Plasti-Vac Corp.

922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plasti-Vac Corp. and International Union of Electrical, Radio & Machine Workers, AFL-CIO. Cases 4-CA-3893 and 4-RC-6613 May 23, 1967 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION alleges violations other than those found by the Trial Examiner. IT IS HEREBY FURTHER ORDERED that the election conducted on December 17, 1965, in Case 4-RC-6613, be, and it hereby is, set aside. [Text of Direction of Second Election omitted from publication.] BY MEMBERS BROWN, JENKINS, AND ZAGORIA On February 15, 1967, Trial Examiner John H. Eadie issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action. He also found that the Respondent had not engaged in certain unfair labor practices and recommended dismissal of those allegations of the complaint. In addition, the Trial Examiner found that the Respondent had engaged in objectionable conduct prior to the election held in Case 4-RC-6613, and recommended that the said election be set aside, all as set forth in the attached Trial Examiner's Decision. The Respondent and the Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs. The Respondent also filed an answering 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. 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 Examiner's Decision, the exceptions, the briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Plasti-Vac Corp., Montgomery and Jersey Shore, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it TRIAL EXAMINER'S DECISION. STATEMENT OF THE CASE JOHN H. EADIE, Trial Examiner: This proceeding was held before me in Williamsport, Pennsylvania, on various dates starting on September 20 and ending on October 31, 1966, on the consolidated complaint of the General Counsel and the answer of Plasti-Vac Corp., herein called the Respondent.' The consolidated complaint alleges violation of Section 8(a)(1) and (3) of the Act. The Respondent's answer admits the jurisdictional allegations of the complaint, but denies the commission of any unfair labor practices. After the hearing the General Counsel and the Respondent filed briefs with me. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Pennsylvania corporation. It is engaged in the manufacture of parts and materials at its two plants located in Montgomery and Jersey Shore, Pennsylvania. During the year preceding the date of the complaint herein, the Respondent sold and shipped goods valued in excess of $50,000 directly to customers located outside the Commonwealth of Pennsylvania. The complaint alleges, the Respondent's answer admits, and I find that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED International Union of Electrical, Radio & Machine Workers, AFL-CIO, herein called the Union , is a labor organization which admits to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Background During October 1965 the Union commenced to organize the employees of the Respondent. On November 16, 1965, the Union filed a petition for certification. An election was conducted by the Board on December 17, 1965. A tally of ballots disclosed that 62 votes were cast for the Union and 153 votes were cast against it. During working hours on November 16 and December 2, 1965, Con Sterling, vice president and general manager of the Respondent, delivered antiunion speeches to the ' The charge in Case 4-CA-3893 was filed on February 9, 1966 the Petitioner's Objections 1 and 2" in Case 4-RC-6613 The On June 27, 1966, the Board directed that a hearing be held "for consolidated complaint issued on June 30, 1966 the purpose of receiving evidence to resolve the issues raised by 164 NLRB No. 127 PLASTIC-VAC CORP. 923 assembled employees . He read the speeches through without interruption and would not permit questions by the employees until he had finished reading.2 B. Interference, Restraint, and Coercion Carson Folk worked in the molding department at the Montgomery plant . He distributed union leaflets , attended union meetings, and solicited employees to sign cards. He also was an observer for the Union at the election. On or about November 10, 1965, Folk went to the office of Thomas Shanahan, the Respondent's personnel manager, in order to speak to him about his rate of pay. During the conversation Folk volunteered that he was sorry that he had become involved in the union activity as the Respondent had been fair to him . Shanahan told him that it was "a free country" and that he had a right to do as he saw fit. Some few days before the election as Folk was reporting for work, Shanahan spoke to him. Concerning this conversation , Folk testified , "Carson, he says, it's sort of a slap on the back ... as good as we were to you ... it's sort of a let down ... I asked him what ; he said , well what you're doing, it's really hitting below the belt, isn't it. I said , well I don't know , I think the union would do good to get in there." Shanahan and Folk gave substantially the same testimony as to the conversation on or about November 10. Shanahan also testified that he had another conversation with Folk the following day during which Folk told him that he had changed his mind about "getting out of the union" after talking with his brother , Dyson Folk. Shanahan denied the statements attributed to him by Carson Folk in the conversation shortly before the election . I credit Folk's testimony in this connection. However, since Folk was a known union adherent, I do not believe or find that Shanahan's remarks were violative of the Act. Some few days before the election Carson Folk spoke to Jack Girton , assistant to the plant manager , about an error in his home address . Girton told him to see Shanahan about it . Girton then asked him if he thought the Union would get in the plant . When Folk replied that he thought the Union had "a pretty good chance," Girton said , "you'd better hope to God it don 't get in for your own sake." Folk testified credibly to the above . Girton admitted that he had a conversation with Folk about his address, but denied making the above statement about the Union. His denial is not credited . I find that Girton's remark was