I.T.T. Semi-Conductors, Inc.

716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I.T.T. Semi-Conductors , Inc. and Inter- national Brotherhood of Electrical Workers, AFL-CIO I.T.T. Semi-Conductors , Inc. and Inter- national Brotherhood of Electrical Workers, AFL-CIO, Petitioner. Cases 12-CA-3044, 12-CA-3089, 12-CA-3225, and 12-RC-1975. June 21,1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On October 17, 1966, Trial Examiner Lloyd Buchanan issued his Decision 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 Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices. Thereafter, the General Counsel, Charging Party, and Respondent filed exceptions to the Decision and supporting briefs. The Respondent subsequently filed an answering brief to the exceptions and briefs of the General Counsel and Charging Party. 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 and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith.' i We do not adopt any of the Trial Examiner's gratuitous observations contained in the paragraphs preceding his Findings of Fact and Conclusions of Law 2 One of the Respondent's supervisors, Rogers, who threatened that the plant would move out of State if the Union won the election, and who was in charge of three departments, was characterized by the Trial Examiner as a "minor supervisor " Insofar as such characterization may have been intended to minimize the unfair labor practices found, we do not adopt it 3 Although the Respondent contends that the appropriate unit was an expanding one and that the employees eligible to vote in the election did not constitute a representative complement, its claim remains unsupported by the evidence. " Contrary to the Trial Examiner, we would also find valid the authonzation card of Robert A. Hall in that the record clearly shows that he was not told that the purpose of the card was only for an election (Although there appears some ambiguity, we agree with Respondent that in context the reference to card signer "Hall" in the Trial Examiner's Decision was to Robert A Hall and not Alonza Hall, the janitor) We also find valid the card of janitor Hall and the four other cards solicited by him Hall was hired as We agree with the Trial Examiner that the Respondent violated Section 8(a)(1) of the Act by its threats to move to Massachusetts if the Union won the election; by its persistent inquiry of employees what they thought of the Union or why they should want it; by its threat of instant discharge for the posting of prounion literature, particularly as it was clear that the posting of antiunion literature was permitted; and by its questioning of employees concerning the reason for wearing union buttons or insignia.2 We further agree with the Trial Examiner that the no-solicitation and no-distribution rules posted in the plant from October 9, 1964, were promulgated at a time calculated to interfere with employees' rights under Section 7. The Trial Examiner also correctly found that the unlawful rules were not enforced against antiunion adherents in the plant and, in fact, the Company financed-by furnishing time, materials, and space-the building of an electrical apparatus by technicians which buzzed or honked every 10 minutes, calling attention to a series of electric lights that blinked "Vote No." In addition, the Trial Examiner found, and we agree, that the Respondent granted a wage increase at a time caluclated to interfere with the right of employees to choose a representative, no reasonable explanation having been offered for the increase at that particular time. We do not, for the following reasons, agree with the Trial Examiner that the Respondent did not violate Section 8(a)(5) by refusing to bargain with the Union. The unit found appropriate for bargaining by the Trial Examiner comprised 223 employees.3 The Trial Examiner also found that of the 122 authorization cards submitted by the Union in support of its majority status claim, 115 were valid, thus providing it with a majority.' He intimated, though, that the Union's majority status might not be viable because of the solicitation of some cards upon the representation by the Union that it then possessed a majority. Thus, the Trial Examiner observed "on the basis of recent Board declarations lead custodian at $1 25 an hour and although his hourly rate was subsequently increased to $1 75, he was making only 15 cents more per hour than the next highest paid custodian. Hall did not have authority to hire or fire employees or even to have his recommendations earned out, he did not attend supervisory meetings; and except for hourly rate, worked under the same employment conditions as the other janitors and performed the same work as they He was responsible for cleaning the president's office, evidence certainly not of supervisory authority. He did instruct other custodians where work was required to be done, but so did one other custodian on the night shift Essentially, Hall transmitted orders of a routine nature regarding locations designated to be cleaned and was not permitted to exercise his independent judgment. At most, he was conduit for the transmission of orders to the custodial staff Thus, we find the cards of Hall and the four other custodians valid We find merit in Respondent's exception concerning Gerrye Kinsey's card, the evidence revealing that she was told it was "merely" for an election Thus, we find that the Union had in its possession 120 valid authorizations at the critical time and that this number constituted a majority 165 NLRB No. 98 SEMI-CONDUCTORS, INC. 717 [citing cases] that a false representation as of existing majority made by one who solicits signatures vitiates the cards without proof of reliance on such representation." Apart from the fact that such a postulate wrongly reflects the present state of the law, we are not persuaded that the Union did not, at all times when such representations were made, possess a majority of authorization cards. In any event, even if at the time of every such solicitation, the Union did not represent a majority, our cases uniformly hold that a card so obtained can be rendered invalid only upon proof that it would not have been subscribed but for the erroneous representation or that the misrepresentation operated coercively by putting signers in fear of majority reprisal. Home Pride Provision, Inc., 161 NLRB 634; N.L.R.B. v. Amalgamated Clothing Workers of America (Sagamore Shirt Company), 365 F.2d 898 (C.A.D.C.), enfg. 153 NLRB 309; Merrill Engineering Laboratories, 158 NLRB 1113. Such proof as was adduced regarding either of these grounds was insufficient to establish, on the record made before the Trial Examiner, that card signers relied on or were coerced by the representations [if they were made, and if they were wrong] by the Union. Finding that the Union possessed a majority at the critical times herein, and holding meritorious certain of the Union's objections to the election, the Trial Examiner nevertheless refused to order the usual bargaining remedy because, as he held, "on the bare card majority, the relatively little interference, and the election tally, we cannot find loss of actual majority and attribute such loss to the unfair labor practices found...." We find no support either in our own decisions or in the decisions of the courts of appeals5 for this reasoning and reject it as reflecting an erroneous view of the law. We view the 8(a)(1) violations found to have been committed by Respondent throughout the period of the Union's organizational activity to be of a serious, substantial, and pervasive nature. The threat to close the plant should the Union be designated as bargaining representative, the furnishing of material and space on company time for the fabrication and dissemination of antiunion propaganda, the granting of a wage increase at a time calculated to interfere with the self-organizational rights of employees, and the disparate enforcement of a no-solicitation rule are each, in our judgment, by themselves sufficient to establish that the Respondent had as its purpose the rejection of the collective-bargaining principle or the desire to gain time within which to undermine the Union and dissipate its majority. The interrogation present in the case was, by comparison with the other violations found, only a small part of the overall picture pointing to the bad faith of the Respondent. Thus, the Trial Examiner's reliance on Hammond & Irving, Incorporated, 154 NLRB 1071, is misplaced, for there we simply held that a minimal amount of interrogation, by itself, did not establish bad faith. That case is in no way applicable to the instant facts or the 8(a)(1) violations found. For these reasons we find that Respondent violated Section 8(a)(5) by refusing to recognize the Union as the representative of its employees for collective- bargaining purposes." Lastly, we find, that by laying off its janitors on April 16, 1965, and by subcontracting the maintenance operations performed by them without bargaining with the majority representative of the employees on the matter of contracting out the work, Respondent further violated Section 8(a)(5) of the Act.7 Although other employees were laid off 1 month earlier, there is no proof that the work they had been doing is now being performed outside the bargaining unit. For that reason, we find no violation in the termination of eight maintenance helpers and painters. THE REMEDY We are in agreement with the Trial Examiner that the Union's objections to the election held on December 17, 1964, are meritorious and that the election must be set aside. As we find the Respondent in substantial violation of Section 8(a)(1), and as we find further that the Respondent refused to bargain with the Union in violation of Section 8(a)(5), we shall order Respondent to cease and desist from the violations found and to bargain with the designated employees' representative. We shall also require the reinstatement with backpay and interest of the terminated janitors" and a resumption of the custodial services contracted out to another firm.9 CONCLUSIONS OF LAW 1. I.T.T. Semi-Conductors, Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. On December 6, 1964, the Union was the exclusive representative for collective-bargaining S See for example , Joy Silk Mills, Inc., 85 NLRB 1263, enfd 185 F 2d 732 (C.A D C.), cert denied 341 U.S 914; Bernel Foam Products Co., Inc, 146 NLRB 1277, Irving Air Chute Company, Inc , 149 NLRB 627, enfd 350 F 2d 176 (C A 2) 9 Ibid 7 Fibreboard Paper Products Corp V N L.R B, 379 U S. 203; Consolidated Rendering Company, d/b/a Burlington Rendering Company, 161 NLRB 1; The Colson Corporation, 148 NLRB 827, enfd 347 F 2d 128 (C A. 8) 9 Loss of earnings shall be computed in the manner set forth in F W. Woolworth Company, 90 NLRB 289, with interest thereon in the manner set forth in Isis Plumbing & Heating Co , 138 NLRB 716 9 Fibreboard Paper Products Corp , supra. 