasons stated hereinafter , McCormick's testimony that the dis- cussion lasted from 5 to 10 minutes is not credited. THE SINGER COMPANY 769 did. McCormick said, "You shouldn't do that because you are going to get in trouble. If Mr. Laube [Respondent's General Manager] finds out you may get fired." McCormick suggested to Pingryn, "wait for a little while-you will get more money. You won't get it right away but you will get it in time." During this conversation, McCormick also asked Pingryn what Eugene Donald Riley, the other chief union adherent in the plant, thought he was going to get "out of this deal." Pingryn replied, "The same thing I am going to get." 10 Subsequently, on October 26, 1964, according to the undenied and credited testimony of employee Everett Gray, Fore- man McCormick said that Pingryn had been given $50 by the Union "to get the Union started [in the plant]." 2. The "warnings" issued to Pingryn Also coincident with the commencement of union activities by Pingryn, the Respondent suddenly began to find fault with his conduct in the plant, and in rapid succession within a period of 1 week (November 7 to 13, 1964) issued three "warn- ings" which were inserted in his personnel file. In addition, two of the "warnings" were accompanied by disciplinary layoffs. These "warnings" later were utilized by Respondent to justify Pingryn's discharge. a. The "warning" against leaving the job and smoking According to Pingryn's uncontroverted and credited testimony, on November 7, 1964, he was working on the day shift and had occasion to go to the shipping room for some material. On the return trip to his department, another employee, the operator of a lift truck, asked Pingryn for a light for his cigarette, Pingryn com- plied, and then also lit a cigarette for himself. Ten minutes later, Foreman O'Con- nors came over to Pingryn at his place of work and said, "You were smoking in the shipping room and you are not supposed to be smoking there." Pingryn replied, "I didn't see any signs in there and I saw other people smoking. So, I thought it was okay." O'Connors responded, "Don't do that again." Then O'Connors told an unidentified group leader to tell the men not to wander around the shop anymore, and the group leader so instructed Pingryn. Although O'Connors was a witness for Respondent, he gave no testimony regard- ing this incident other than to identify the handwriting on the "warning" (Respond- ent's Exhibit No. 2-A) as his own." The warning read as follows: WARNING Name N. Pingryn Dept. Steel Reason: For leaving his job and smoking in unauthorized area. The above situation is being called to your attention as a matter of company policy. If this situation persists it may be the cause for disciplinary action or discharge, Please give this matter your immediate attention. H B. O'Connors Supervisor 11-7-64 Date Aside from the fact that O'Connors inserted this "warning" in Pingryn's file, there is no evidence in the record to show that Pingryn's trip to the shipping room was 10 McCormick's version of this conversation omitted any reference either to the threat that Pingryn might be discharged if Laube found out about his union activities, or to the statement that if Pingryn waited a little while, he would get more money. However, Mc- Cormick did not specifically deny making such statements. Moreover, because of contradic- tions, evasions, implausible testimony, and his demeanor, I regard McCormick as a witness whose testimony was generally unreliable and worthy of credence only when it accorded with testimony otherwise credited. Therefore to the extent that his testimony in respect to this conversation does not accord with Pingryn's version, it is not believed. "Just before he acknowledged that the handwriting and signature on this exhibit were his, O'Connors gave the following contradictory testimony • Q. During Mr. Pingryn's employment did you ever make out a warning notice or any other kind of disciplinary notice with respect to his conduct? Mr O'CONNoas : No. 257-551-67-vol. 16 0-5 0 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unnecessary or that it constituted "leaving his job," none that smoking was pro- hibited in the area in question, nor any that employees had notice of such pro- hibition, or that in any other respect, Pingryn's conduct on this occasion was not wholly proper. There is also no evidence, either that Pingryn was advised that such a "warning" was being placed in his file, that he was shown the "warning," or that a similar "warning" was placed in the file of the other employee who was involved in the incident. b. The "warning" for not wearing safety glasses According to the undenied and credited testimony of Eugene Donald Riley and Pingryn, all employees in the "grinding or buffing depaitment (which includes grinders and buffers) are supposed to wear safety glasses" (referred to as goggles in the record). The requirement for wearing safety glasses was put into effect by the Respondent about 1 month after Pingryn started to work in the department. According to Pingryn's credited testimony, on November 9, 1964, Pingiyn came to work without his safety glasses. Having just been instructed 2 days earlier that he was not supposed to wander about the shop, Pingryn decided to wait until the fore- man came over to ask him for another pair. Foreman McCormick "came over" about one half hour later and said to Pingryn, "You have two days off." Pingryn asked, "For what?" McCormick replied, "Because you are not wearing goggles." Pingryn responded, "Less than half the people in here aren't (sic) wearing goggles." McCormick, retorted, "I don't care. You get two days off." Subsequently, McCor- mick placed the following warning (Respondent's Exhibit 2-B) in Pingryn's per- sonnel folder: WARNING Name N. Pingryn Dept. Steel Reason: After being advised about having to wear safety glasses in working area, he neglected to do so, and therefore has been given two days off. The above situation is being called to your attention as a matter of company policy. If this situation persists it may be the cause for disciplinary action or discharge. Please give this matter your immediate attention Patrick McCormick Supervisor November 9, 1964 Date Pingryn testified without contradiction that two other employees in the depart- ment (whom he named) were not wearing safety glasses. In addition, employee Riley testified that he knew of no employee other than Pingryn who had been disci- plined for not wearing safety glasses, and that "very little happens down there with- out my knowing it." Employee Everett Gray gave similar testimony. However, the Respondent adduced no evidence, documentary or otherwise, either to controvert the testimony of Pingryn, Riley, or Gray or to show that any other employee had been disciplined or even reprimanded for not wearing safety glasses. Since the Respondent had within its control the evidence to establish, if such was the fact, that other employees had been similarly disciplined for failure to wear goggles, its failure to adduce such evidence or to contiovert Riley's, Gray's, and Pingryn's testi- mony above, requites the conclusion, which is made, that no employee other than Pingryn was so disciplined.i2 The same conclusion is also suggested by the obviously contradictory and unbe- lievable testimony of Foreman McCormick regarding this incident. McCormick first testified that he had instructed Pingryn regarding the necessity for wearing safety glasses on the job "numerous times." McCormick then testified that on the night in question, when he observed that Pingryn was not wearing his safety glasses, he asked Foreman O'Connors whether the latter had instructed Pingryn regarding the requirement for wearing the glasses; O'Connors replied that he had; McCormick then walked over to Pingryn and asked him whether O'Connors had instructed him to wear glasses while grinding, and why "he wasn't wearing them"; and Pingryn replied, "he didn't have them or something or other." McCormick further testified that a pair of safety glasses were hanging on a post "within two "See 2 Wiginore , Evidence § 285 (3d ed ) , Whitiii Machine Worts, 100 NLRB 279, 285; H. H Erikson d/b/a Detroit Plastic Products Company, 121 NLRB 448, 499. THE SINGER COMPANY 771 feet" of Pingryn, and that he then told Pingryn, "that he knew the rules and that he would have two days off because he had repeatedly been verbally warned to wear them." The contradictions in and lack of veracity of this testimony are quite obvious. If, as he testified, McCormick himself had "repeatedly verbally warned" Pingryn for failure to wear safety glasses, it would have been superfluous for McCormick both to ask O'Connors whether the latter had instructed Pingryn regarding the requirement for wearing safety glasses, and to ask Pingryn whether he had been so instructed by O'Connors. McCormick's testimony that he made such inquiries of O'Connors and Pingryn therefore belies his testimony regarding his own "repeated verbal warnings" to Pingryn regarding this subject. Moreover, the "warning" notice for this incident fails to state that Pingryn had repeatedly been warned that he must wear safety glasses, but states merely that Pingryn, "after being advised [of the requirement] neglected to do so." All of the foregoing compels the conclusions,- which are made, that McCormick's testimony regarding this incident is exaggerated beyond belief,13 and that no employee other than Pin- gryn was similarly disciplined for failure .to wear safety glasses. c. Further coercive interrogation of Pingryn and his third "warning" On November 13, 1964, 2 days after Pingryn returned to work from his layoff for not wearing safety glasses, he was given another 1-day suspension and a third "warning" was placed in his file. According to the credited testimony of Pingryn, and of Foreman O'Connors and McCormick to the extent credited,14 this suspen- sion came about as follows: When Pingryn arrived at the plant for work on November 13, 1964, he was instructed by Foreman McCormick to punch in and go into the office. Once inside, McCormick asked Pingryn whether he objected if Foreman O'Connors was called in. When Pingryn replied that he had no objection, O'Connors was sent for, and after his arrival, the office door was locked. The two foremen then proceeded to question Pingryn about why he "started helping . . . to organize this union," why he had gone to Syracuse [to the meeting with the union organizer], and why he had hired a man to hand out union "pamphlets." Contrary to the facts, Pingryn replied that he had gone to the union meeting in Syracuse "for just a little fun," and minimized his interest in the Union. McCormick expressed disbelief in Pin- gryn's response, and told Pingryn's that employee Culver had "told us what happened in Syracuse." McCormick said, "You fellows are crazy for trying to start a union here because there is very little work in Auburn and you guys are lucky you got a job." McCormick also said, "All the young fellows are signing up for the Union and they don't know what they're doing." He accused Pingryn of "going around talking to people, [to] the men and telling them about signing up with the Union." He asked Pingryn, "Why don't you go out and talk to them (sic) fellows and talk them out of it [the union]." Pingryn untruthfully professed to "have hardly anything to do with the Union." McCormick then suggested that Pingryn sign a statement that "he had not been active for the Union during working hours," and Pingryn replied, "If it is worded right maybe I will sign it." During the course of this conversation, which according to Pingryn's timecard lasted about 1 hour and 18 minutes, Pingryn complained to O'Connors and McCormick (according to their own -admission) that "he was being watched wherever he went in the plant," and that consequently he was very "nervous" and "was having trouble sleeping nights." McCormick then told Pingryn, "you have been drinking." Pingryn replied "All I had is two beers this afternoon playing pinochle." McCormick replied, "we got spies. We know how much you drank." He and O'Connors then told Pingryn that he was in no condition to work, and instructed him to punch out and go home because of the possibility of accidents 13 McCormick's testimony that this warning (Respondent Exhibit 2-B) was all In his own handwriting, is also obviously untrue. Except for the signature, it obviously was written by O'Connors. 