violative of Section 8(a)(1) in that it contains a threat of reprisal. Bobbie McClosky worked at the Jersey Shore plant. He was an active union adherent and was an observer for the Union at the election. McClosky testified that about a week before the election Dick Connor, plant manager of the Montgomery plant, went to the Jersey Shore plant ; that Connor asked him what was "bothering" him and why he was "doing it against the company"; that Connor asked him if he would go to the Montgomery plant and have a talk with him and Girton ; that when Lawrence Hostrander, assistant plant manager at Jersey Shore, thereafter tried "to coax" him to renounce the Union, he called Connor ; that he told Connor 2 Copies of the speeches were received in evidence The General Counsel does not contend that they were violative of the Act that he would let him know the following morning what he was going to do; that the next morning he told Hostrander, "just drop the whole subject because I'm going to go through with what I started"_ that a few days later Hostrander told him that Connor and Girton had called, asking that he (McClosky) go to the Montgomery plant; that he told Hostrander to tell them that he would not go to see them "because they didn't want to talk seniority"; that about 5 minutes later Hostrander returned and said, "you have to go down, they want to talk to you"; that he went to the Montgomery plant the following morning and spoke to Girton ; that Girton asked him why he was for the Union; that they then discussed seniority and his failure to get "a shipping and receiving job"; that Girton said , "I'll see what I can do for you if you can wait until after January"; that Girton asked him if he would "drop the union"; and that he replied that he would not wait and would not give up the Union. Connor testified to the effect that "in the area of November" he visited the Jersey Shore plant ; that at the time McClosky complained about his failure to get "the shipping room job "; that he (Connor) suggested that he bid for the "former's job" as he had enough seniority; that McClosky said that he did not want that job ; that in his opinion McClosky was an adherent of the Union because he wore union "literature"; that there was "no union talk" during the conversation ; that during a later visit to the plant he asked Hostrander to check with McClosky to make sure that he did not want the former 's job ; that when McClosky was called to the office , he again stated that he did not want that job; that Hostrander later called him at Montgomery and advised him that McClosky wanted to talk to him; that he told Hostrander to tell McClosky that he could talk to him (Connor) "anytime"; that McClosky called him that same night at his home and told him that he wanted to get out of the Union ; that when he replied that he could not advise him as it was his problem, McClosky said , "well I'm going to let you know tomorrow"; that a day or two later Hostrander called him and told him, "Bobby changed his mind ; he doesn't want to see you"; and that when McClosky went to the Montgomery plant , he did not talk to him as he was "out of town." Hostrander denied that he had received any request from Connor and Girton for McClosky to go to the Montgomery plant and that he told McClosky that he had to go. He testified that he did not know "anything" about McClosky's visit to the Montgomery plant . Concerning his only conversation with McClosky about the Union he testified: Right now I don't [know ] how it got started. But at that time he changed his mind completely and he asked me to go in and call Mr . Connor ; and at that time I went in to call Dick and told him what had happened and that Bob had wanted to talk to him. And he talked to him on the phone at that time and asked Dick if he could come down to see him the next morning. Girton admitted that he knew that McClosky was "strongly pro-union." He testified that on one occasion when he visited the Jersey Shore plant McClosky told him that he had become "involved in the union activity" because he had been "embarrassed or belittled" by the answer given him when he had inquired about "another job." He admitted that he had a conversation with McClosky at Montgomery "sometime prior to the election, 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reasonably close to the election," but denied that he asked him to renounce the Union or that he had "at anytime in any manner" held out to him a promise of benefit if he would renounce the Union. Concerning this conversation Girton was questioned and testified as follows: Q. What was the occasion for Mr. McClosky to come to Montgomery? A. I can only relate what he told me or what I was told. He had to the best of my knowledge and belief made arrangements for Mr. Connor to have a talk regarding a particular job which he wanted but had not received; he wanted more specific information regarding the classification system, what it would mean to him and to them when we put it into effect at the Jersey Shore Plant. He told me at this time that he was going to be an observer, I think, at the election; I think I said good for him or something to this effect. He asked me what we were going to do for them now, and I explained to the best of my knowledge that whatever we did at Jersey Shore in any matter relating to this job classification system, we would do it at both plants. He asked me what are you going to do for us now, and I told him I couldn't do anything for him then, nor could I tell him that I could do anything for him later. He asked me when the job classification program would go into effect in Jersey Shore, and I told him we were targeted for January, or the 1st of February. And I think somewhere around this point he said, well, I can't wait; and left. Q. Did you discuss as he said his bid on the receiving and shipping job? A. I don't think so; I don't think that we discussed an actual bid because I think that the job he's talking about didn't exist yet; I think that I could pinpoint the dates and establish that the job did not in fact exist at the time of our conversation. Q. Well what specific job