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purposes of Respondent's employees in the unit described as follows: All production and maintenance employees, including quality control inspectors at the Company's West Palm Beach facilities; but excluding all office clerical employees, technical employees, including quality control technicians, temporary employees, professional employees, guards, and supervisors as defined in the Act, which was and is a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. By coercively interrogating employees; by threatening to discharge employees supporting the Union, and, if its employees should designate the Union as their collective-bargaining representative, to terminate its operations; by curtailing the posting of prounion propaganda while permitting and assisting in the dissemination of antiunion propaganda; by providing material, time, and space for the preparation of antiunion literature and devices; and by conferring benefits in granting a wage increase on October 6, 1964, during the period of union organization, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. By refusing on December 6, 1965, and thereafter, to bargain collectively with the aforesaid labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By unilaterally discontinuing its custodial operations without first bargaining collectively with the Union as the exclusive representative of the employees in the aforesaid appropriate unit, and by discharging all the employees engaged in the custodial operation on April 16, 1965, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 8. The Respondent did not violate Section 8(a)(3) of the Act by failing to promote the employee named in the complaint, nor Section 8(a)(5) by the termination of its maintenance helpers and painters. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, I.T.T. Semi-Conductors, Inc., West Palm Beach, Florida, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating its employees; threatening to discharge employees supporting the International Brotherhood of Electrical Workers, AFL-CIO, and, to terminate its operations if the employees should designate such Union as their collective-bargaining representative; curtailing the posting of prounion propaganda while permitting and assisting in the dissemination of antiunion propaganda ; providing material , time, and space for the preparation of antiunion literature and devices; and conferring benefits for the purpose of interfering in the self-organizational rights of its employees. (b) Refusing to bargain collectively with the International Brotherhood of Electrical Workers, AFL-CIO, as the exclusive representative of its employees in the following appropriate unit: All production and maintenance employees, including quality control inspectors at the Company's West Palm Beach facilities; but excluding all office clerical employees, technical employees , including quality control technicians , temporary employees, professional employees , guards, and supervisors as defined in the Act, with respect to wages, hours, and other terms and conditions of employment ; and from unilaterally subcontracting unit work without first bargaining with the exclusive bargaining representative of its employees. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization , to form labor organizations , to join or assist the above-named Union 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 , and to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request , bargain collectively with International Brotherhood of Electrical Workers, AFL-CIO, as the exclusive bargaining representa- tive of its employees in the unit found appropriate with respect to wages, hours, and other terms and conditions of employment , including the subcontracting of unit work. (b) Reinstate the maintenance operation previously performed by the following employees represented by the above-named Union : Alonza Hall, Deloris Hooks, Cleveland Dix, Robert Nickey, Geddess Jenkins, and Isaac Rolle, and offer to these employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges , and make them whole for any loss of pay suffered by them in the manner set forth in the above section entitled "The Remedy." SEMI-CONDUCTORS, INC. 719 (c) Notify the above-named employees if presently serving in the Armed Forces of the United States of their 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. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful to determine the amount of backpay due and the rights of reinstatement under the terms of this Order. (e) Post at its plant in West Palm Beach, Florida, copies of the attached notice marked "Appendix."10 Copies of said notice, to be furnished by the Regional Director for Region 12, after being duly signed by the Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 12, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. I t is also ordered that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. IT IS FURTHER ORDERED that the election held on December 17, 1964, in Case 12-RC-1975, be, and it hereby is, set aside, and that said case be, and it hereby is, dismissed, and that all prior proceedings held thereunder be, and they hereby are, vacated. 10 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order " WE WILL NOT curtail the posting of propaganda favoring a labor organization while at the same time permitting and assisting in the dissemination of propaganda against such labor organization. WE WILL NOT provide material , time, and space for the preparation of antiunion literature and devices. WE WILL NOT confer benefits on our employees for the purpose of interfering in their self-organizational rights. WE WILL NOT in any other manner interfere, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations , to join or assist the above-named Union 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, and to refrain -from any and all such activities. WE WILL bargain collectively with the International Brotherhood of Electrical Workers, AFL-CIO, as the exclusive representative of our employees in the unit found appropriate , with respect to wages, hours, and other terms and conditions of employment. WE WILL reinstate the maintenance operation previously performed by the following employees , all of whom are represented .by the above-named Union : Alonza Hall, Deloris Hooks, Cleveland Dix , Robert Nickey, Geddess Jenkins, and Isaac Rolle, offer these employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges , and make them whole for any loss of pay they may have suffered. All of our employees are free to become , remain, or to refrain from becoming or remaining, members of International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify you that: WE WILL NOT coercively interrogate our employees regarding any affiliation with any labor organization that they might have. WE WILL NOT threaten to discharge employees supporting the International Brotherhood of Electrical Workers, AFL-CIO, nor to terminate our operations should employees designate the above -named labor organization or any other labor organization as their collective-bargaining representative. I.T.T. SEMI- CONDUCTORS, INC. Dated By (Representative ) (Title) Note: We will notify the above-named employees, if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. 720 DECISIONS OF NATIONAL If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 796 Federal Office Building, 500 Zack Street, Tampa, Florida 33602, Telephone 228-7711. TRIAL EXAMINER'S DECISION, AND REPORT AND RECOMMENDATIONS ON OBJECTIONS TO ELECTION BUCHANAN, Trial Examiner: The complaint herein (issued June 24, 1965; charges filed October 7, November 3, and December 9, 16, and 24, 1964, and February 15, April 20, May 5, and June 24, 1965) alleges that the Company has violated Section 8(a)(3) of the National Labor Relations Act, as amended, 73 Stat. 519, by failing and refusing because of his protected con- certed activities, to grant a wage increase to Guy H. Perry; and Section 8(a)(1) and (5) of the Act by said alleged acts and by interrogating and threatening employees in connection with union activities and sympathies, requesting an employee to persuade others to vote against the Union, by promulgating and discriminatorily enforcing a no-solicitation and no-distribution rule, by granting a wage increase to induce employees to vote against the Union, by refusing to recognize or bargain with the Union since on or about December 6, 1964, and by unilaterally eliminating several job classifications and discharging 14 named employees. The answer places in issue the status of alleged supervisors and denies the allegations of violation, including appropriate unit and card majority. Consolidated with the hearing on the above issues was a hearing with respect to issues raised by certain objections by the Union to conduct affecting the results of an election held among employees on December 17,1964. A hearing was held before me at West Palm Beach, Florida, from July 20 through 28, August 24 through 27, and October 19 through 28, all dates inclusive, and on November 4, 1965. The General Counsel argued orally at the close of the hearing. Briefs have been filed by the General Counsel, the Union, and the Company, the time to do so having been extended; and also a supplemental brief by the Company, received on April 21, 1966, and responses thereto by the General Counsel and the Union, received on May 5, 1966. Several extrinsic but official matters have caused delay in issuance of this Decision, as I notified the parties with regret several months ago. This delay was a protraction of already existing delay at the time of commencement of the hearing which, although there had been neither bargaining nor recognition, began 7-1/2 months after the Board- conducted election. A fair expression of the employees' desires as to representation already long delayed at the time of the hearing, there appeared to be no reason for further suspending an election until this case was disposed of, especially in view of the circumstances and the prospect of delay here, not to mention the time and expense of the hearing itself. An agreement to withdraw the refusal-to-bargain allegation and to hold another election would have avoided consideration and determination of the questions whether I Kolptn Bros Co., Inc, 149 NLRB 1378, 1380, where unlike the instant case , the election was not set aside 2 This will be referred to in connection with the alleged LABOR RELATIONS BOARD the Union had a valid majority of cards and whether "the election, which the Union lost, truly expressed the employees' desires as to representation."' Even aside from the delay in issuance of this Decision, due to circumstances beyond our control, industrial peace and the rights of the employees would have been better served by early agreement for another election, whatever the disposition of the other issues in the case by settlement or otherwise, as several times suggested. But whatever the reasons and motives, the invitations for agreement to hold another election at a date to be mutually agreed upon were rejected. The net result has been that, with long delay already experienced and indication of further delay, the employees have been denied the opportunity to express freely and effectuate their own desires concerning representation, after the effect of any unfair labor practice had been dissipated. If certain conditions have been beyond our control, the interests of the employees could nevertheless have been better served. Nor should the expense and time lost in actual hearing be overlooked. However interesting various questions may be when pursued as technical problems, the practical issues here could be readily disposed of with full recognition of the rights of all concerned and without magnification into a cause celebre. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) AND CONCLUSIONS OF LAW I. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED The facts concerning the Company's status as a Delaware corporation and the nature and extent of its business are admitted ; I find and conclude accordingly and also that it is engaged in commerce within the meaning of the Act; and that the Union is a labor organization within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES A. The Alleged Independent Violation of Section 8(a)(1) Perry testified that in the latter part of July 1964 Maintenance Supervisor Robert Seuberling asked him why he had gotten involved and what he expected to gain from the Union; and told him that, had he not gotten involved with the Union, he'd have received a wage increase. Seuberling denied all of this. Perry first distributed union cards on July 6. In connection with the increase2 allegedly mentioned by Seuberling, Perry testified that Coleman, director of plant engineering, had promised when he was hired early in March that he would receive an increase from $3.15 to $3.50 per hour within 60 days to 6 months, depending on how the electrician crew was filled. Not only did Coleman deny making such a promise, but although Perry knew, as he allegedly told Seuberling, that Howard Wilburn had been hired at $3.50, he did not, while speaking with Seuberling 4-1/2 months after the alleged promise to him, ask for the increase despite the fact that he claimed that he was assigning jobs discrimination , Infra, and the circumstances surrounding payment of the $3 50 rate SEMI-CONDUCTORS, INC. 721 to Wilburn and was his "unofficial leadman" (according to Perry, Coleman had told him about 2 weeks earlier that Wilburn was to be his supervisor); and in a conversation with Coleman on September 23 (more than 6 months after he was hired) he spoke to Coleman about others being put in for a raise while he was not and told him that he "felt entitled to a raise"; nothing here about Coleman's alleged promise. Aside from the foregoing, the basis for my credibility findings with respect to Perry's testimony lies in the testimony concerning the alleged discrimination against him, infra. I credit Seuberling's denial, and also Coleman's, that he had told Perry that his union activities, which are not questioned, indicated that he did not have the Company's interest at heart; that he had thereby messed up a golden opportunity for a bright future; and that he would have received an increase had he not gotten involved with the Union. Employee Jones testified that in the second half of October she joined in a conversation among her immediate supervisor, Rogers, and three or four other employees; that Rogers asked whether she thought the Union was coming in and, when she answered in the affirmative, asked her why, and that she replied, "Because of job security and wages." Whether such questions concerning an employee's expectations and belief are violative in this context (with few instances of interference found, this is the only interrogation alleged against Rogers), more serious would be Rogers' alleged statement that, if the Union got in, the plant would probably have to close down and return to Lawrence, Massachusetts; that mills had closed down in Lawrence and "the same thing would happen here." Jones modified this by adding that Rogers' statement about the plant closing was in reply to an employee's question, what would happen if the Union came in, and that Rogers had further said that the Company could not compete with the wages paid by two other local companies. Denying the "probably" aspect, Rogers testified that during a conversation which he had instituted with employees and in response to one employee's question as Jones had described it, he stated that "in [his] opinion the company could possibly move its operations to Lawrence in order to better compete in the semi-conductor business." True, anything is possible. But whether Rogers used "probably" or "possibly," such direct and automatic connection of unionization with plant removal constitutes a threat and interference with organizational activities even if stated to be the speaker's "opinion." I would add3 that, responsive to a question and made by a minor supervisor, this violation is minor. What I have called "automatic" appeared less so as Rogers explained to the employees that because of union demands other businesses had left Lawrence and, with that experience, the people there "didn't want to have anything to do with unions at all after this company moved in." Jones testified further that early in November, in response to her question how everything was going, Rogers declared that things were slow; he wasn't happy; "we probably will have to go back to Massachusetts"; "the whole plant might have to." Aside from Rogers' denials, I find no violation here. Jones thought that Green, production foreman, was present during the latter conversation. Green testified that he did not hear Rogers' alleged remarks. By contrast, except for one who testified concerning other matters, none of the five employees whom Jones placed at the earlier conversation and all of whom signed cards and presumably supported the Union was called to corroborate Jones. Employee Little testified that on Friday, November 13, when she asked Supervisor Martel whether there would be work for the following day, he replied, "No there will be no more overtime. You can thank the Union for that." About a week later, after some interrogation not alleged4 to be violative, Martel allegedly told Little that if the Union got in the plant could move to Lawrence, and that he was going to get tough about the Union. After reference to a third conversation, which Little connected with some hearsay information and in which Martel allegedly undertook to state the Company's concern with respect to Lawrence as well as West Palm Beach, Little told us of a fourth early in December (a variance in dates was noted) in which in response to her question how he knew that the plant would close if the Union got in, Martel cited his long experience with and knowledge of the Company. Whether or not there was a violative threat in the prior statement by Martel about the plant closing if the Union got in, I would find none in this last, which depends on the earlier and was a prompted repetition: I would not find multiple violations where a supervisor is asked about and repeats the first to the same person. It is clear that Little was not timid in her support of the Union as she was "plastered" with badges and streamers and wore a union T-shirt. She testified that there were more conversations than the four which she described. Martel testified that several times daily, as she worked in front of his desk, she would ask whether the Company would close down, what he thought of the Union and of unions generally, etc.; but he denied that he discussed the Union with her on five or six occasions. It stands uncontradicted that Little did not work alone and that other girls 3 or 4 feet away from her must have overheard any conversations; yet there is no corroboration of her account. (Little was not asked how Martel avoided discussions, in part at least, and passed off her many questions.) Balanced against this reflection on Little's credibility is Martel's testimony that he believed that he initiated a conversation in which he asked why Little wanted a union; and his earlier statement that he never initiated such a conversation but that he may have asked that during the course of one. Although not alleged, the question why Little wanted a union was litigated and would tend to interfere and be violative even if there be doubt in the case of one so outspoken as she. Martel credibly contradicted Little's testimony that he told her the Company was fighting because of the Lawrence plant: the Union had been defeated there a very short time before. I do not credit Little's testimony concerning threats by Martel and his connection of loss of overtime with union activities. Little also told us that, among four or five conversations concerning the Union which she had with Leger, a supervisor under Martel, was one in the latter part of November 1964, in which he said that the employees were cutting their own throats and, when she asked why, explained that the plant would close and all would be out of work. As had Martel, Leger told us that several times a day Little initiated conversations about the Union, and that she wore union buttons or tags (there is no question concerning her right to do that), making no secret of her 9 Thus making both sides unhappy. 