141 have already indicated my lack of belief in the veracity of McCormick, and have also set forth an example of contradictory testimony by O'Connors (see footnote 11, supra). O'Connors' testimony was likewise contradictory and implausible in a number of instances in respect to, the incident under present consideration and in respect to Pingryn's later discharge For these reasons, as well as his demeanor, I regard O'Connors' testimony as unreliable also, and credit it only when it accords with testimony otherwise credited or constitutes an admission against interest. 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when employees work after drinking. One week later , a "warning" (Respondent's Exhibit 2-C ) based on this suspension was placed in Pingryn's personnel file. This warning read as follows: WARNING Name Nicholas Pingryn Dept Steel Shop Reason: the odor of alcoholic beverage was noticed so I sent him home. The above situation is being called to your attention as a matter of company policy. If this situation persists it may be the cause for disciplinary action or discharge . Please give this matter your immediate attention. (S) Patrick McCormick Supervisor November 20, 1964 Date No explanation for the interval between the offense and the writing of the warn- ing was given by Respondent . Foreman McCormick when asked, merely testified, "I guess I didn't get around to writing it." >s O'Connors testified that the reason for sending Pingryn home that evening was that Pingryn was "intoxicated ." However, the "warning" stated only that "the odor of alcoholic beverage was noticed ." Since Pingryn admittedly had consumed two beers before coming to work, his breath obviously must have had an odor of beer , an alcoholic beverage , but such an odor did not incapacitate him for work in the factory . Significantly, before Pingryn com- menced his activity on behalf of the Union, Foreman O'Connors concededly had been aware that Pingryn occasionally "smelled like he had been drinking before he came to work." Yet, prior to this incident , O'Connors had neither sent Pingryn home nor done anything at all about the way he smelled when he reported for work. Under all the circumstances , including the wording of the "warning " and the coercive interrogation which preceded this suspension of Pingryn , it is quite appar- ent and found that the suspension and "warning " were motivated not by intoxica- tion as later charged at the hearing but not believed, but by the Respondent's dis- pleasure with Pingryn's union activities. d The allegedly "tonline" final warning of Pingryn Pingryn returned to work the following evening and thereafter continued to work for the Respondent on the second shift without further incident until Decem- ber 10, 1964 , when he was hospitalized , first because he fractured two ribs in an accident, and a second time because of hemorrhaging and perforated ulcers. Fol- lowing his final release from the hospital and a period of convalescence for 4 weeks, Pingryn returned to work at the Respondent's plant on about February 15, 1965. Upon his return to the plant , Pingryn was interviewed by Harriet Bills, the Respondent 's personnel director who , referring to the three "warnings" previously described , told Pingryn that he had "three marks" against him , and that "any future warnings would mean [his] immediate discharge ." A letter to that effect was sent to Pingryn on the same day , and carbon copies were transmitted to the Respondent's General Manager Herbert L. Laube , and to Singer's Representative R. Rugen.is Bills first testified that her office interview and letter to Pingryn were part of her routine procedure with employees who had been out because of a lengthy illness, or who had several "warnings" in their personnel folders. However, the "routine" nature of her "final warning" to Pingryn did not withstand cross- examination . Thus, although other employees admittedly had been out on extended sick leave, Bills could remember no office interview with any employee other than Pingryn . Moreover, the Respondent admittedly had no rule which called for automatic discharge of an employee for an offense following a third "warning," and depending on the nature or gravity of the offense , an employee concededly 19 McCormick also testified that except for the signature , the writing on this warning was not his own , but quite apparently this is not true , since the exhibit Is all in the same hand- writing as the signature which clearly is McCormick's. ,McCormick also testified that on the occasion of this Incident , Pingryn was told "he would have two days off," but this also is obviously not true since the testimony of both Pingryn and O 'Connors was that only 1 day's suspension was given Pingryn. 10 General Counsel's Exhibit S. THE SINGER COMPANY 773 could have any many as six or more "warnings" without being discharged.17 Hence the letter to Pingryn that because of his three prior warnings, "any future warning would mean your immediate discharge," obviously could not have been routine procedure. Moreover, in the light of the many attempts of Bills to evade direct answers to questions, and the many self-contradictions in her testimony, I regard her testimony as unreliable and her assertion regarding the routine nature of the letter to Pingryn as unworthy of credence. For all these reasons, it is concluded and found, contrary to Bill's testimony, that the "final warning" letter to Pingryn was not routine procedure on the part of the Respondent.rs 3. Pingryn's final termination Coincident with his return, Pingryn resumed the distribution of union handbills at the entrance to Respondent's plant. Thereafter, according to Pingryn's undenied and credited testimony, McCormick, his foreman on the night shift, "would stand in the other side of the [steel] room and just keep looking, just watching to see whether I [Pingryn] would do anything wrong." 19 The opportunity to find fault with him was furnished by Pingryn on the evening of March 31, 1965. That afternoon, Pingryn came to the plant with a bottle containing vodka and orange juice which he left in his car in the Respondent's parking lot in the rear of the plant. At the 7 p.m. "break time," Pingryn went out to his car and, according to his testimony, took a "swig" from a bottle of Mylanta, a "medicine" which had been prescribed by his doctor for the control of his ulcers. Pingryn was "watched" going out of the plant via the rear door by McCormick. Although it was not unusual for employees to leave the plant at break time at that time of the year (March 31), after Pingryn returned to work at 7 10 p.m. (the end of the break period), McCormick sent Robert Kiphut, one of the employees most active in the opposition to the Union, "to see what Pingryn had been up to." 20 Kiphut found the bottle of vodka and orange juice on the floor of Pingryn's car, brought it into the plant, he and McCormick tasted the contents of the bottle, and concluded that it contained vodka and orange juice. Then, pursuant to McCormick's instructions, Kiphut replaced the bottle in Pingryn's car as close as he could to where it was originally. McCormick admittedly knew at that time that the bottle belonged to Pingryn. The Respondent concededly had no rule which prohibited employees from having alcoholic beverages in their cars in the parking lot. Nevertheless, after tasting the contents of Pingryn's bottle, McCormick called Plant Manager Gerald L. Brown at his home in Syracuse, New York, and asked him whether he should send Pingryn home. Brown suggested that McCormick "just keep an eye on him [Pingryn]," and McCormick instructed Kiphut to watch Pingryn.21 Pingryn left the plant at 9:30 p.m. ("lunch time") and went home to eat. He returned to the plant at 10.00 p.m. and resumed working. Upon his return, McCormick again dispatched Kiphut to "check" Pingryn's car. Kiphut reported to McCormick that "there was no bottle there." McCormick then searched around the plant for the bottle. He found it in the pocket of Pingryn's coat, located not on the coat rack, but near his place of work. McCormick "replaced" the bottle in Pingryn's coat, but said nothing to him regarding his discovery. Instead, he continued to watch Pingryn. Nothing transpired until 12 midnight when the night shift takes a "break" of 10 minutes before starting to work overtime.22 At that 17 See Respondent's Exhibit 4 is Dyer v MacDougall, 201 F.2d 265, 296 (C A. 2), cited with approval in N L R B. v Walton Manufacturing Company, 369 U S 404, 408 19 Although witnesses for Respondent, neither McCormick nor O'Connors denied either this or Pingryn's earlier accusation on November 13, 1964, that he was being watched In the light of subsequent events, it is evident that there was ample basis for Pingryn's accusations 20 The quoted material is from Kiphut's testimony 21 McCormick denied that he told Iiiphut to watch Pingryn. He testified, "I asked him [Kiphutj to keep a watch, not on Pingryn, just to watch that there were no bottles brought into the shop by anyone." In the light of Plant Manager Brown's instruction that McCormick keep an eye on Pingryn, and since only Pingryn's bottle had been discovered, it is obvious and found, contrary to McCormick's testimony, that Kiphut was instructed to watch Pingryn. Dyer v. MacDougall, supra. 22 Overtime work that night was scheduled to continue until 3 a.m. 