if you recall do you believe that he was referring to if you did have a conversation on it? A. He made reference during our conversation to working in the shipping and receiving department, and all I could tell him was that we had not completed our job classification program for Jersey Shore and to tell him what classification he would be at that date in December would just be impossible. I am convinced and find from the above testimony that Hostrander, Connor, and Girton were putting pressure on McClosky to renounce the Union and that Girton made an implied promise of benefit to McClosky if he would do so. In so finding I credit McClosky's testimony. Portions of the testimony of Hostrander, Connor, and Girton corroborate the testimony of McClosky. There are conflicts between the testimony of Hostrander and Connor. McClosky testified that the conversations took place within the week before the election. Although Connor testified that his talk with McClosky took place "in the area of November," Girton's testimony agrees with that of McClosky, at least insofar as the time of their conversation is involved. Accordingly, I find that Girton's remarks to McClosky were violative of Section 8(a)(1) of the Act. McCloskey testified credibly that several days before the election Hostrander told him that he would like to see him resign as an observer for the Union as he did not want one of his men engaging in such activity " against" him. His denial is not credited. I find that his statement to McClosky was violative of Section 8(a)(1) of the Act. Roy Billman is a foreman at the Jersey Shore plant. McClosky testified credibly that on the day of the election Billman told him, "it [doesn't] make a difference one way or the other if the union gets in ... if the union gets in or if it don't get in, you'll be out the door." Billman denied the statement attributed to him. His denial is not credited. It is found that Billman's threat of reprisal was violative of Section 8(a)(1) of the Act. Charles Bardo worked in the molding department at the Montgomery plant. Starting on November 8 he openly wore union buttons while at work. Bardo testified that at sometime between November 18 and the election he had a conversation about the Union with Lloyd Bremigan, foreman on the second shift; that he did not recall who raised the subject of the Union; that Bremigan asked him how he felt about the Union and what he expected to gain from it; that in reply he stated that he was "on the fence" and complained that employee Bill Updegraff had received a wage increase of 10 cents which would "put him over the top rate in his classification"; that Bremigan said that he did not believe this and called Girton on the telephone in his presence; that he (Bardo) then spoke to Girton; that Girton asked him if he would "talk for the company" if he (Girton) could prove to him that Updegraff did not get the raise; that the following day he met with Bremigan , Girton, and Shanahan; that Shanahan showed him a record which disclosed that Updegraff's "previous rate and a seven-cent raise which would have kept him in the proper rate for his classification"; that that same night Bremigan came to him with a pad containing a list of names; that Bremigan asked him if he would work if the Union called a strike; that when he replied that he would not work, Bremigan remarked that he had not been convinced "in the office about Updegraff"; that Girton later came to him and asked what he would "like to see concerning Updegraff's raise"; that he answered that he wanted to see certain records; that thereafter he met with Girton and Sterling in the latter's office; that he was shown "certain items" concerning Updegraff's increase; that as he was about to leave the office Sterling, referring to "a bunch of company pamphlets," asked if he would "care to pass them out"; that he replied, "No, thank you, I don't want to get into that"; and that he did not wear any union buttons when he was in the offices of Shanahan and Sterling. Bremigan denied that he had asked Bardo "in those words" how he felt about the Union or what he expected to gain from it. He testified that Bardo "at times" during conversation with him brought up the subject of the Union and asked questions; that he answered Bardo's questions; and that Bardo told him what he expected to receive if the Union got in the plant. Otherwise he did not deny statements or conduct attributed to him by Bardo. I credit Bardo's testimony concerning his conversations with Bremigan. Since Bardo was an open adherent of the Union, I do not believe or find that Bremigan's questioning at the time as to what Bardo expected to gain from the Union was violative of the Act. Bremigan's interrogation concerning a strike will be discussed hereinafter. With few exceptions Girton testified substantially the same as Bardo. He denied that he asked Bardo to "work for the company."3 In this connection he testified: Hostrander denied having any conversation with 3 As related above, Bardo testified that Girton asked him to McClosky concerning his being an observer for the Union. "talk for the Company " PLASTIC-VAC CORP. 925 He was very outspoken in his criticism of the company and its classification program and the wage rates ... I simply asked him if he would not speak out against us now that he understood that [Updegraff's wage increase] was not unfair; these were the only areas that I asked him to speak-not for the company, but not against the company. Concerning Bardo's testimony about company leaflets while in Sterling's office, Girton testified: I recall that I had in my hand, as stated by Mr. Bardo, these answers to the union literature; and all these were answers to union literature that we printed. And I had these in my hand prior to calling Mr. Bardo in and had not taken them to the places that we wanted them taken to be distributed, and I frankly have, I have no recollection that anyone ever asked any obvious union representative to pass out anti-union literature. Shanahan admitted that he had a conversation with Bardo and Girton concerning Updegraff's wage increase. He denied that Girton