4 See Hilton Mobile Homes, 155 NLRB 873 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stand. He maintained that while Little prodded him with questions about possible loss of jobs if the Union came in, he did not know what the consequences might be and so told her. The impression left with me in all of this as in connection with her talks with Martel is that Little, whether so intending or not, asked questions which, had the supervisors been willing to guess at possible results, might have provoked answers which in form at least would have constituted threats. I find no violation by Leger. Paralleling but explained quite differently from Martel's question why Little wanted a union, supra, is Leger's question why Little thought there should be a union in the plant: he was sparring in response to her question why he thought there should not be a union. Little did not testify to this. Employee Carpenter testified that about the middle of November, Calandrello, supervisor over several departments, told her that he wanted to talk to her about how she was going to vote and, after she referred to the rule against talking about the Union during working hours and told him that she had not thought about how she was going to vote, he asked whether she knew how any of the other women were going to vote; her reply was that she had not talked to them about it since there was an argument every time she talked to them. Calandrello testified that he did not recall any conversation with Carpenter about the bulletin board notice. But he was firm in his denial that he had asked whether she knew how any of the women were going to vote. I do not find the interrogation here alleged. Employee Tracey (she signed a card under her maiden name, Hendry) told us that in the latter part of November Supervisor Turke asked her what she thought of the union situation. Her brusque reply that it was none of his business does not lessen the tendency of the question to interfere unlawfully in the existing context, and I find here unlawful interrogation. Turke was not called to testify. Returning to Seuberling, employee Slater testified that about a week before the election Seuberling threatened that he would be fired on the spot if caught putting union literature on the wall. It appears that "literature [was] posted in the plant relating to the union." If Seuberling intended any distinction between posting in the plant (which could include posting on the walls) and putting literature on the wall, this was not pointed out by him; nor has it been claimed by the Company. Aside from any question of the Company's right to prohibit distribution, infra, the apparent disparate treatment or threat to Slater was violative. This threat was not denied by Seuberling and it was hardly overlooked by counsel for the Company since, when the General Counsel sought to cross-examine Seuberling concerning it despite his failure to deny or mention it on direct examination, the Company objected that it had not been gone into on direct. Neither was this allegation among those withdrawn at the close of the General Counsel's case. I can but assume that Seuberling recalled and, quite reliably, would not deny this threat. Slater did not support the allegation of interrogation at this time. Slater also told us that 2 or 3 days before the election Seuberling asked him why he was wearing a monogrammed union T-shirt, and told him that it might militate against his chances for advancement as "the 5 Such shirts were not unusual or a novelty in the plant at that time B As he testified, this was part of his reply to Poisson although it supervisor would take notice" that he had worn the shirt and had been involved with the Union. Seuberling's version is that he went to speak to Slater about the work he was to do that night and had not noticed that he was wearing the T-shirt;5 that Slater volunteered the explanation that "they" had told him to wear it; and that Seuberling expressed his unconcern. The latter also denied making the threat concerning advancement, and he pointed out that he was himself "the supervisor." Further, according to Slater, Seuberling said to him about a week after the election that he had been paid although he was off the day before; but that, had the Union been there, he "would not have been able to have been paid" for the day. Seuberling denied that he had said that to Slater at any time. Employee Harmon testified that a few days before the election Seuberling asked which way he was going to vote and that he replied that he had not made up his mind on the "pros and cons about the union"; and that the conversation was interrupted with the appearance of the manager or director of plant engineering. Again Seuberling's was a simple denial that he had asked the question. Aside from possibly significant reliance on Seuberling because he did not deny the threat in connection with putting literature on the wall, there is no basis in the record testimony or in the witnesses' demeanor for credibility findings in connection with these last three allegations. I therefore do not find the violations alleged in paragraph 9(o), (r), or (q). It will be seen, infra, that before or about the time when Coleman left early in November, supervisory janitor Hall was given rank-and-file status; and although other janitors had no knowledge of the change, he was a rank-and-file employee of the Company. He testified that 4 or 5 days before the election on December 17, Poisson, company vice president, asked him whether he had attended the union meeting the night before and when Hall replied that he attended practically all,6 threatened that he would close the plant before he paid $1.75;' and thereafter told Hall to go out and get as many "No" votes as possible. If, as Hall testified, when Poisson came up, Rogers said that he had been trying to persuade Hall to vote "No," this was not alleged as violative and was not put to Rogers. It is contrary to Poisson's version. According to the latter, only after Hall volunteered that he had been seeking "No" votes for the Company did Poisson ask whether Hall had attended a union meeting; Hall replied that he had attended meetings only to find out who was attending and so that he could tell them to vote against the Union; to this Poisson's comment allegedly was that he did not think that Hall "should do this on behalf of the Company," and he laughed and walked away, leaving a "startled" Hall. Hall's purpose in attending union meetings, indeed whether he in fact attended, is not in issue; what the two said at this time is. It is no easier to believe that the top company official at this plant, not charged with remarks to any other employee, was guilty of such interrogation, threats, and solicitation of a janitor than that the latter, without the interference alleged, sought to curry favor. As for the admitted question whether Hall had attended a union meeting, this was not violative and would not tend to is outside the quotation in the transcript , which is hereby corrected What this related to was not indicated. SEMI-CONDUCTORS, INC. 723 interfere following, as it did, Hall's statement that he was seeking "No" votes. I find no violation here. Employee Meredith testified that 3 or 4 days before the election8 Supervisor Bailey asked whether he thought the Union would get in; and that when Meredith replied that he thought it would, Bailey said that in that case the Company would not put up another building as it was planning to do but would move back to Lawrence. I find no violation in the simple question, which Bailey denied, whether Meredith, who was and had been wearing an IBEW T-shirt, thought that the Union would get in. As for the threat that the plant would move, Bailey denied any such threat although he appeared uncertain as to whether there were other conversations concerning the Union, which he finally denied: his version of this conversation was entirely different and quite innocuous. That another supervisor allegedly present at the time did not hear the question or the threat proves nothing; but we are left without persuasive proof of either. Carpenter also testified that 2 or 3 days before the election Supervisor Kerekgyarto asked her why she was wearing a union pin; when Carpenter "said because I wanted to," Kerekgyarto asked whether the Union had promised her something, and Carpenter replied in the negative. That same afternoon Kerekgyarto allegedly told Carpenter that the Company could move to Clevite, which it had bought out. Kerekgyarto testified that out of her "own curiosity" she asked Carpenter why she was wearing the union pin; she "must have a reason," and if she had any complaints, she should voice them. Kerekgyarto told us further that as far as she knew only the Clevite equipment, not the building, had been purchased by the Company, and she denied that she had said that the Company could move to Clevite. I find violative interrogation, but no threat. With respect to the allegation that the Company promulgated and discriminatorily enforced a no- solicitation and no-distribution rule against union adherents,9 it appears that the Company posted on the bulletin boards on October 9, 1964, and maintained1o there until sometime during the monthly period following the December election, the following notice: Solicitation of any kind, collection of funds, group congregating, participation of any activity for other than authorized company business shall not be carried out during working time without special permission of the management head of the company. Distribution, passing or posting of unauthorized literature or material within working areas of the company premises is forbidden. Violations of these rules will be considered dischargeable offenses. As Poisson told us, that rule had been promulgated in Massachusetts in 1961, and was carried over to this plant; and copies were allegedly distributed to all supervisors (one testified that he was never given a copy). But not until 2-1/2 weeks after the September 22 Decision and Direction of Election was the rule posted and thus brought to the attention of employees." Aside from this timing of notice to the employees, the evidence indicates that it remained as a limitation on employees' activities although the Company apparently did not take steps to enforce it and in fact enforced it disparately. Thus although Seuberling, supra, threatened Slater concerning prounion literature distributed and stuck on walls and equipment, antiunion literature was affixed to material buggies which were pushed throughout the plant, and company time and equipment were employed in connection with antiunion literature: about 2 weeks and again about 1 week before the election, electronic technicians, opposed to the Union, made up such handbills in the laboratory, ran off copies on the company duplicating machine, and distributed them at the employees' entrance and at the front door. Nor could the Company admit (it did not) that the technicians engaged in "authorized company business" or with Poisson's "special permission" in their building, erection, and display12 of an electric sign with built-in smoke and sound effects which would do a Bill Veeck proud. This was indeed a "home team" device which was erected and permitted to function without company objection despite the rules. One can imagine that some employees at least had a high time as the electronic technicians exercised their ingenuity in constructing and operating this combination