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD point, Pingryn took a bottle out of his pocket and put it to his lips, and both Kiphut and McCormick, who were watching converged upon Pingryn from oppo- site directions . Pingryn saw them coming and dropped the bottle hastily into his coat pocket . Kiphut arrived first. Although he admittedly was not Pingryn's "boss," he said to Pingryn, "Put your hat and coat on and come to the office . I caught you drinking." McCormick arrived about a second or two later and said to Pin- gryn, "I saw you drinking. Just put your hat and coat on and ring out and go home." Pingryn in effect denied that he had taken a drink .23 McCormick asked permission to search Pingryn's pocket. Pingryn refused to show them what he had there. Pingryn then asked McCormick whether he should return to the plant the next day. McCormick replied, "I don't care if you come back tomorrow or not," and he added that if Pingryn did return the next day, "his check would probably be ready for him." Pingryn then departed and McCormick wrote a note to his immediate supervisor, Foreman O'Connors , stating only that Pingiyn had gone home at midnight. Foreman O'Connors arrived at the plant the following morning April 1, 1965, at 5:30 a.m., and found McCormick 's note and Pingryn's timecard on his desk. At 7 a.m. O'Connors called McCormick and the latter recounted the details "of Pingryn drinking on the job." Notwithstanding that O'Connors allegedly had not yet made any decision regarding Pingryn's future job status, and allegedly "wanted to wait until Pingryn came in . . . to hear his side of the story," O'Connors requested and received from the personnel office a copy of Bill's final warning letter to Pingryn, and his final paycheck. When Pingryn arrived at 4:30 p.m., O'Connors , in the presence of McCormick, asked Pingryn "what happened the night before." Pingryn replied that McCormick and Kiphut had converged on him at midnight and had accused him of drinking. Pingryn then showed O 'Connors a bottle of Mylanta and said, "This is what I had. This is just medicine that the doctor has (sic ) told me to take." O'Connors asked Pingryn "if he was sure . . . that this was the bottle he had the night before." Pingryn replied , "Yes." O'Connors then read Bill's final warning letter to Pingryn , stated that Pingryn had received three reprimands and this was his fourth, and said, "Here is your check." Pingryn then charged that he was being fired "on account of the union business ." O'Connors replied that it was not so, it was just that he believed McCormick and Kiphut regarding the events of the pre- ceding evening. Pingryn admitted that on the night in question he had a bottle of vodka and orange juice in his car, but denied that he had carried it into the plant, and main- tained that he had not taken a drink from that bottle, but only of Mylanta. Although in other respects I have regarded Pingryn as a credible witness whose testimony was reliable , it is fairly evident that' in this respect Pingryn's testimony cannot be credited .24 If Pingryn in fact had a bottle of Mylanta and not vodka and orange juice in the plant, he immediately would have exhibited the bottle to McCormick when the latter accused Pingryn of "drinking" and requested to see the bottle . Pingryn's refusal to show the bottle compels the inference that in fact the contents was not Mylanta but vodka and orange juice . Pingryn's attempted explanation for his refusal to exhibit the bottle-that he did not want people to know that he took medicine- also is quite implausible , especially since he had no such inhibition the following day when he exhibited the bottle of Mylanta to O'Connors and McCormick . Accordingly, I am persuaded and find that Pingryn either took or was about to take a drink of vodka and orange juice at midnight on March 31, 1965, when McCormick and Kiphut "caught him." D. Concluding findings in respect to Pingryn's layoff and discharge In view of the finding above; it is obvious that a valid ground existed for the Respondent to discharge Pingryn on April 1, 1965. However, the issue is not ra The testimony of Pingryn , McCormick , and Kiphut varied in respect to the precise response which Pingryn made to the accusation that he had taken a drink , but the resolu- tion of this conflict is regarded as unnecessary. 24 As aptly stated by Judge Learned Hand in N.L.R B. v Universal Camera Corporation, 179 F 2d 749, 754 (C.A. 2), reversed on other grounds 340 U S 474: It is no reason for refusing to accept everything a witness says, because you do not believe all of it; nothing is more common in all kinds of judicial decisions than to believe some and not all THE SINGER COMPANY 775 whether such a ground existed, but whether Pingryn's dismissal was motivated in whole or in substantial part by his union activities. The mere existence of a valid ground for discharge is not a defense to an unfair labor practice charge of dis- crimination if such ground was a pretext and not the moving cause. The Respond- ent at all times was free to discharge Pingryn for any reason good or bad, so long as it did not discharge him for union activity.25 Applying these principles to the instant case, it is quite evident that the motivating reason for Pingryn's dis- charge was-his activity on behalf of the Union, and that the events of March 31, 1965, merely supplied Respondent with a desired pretext to get rid of him. Pingryn was a capable employee whose work and conduct were free from criti- cism by Respondent before he engaged in union activity. The Respondent knew that Pingryn was one of two employees who were responsible for the union organi- zational campaign in.its plant.26 The Respondent was vehemently opposed to the representation of its employees by the Union, and made that opposition known by speeches to its employees in the plant, and by letters sent to their homes. Coincident with the commencement of his union activities, Pingryn was extensively and coer- cively interrogated for over a half hour regarding his interest in the Union, was threatened with possible discharge if he persisted in his union activities, and was requested to defer his activities "for a little while . [and] you will get more money." 27 At the same time, Respondent suddenly began to find fault with Pin- gryn's conduct which previously had been satisfactory, and placed three "warnings" in his file. As found above, the Respondent adduced no evidence whatsoever that Pingryn's conduct was improper in respect to the first such warning (leaving his job and smoking in an unauthorized area). In respect to the second warning (failure to wear safety glasses), the rule requiring the wearing of safety glasses was not uni- formly enforced; other employees violated the rule without discipline; and Pingryn's 2-day suspension was the only such discipline given any employee for this offense. The manner in which the third "warning" was issued to Pingryn impugns the legiti- macy of the warning. As found above, this warning was not issued until after Pingryn was extensively and coercively interrogated by two of Respondent's fore- men in the privacy of their office regarding why he started to organize for the Union, and why he had hired a man to hand out union pamphlets, and the foremen attempted to enlist Pingryn's aid in talking employees "out of it [the Union]." Finally, when Pingryn complained that he was nervous, upset, and having trouble sleeping at night because "he was being watched wherever he went in the plant," a charge which Respondent's foremen never denied either then or at the hearing, Pingryn was sent home for the night, and a third "warning" was placed in his file (1 week later) which stated, not that he was "intoxicated" as later charged at the hearing, but only that an "odor of alcoholic beverage was noticed" on his breath. As found above, before Pingryn evinced an interest in the Union, such an odor had not previously resulted in his being sent home. In the context of these circumstances, it is clear and found that the issuance of this third warning and 1-day suspension was motivated by Pingryn's union activities. Thereafter, although the Respondent had no rule requiring discharge for a fourth "warning," its personnel director sent him a letter (with copies to the general manager and the home office) that "any further warnings would mean [Pingryn's] immediate discharge." All of the foregoing persuasively suggests that a record of "warnings" was being established by Respondent to support the legitimacy of his later dis- charge at a more appropriate time. However, even assuming arguendo that the Respondent's prior. "warnings" to Pingryn were justified and not motivated by his union activity, the events of March 31 and April 1, 1965, clearly disclose that the Respondent was then seeking an excuse for Pingryn's discharge. At that time of the year (March 31), it was not unusual at the 7 p.m. break time for employees to go out through the rear door 25 N.L.R B. v. Great Eastern Color Lithographic Corp., 309 F 2d 352 (C A 2) ; N L R B. v. Lipman Brothers, Inc., 355 F 2d 15 (C.A. 1). Id The Respondent's contention that Pingryn's union activities were "minimal" is re- jected as contrary to the record. That Foreman McCormick and O'Connors were aware of the extent of Pingryn's union activities is clearly disclosed by the record, including the nature of their coercive interrogations of Pingryn previously described This conduct, although clearly coercive and an unfair labor practice within the mean- ing of Section 8(a) (1) of the Act (Bonnie Bourne d/b/a Bourne Co v. N L R B., 332 F 2d 47 (C.A. 2)), is presently being considered only as background evidence to determine the motive for Respondent's postsettlement discharge of Pingryn. Northern California District Council of Plod Carriers, etc. (Joseph's Landscaping Seraiee ), 154 NLRB 1384 , footnote 1. 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the plant to the parking lot, and therefore Pingryn's visit to the parking lot should have evoked no especial interest by Foreman McCormick. The fact that it did, and that employee Kiphut, a leading opponent of the Union , was dispatched to see what Pingryn was up to, clearly discloses the surveillance to which Pingryn was being subjected , for which no valid reason has been offered by Respondent. Kiphut found a bottle bearing a vodka label in Pingryn 's car. It was neither improper nor contrary to Respondent's rules for Pingryn to have such a bottle con- taining an alcholic beverage in his car. Nevertheless , the bottle was brought into the plant by Kiphut, its contents were tasted by Kiphut and Foreman McCormick to verify its alcoholic nature, and it was carefully replaced so that its earlier removal would not be discovered by Pingryn . Then, although Pingryn had done nothing which contravened Respondent's rules, Foreman McCormick called Plant Manager Brown to ask whether he should send Pingryn home, and Brown replied, that he not do so but "just keep an eye on [Pingryn ]." The only reasonable infer- ence from this conduct of McCormick , Kiphut, and Brown is that the Respondent was "watching" and waiting for an excuse which would justify Pingryn's discharge. Moreover the fact that McCormick called Plant Manager Brown who lived in Syra- cuse, and not Foreman O'Connors , his immediate supervisor who lived in town, dis- closes that Respondent 's top factory official was involved in the search for a pretext to fire Pingryn.28 What happened thereafter clearly was anticlimatic and predictable . Pingryn was known by the Respondent to be inclined to drink alcoholic beverages , and when as quite apparently expected , Pingryn brought the bottle into the plant and eventu- ally put it to his lips, both Kiphut and McCormick who were "watching" were ready to pounce on him. Kiphut, who was not a supervisor , was sufficiently aware of Respondent's intentions in respect to Pingryn to order him to put on his hat and coat and go to the office. When Foreman McCormick later arrived at the scene, he reaffirmed Kiphut's order and accurately predicted that if Pingryn returned the following day, his paycheck would be waiting for him. And, on the following day, although O'Connors allegedly was waiting to hear Pingryn 's side of the story before deciding what discipline , if any, he would order, he had Pingryn's final paycheck and prior "warnings" all ready. All of the foregoing record leaves no room for doubt , and it is found , that the decision to fire Pingryn was made before the events of the night of March 31, and that the latter merely furnished the pretext upon