asked Bardo "to work for the company." Sterling denied that he had asked Bardo to distribute the Respondent's leaflets. I credit Girton's testimony to the effect that he requested Bardo not to talk against the Respondent unfairly insofar as its classification program was concerned. I do not find a violation of the Act in this connection. However, I credit Bardo's testimony as to the conversation in Sterling's office and find that Sterling's interrogation with respect to the leaflets was violative of Section 8(a)(1) of the Act. Bardo was not wearing any union buttons on that occasion and previously he had told Bremigan that he was "on the fence." Under the circumstances I believe that Sterling's interrogation constituted an unlawful inquiry as to Bardo's union sympathies. Employee Gary McCoy worked at the Montgomery plant under Foreman Edward Sennett. McCoy testified without contradiction that he wore a union button on November 8, the first day that such buttons were distributed to the employees; that at sometime during the week following November 8 Sennett came to his machine and asked him if he had received one of his cards; that when he replied that he had not, Sennett handed him a card bearing the legend "No IUE For Me"; and that he wore the card on his clothing for about a week thereafter. Employees Kenneth Meixel, Harry Mumma, William Moore, and Dean Meixel also worked under Senneth. Kenneth Meixel testified that about a month before the election Senneth asked him if he wanted a card. Mumma testified that at "sometime before the election" Sennett asked him if he would take a card. Moore testified that "less than a week after the union men started wearing the buttons ... in the early part of November" Sennett asked him if he would like to wear one of the cards. Dean Meixel testified that at sometime before the election Sennett asked him if he would wear a card. Employee Betty McQuay worked at the Montgomery plant under Foreman Tom Connor. McQuay testified that at sometime before the election Connor asked her if she wanted to wear a piece of cardboard bearing the legend "No IUE For Me." Girton testified that "very early in the morning" of November 15 he learned of the antiunion cards; that he reported this to Dick Connor and Sterling; that they in turn contacted the Respondent's attorney who advised them to "discourage" this activity; and that he followed this advice "immediately." In this connection he testified as follows: ... I first of all investigated to find out where the cards were coming from. My investigation showed that some of the cards had been made up on the third shift, where I couldn't find out where they had come from. In one case, the first shift in particular, when I went out the foreman, * . And I contacted the second shift foreman and the third shift foreman to make a point of telling them to not in anyway engage in this activity, which they did not. Dick Connor testified that when he arrived at the plant about 8 a.m. on November 15 Girton informed him of the antiunion cards; that he told Girton, "if any of the company people are involved in this, stop it immediately"; that the cards found in the possession of "any company people" were collected, put in a box, and taken to the personnel office; and that this action was taken without prior consultation with the Respondent's attorney. I find that the above conduct of Sennett and Foreman Connor was violative of Section 8(a)(1) of the Act. The date when this occurred is significant only with respect to the objections to the election. As related above, the Union filed its petition on November 16. I find that Sennett and Tom Connor engaged in the above conduct on November 15, in accordance with the testimony of Girton and Dick Connor. In his brief the General Counsel contends that Girton and Connor should not be credited as to this date, pointing out the inconsistency in their testimony with respect to when the Respondent's attorney was consulted. However, it is to be noted that the testimony of McCoy and Moore, the General Counsel's own witnesses, agrees with that of Girton and Connor insofar as the date is concerned. It is undisputed that certain foremen of the Respondent interrogated employees as to whether or not they would work if the Union called a strike. The conversation between Bardo and Bremigan concerning a strike has been related and found above. Bardo testified credibly that this conversation took place sometime between November 18 and the election. McCoy testified that during November, Sennett "Came around with a list of names on a clipboard"; that Sennett asked him if he would "cross a picket line" and "come into work" if there was a strike; and that he saw Sennett questioning other employees. McQuay testified that at sometime before the election Foreman Connor asked her if she would "come to work in the event of a strike"; and that about that time she had heard "rumors" that the Union was going to call a strike. Employee Mildred Munns testified that at sometime after November 20 and before the election Connor asked her if she would cross a picket line in the event of a strike. Mumma, Moore, and Dean Meixel testified that Sennett questioned them in this connection. They also testified that about the time of the questioning they heard rumors to the effect that the Union might call a strike. When questioned during direct examination as to the time of the interrogation, Moore answered, "I'm not real sure about that, but it seems to me like it was just about a week before the election." Employee Dyson Folk testified that during "probably the second week of December" Bremigan asked him what he would do if the Union called a strike; that he replied that he did not think it was "a fair question" and that it was "an unfair labor practice to do something of this kind"; that Bremigan said, "I got it direct from the office to ask this question ... we'll check at the office to find out 926 DECISIONS OF NATIONAL about the statement"; and that after Bremigan checked with the office, he ceased questioning the employees. Bremigan admitted that he asked employees if they would come to work