electric sign and breathing noisemaker which, during working hours, periodically urged employees to vote against the Union. We need not repeat the full regalement with which we were favored, and several times, in connection with this device. Suffice it to say that it was a sheetmetal sign which, for several days and during their worktime, three technicians constructed in the electronics laboratory, using company material. The sign was approximately 1-1/2 by 2 feet and stood on a 6-foot partition. It had about 75 lights, blinked "Vote No," emitted smoke, and was connected with a large horn or buzzer which "made terrible noises" about every 10 minutes throughout the working day for a period. It is not clear, however, that many employees worked in the area and could observe the sign. Beyond the fact that "the materials were furnished by the Respondent,"13 the time and space facilities were also so provided; and all of this was apparent to at least some employees despite the restriction on prounion activities. The disparateness in posting, distributing, and enforcing a rule against solicitation, posting of signs, and engagement in noncompany business, while permitting such activity by electronic technicians was, like the sign itself, flagrant (the sign literally so). On Tuesday, October 6, 1964, the Company, by letter, notified all of the 122 employees in its pay group one (included in the unit noted herein, which on that day totalled some 180 employees) that they would receive a 10- cent-an-hour increase, which would be included in the paycheck which they would receive on Thursday of the same week. Since the payroll week ended on Sunday, the increase was retroactive for the week beginning 9 A variance in location is not significant 0 The General Counsel has specifically disclaimed that the rule is invalid on its face. 10 See Pepsi-Cola Bottlers of Miami, Inc., 155 NLRB 527 11 It will add nothing except of a cumulative nature to describe and analyze a handbook and accompanying letter mailed by the Company to all employees on November 19, 4 weeks before the election 12 "Performance" would be a better word If the baseball Senators would emulate the management of such teams as Kansas City, Cleveland, and Chicago, I can heartily recommend these laboratory technicians, who presumably would not find magnification a serious problem. 13 Bishop and Malco, Inc , d/b/a Walker's, 159 NLRB 1159. 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD September 28. Poisson was unable to recall any discussion of the retroactivity with either of the other two persons who were involved in consideration of this increase. Upon his arrival in West Palm Beach on August 1 by transfer from Lawrence, Burlingham, as personnel manager, initiated a wage survey. Poisson evidently did not know of this when he arrived: he testified that he directed Burlingham to make a wage survey and was told that it was under way. Although jobs and conditions elsewhere were not shown to be quite similar, we can accept as fact the testimony of witnesses on each side that wages at this plant were deemed inadequate by employees and now by management. Burlingham then gave Poisson his survey notes with an oral recommendation and, 2 or 3 days later, "probably ten days before the letter" of October 6, Poisson discussed the proposed increase with Dusault, the company president, and the other person described as involved in this problem. Dusault approved the recommendation and sent the letter to the employees. But through all of this a union campaign was being conducted and an election was imminent. Our concern is with the timing of the increase. The representation petition had been filed on July 20. Burlingham arrived on the scene 12 days later (he remained until January 1, 1965) so that even his survey, the earliest step mentioned in connection with the increase, followed the commencement of union activities and the first formal step taken by the Union for certification. Not only has the Company not adequately explained the need for its action at that stage, but it appears from the Company's compilation of the number of employees in the unit by weeks that when the increase was announced, the complement of employees had almost reached the maximum noted-and that without the wage increase-so that the discovery that the Company was not competitive in the local labor market is not impressive. (According to Burlingham, the increase was not granted on the basis of the Florida market alone. We need not detail various inconsistencies in the explanations of the survey and the reasons for it.) As for the second alleged reason, that the Company would not be in compliance with the Walsh- Healey Act were it to be the successful bidder on government contracts, comment can be limited: this was quite anticipatory. Sudden and immediate action was not dictated; restraint was since an employer may not campaign with benefits. Neither reason adequately explains or justifies the announcement of increase at that time or the retroactive feature. I find and conclude that the increase was violative. B. The Alleged Violation of Section 8(a)(3) The issues of a statement by Seuberling to Perry concerning withholding of increase, and by Coleman concerning loss of opportunity have been considered above. Also at the outset here it should be made clear that I do not rely on a possibly exculpating suggestion that Perry was a supervisor and therefore not the subject of a charge of discrimination. Failure to promote him is not alleged, and promotion is not sought.14 Certainly he was not a supervisor after Howard Wilburn entered upon the performance of his duties shortly after being hired on June 25. If it had been contemplated that Perry, the first electrician hired, would be made supervisor, he did not qualify for that, and the promotion went to Wilburn, who had been hired at the higher rate before the commencement of union activities; the facts indicate no discrimination there. Perry was generally qualified and there is no issue concerning his ability although sometime after September 23 he failed the examination for master electrician's certificate. The Company paid for the examination as under a city ordinance it needed licensed men. Wilburn had a certificate before he was hired, and thus met a requirement for supervisor, at a $3.50 rate, which was approved for him at the main office in Lawrence. In September other maintenance men received increases (apparently not above the top $3.15 rate) on recommendation by Coleman after he had discussed them with Seuberling. The latter, confirming what Coleman testified he already knew, told him that the quantity of Perry's work was not satisfactory and that he was disrupting production. Martel, production supervisor, had previously told Coleman that under no circumstances was Perry to work in his area; he got the girls to talk and laugh when they should have been working. On or about September 23, at Perry's request, he and Coleman held a merit wage review conference. Coleman denied that they discussed Perry's union activities and that he referred to Perry as a union organizer and otherwise referred to the Union. He did tell Perry that he was already at the top of the grade for maintenance electrician and that there was no authorization for him to go higher; and that he would not give him an increase anyway because while the quality of his work was good, the quantity was not, also because he disrupted production and because he had rifled Coleman's and others' desks. The greatest emphasis and testimony pro and con were directed at the hearing to the third of these alleged reasons; both the quantity and the quality of the evidence in this respect reflect on Perry's credibility generally and on the validity of the charge of discrimination against him because of his union activities, aside from any question of authority to increase his rate beyond that of any unlicensed maintenance electrician other than the supervisors. On the question of credibility, Perry's contradictory statements about the number of Board envelopes he saw in the trash from the office and elsewhere in the dumpster at a later time, and his story that he went to the dumpster to get wrapping paper was fanciful, as was his attempt to explain his presence at office desks on certain Saturdays in May 1964. I credit the reports and testimony of three security guards (the first as to events directly in issue and as to which Coleman charged Perry during their discussion of September 23) including the fact that he visited various offices and searched through desktop papers and in desk drawers. Whatever attacks are made on Coleman's credibility, it is clear that he was aware of and charged Perry with rifling desks. Although recalled and questioned about the matter, the latter did not deny Coleman's testimony concerning what occurred when he confronted Perry with this on May 25 and warned him. I do not credit Perry's explanations for his presence and actions in the offices 14 Cf. Mooney Aircraft, Inc., 156 NLRB 326, where the recommendation was made and adopted to promote an employee to leadman SEMI-CONDUCTORS, INC. and later among the discarded papers outside. (Nor need we go into other activity for which he was reprimanded, which bear on the no-solicitation and no-distribution rule found violative, supra.) While it would be no great chore to analyze further the relevant testimony pro and con in this connection, I shall withhold details and analysis to spare Perry further embarrassment. I am convinced that his explanations were attempts to distort the truth; and while I have no hesitancy in thus assessing them where falsity is so apparent, it will be a kindness not to detail his attempts to explain or justify. Like many verbal flights and unlike ventures into the wild blue yonder, these explanations lost altitude and in fact literally descended into unbelievable depths as they gained speed. My impression of credibility and of what occurred is very clear and definite; I prefer to limit my expression although intending it to be quite as definite. I cannot and need not absolutely exclude the possibility that the Company would have treated Perry differently but for its knowledge of his union activities. Conceivably, if one would speculate in the other direction, it might have taken further justifiable action against him but for such activities. On the record before us, it appears and I find and conclude that Perry's protected concerted activities did not cause or trigger the refusal of a wage increase. Suffice it to say that, aside from any question of an earlier commitment to promote him, the Company acted with restraint in merely refusing the promotion. Understandably it did not recognize him