which it might later be defended. The true reason for Pingryn 's termination is quite apparent. In the light of the foregoing record, it is concluded and found that the Respondent dis- charged Pingryn , not because of the drink which he took on March 31, but rather because of his leading role in support of the Union which Respondent opposed. Accordingly it is found that thereby Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and ( 1) of the Act. E. Interference, restraint, and coercion of employees In view of the finding that the Respondent , by firing Pingryn, engaged in unfair labor practices within the meaning of Section 8 (a)(3) and ( 1) of the Act, it is quite apparent that Respondent thereby also substantially breached its settlement agreement in Case 3-CA-2485 . Accordingly, it is now appropriate to examine all of Respondent's conduct alleged in the complaint , including that which preceded the settlement, to determine whether and to what extent it violated the Act. 1. Presettlement interrogation As previously described , in October 1964 Foreman McCormick extensively inter- rogated Pingryn in the plant regarding his union activities, threatened him with possible discharge if he persisted therein, and impliedly promised him a raise in wages if such activities were deferred . Pingryn was again interrogated intensively about his union activities on November 13, 1964, by Foremen O'Connors and McCormick in the privacy of their office, as a consequence of which he untruth- fully minimized the extent of his interest in the Union. Both of these interrogations 28 McCormick 's attempted explanation for calling Brown and not O 'Connors , indicates only that it was no more difficult to call Brown than O 'Connors. It does not explain why O'Connors was bypassed. THE SINGER COMPANY 777 clearly were coercive and thereby the Respondent engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act.29 The coercive interrogation of employees regarding the Union was not, however, limited to Pingryn, and in fact was quite widespread. A few examples will suffice: a. In the latter part of October 1964, Everett Gray, then an employee of Respondent but no longer so, visited the Tank's Bar in Auburn, New York, while Foreman McCormick was there. McCormick asked Gray why he got mixed up with the Union, and whether Gray was trying to get employees to sign union cards. Gray replied, "Everybody has got a right to do what they want to do." McCormick responded, "I can buy anyone of you guys with this $10 bill." b. In October and November 1964, employee Robert Lamphere was questioned several times by Foreman McCormick. On one such occasion, Lamphere was asked whether he was going to the union meeting at the Columbus Restaurant, and when he replied that he was not, McCormick said, "Anybody that goes is on my [black] list." 30 On another occasion McCormick asked Lamphere what he thought the Union could do for him. On a third occasion, Lamphere was asked by McCormick what Lamphere thought of the Union's chances of "getting in." c. In October 1964, employee Robert Sweeney was called by Foreman O'Con- nors into the latter's office and was asked whether the union man had been around to see him. When Sweeney responded, "no," O'Connors said that Singer, the parent company of Respondent, had 100,000 square feet of space outside of New York State, a remark which Sweeney interpreted to mean that Respondent would move if the Union succeeded in its campaign.31 d. About November 6, 1964, Respondent's foremen and supervisors were instructed by General Manager Laube to poll all the employees regarding "what our men feel a worker can get from a Union." 32 Shortly thereafter the poll was conducted by the foremen who recorded the answers "with paper and pencil." In general the employees were asked "what advantage do you think you will have from the Union that you don't have now?" At least one employee (Robert Sweeney) was asked if he was for the Union, and another, Everett Gray, was asked if he "was trying to sign the people." Generally, employees were told that their responses, although recorded, would be anonymous if they so desired. All of the interrogation described in the examples above occurred in a context of Respondent's aggressive hostility and opposition to the Union, a fact known to the employees. The nature of the inquiries was such as to reveal the union sym- pathies of the employees who were interrogated. The Respondent, not having received a demand for recognition, was under no legal or other compulsion to ascertain the desires of its employees in respect to their representation by a union.33 No assurance against reprisal accompanied the poll. The assurance that the fore- men would keep the poll response anonymous in his report to top management could not assure the employees against his supervisor's knowledge of the nature of his response. In view of all these circumstances, it is concluded that the inter- rogation described in a, b, c, and d above, including the poll of employees, con- stituted interference with and restraint and coercion of employees within the meaning of Section 8 (a) (1) of the Act.34 2. Presettlement antiunion speeches In opposition to the Union's campaign to organize its employees, the Respondent delivered antiunion speeches to its employees. The presettlement speeches of November 6 and 9, 1964, are alleged in the complaint as interference with and re- straint and coercion of employees in the exercise of their rights under the Act. The major theme which dominated these two speeches was that the representation of em- ployees by a union inevitably resulted in strikes, plant closings and removals, and loss of jobs and wages. For example: On November 6, 1964, Plant Manager Brown told Respondent's employees: Getting a Union in this plant is not good either for you or this business or its progress. We do not have the type of trouble that other plants in this area - Bourne v. N.L.R.B., supra. 30 The actual word used by McCormick was profane and therefore is not repeated. 31 O'Connors, a witness for Respondent, neither denied Sweeney's testimony nor suggested that any other meaning was intended 32 See General Counsel's Exhibit 4B, page 4, last paragraph 33 Blue Flash Express, lute , 109 NLRB 591. 34 Bourne v. N.L R B , supra. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have had with Unions. I am sure you will remember that several industries which left the Auburn area because of Union trouble. I am also sure you will recall the long strike that Carrier had and that many of the Carrier employ- ees lost their jobs during that strike; and to this day many employees have never gotten their jobs back. [Emphasis supplied.] Brown then told the employees about the Respondent's plans for expansion, and said: All this adds up to jobs which no Union can give you or help you get and to security in these jobs which an irresponsible Union can cause you to lose I firmly believe that a Union, more often than not,, brings loss of income due to strikes and loss of money by payments of dues and fees and assessments. [Emphasis supplied.] The strike and possible loss of jobs theme was continued by General Manager Laube a few days later (November 9, 1964) in a long speech entitled "Why I'm Afraid of the CIO." 35 Laube said that he was "afraid of the CIO [the Union]" because: By calling a strike THEY HAVE THE POWER TO SHUT US DOWNY This could have put us out of business while we were an independent small com- pany . . . Now I do not think it is true that they could put Singer out of business. But I do believe that they could still put the Remington Air Condi- tioning Division [Respondent's plant] into a very bad situation. Laube continued: We like people who help solve our problems much more than those who cre- ate problems. Returning to the strike theme. Laube said the CIO "CAN'T BE TRUSTED." When they were organizing Carrier they (CIO) passed out leaflets saying that they would not call a strike without announcing the strike well in advance and having a secret ballot. [However contrary to that promise] seven of them got together on a Sunday morning decided to have a strike, and on Monday when the others came to the plant the pickets were there and the strike was on. Laube continued: there have been enough wildcat strikes lately for you to realize that the Union cannot be trusted to honor its own contracts . . . assuming as I do, that many of these wildcat strikes are not "wildcat" at all. When you have a Union it is normal to have strikes. [Emphasis supplied.] Referring to a contemplated new plant purchases by Respondent, Laube said: At this point let me mention that we still have an option on the Firth Plant over on Columbus Street and also on the Eagle Warehouse property on Lafay- ette Place. Why? Because, with your help, we expect this business to con- tinue to grow. I, for one, am doing my best to try to get Singer to buy these properties. Do you think that the present [Union] activities are helping me in this connection? . . .. Think! [Emphasis supplied.] Laube also announced that Respondent had decided to increase the vacations of salaried employees (not in the unit) to 3 weeks, and he then said: "if you have a Union you may also get a long vacation, but it may be without pay because you may be on strike!" [Emphasis supplied.] Further in his speech, Laube said: I understand General Motors strike was finally settled at all plants yesterday. But someone has already figured out that with the increase they [the employ- ees] got they will not recover the money they lost, by being out on strike, within a year . . . [maybe] 18 months. 35 Laube referred to the Union in his speech as "The CIO Sheet Metal Workers," not- withstanding that prior to the merger of AFL and CIO, the Union had never been a CIO affiliate THE SINGER COMPANY 779 Then, referring to the International Harvester Company, which formerly had a plant nearby, Laube said: Think about International Harvester. The Union told the 1800 IH workers that they couldn't move out of Auburn. We will stop them from moving. Well, look around real carefully. Do you see any International Harvester plant in Auburn today? Of course you don't. So think about IH before you sign a card. Laube then told the employees that a home takes 3 months to build, but only a few hours to burn, that he and his associates took 18 years to build "this business," but that "like a house, it can be destroyed a lot more rapidly than it can be built." Respondent's speeches apparently created "concern over the possibility that Remington [Respondent] might leave Auburn," because on December 14, 1964, a number of Respondent's employees signed a petition requesting Respondent to purchase the Firth plant and to remain in Auburn. On December 24, 1964, Laube responded by a letter addressed "To the men in the shop ." 