in the event of a strike. He testified that he did not recall when this questioning took place, and that at the time he had heard rumors of a strike. Concerning the incident with Folk, he testified to the following: A. I went to the machine that he was running and I asked him this particular question, if he would work in the event of a strike; and he told me no but he felt that I was wrong in what I was doing. So then I didn't say anything to him about this; then I went to Mr. Girton, which Mr. Girton at that time went to talk to Dyson Folk. And Shortly afterwards Mr. Girton came to me and told me to stop what I was doing. Girton testified that beginning shortly after November 10 he heard rumors of a strike. Concerning the questioning of employees by foremen he testified as follows: Our business is of such a nature that it's imperative that our schedules be met; as I mentioned earlier we deal primarily in pharmaceuticals ; these items are used by the government and are used by hospitals and they're used by doctors. And it's extremely important that we meet the schedules that we say are going to meet. This strike rumor was very obvious as mentioned in earlier testimony, and frankly we were alarmed to the extent that we needed to know what our position was going to be as regards to our customers and to what extent it was going to be necessary for us to automate and take care of our problems during this period, should they strike. My employers asked me ... how many people I felt would be willing to work in the event of a strike and how many machines I could automate and numerous other questions relative to this. And as I recall I did get the supervisors together as a group and again depending on their opinions asked them how many they felt would be willing to work in the event of a strike. Now either through some error in communication or some misunderstanding, they decided to ask or started to ask their people if they would be willing to work in the event of a strike. And it came to my attention within minutes after this started, and since it was not our purpose in holding the meeting nor in my employer's purpose, to ask each employee would he be willing to work in the event of a strike, I stopped it immediately. Dyson Folk was the individual who advised me that it was being done. In view of the uncontradicted testimony of Munns I find that the Respondent's foremen engaged in the above conduct at sometime between November 20 and the election. It is undisputed that there were rumors of a strike in the plant. However, the evidence indicates that the Respondent was involved in the origination of such rumors. In his first speech to the employees Sterling emphasized the possibility of a strike. Accordingly, I find that the interrogation of employees concerning what they would do in the event of a strike was violative of Section 8(a)(1) of the Act. C. The Discharge of Dyson Folk Folk's employment by the Respondent began on LABOR RELATIONS BOARD October 12, 1965. He worked in the molding department on the second shift at the Montgomery plant. Prior to his employment by the Respondent he suffered a head injury while working on a fob in Charleston, South Carolina. On October 11, 1965, Folk filed an application for employment with the Respondent. The application contains the question , "What physical defects have you?" Folk answered, "None" to this question. However, he did state in the application that he was injured on the job as the reason for leaving his last employment. He was interviewed on this application by Shanahan. Folk testified that he told Shanahan at the time that due to his injury he would be absent from work "for dental appointments and U.S. Department of Labor hearings and also this oral surgeon's appointments"; and that Shanahan sent him to a Doctor Weaner in Montgomery for a physical examination. Shanahan admitted that Folk told him about receiving a head injury while on the job in Charleston. He denied that Folk told him that he expected to be absent from work because of any hearings or dental work. Shanahan testified that he told Folk that he would be on probation for 90 days; that he explained to him the Respondent's absentee policy for probationary employees; and that Weaner, the Respondent's doctor cleared Folk for employment. Folk was very active on behalf of the Union during the preelection campaign. He gave speeches, wore buttons, attended all union meetings, and was present at the Board hearing in the representation matter. He was known to Girton as the "kingpin" of the Union. As related above, Sterling made his first speech to the employees on November 16. Folk testified that during this speech he tried to ask Sterling some questions; that immediately after the speech he was called to Shanahan's office; that Shanahan, Girton, and Bremigan were present; and that his meeting with them lasted about 2 hours. Concerning the conversation Folk testified to the following: ... Mr. Girton asked me why I started with the union, what I was trying to do with the people that worked there at the plant. ... Mr. Girton asked me why I didn't come to him or come to somebody in the office, that the office doors were always open, that they were to help me get an employees' union; he said, what's it going to cost you for the IUE a year. I said I didn't know offhand what it would cost; he said approximately $12,000.00, I believe this was the figure; I won't say for sure but this was relative figure he used. And he said, hell, for $3,000.00 a year I'll get you all of the legal counsel you'll need. * * * * * I was asked what could be done to get me to stop my union activities ; my brother Carson had worked there for a number of years, he seemed happy, the other employees were happy; and I was hurting the people; what would they have to do to get me to stop it. Girton, in effect, denied that he, Shanahan, and Bremigan met with Folk after Sterling's speech. He and Shanahan testified that they talked to Folk on November 25 concerning his absenteeism. Their testimony concerning this meeting will be discussed hereinafter. Girton denied the statements attributed to him