as a paragon in leadership or reliability. Granted his competence as a mechanic and his role in organizational activities, as well as the Company's knowledge thereof, I find and conclude that the Company did not discriminate against him. C. The Alleged Violation of Section 8(a)(5) On the basis of the Regional Director's Decision and Direction of Election dated September 22, 1964, as amended by stipulations of the parties dated November 20 and 23, 1964, I find and conclude that the following is an appropriate unit within the meaning of Section 9(b) of the Act: All production and maintenance employees, including quality control inspectors at the Company's West Palm Beach facilities; but excluding all office clerical employees, technical employees, including quality control technicians, temporary employees, profes- sional employees, guards, and supervisors as defined in the Act. Whether as viewed by the Regional Director on the basis of the facts as submitted to him and prospectively thereafter, or from actual employment by the Company in December 1964 and thereafter, as noted at the hearing, the eligibility list of employees in the unit as described, submitted by the Company, constitutes a representative complement. The Company has not supported its early claim that this was an expanding unit and that there was no representative complement of employees in December 1964. It appears that there has not since been any marked change either in number of employees or in type of operation with respect to this unit. Further, any expansion 15 See Rish Equipment Company, 150 NLRB 1185, 1193-94 Unlike that case, supervisory status was not here relitigated. is The court's opinion in Peterson did not issue until March 11, 1965, some 3 months after the refusal to bargain and the election here 725 of or accretion to the unit could thereafter be made the subject of a petition to the Board or of procedure for clarification under Section 102.60, et seq. of the Board Rules and Regulations. Of the 224 names on the list, that of Gerald Whitfield is to be excluded as found by the Regional Director in his report of February 24, 1965, the Board adopting this in its Order of April 1, 1965.15 Whether or not the request for recognition was a continuing one, no claim has been made of majority at any later date, and the circumstances at a later date were not explored at the hearing. A majority thus consists of 112 and, as litigated by the parties, proof was received on the issue whether the Union had such majority on December 6, 1964, when as admitted it requested the Company to bargain collectively with it. Before undertaking a count of the cards, we must consider their validity as designations of the Union as collective-bargaining representative. The cards as signed and received are in two virtually identical forms. There is no issue concerning difference in form. There is issue, and a serious one in view of the authority cited by the Company, concerning the validity and effect of the cards in either form. The cards bear the following heading in large, boldface type: I WANT AN NLRB ELECTION NOW ! AUTHORIZATION FOR REPRESENTATION Immediately below and in smaller type appears the following: I authorize the International Brotherhood of Electrical Workers, to represent me in collective bargaining with my employer. From the very beginning of the hearing,t6 the Company has relied on and cited the court of appeals' decision in Peterson Brothers,ii reversing the Board's holding18 in that case. Aside from my obligation to follow the Board, and although it is neither my duty nor my privilege to exercise the Board's right to cite decisions in other circuits and to attempt otherwise to persuade the court here, I recognize and would point to what may be significant differences between the facts in Peterson and those here. The court there pointed out that, after the heading and the body of the card, both of which referred to representation as collective-bargaining representative, the following was printed at the bottom of the card: This is not an application for membership. This card is for use in support of the demand of this union for recognition from the company in your behalf, or for an N.L.R.B. election. Relying on the alternative aspect which it thus emphasized as creating an "ambiguity on the face of the card," the court declared that the Board should have considered "the subjective intent of the signer." It need not be found that the instant cards are a model or a paradigm for emulation. But even if the disjunctive created an ambiguity in Peterson, we have no disjunctive and no ambiguity here, where both purposes are clearly set forth in the same place and in the same size type, with the addition of repetition of the authorization or purpose to represent; and therefore no warrant for inquiry into signers' intent in the face of their act in signing.19 The 1 t N L R B v Peterson Brothers, Inc., 342 F 2d 221 (C.A. 5). is Peterson Brothers, Inc , 144 NLRB 679 19 Bauer Welding & Metal Fabricators, Inc., 154 NLRB 954 We shall consider infra whether signers otherwise misunderstood or were misled. 299-352 0-70-47 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD point may be clearer if it be understood that, without minimizing intent, I do not rely on or consider it in the face of the overt act, of which more below. The Company argues in this connection that the signers of these cards thereby indicated that they "desired to authorize the IBEW to represent [them] in securing an election . . . rather than an authorization to represent the employee[s] in collective bargaining"-in short, that AUTHORIZATION FOR REPRESENTATION does not mean "authorization to represent." "Winning the election was a precondition to representation," as the Company maintains, but this is true and the purpose in every election situation, as the Company emphasizes in quoting employee Hall. Were this a valid limitation on or bar to authorization to represent, no card could meet it. The Company argues far too much in concluding that "therefore an authorization to represent meant an authorization to arrange for an election" rather than and to the exclusion of an authorization to represent in collective bargaining. To say that "the authorization cards are for" proof that the employees want an election does not exclude the purpose of representation stated on the cards and testified to by the employees on the issue of sole purpose. It will serve little purpose to analyze once again such leading cases as the oft-analyzed Cumberland Shoe 20 and S. N. C. Manufacturing. 21 Similar holdings are to be found in the more recent Freeport Marble'22 Lenz,23 and Shelby Manufacturing24 cases. It may be stated as a general proposition that, where a card solicitor has not told a signer that the purpose of the card is only to obtain a Board election,25 "the failure of the Union's solicitors to affirmatively restate [the cards' authorization for representation] does not indicate that it was abandoned or ignored," in the words of Cumberland Shoe. No more than when printed on the card do oral statements by a solicitor of additional purposes, objects, or reasons why a card should be signed negate (unless by their very terms they do negate) the object of representation stated on its face, even if inter alia. Except in the case of employees Graves and Hall, in no instance does the credible and credited testimony show, as we examine the entire testimony received concerning each card, infra, that a signer was told that the card was for an election only. Where discussion leading up to signing of a card concerns advantages or benefits to be derived or hoped for from union representation, it is reasonable to Cumberland Shoe Corporation, 144 NLRB 1268 21 S N C. Manufacturing Co., Inc , 147 NLRB 809 22 Freeport Marble & Tile Co, Inc, 153 NLRB 810 23 Lenz Company, 153 NLRB 1399 24 The Shelby Manufacturing Company, 155 NLRB 464, where the cards contained the disjunctive but, as in Peterson, after a specific authorization for representation 25 Englewood Lumber Company, 130 NLRB 394 26 These observations are unnecessary in view of the truncated procedure herein and the remedy proposed. 27 A truthful answer to a partial (in the sense of fractional) question may be a half-truth and quite misleading 28 Quasi-judicial agencies and even Trial Examiners, like courts, are free to err and to correct themselves until they are in turn corrected in higher forums, up to the Supreme Court; and even that highest of all lies exposed in the forum of law school professors and their students , who can be criticized only by their peers Whether or not this freedom to err be a constitutional right, it is buttressed by precedent which is prodigious and, in volume at least, impressive 29 In Pizza Products Corporation, 153 NLRB 1265, where the conclude that the person soliciting the signature and reciting such advantages is stating the latter as a reason for the former. Consistent26 with rejection of testimony concerning a signer's intent, mental reservations, or afterthoughts as distinguished from statements of purpose on the card or orally made, I shall point out, infra, that a signer's intent, purpose, or reliance thereon should likewise not be considered if the testimony shows that misstatements of fact were made which would tend to lead him to sign: the tendency can be found as a reflection of the solicitor's purpose and as an inference from his own inferred evaluation of it in making the misstatement. The testimony indicates that various employees were told that some had signed for the Union (no misrepresentation is indicated as to that, whatever the truth and effect of claims of majority), and that an election was sought; but they also had been told of or discussed the elements of representation or benefits-aside from the language of the cards which they signed. To cite an instance of possible ambiguity as favorable to the Company as any, employee Sikora testified concerning her intent (after intent had been ruled out) after she had been cross-examined concerning an earlier statement. In response to a limited question'27 she answered partially (that was her complete answer to the question as put to her) that she signed the card to get an election. Questioned further, she testified that she wanted the Union to represent her. Thus even if we were to consider intent in the face of overt acts of statements and signature, her testimony is reasonably understood as indicating that she desired an election but also wanted that representation which would be available if they "could get the union in." But again, her card speaks clearly as a designation of the Union or authorization for representation; and that voice is neither