36 He acknowledged that the possibility that Respondent might have left Auburn had been "real," but added that "the uncertainty is now behind us," because Singer , the parent com- pany, had purchased the Firth plant for the combined operations of Remington and Electromode. Laube's letter stated further that "fourteen years ago Interna- tional Harvester laid off 1800 men and left Auburn ," that at that time Respondent "had been warned against locating in Auburn because of the city's reputation . for so much labor trouble "; that in the ensuing 14 years, Respondent had "not lost one hour of production due to labor troubles"; that Laube had "recommended Auburn to Singer as the location for the combined operation [of Remington and Electromode] because of the excellent labor relations Remington enjoyed ... in its present plant;" that this record "helped keep Remington in Auburn . . . will help Auburn to overcome its old reputation [for bad labor relations]"; and that the employees "deserved the gratitude of the local community" for retaining Rem- ington in Auburn and bringing Electromode there. Although artfully worded , the clear implication to be drawn from these speeches and letters of the Respondent was that representation of employees by a union was synonomous with "bad labor relations ," that this was what caused International Harvester to close its plant and leave Auburn and that a like result might ensue if Respondent's employees selected the Union as their representative. This conclu- sion is quite apparent from Laube's statement that his efforts to persuade Singer to buy the Firth plant and remain in Auburn were not being helped by the present union activities of the employees . Clearly this constituted a threat that the decision to remain in Auburn depended at least in part on the rejection of the Union by Respondent's employees. That the employees so understood Laube's remarks is implicit from their petition requesting Respondent to remain in Auburn, and Laube's acknowledgement that the possibility that "Remington might leave Auburn had been real." Accordingly, it is found that in this respect at least Laube's speech and letter clearly constituted interference with and restraint and coercion of employ- ees in the exercise of their right to self-organization guaranteed by the Act. 3. Additional alleged presettlement interference , restraint, and coercion a. In the latter part of October 1964, while Foreman McCormick and prounion employee Eugene Donald Riley were "having a sociable drink" at Tank 's Restau- rant in Auburn, the subject of the Union was discussed. McCormick told Riley, "I can buy you for a dime, but I am not going to. I am going to fire you on Mon- day." Riley's reaction to this statement , contended by the General Counsel to be coercive, was to laugh. Riley was not fired on Monday nor at any time thereafter. In the context in which the "threat" was made, and in the light of Riley's reaction to it, it is found that this statement did not constitute interference , restraint, or coercion within the meaning of the Act. b. On another occasion around the same time , Foreman McCormick and employ- ees Robert Kiphut and Benjamin Smith were at Tank 's Restaurant drinking beer when the subject of the Union was brought up by Kiphut. McCormick said that "if anybody had anything to do with the Union , he would fire them on the spot." Pointing to Smith and jabbing his finger into Smith's chest, McCormick added, "If 11 See General Counsel's Exhibit 5-A. 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I hear tell you signed a card, I will fire you tomorrow." According to Smith's cred- ited testimony which was not denied, the conversation was "not friendly," was not accompanied by "laughing" by any of the participants, and McCormick "meant it." Smith's reply to McCormick was, "Go ahead and fire me." Unlike the incident involving Riley, the circumstances surrounding this incident cannot be ascribed to friendly joking, and therefore McCormick's threat to discharge employees gener- ally, and Smith in particular, if they signed union cards, clearly was coercive, and thereby the Respondent engaged in further unfair labor practices within the mean- ing of Section 8 (a) (1) of the Act. c. The complaint alleges that Respondent further violated Section 8(a)(1) of the Act by engaging in surveillance of the union activities of its employees. The General Counsel relies on the following incident to support this allegation. Accord- ing to employee Riley's credited testimony, on October 23, 1964, Foreman McCor- mick and he were at the bar in the Columbus Restaurant in Auburn, and had "a beer or two." McCormick asked Riley, "Are you going to have your union meeting down here tomorrow night?" Riley said, "Yes." McCormick then called Riley "a liar," and said that the meeting "was going to be" at another tavern. The following evening McCormick visited the Columbus Restaurant briefly with an unidentified person from about 7 to 7:10 p.m., had a beer and then left. According to the tavern owner, during this 10-minute period, Riley introduced him to McCormick. Prior thereto, McCormick had visited this bar "a couple of times." A union meeting was scheduled to take place there at 7:30 p m. that evening. The record is silent as to whether any of Respondent's employees other than Riley were at the restau- rant during McCormick's visit. In the light of the public nature of the restaurant, and McCormick's prior visits thereto, it is concluded that the record is insufficient to support a finding that McCormick's October 24 visit constituted surveillance of the union meeting or an attempt thereat. Accordingly, it will be recommended that the complaint in respect to the allegation of surveillance [par. 5 (e)] be dismissed. d. The complaint also alleges that the Respondent's agents implied to employees that they were engaging in surveillance of the union meetings and union activities. In support of this allegation the General Counsel relies on the following statements made by Respondent's supervisors to employees: (1) Foreman McCormick's state- ment to employee Gray that he knew the employees were trying to get the Union in, and that employee Pingryn was the person chosen by the Union to get it started; (2) The interrogation of Pingryn in October 1964, during which Foreman McCormick asked Pingryn "what the hell was the idea of his starting a Union," and what Riley was expecting to get from a union; and (3) the interrogation of Pingryn in November 1964, by Foremen O'Connors and McCormick in which they asked Pingryn why he started to help the Union organize. In respect to the above incidents (and several others after the settlement agree- ment), the General Counsel contends that the nature of the inquiries, and the knowledge of union activities disclosed by the questions, transmitted to employees the impression that Respondent was maintaining surveillance of their union activi- ties. The contention is regarded as without merit. It is quite obvious that Respond- ent's knowledge of the union activities of its employees could have been obtained from many sources as for example, by voluntary reports from its employees who were opposed to the Union. There is no evidence in respect to any of these inci- dents (including those after the settlement agreement) that the Respondent's agents intimated that the source of their knowledge was surveillance. Accordingly the mere indication by Respondent's agents of knowledge of the employees' union activities is insufficient to establish that Respondent implied to its employees that their union activities were being kept under surveillance. It will therefore be recommended that this allegation of the complaint [par. 5 (f)] be dismissed. 4. Postsettlement interference, restraint, or coercion a. About February 20, 1965,37 employee Joseph Lober had occasion to talk to Eugene Donald Riley, the leading advocate of the Union in Respondent's plant, regarding some faulty parts which were being returned. About 5 minutes later, according to the credited testimony of Lober, Foreman Edward Vesosky, his super- visor, told Lober "to stay away [from Riley] and not to talk to him about the 37 All dates hereinafter refer to 1965 unless otherwise specified. THE SINGER COMPANY 781 Union ." Lober replied that he had talked about parts which had been rejected, and not the Union. Vesosky then advised Lober "That [he] would be smart to stay away from Don Riley." This admonition carried with it the implication that continued association with Riley would redound to Lober's disadvantage, and thus constituted subtle coercion. Moreover, since the statement did not limit Lober's nonassociation with Riley to working hours, it also constituted interference with and restraint of Lober in his right to engage in union or concerted activities on his own time. Accordingly, it is found that thereby Respondent engaged in further unfair labor practices within the meaning of Section 8(a) (1) of the Act. b. About 2 weeks before the Board's election on May 12, a group of employees opposed to the Union formed a committee called the Remington Labor Informa- tion Committee and commenced distributing antiunion literature in the Respondent's parking lot on company property 38 The members of this committee were Charles Culver, who as noted above, attended with Pingryn and Riley the first meeting with Union Organizer Laughlin in Syracuse, Robert Kiphut, who participated in the discharge of Pingryn, and Joseph Botindari. According to the uncontradicted and credited testimony of employee Charles E. Pullen, about May 1, Foreman Vesosky called him into his office and told Pullen that Culver "was doing a fine job outside organizing against the Union." Pullen said, "I would like to see him [Culver]." Vesosky asked, "Why?" Pullen replied, "Maybe I could help out." Ves- osky said, "That is why he did call me in." Thereafter, on one occasion, Pullen assisted Culver in distributing leaflets to employees. The recruitment of Pullen to assist the committee of employees that opposed the Union clearly constituted further interference with the rights of employees within the meaning of Section 8(a)(1) of the Act. c. On May 11, the night before the Board election, the Respondent tendered a banquet in honor of General Manager Laube's birthday to which it invited its employees. Riley, the chief organizer of the employees for the Union, attended. While there, according to Riley's credited testimony, Laube asked to speak to him privately. When he later did, Laube asked Riley, whether he had been "brought in [to the plant] to do this [organize for the Union]?" Riley replied, "No I did it all myself." Laube then said, "I want you to know we have got your police record and haven't used it." 3s Laube's version of this conversation did not substantially vary from that of Riley, but I regard Riley's testimony as more reliable. Laube admitted on cross- examination that he had been carrying a newspaper clipping about Riley's convic- tion in his inside coat pocket for several months, but not until after he learned that Riley was interested in the Union's organizational campaign. Laube's revelation to Riley that he was aware of the latter's criminal record quite clearly implied a thicat of disclosure 40 or other reprisal to Riley, and therefore it is concluded that thereby the Respondent engaged in further unfair labor practices within the mean- ing of Section 8(a)(1) of the Act. d. On May 5, at the conclusion of an antiunion speech by General Manager Laube, employee Joseph Lober in the presence of the other employees asked Laube what he had against the Union, and how Laube would like to be working "down- stairs" for the kind of wages Lober received. Laube replied that Lober should have gone to school. Lober responded that he "had to work 17 hours a day to support my family." Laube then said, "I don't tend to waste all of my time on one man. We like people who solve problems, not people who cause us problems. I guess you know what category you are in." The coercive implication of these remarks by an employer hostile to the Union to an employee who had just indicated his prounion sympathies is quite apparent. Such a statement that an employee is in disfavor with his employer because of his prounion inclinations, especially when made in the presence of other employees, tends to interfere with, restrain, and coerce employees in the exercise of their rights The Union's distribution of literature was made on public property "outside the park- ing lot." There is no evidence that the Union asked or was denied permission to distribute literature on the parking lot. 3 In 1947 Riley admittedly had been convicted for illegal entry and received a 6 months' suspended sentence and was placed on probation for 3 years. 