by Folk. However, when asked if he had made a PLASTIC-VAC CORP. statement to Folk about obtaining an attorney for $3,000, Girton answered: No. The comment to the $3,000.00 and a legal fee I can connect only with a general comment that he made to me about lawyers and I said something about a retainer fee for a lawyer, you could probably retain a lawyer for a year for $3,000.00. He made some joking jab and I made some joking response. Folk testified that later during the same day that the above meeting took place Bremigan asked him how the Union was "going" and how long it would take to get an election set up, saying that he (Bremigan) did not know "anything about union activities." Bremigan denied asking Folk how the Union was going "in those words." In explanation he testified: Once again we would talk, and he would relate to me that they had X number of signers and so forth that they received; and he would also relate to me how strong they felt that they was carrying the Jersey Shore Plant in signers; and I would tell him that I didn't feel that they were this strong and so forth like this. Shanahan testified that as of November 24 Folk had been absent from work for 5 days;4 that at the time that he discovered this the Respondent's attorneys, Mr. McNerney and Mr. Vanderlin, were conferring with Sterling and Girton; that he reported Folk's absentee record to them, saying that he did not know why Folk was absent at the time because "he didn't call in or report off"; that McNerney suggested that he have the Respondent's plant security officer check on Folk to find out why he was absent since he did not have a telephone; that McNerney advised that the Respondent should not enforce its policy on absenteeism during the period before the election unless it wanted to be faced with an unfair labor practice charge; that the following day, November 25, Folk was called to his office; that he, Bremigan, and Girton were present; that when Girton asked Folk why he had been absent "for such a long time" and why he did not "report off," Folk answered that he had been "having trouble with bronchitis" and that his brother had reported that he was sick; and that Folk was then informed that if his absenteeism continued, it could result in "a discontinuation of his probation." Bremigan testified that he was present in Shanahan's office; that the meeting concerned Folk's "absenteeism"; and that Folk was told that he was "missing a deal of time and ... did not report off from work and that this was a company rule that an employee report off from work." Girton testified that at Folk's request he had a conversation with him after the meeting in Shanahan's office. In this connection he testified to the following: In the first instance he wanted to make me aware that he wasn't, in his words, a union plant; and I told him that I couldn't sit down and discuss with him matters pertaining to the union in view of the fact that we were presently in the process of being organized by one. * * * * * He went into some detail about some personal 4 Absentee reports submitted by Bremigan to the personnel department were received in evidence They disclose that Folk was absent from work on November 13, 16, 19, 22, 23, and 24; that 927 problems that his brother was having and how they related to his, meaning Dyson's, activity in the union. He told me about his past history as a flight engineer or a technician of some sort in the air force and as to why he left that; in fact in effect he was giving me his work history and record. ... he was telling me how much money, how much profit the company had made over a period of time; and he said that he had the records. As a matter of fact he told me that he had federal records that indicated how much money we had made, profit; and I advised him at least it was my opinion that it was impossible for him to have this kind of record. And he said, well he had them and he would present them or portions of them, portions of them because to show me the record in its entirety would disclose the source and that these documents were obtained illegally by the union and therefore he would only show me portions of them. And he said he would be doing this within the next couple of days; I told him that would be rather interesting in view of the fact that I hadn't seen those kinds of records. Folk during direct examination testified that he did not receive any warnings about his absenteeism. During cross- examination he testified that he had no recollection of being called to the personnel office on November 25 but that he did recall a discussion about "the bronchitis business" and about obtaining illegally a copy of the Respondent's income tax returns. He further testified that it was "highly possible" that he did not recall the meeting on November 25 and a later meeting because he had made no note of them in his affidavit; that due to a "calcium deposit in the right shoulder" a doctor told him "to take five days off"; that Shanahan asked him for his reason for being absent; that he told Shanahan about his ailment and asked him "why the police had checked with my mother and father rather than them checking with . Dr. Weaner's office if there was any doubt to the time that he had asked me to take off"; and that Shanahan replied, "this was a security measure used on all employees." Folk was absent from work on December 9. On the absentee report for this date Bremigan noted, "sent word in." Folk was scheduled to work on Saturday, December 11, but was absent. On the absentee report Bremigan noted, "no word." In a memorandum to Girton, dated December 11, 1965, Bremigan stated, "Dyson Folk was scheduled to work tonight, but he did not report for work and he did not call in to report off. He has missed other days. I feel that I cannot depend on this man. I do not feel he should be scheduled for weekend work." Girton testified that Folk again was called to the office on December 13; that he, Shanahan, and Bremigan were present; that they discussed Folk's absence on December 11 without "calling in"; that Folk stated that he rode to work with his brother and that he did not get to