muted nor made unclear by any contrary statement to her when or before she signed the card. I have long been reconciled to the need to analyze the evidence in detail with its pro's and con's concerning the 122 cards received on the issue of majority: the status of some signers and solicitors; statements allegedly made concerning the purpose of the cards; and representations of majority when signatures were solicited. Also, while the rule appears to be that misrepresentations as to majority in hand must be shown to have been relied on by the signers, it can be argued both on principle,28 as I have just promised to point out but now need not and on the basis of recent Board declarations,29 that a false representation as Board adopted the Trial Examiner's Decision without modification, the Examiner rejected employee Chnstjohn's card as invalid He did not base his finding on Christjohn's testimony that she relied on the representation that all but one had signed; he specifically expressed doubt concerning any such reliance But he did "accept," by way of contrast which he thus made clear, her testimony that the representation was made to her Thus was emphasized the making of the representation , rather than its effect or the employee's reliance upon it In Shapiro Packing Company, Inc, 155 NLRB 777, the Board found it "unnecessary to decide (a hopeful sign , or am I grasping at straws9 ) whether the exclusion was proper " with respect to a card signed "on the basis of a statement" of majority by the union solicitor The Trial Examiner made no finding whether the card, which had previously been rejected by the employee but was signed after the false claim was made, was in reliance on that statement or that it would not have been signed but for the statement . The signer testified that he had stated when solicited that if everybody had signed (the claim as he described it had not been so all inclusive), he would go along too The Trial Examiner found that the misrepresentation rendered the card invalid. SEMI-CONDUCTORS, INC. of existing majority made by one who solicits signatures vitiates the cards without proof of reliance on such representation. But whatever a detailed analysis of the cards and the testimony concerning them may disclose, and whether the cards on their face are authorizations for representation or mere requests for an election, the overall conclusion and a fair and adequate remedy are clear under the circumstances here. Having reached this point, I have reviewed and weighed the proof and reached certain conclusions. It is now necessary in this Decision to explain these by consideration of the entire record and references as the "reasons" called for by statute are presented. I now realize that inclusion here of the detailed analysis which I had anticipated may be unnecessary because of the nature and extent of the proof of interference and also because of the consideration which ought to be given to the desires of the employees. We can thus avoid a boscage of words, attitudes, and unnecessary findings. (Counsel cannot be charged with this since at the earlier stages they could not foresee what the proof would be; nor assume the risk that so much would be unnecessary.) A finding that the Union had a majority of valid cards would, under the facts here and for reasons which I shall indicate below, dictate another election at the Union's request, the effect of the interference found having been dissipated; while if the Union lacked a majority, it could now, as shortly after the hearing and since, request another election. It was apparent to counsel at the hearing that I not only followed very closely the testimony concerning each of the 122 cards submitted by the General Counsel to show majority, but that I also tentatively noted findings; and I declared to counsel that the margin would be very small, whichever way the tally went. Review has since served to resolve the doubt in a few instances; in the others it has confirmed my earlier impressions. If whether there was a majority or not, the same remedy will lie, there would be 29-Continued In Pretser Scientific, Inc , 158 NLRB 1375, the Trial Examiner declared with respect to the card signed by employee Fox even if it be assumed that such representations were made and that they would have invalidated Fox's card if she had relied on them, it would still be necessary to find that, since she did not in fact rely thereon, her card was valid But the Board specifically left open the question of validity of the card because of absence of reliance on the misrepresentation, declaring that it was not counting the card since it was "unnecessary to reach the merits of the Trial Examiner's finding as to Fox " In Phil-Modes, Inc , 159 NLRB 944, the Board did not reverse but merely declared it unnecessary to pass upon the Trial Examiner's rejection of cards signed by employees Hickman, Powell, Paris, and Spradlin The Trial Examiner had rejected Hickman's card because of a misrepresentation made when she was asked to sign it, and without reference to whether she had relied on the misrepresentation that the respondent had said it was all right to have a union Because of a similar misrepresentation and without reference to reliance thereon, the Trial Examiner rejected Spradlin's card Whether Powell or Paris relied on the misrepresentations made to them had not been considered either They had been told what was said to Hickman and also that all except one other (in Paris' case , two others) employee had already signed The Board's failure or continued reluctance to point out, as it could readily have done, that there is no evidence that these employees had relied on the misrepresentations , is encouraging and further suggests the advisability of a de nova analysis of the issue of misrepresentation and of relevance of testimony concerning reliance Such analysis would cover the general rule with respect to tendency rather than 727 little reason and no profit in analysis with respect to each card. I can state in summary as a credibility finding, if it be of importance here or only of historical interest or to satisfy curiosity, that from the testimony and the witnesses as they testified, 115 (all but Graves', Hall's, and five others) of the cards, a majority, are valid.30 Because five of the cards which I would not include fall into one group, it can quickly be explained without detailing the testimony that, whatever the dispute concerning the date when Hall lost his status as supervisor or company spokesman to the janitors, he signed his card when he was supervisor and it does not appear that the four other janitors who signed had been told or were otherwise aware of a change in Hall's status when he solicited and obtained their cards. The four include Jenkins who, hired a month earlier, signed on November 23 when Hall's relationship to the group of janitors continued as before although his authority by that time was more apparent than real. We were told that about the middle of November "the other janitors continue[d] to look upon [Hall] as their boss" even after notice that Biby was their supervisor. Whether the Company further unlawfully failed to bargain in connection with termination of certain employees and the subcontracting of some jobs in March and April 1965, would depend on its obligation to bargain. The testimony in the latter connection was, as noted, directed to the 1964 request and refusal. We were not favored with proof of union status thereafter, and neither the General Counsel nor the Union adverts to these allegations in the briefs submitted. We do have a stipulation that the employees named were terminated, and it does not appear that the Company gave the Union notice of that or of the subcontracting. Having for the present avoided details of a mass of testimony and as much as 100 pages of written analysis of many cards31 and the circumstances surrounding the signing of each, with separate credibility findings in lieu of actual effect, and the extent to which inquiry into reliance would affect hearings, as well as a comparison with the rules concerning statements of alleged limitation of card purpose Where principle indicates to me that validity depends on what the solicitor said rather than on whether the signer relied on it, the hope that the Board will so hold is bolstered by these avoidances of a contrary ruling I myself "do not rely on" these cases since we have not reached and it is unnecessary to pass on the question whether, where misrepresentation has been made, reliance thereon by the signer must be shown What is here set forth represents some of my reflections on this point and may guide deliberation when the issue of reliance needs to be determined 30 Graves' card, with all of the testimony pro and con concerning it, could be counted as valid but for her testimony on cross-examination, which differed from other things which she said, that she was told that the only purpose of the card was to have an election Sufficient doubt was here created, without leading by counsel who sought such an answer, to warrant rejection of her card I similarly reject Hall's card I have counted as valid those cards (factually, should they be rejected, there would be a finding of less than a valid majority) whose signers discussed or were told the benefits of unionization and also that the cards were for an election I construe reference to benefits as connected with representation and the authorization therefor (Conren, Inc, 156 NLRB 592) But in Dan Howard Mfg Co., 158 NLRB 805, the Board did not so regard the cards of Thomas and Terrell, who had also been told that the cards were only for an election This finding of 115 valid cards is aside from the issue concerning the effect of claims of majority made by solicitors 3i Analysis of the cards must refer to more than the few described in the respective briefs 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the overall finding made above, we can proceed to consideration of a proper remedy.32 The law is well established that an employer's activities may indicate absence of good-faith doubt of a union's representative status. In such a case, on a finding that the employer rejects the collective-bargaining principle or desires to gain time to undermine the union and dissipate its majority, violation of Section 8(a)(5) is found.33 But this is no per se rule to be applied mechanistically, as the Board has indicated in Hammond & Irving. 