4o I so regard this statement even though Laube claimed he told Riley that he did not intend to use it. 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD guaranteed by the Act. Accordingly it is found that thereby the Respondent engaged in further unfair labor practices within the meaning of Section 8(a)(1) of the Act. e. On April 20, in a speech to Respondent's employees, General Manager Laube told them that the general wage increase of 10 cents an hour which had been given to them on January 16 had been withheld by Respondent for several months because the Union had filed a charge of unfair labor practices against it (Case 3-CA-2485 ), and Respondent's counsel had advised against announcing the increase until the charge was settled. Laube further told the employees that at his request, the accounting department had computed that as a result of the Union's charge, each employee had lost $30.77. Laube told the employees that he believed the Union "owed" them this amount and that they "ought to ask Bill Laughlin," the union organizer, to reimburse them. Acting upon Laube's sugges- tion, 16 employees of the Respondent signed a joint letter addressed to Laughlin requesting such reimbursement. This letter was sent to Laughlin by registered mail and was received by him on May 1.41 However, before its transmission to Laughlin, this letter had been posted on the bulletin board in Respondent's plant, and although Foreman O'Connors saw it there and assertedly knew its presence on the board was unauthorized, he admittedly did not remove the letter, and "didn't do anything else about it." 42 Laube testified that the decision to increase the wage rates of the employees was made by Respondent on November 16, 1964, after investigation of the rates paid for corresponding work in nearby Syracuse, New York, and those paid by Singer's Electromode Division in Rochester, New York.43 Laube further testified that a bulletin was prepared on November 16 announcing the increase, that this bulletin "was to be posted" on November 20, 1964, but in the interim he received a letter from the Board transmitting the unfair labor practice charge which had been filed by the Union. Thereupon, Laube consulted with Respondent's attorneys who advised him not to announce the increase "and to wait until that unfair labor case was disposed of." On the record herein, the Respondent's decision to grant a wage increase to its employees on November 20, 1964, appears to have been motivated by economic considerations unrelated to the Union's organizational campaign. Obviously, no legal impediment existed to prevent Respondent from granting a wage increase so motivated. Undoubtedly, the possibility existed that Respondent's lawful action might be misconstrued and that a charge of unfair labor practices and litigation might have resulted. But, as stated by Justice Brandeis, "Lawsuits also often prove to have been groundless, but no way has been discovered of relieving a defendant from the necessity of a trial to establish the fact." 44 However, the Union's orga- nizational campaign was still in full swing in January 1965.45 Thus, the possibility still continued to exist that if a wage increase was then granted, an unfair labor practice charge might be filed and litigation might result. The Respondent evidently did not regard that possibility as a serious deterrent to granting the wage increase to its employees, since it did so on January 15 notwithstanding. It could, therefore, had it so desired also have made the increase retroactive to November 20, 1964, the date on which it originally intended to put the increase into effect. Thus, con- trary to Laube's statement to the employees, the loss of wages suffered by the latter resulted not from any action taken by the Union, but solely from the Respondent's unilaterally made decisions in November 1964 and January 1965. Clearly, the Respondent's employees and their union representative were entitled to free access to the Board's processes, and had the right under the Act to file 41 General Counsel's Exhibit 7. 42 In the light of Laube's admission that he suggested the action which later was taken by the signatories to the letter, it is unnecessary to determine whether or not permission for posting the letter on the bulletin board was given by Respondent, or whether the letter was inside or outside the locked glass case of the board, as to which there is a conflict in the testimony. 4a The complaint does not allege that this wage increase was motivated by antiunion considerations, but the Respondent nevertheless adduced this testimony and introduced two interdivision letters (Respondent's Exhibits 7 and 8) to support the economic justification therefor 4431yers v. Bethlehem Shipbuilding Corporation, 303 U S 41. 51-52. 45 See Respondent's Exhibits 1-N and 1-0, which are union circulars distributed on January 7 and 14, respectively. THE SINGER COMPANY 783 charges of unfair labor practices against their employer. Accordingly, by withhold- ing the wage increase to which the employees admittedly were entitled merely because a charge of unfair labor practices was filed by their Union, the Respond- ent engaged in interference with restraint and coercion of employees in the exercise of rights guaranteed by the Act, and thereby engaged in unfair labor practices within the meaning of Section 8(a)(1).46 In addition, Laube's statement, unjustifiedly and untruthfully placing the onus for the Respondent's withholding of the wage increase upon the Union, clearly constituted further interference, restraint, and coercion within the meaning of Section 8(a) (1) of the Act. 5. Respondent's postsettlement speeches and letters to employees On February 24, the Union filed a petition with the Board to represent Respond- ent's production and maintenance employees at its Willey Street, Auburn, New York, plant. A hearing on the Union's petition was conducted on March 16. At the hearing, the Respondent moved to dismiss the Union's petition on the ground that in the light of the contemplated merger of Remington and Electromode, and the transfer of these divisions of Singer to a new plant on Columbus Avenue, Auburn, New York, expected to occur about July 15, the petition was "premature." On April 14, the Regional Director denied the Respondent's motion to dismiss the petition and directed that an election be conducted among the employees in the unit for which the Union had petitioned. The Respondent moved for reconsidera- tion, and, in the alternative, requested the Board to review the Regional Director's Decision and Director of Election. On May 3 the Regional Director denied the motion for reconsideration, and on May 7, the Board denied the request for review. The election was scheduled for May 12. During the period preceding the date of the election, the Respondent countered the Union's campaign and literature by a barrage of letters and speeches to employ- ees. Like its earlier speeches and letter preceding the settlement agreement in Case 3-CA-2485, the Respondent's postsettlement speeches and letters continued the theme that representation of the employees by a union was synonymous with strikes, violence, plant removals, and loss of wages and jobs. a. The Respondent's letter of February 8 had enclosed a facsimile of a news- paper clipping about a lawsuit brought by 230 former employees of Carrier Corpo- ration against that company and the officials of three unions (including the Union), claiming about $6 million in damages on the ground that they had been locked out and had been unable to find employment since. In his accompanying letter, Laube cautioned employees against signing union authorization cards, and sug- gested that the employees "ask these 230 iformer employees of Carrier] who have not found work." b. In his speech to employees on April 20, in addition to placing the onus on the Union for the Respondent's withholding of the wage increase, General Man- ager Laube warned that Singer, the Respondent's parent company, was opposed to contracts containing a union-shop provision, and said that if the Union "were to ask for one, he [Laubel was sure they would have to strike." 4'+ Laube denied that he said that the Union would have to strike to get a union-shop contract. According to Laube, he said on this occasion "that management would be opposed to granting a union shop if requested. If the Union made [such] a demand and the Company could not meet the demand, it is possible, probably, it could result in a strike." Laube's version substantially accords with Riley's and is inconsistent with his denial of Riley's testimony. Obviously, aside from Respondent's own policy, there is nothing that "could" prevent it from agreeing to such a demand for a union shop. In effect then, Laube was telling the employees that they would have to strike before the Respondent would agree to a union-shop contract. c. One week later, on April 29, Lambe sent the employees another letter, in which he warned employees, There is one cost of Union membership which can be the most costly of all- the STRIKE! "Cf. International Ladies Garment Workers' Union, AFL-CIO, 142 NLRB 82, 83, reconsideration denied 143 NLRB 116, enfd. sub nom. Federal Union of Representatives in pertinent part 339 F 2d 126, 132-133 (C A. 2). 47 The quotes are from the credited testimony of employee Eugene Donald Riley. 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Referring once again to the Carrier strike in nearby Syracuse, the letter stated: As a result of this strike many employees were replaced and lost their jobs . 230 of these employees had not yet been able to find employment after having lost their jobs at Carrier. The Sheet Metal Workers Union is also notorious for their strikes. Enclosed with the letter were facsimiles of two newspaper clippings about the Union's 5-month strike in 1964 at the Barber-Coleman Co. in Rockford, Illinois. Referring to these articles the letter continued: Twenty weeks is a long time to go without a pay check. Strikes also mean violence, Violence means DAMAGE TO PROPERTY and PERSON . . Don't let it happen here. It won't if the Union loses. [Emphasis supplied.] d. On May 5 Laube made another speech to Respondent's employees. On this occasion, Laube, contradicting a union circular which stated that strikes were called only after a vote by two-thirds of the members present at a special meeting called on notice 48 for that purpose, stated that the Carrier strike was called by the Union after a Sunday meeting of only eight employees 49 Laube also told the employees that "if the Union ever got into the Remington plant it would possibly end up like . U.S. Hoffman, New Process Gear and International Harvester," all of which had "closed up" and moved away from Auburn, New York, because of "union trouble." 