work because his brother did not "show up"; and that Folk was warned that if his excessive absenteeism continued, the Respondent would "probably not be able to continue him as a full time employee." Shanahan gave substantially except for November 16 the reason given for the absence was either that Folk was sick or that his wife was in the hospital, and that on November 16 Folk did not report that he would be absent 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the same testimony as Girton concerning this meeting.5 Bremigan testified that he was present at this meeting; that the subject of discussion was "absenteeism"; and that Folk was "warned that he was to report off, which he was not doing on some occasions." Folk testified, in substance, that sometime during the month before the election he had approximately 15 conversations with Girton. In this connection he testified: Mr. Girton would ask me, well speak to me first of all he'd ask how the union was coming along, how's your card signing coming along and things of this type. Girton admitted talking to Folk about the Union but denied interrogating him about his union activities. Concerning his conversations with Folk and the reason for them he testified as follows: A. It was my impression that Mr. Folk used me, during the period from approximately the 15th or 16th of November until December 17th which was pretty much the union campaign period, as a chaplain. He would come to me with the comment that someone had torn a pro-union banner off his car or someone's car; he would tell me that it wasn't nice for us to answer their literature with the way we did; he would come to me after we had written an answer to a flier and tell me that the information, the correct information we had gathered was incorrect, and I would say it was not-conversations like this. These went on almost on a daily basis if I passed anywhere through the area where he came into work which I did frequently. Folk was absent from work on January 5, 6, and 7. Bremigan noted "reported off" for January 5, "having teeth pulled" for January 6, and "getting teeth out" for January 7 on the absentee reports. Folk testified that he was scheduled to enter the Williamsport Hospital on January 15 for "dental surgery"; that during "the last part of December or the first part of January" he spoke to Girton and Shanahan "about a leave of absence" for this purpose; and that they read the Respondent's "absence policy" to him and stated that they would "make arrangements" if he would notify them "within a twenty-four hour period prior to ... taking off." Shanahan denied ever having a conversation with Folk about a leave of absence. On January 11 Folk was called to Shanahan's office and discharged. Shanahan, Girton, and Bremigan were present. Concerning the conversation at the time, Folk testified that Shanahan and Girton told him that they had to discontinue his employment because of his "absentee record"; that Shanahan reviewed his record of absences and called his attention to a document which contained the Respondent's policy on absenteeism during the probationary period; that Girton said that they had not released him "during the campaign" because he was active on behalf of the Union and that he could "never understand what made [him] work for the union"; and that at the close of the conversation Girton asked him if he was returning "to the shipyard" where he would be "happier in a union shop." Girton testified that Folk was told that because he had "missed an excessive amount of time during his probationary period" he was being "discontinued ... as a probationary employee"; that Folk accused him of discharging him because of his "union activity"; and that he assured Folk that "this was not the case" since his "record spoke for itself." Bremigan testified that Folk was told that he could not be accepted as a "permanent employee" because of his "absenteeism"; that he attended the meeting only "a short time"; and that he did not hear any mention of the Union while he was present. Shanahan testified that after Girton told Folk that his probation was being discontinued, he mentioned that he (Folk) had been warned previously about his absenteeism. Folk did not impress me as a reliable witness. He was evasive and contradictory. He admitted that his memory was "very vague" as to the conversations about which he testified. He testified to the effect that his head injury had affected his memory. During cross-examination he was questioned about his affidavit as it related to Sterling's speeches. His testimony in this connection, in my opinion, further put in question his credibility. Girton's admission to having made a statement about a legal fee and his failure to explain why he made such a statement tend to support Folk's testimony concerning the alleged conversation on November 16. On the other hand, Folk's testimony in a number of respects corroborates the testimony of the Respondent's witnesses, particularly in connection with warnings about absenteeism. In short, since Girton, Shanahan, and Bremigan heretofore have not been credited, I suspect that at least some of the statements attributed by Folk to Girton, Shanahan, and Bremigan are true. But I find that I am unable to credit his testimony as to these conversations for the above reasons. Accordingly, I credit the above testimony of Girton, Shanahan, and Bremigan. The Respondent's witnesses testified at length concerning the reason for Folk's discharge. In substance, they testified that Folk's employment as a probationary employee was discontinued because of his excessive absenteeism during the probationary period of 90 days; that its policy on probation, embodied in a "company policy manual," was put into effect on November 1, 1965, but was not distributed or shown to employees when hired; that upon the advice of counsel Folk was not discharged after he had been absent from work for more than 5 days; that excuses for absences are not taken into consideration; and that a number of other probationary employees were discharged after the election. A copy of the Respondent's policy, entitled, "Probation