50 In addition , Laube, using a chart on a blackboard for illustra- tion, told the employees how long they would have to work to make up the wages they would lose during strikes of different durations , assuming that the aver- age wage increase gained by the strike was 71/2 cents from which 21/2 cents must be deducted for union dues, leaving a net gain of 5 cents an hour. e. On the same day, May 5, Respondent sent the employees another letter signed by Laube again devoted to strikes, their consequences in loss of wages , and pos- sibly the jobs of employees who are permanently replaced. Enclosed with the letter was another newspaper clipping, containing the complaint of a housewife whose $965 in savings were dissipated as a result of the 1960 steel strike "called by the labor leaders." f. On the next day, May 6, still another letter was sent to the employees about the monetary consequences to workers which attended the Barber-Coleman strike, the disparity between what the Union collects and pays out in strike benefits, and the high salary of the Union's president. g. The same strike theme was continued by Respondent in another letter the following day, May 7, which again referred to the 20-week Barber-Coleman strike, and the assessments which union employees at nonstruck plants had to pay to support the Barber-Coleman strikers. h. Again on May 8, the Respondent wrote to its employees regarding their job security-"we have never lost one hour of work due to labor trouble." Enclosed with this letter was a cartoon showing a striker turning over the keys to his car to the finance company because he could not meet the payments. The cartoon is captioned WHO LOSES WHEN THE UNION CALLS YOU OUT ON STRIKE? The finance company representative says in the cartoon, I SURE HATE TO TAKE YOUR CAR. BUT THIS OFTEN HAPPENS TO PEOPLE, WHEN A UNION BOSS CALLS A STRIKE. YOU JUST CAN'T PAY YOUR UNION DUES AND ALSO MAKE YOUR CAR PAY- 4s Respondent's Exhibit 1-EE. to Laube admittedly was not correct in ascribing this strike to the Union, since another labor organization was involved , but he conceded this error in a later speech on May 10. 60 The quotes are from the credited testimony of Joseph Lober and Bernard Chayka, former employees of Respondent who voluntarily quit their employment before the hearing in this case. Laube admitted that be referred to the departure of these companies from Auburn, but testified that he mentioned them only as examples of the inability of the Union or any union to give employees job security. Laube's speeches admittedly were recorded "to prevent the possibility of anyone accusing me of saying something I didn't say " Neither the recordings nor transcripts were produced by Respondent to disprove the credited testimony of Lober and Chayka, and no explanation was offered for the failure to do so. See footnote 12, supra. THE SINGER COMPANY 785 MENTS ON $15 A WEEK STRIKE BENEFITS. JUST THINK ... THE MONEY YOU PAID IN DUES WOULD HAVE HELPED YOU KEEP YOUR CAR. At the bottom of the circular in small print, the following appears: This may not happen with a union ... but to make certain that it doesn't .. VOTE NO! i. On May 10, in his final preelection speech to the employees, General Man- ager Laube told the employees, "if the Union got in, there would be no longer be a happy family such as it is now. It would be friend against friend, father against son and nothing but trouble and dissent." It has already been found that Respondent in the course of its letters and speeches (both before and after the settlement agreement in Case 3-CA-2485) coerced employees in the following respects- (a) one speech implied that Singer's, the parent company, decision to remain in Auburn after the merger with Electro- mode depended on the continued rejection by the employees of the Union as their representative; (b) another unjustifiedly and untruthfully placed the onus on the Union for the Respondent's unilateral action in withholding a pay raise to the employees for several months, and suggested that the employees seek reim- bursement from the Union; and (c) in the course of still another speech, it was clearly made known that any employee who supported the Union thereby incurred the disfavor of the Respondent. Viewed in their totality and in the light of the illegal and coercive statements already found therein, it is clear that the Respondent's barrage of letters and speeches to employees maintained one constant message-the selection of the Union as their representative would inevitably result in strikes-the Union was notorious for strikes-a strike probably would be required before Respondent would agree to a contract containing a union-shop provision-strikes mean violence and damage to person and property-strikes also result in loss of wages with all its attending consequences, and permanent loss of jobs-and strikes bring about plant closings and removals with attendant loss to all the employees involved. As the Board said in a case involving similar statements by an employer,51 This unremitting effort on the part of the Respondent to impress upon the employees the dangers inherent in their selection of the Union as their bargaining agent, particularly the danger of job loss, followed up by the baleful representation of the prospect of violence, physical injury, and prop- erty damage as the ordinary result of voting for the Union in the election, was not an attempt to influence the employees by reason, but was an appeal to fear. Like Ideal Banking, supra, the Respondent's entire campaign to defeat the Union was intimidatory in nature, and intended to convey the threat of job loss, as well as violence should the Union win the election. Accordingly, it is concluded that the Respondent thereby interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by the Act, and violated Section 8(a)(1) of the Act. 6. Respondent's advertisement for new employees just before the Board election On May 8, the Saturday preceding the Board election, the Respondent inserted a half-page ad in the Auburn Citizen Advertizer, the local newspaper, announcing that it would accept applications for "future work" at its new Columbus Street plant. The advertisement enumerated 12 types of factory work that would be available and stated that "some of these jobs are open now." Applicants were instructed by the ad to apply at the Respondent's plant between Monday, May 10, and Thursday, May 13. In preparation for the response to the ad, a "temporary gal" was hired to receive the applicants in the plant lobby, and to assist in the com- pletion and checking of the application forms. Two employees from Singer's Electromode Division in Rochester were brought in to interview the applicants at Respondent's plant. The second floor factory office of Foreman Vesosky was vacated and equipped with desks and chairs to serve as the place for the inter- views. A bench was provided at the second floor landing for applicants to wait for interviews. Starting on Monday, May 10, and continuing thereafter until and 51 Ideal Baking Company of Tennessee, 143 NLRB 546, 552. 257-551-67-vol. 160-51 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD including the day of the Board election,52 the Respondent in the presence and full view of its factory employees interviewed over a hundred applicants for employ- ment who responded to the ad.53 The complaint alleges that the Respondent, by "timing" this advertisement and interviewing applicants for employment just "before and during a Board-conducted representation election," "intimidated and coerced its employees" and thereby violated Section 8(a)(1) of the Act. In defense, the Respondent correctly contends that Respondent's employees had been made aware that additional employees would be needed by Respondent to staff the new plant. However, that plant was not scheduled to be ready for occupancy until July 15, a fact which was also known by the employees 54 More- over, at the very same time the ad and interviewing occurred, the Respondent's employees had been and were being bombarded almost daily with speeches and letters which emphasized the inevitability of a strike should they select the Union as their representative, and had also been told that in the event of a strike, they could be ,permanently replaced and lose their jobs. In this context, the sudden appearance of an advertisement for help, and the mass interviewing of applicants who would not be needed at the new plant for at least 2 months, quite' reasonably could have been regarded by the employees as the Respondent's advance prepara- tions for the strike which its letters and speeches prophesied. The Respondent defends its 2 months' advance timing of the ad and interviews as necessary for the staffing of the new plant. However, its testimony in this regard is not regarded as persuasive. The record shows that at the time the ad was inserted, the Respondent had about 100 applications for employment in its files; that nobody was hired as a result of the original interviews between May 10 and 13; that after the mass of applications was received, the personnel director reviewed them, selected those he liked the best, and called these persons in for a later, second interview; that only three persons were actually hired in May, the first not before May 24, only 17 were hired in June, and 24 in July; that many of those hired had applied to Respondent "long before" the May 10 to 13 inter- view period; that those who were later hired from the applicants of May 10 to 13 were not put to work until months later; that the average length of time necessary to process an applicant for hire is a week and a half, but its possible to place a person on the payroll within 1 day of interview; and finally the record shows that the Respondent consumed at least 2 weeks' time in the preparation of the ad and its art work. All of the foregoing persuasively suggests and it is found that no dire emergency existed which required Respondent to insert the ad and to conduct public interviewing of employees just before and during the Board elec- tion, at least none of which Respondent reasonably could believe could wait 1 week. Since Respondent clearly could have delayed its ad and interviewing for a week without adversely affecting its recruiting requirements, and obviously had no reasonable basis for believing otherwise, it is fairly apparent that the timing of this activity was motivated by its intended effect on the employees in the forthcoming election. But whether or not so motivated, in the context of the campaign even then being conducted by the Respondent to imbue its employees with the inevitability of a strike should they select the Union as their representa- tive, the employees reasonably could infer that the sudden interviewing of job applicants, 2 months before the new plant was to open, was intended to provide Respondent with replacements for them if they were struck. The timing of the ad and interviews thus tended to interfere with, restrain, and coerce employees in their right to select bargaining representatives and, therefore, violated Section 8 (a)( I) of the Act. F. Report on objections to the election As previously noted, the hearing in this case included consideration of five objections filed by the Union to the conduct of the election. Those which were referred to me for "hearing, ruling and decision" stated as follows: 9. Assistance in the formation and administration of a workers committee to campaign against the Union (Remington Labor Information Committee). 