and Training Periods for New Employees," was received in evidence. It reads in part as follows: The probation and training periods for a new employee is ninety (90) calendar days from date of hiring. If an employee misses more than three (3) days during the first seventy (70) days of probationary periods, employee's work record will be reviewed to determine if employees performance is satisfactory, in all other aspects. If employee's work record in all other areas is satisfactory employee may be allowed to complete the ninety (90) day probationary period, after having been advised that his or her attendance has been unsatisfactory. If employee should miss more than 5 5 Folk testified that during the "early or first part of December" overtime work and knew at 4 p in on Friday that he had been Shanahan called him to the office because he had been absent scheduled for work on December 11, he absented himself from from work, that he could not recall any of the conversation, and work without notice to Bremigan because of a union meeting and that although he had told Bremigan that he should receive more because he had "tickets to the Penn State game " PLASTIC-VAC CORP. days in a ninety (90) day probationary period, employee will not be acceptable for full time employment due to excessive absenteeism. The evidence shows that Folk was warned about his absenteeism and informed about the Respondent 's policy for probationary employees on two occasions before his discharge. After the last warning he again was absent for 3 days. The Respondent 's records disclose that he "reported off' on January 5 and gave reasons for his absences on January 6 and 7. However , the absentee policy did not take excuses into consideration . The necessity for formulating such a policy is understandable in view of the undisputed evidence that another employee is not called in to replace the one who is absents Accordingly, from all of the evidence I find that the General Counsel failed to sustain the burden of proving that the Respondent's discharge of Folk on January 11, 1965, was violative of the Act. It will be recommended that the complaint be dismissed insofar as it relates to Folk. IV. THE REPRESENTATION CASE The Board's order of June 27 , 1966, directed that a hearing be held to resolve the issues raised by the Union's objections 1 and 2. The pertinent objections are (1) "engaged in wide-spread interrogation about union activities of its employees ," and (2) "engaged in threats of loss of jobs and other detriments if IUE won the election and promised promotions , raises and other benefits if IUE lost the election." It has been found above that during the period from November 16 to the date of the election Girton, Hostrander, Billman , Sterling, Bremigan , Tom Connor, and Sennett engaged in conduct violative of the Act. Specifically, the findings involved interrogation of employees concerning their union sympathies , threats of reprisal because of such activity , and a promise of benefit to McClosky by Girton if he would renounce the Union. Accordingly, it will be recommended that the Union's objections 1 and 2, which cover the above conduct, be sustained. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate , and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain 6 Folk himself testified , "If a man isn't present , they dust don't operate one machine " 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 929 affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By interfering with , restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 4. Between November 16 and December 17, 1965, the Respondent engaged in conduct interfering with its employees ' freedom of choice in selecting a bargaining representative , and such conduct warrants setting aside the election. 5. The Respondent has not committed any other unfair labor practices alleged in the complaint. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law , and upon the entire record in the case, I shall recommend that the Respondent, Plasti -Vac Corp., its officers, agents, successors , and assigns, shall: 1. Cease and desist from interrogating its employees concerning their membership in or activities on behalf of the Union, or making threats of reprisal or promises of benefit because of such activity. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at its plants in Montgomery and Jersey Shore, Pennsylvania, copies of the attached notice marked "Appendix."7 Copies of said notice, to be furnished by the Regional Director for Region 4, after being duly signed by the Respondent or its authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken to insure that said notices are not altered, faced, or covered by any other material. (b) Notify the Regional Director for Region 4, in writing, within 20 days from the date of the receipt of this Decision, what steps have been taken to comply herewith.8 IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it relates to Dyson Folk. Upon the basis of the applicable findings of fact and conclusions of law , and upon that part of the entire record pertinent to the objections in Case 4-RC-6613, it is recommended that objections 1 and 2 be sustained; that the election held on December 17, 1965, be set aside; and that another election be conducted. of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." ' In 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 Respondent has taken to comply herewith." 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX from becoming or remaining members of any labor NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate our employees concerning their membership in or activities on behalf of International Union of Electrical, Radio & Machine Workers, AFL-CIO, or of any other labor organization, or make threats of reprisal or promises of benefit because of such activity. All our employees are free to become, remain, or refrain organization. Dated By PLASTI-VAC CORP. (Employer) (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, 1700 Bankers Securities Bldg., Walnut & Juniper Sts., Philadelphia, Pennsylvania 19107, Telephone 597-7601.