63 Respondent's new personnel director, Franklin Pavlik, was not sure whether inter- viewing ended on the day of the election or continued for 1 day thereafter. 53 In all over a thousand applications were received by the Respondent in response to its ad 64 In fact, the move to the new plant did not actually occur until August. THE SINGER COMPANY 787 10. Activity of Supervisors and others in campaigning against the Union. 14. False and intimidating statements made in speeches by the Company officials and in letters to employees homes. 16. Intimidation, restraint, and coercion of union sympathizers. 20. Intimidation and coercion of employees by advertising for employment applicants prior to the Election which resulted in a large number of applicants prior to and on the day of the Election. The findings above that the Respondent engaged in extensive unfair labor prac- tices within the meaning of Section 8(3) and (1) of the Act during the period between February 24, the date on which the Union filed its petition for an election, and May 12, the date of the election, require the conclusion that the Union's objec- tions numbers 14, 16, and 20 have merit, and that the election results should there- fore be set aside. In view of that conclusion and recommendation, it is necessary to pass on the merit or lack of merit of objections 9 and 10. During the hearing the Respondent sought to adduce proof that the unit in which the election was held "had ceased to exist" because the contemplated merger between Remington and Electromode had been completed, and all the employees of both divisions now worked as part of Singer's new Climate Control Division at its new Columbus Street plant in Auburn, New York. An offer of proof to that effect was rejected by me on the ground that it was not within the scope of the issues referred to me in Case 3-RC-3590, which was limited to hear- ing, ruling, and decision on the Union's objections to the conduct of the elec- tion, and on the further ground that this issue was considered and rejected by the Board when the election was first directed. In accordance with the order of refer- ence, this issue is regarded as properly one for the Board's determination, and there- fore the usual recommendation that another election be conducted will not be made. 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 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 com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminated against Nicholas Pingryn by terminating his employment, I shall recommend that it 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 by reason of the discrimina- tion by the payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of his termination to the date of his reinstatement, less his net earnings during said period, with backpay com- puted on a quarterly basis in the manner established by the Board 55 Having also found that the Respondent unlawfully withheld a pay increase to which its employees were entitled only because the Union'filed an unfair labor practice charge with the Board against it, I shall recommend that the Respondent be ordered to make its employees whole for the loss of earnings suffered as a result of the said unlawful withholding of the pay increases from November 20, 1964, the date when it was to be made effective, until January 16, 1965, the date when it was put into effect, with interest at the rate of 6 percent computed in the manner set forth in Isis Plumbing, supra.56 In view of the nature and extent of the unfair labor practices committed, and because discriminatory discharges go to the very heart of the Act,57 the commis- 55F. W. Woolworth Company, 90 NLRB 289. Backpay shall Include the payment of in- terest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. s' International Ladies Garment Workers' Union , 142 NLRB 82, 83. 57 N.L R B. v. Entwistle Mfg. Co , 120 F.2d 532, 536 (C.A. 4). 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sion of other unfair labor practices reasonably may be anticipated. I shall there- fore recommend that the Respondent be ordered to cease and desist from "in any other manner" infringing upon rights guaranteed to employees by Section 7 of the Act, in addition to those rights found to have been violated herein. I shall also recommend that the Respondent make available to the Board, upon request, payroll and other records necessary to facilitate the determination of the amounts due under this recommended remedy. 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. Sheet Metal Workers International Association, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 2. By discouraging membership in a labor organization through discrimination in employment, the Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(3) of the Act. 3. By the foregoing conduct, and by threatening employees with discharge, loss of employment, plant closings and other reprisals to discourage union affiliation and/or support, by withholding a pay increase because its employees filed a charge with the Board, and by coercively interrogating employees regarding their union sympathies, Respondent has interfered with, restrained, and coerced employees in the exercise of their rights under the Act, and has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that the Respondent, Climate Control Division, The Singer Company (formerly Remington Division, The Singer Com- pany), its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Dicouraging membership in and activities on behalf of Sheet Metal Workers International Association, AFL-CIO, or any other labor organization of its employ- ees, by discharging or refusing to reinstate any employee, or in any other manner discriminating in regard to 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) Threatening employees with discharge, loss of employment, plant closure or removal, or other reprisals to discourage union activities of adherence. (c) Withholding any pay increase to which its employees would otherwise be entitled but for their union or concerted activities or their recourse to the processes of the Board. (d) Coercively interrogating employees in regard to their union membership, activities, or sympathies. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form labor organizations , to join or assist Sheet Metal Workers International Association, AFL-CIO, or any other labor organization, 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 protection, or to refrain from engaging in such activities, except to the extent that such rights 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. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer Nicholas Pingryn 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 as a result of the discrimi- nation against him in the manner provided in "The Remedy" section of this Decision. (b) Make its employees whole for the loss of earnings suffered as a result of the withholding of the pay increase which would have been given to them on Novem- ber 20, 1964, but for the filing of a charge against Respondent, in the manner pro- vided in "The Remedy" section of this Decision (c) Preserve and, upon request, make available to the Board or its agents, all pay- roll and other records, as set forth in "The Remedy" section of this Decision. THE SINGER COMPANY 789 (d) Notify Nicholas Pingryn if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (e) Post at its plant in Auburn, New York, copies of the attached notice marked "Appendix." 58 Copies of said notice, to be furnished by the Regional Director for Region 3, after being duly signed by Respondent, shall be posted by it for 60 con- secutive 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 such notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 3, in writing, within 20 days from the date of the receipt of this Decision, what steps it has taken to comply herewith 59 I also recommend that the complaint be dismissed insofar as it alleges that the Respondent violated the Act by conduct other than that found to be violative in this Decision. I further recommend that the election held on May 12, 1965, in Case 3-RC-3590 be set aside and that that case be transferred to and continued before the Board in Washington, D C., for such further action or disposition as it deems appropriate. 68 In the event that this Recommended Order is adopted by the Board the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 591n the event that this Recommended Order is 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 the Respondent has taken to comply herewith " 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 Rela- tions Act, as amended , we hereby notify our employees that: WE WILL NOT discourage membership in or activities on behalf of Sheet Metal Workers International Association , 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 as permitted by the proviso to Section 8(a)(3) of the Act. WE WILL NOT threaten our employees with discharge, loss of employment, plant closings or removals, or other reprisals to discourage union activities or adherence. WE WILL NOT withhold any pay increase to which our employees would otherwise be entitled but for their union or concerted activities , or recourse to the processes of the Board. WE WILL NOT coercively interrogate employees regarding their union mem- bership, activities , or sympathies. 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 loin or assist Sheet Metal Workers International Association, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities , except to the extent that such rights may be affected by an agreement requiring membership in a labor orga- niiation as a condition of employment, as authorized in Section 8(a)(3) of the Act. WE WILL offer Nicholas Pingryn immediate and full reinstatement to his for- mer or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination against him. 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make our employees whole for their loss of earnings suffered as a result of our withholding their pay increase from November 20, 1964, to Janu- ary 16, 1965. WE WILL notify Nicholas Pingryn if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. All our employees are free to become or remain , or to refrain from becoming or remaining, members of Sheet Metal Workers International Association, AFL-CIO, or any other labor organization. CLIMATE CONTROL DIVISION, TFIE SINGER COMPANY (FORMERLY REMINGTON DIVISION, THE SINGER COMPANY), Employer. Dated------------------- By------------------------------------------- (Representative) (Title) 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 pro- visions, 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. Atkins Saw Division of Borg-Warner Corporation and United Steelworkers of America, AFL-CIO. Case 26-CA-92174. Au- gust 31,1966 DECISION AND ORDER On April 7, 1966, Trial Examiner Boyd Leedom issued his Deci- sion in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in the unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. 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 to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following additions and modification. 1. The Trial Examiner found that Respondent had engaged in sur- veillance in violation of Section 8(a) (1) of the Act by its manage- ment officials' arranging with maintenance clerk Bobby Helms to attend a union meeting and report back events of that meeting to 160 NLRB No. 56.