34 In the latter case the vote of 44 to 65 against the union was as close to being proportionately identical to the 89 to 129 vote here as could be without being actually so. In Hammond, 70 of 110 in the unit signed cards; here 122 of 223 (or 227 if we follow the election tally) signed, whether valid cards or not, so that the dropoff in the election and the conceivably attributable effect of the interference were smaller than in Hammond. As in Hammond, the interference here is not sufficiently flagrant to indicate bad faith under the JoySilk Mills rule. Nor is it so flagrant as to indicate that the employees' desire has been thwarted or to warrant imposition of a bargaining agent upon them. In this latter respect we can consider not merely the employer's good faith within Joy Silk and Hammond, but in addition the effect of the interference on the employees, and their rights and desires. A historic and long-recognized purpose of a Board Order is "a restoration of the situation, as nearly as possible, to that which would have obtained but for the" unfair labor practices found.35 It cannot be found here on the basis of the evidence before us that a majority of the employees in the unit favored the Union or that, but for the interference found, the Union would have won the election. In short, as we reflect on the bare card majority, the relatively little interference, and the election tally, we cannot find loss of actual majority and attribute such loss to the unfair labor practices found, or that the lack of majority in the election more nearly reflected the interference found than the employees' actual preference as indicated by the secret- ballot vote (allowing for the interference on such ballot). Whatever the rights and interests of union and employer, employees must not be deprived of the right to express themselves within the election procedure or otherwise to indicate their preference. Unless their choice is reasonably indicated, the employees' rights should not be limited or denied or made dependent on the employer's or the union's acts. As has recently been declared, 32 This is not merely a departure from expectation , it is, I trust, an improvement. 33 Joy Silk Mills, Inc., 85 NLRB 1263, enfd as modified on other grounds 185 F.2d 732 (C.A D.C ), cert denied 341 U S 914 34 Hammond & Irving, Incorporated, 154 NLRB 1071 33 Phelps Dodge Corp v N.L.R B , 313 U.S 177,194 31 Board Member Brown, September 6,1966. 37 Preston Products Company, Inc., 158 NLRB 322. 38 Griffith Ladder Corporation, 159 NLRB 175 39 Heck's, Inc., 159 NLRB 1151 40 Texas Electric Cooperatives, Inc , 160 NLRB 440 11 In this connection we must keep in mind the card count, the size of the unit, the election tally, and the extent and nature of the violations employees have the right of "meaningful participation in our democratic institutions. "36 The instant case is in marked contrast to several recent ones where a bargaining order issued. In Preston Products'37 although the union lost the election by a wide margin, the employer was ordered to bargain, there having been a great deal of interference. A similar situation obtained in Griffith Ladder Corporation.38 In Heck's, Inc.39 the employer systematically and unlawfully interrogated the employees as to whether they supported the union, to the point where it could identify each. Cf. also Texas Electric'40 where bargaining was directed despite an overwhelming vote against the union, there being many instances of interference and two of discrimination in a unit one-eighth the size of that here. Since discrimination if found would be weighed in this connection, the restrained treatment of Perry may be considered as pushing the scales in the opposite direction. We have noted that the vote margin against the Union is not attributable to the limited interference.41 In Hammond & Irving, the employer's executive vice president and its vice president, in separate conversations, questioned 6 of 110 employees concerning their and others' union activities and sympathies, solicited withdrawal from the union, and gave the impression of surveillance of union activities. The employer there also sent to each employee a letter which contained a violative promise of benefit. In the instant case the detailed analysis of the evidence, supra, reveals that five employees were respectively interrogated (three instances) or threatened (two instances) by a maintenance supervisor and four department supervisors.42 More serious than these few violations by low-level supervisors is that with respect to the noisemaker and the no-solicitation rule and the violation found in connection with the wage increase of October 6, which are the counterpart of the employer's letter promising benefits in Hammond & Irving. The tendency of the increase is to interfere even if there was no slowdown in the number of new cards which the Union thereafter obtained. While we cannot rely on a mechanical comparison for the answer, the interference found here reflects less, and certainly proportionately so, of bad faith than does that in Hammond. If there be any doubt in this connection despite the fact that the Company's position here is at least as strong as that in Hammond, we have weighed the problem and arrived at the same result by considering the available evidence with respect to the employees' desires. Whether considered in one way or another, there does not appear to 12 The relative seriousness or lack of it would not be significantly affected if we added the two instances of interrogation , one of threat , and one combining interrogation and threat (two of these four by two other department supervisors and one by a person whose supervisory status was denied). These allegations were withdrawn by the General Counsel in accordance with my early suggestion to avoid the cumulative In contrast to the attention given herein to the various allegations of interference, only a few are even mentioned in the General Counsel's brief, which can reflect the proponents ' appraisal of significance , and not all of those have been found The Union's brief is devoted to the refusal-to-bargain issue. SEMI-CONDUCTORS, INC. be warrant for not attempting to obtain a fair expression of the employees' will before any direction to bargain.43 Certainly a union which is the bargaining representative may not be interfered with in its representative capacity.44 But the issue here is whether the Union is in fact the representative; and the first consideration may well be the employees' desires as reasonably indicated by the available evidence with due consideration for the effect of any interference. In thus stressing the element of employees' wishes in addition to that of the employer's good faith, I am concerned with the question, what is to be done in this very real situation affecting several hundred employees? These are no mere numbers or faceless individuals; they have rights, among them the right to choose or reject representation. Had the Union rested on its majority of cards, however thin, without testing that majority in an election, we would not be faced with the marked vote against it although the issue of good faith under Joy Silk Mills and Hammond & Irving would still be with us. But although the majority of cards was so slight (aside from any question of statements made and the issue of reliance thereon), the Union, with the apparent expectation that the vote would favor it, did proceed to an election, with the result noted. And we may not ignore that result or the attendant circumstances. I do not suggest a return to the Aiello rule.45 The question is not union election or waiver; but given the Union's right to seek relief from an original refusal of recognition, there remain the question of good faith, recognized in Hammond & Irving, and also the subsisting rights of the employees, as indicated by the facts in this case. On the latter point, it may be repetitive to state that the vote margin against the Union more clearly reflects the employees' freely expressed desires than the interference found can be held to be so flagrant and effective as to have interfered with those desires to the extent that it destroyed a majority. We can and should avoid a representational invagination and imposition of a bargaining representative. Hopefully, a new election can soon be held and the employees' desires with respect to representation determined. Reflection over a long period and many notations concerning the issues in this case while more immediate attention was directed toward other and far different questions have led to this shortcut to what appears to me to be the likely denouement. If there be no precedent for this anticipation that the Board will find further detailed analysis unnecessary as I do, it nevertheless appears to be 41 In his brief to the Circuit Court of Appeals for the District of Columbia in United Steelworkers of America, AFL-CIO v N L R B. [Northwest Engineering Company], 376 F 2d 770, the General Counsel points to the disparity between the number of cards in that case and the closeness of the vote in the election to show that by its extensive interference the employer planned "to undermine the Union and lure away its support " The General Counsel thus justified the Board's Order that the employer there bargain with the union The Board there found 729 in order and desirable. As I have indicated, .my own analysis shows that this result would be reached in a detailed decision, which I have here avoided however much I should like to express the many thoughts, noted during and since the hearing, on the various issues and points raised; these including reliance on misstatements, and partial or limited questions which can elicit only half- truths and misleading replies even from an honest witness. Should the Board desire detailed findings of fact with respect to the various cards and the circumstances surrounding the signing of each, and with respect to such lesser (in volume certainly) items as the changing status of Hall as affecting his card and that of several others, I am prepared to provide all details on remand. III. THE OBJECTIONS TO THE ELECTION Nor do the objections to the election and the findings thereon suggest a different remedy. Of objections 1, 2, 3, 4, 7, and 12, which are before us, the following can be said: Objection 1. The findings with respect to the no- solicitation, no-distribution rule support objection 1 (see objection 12, below), which I sustain. Objection 2. The findings with respect to interrogation support objection 2, which I sustain. Objection 3. The findings with respect to alleged discrimination against Perry indicate that objection 3 should be and it hereby is overruled. Objection 4. The findings with respect to threats support objection 4, which I sustain . It will serve no purpose to consider evidence of other threats. Objection 7. The findings with respect to the wage increase of October 6, 1964, support objection 7, which I sustain. Objection 12. Objection 12(a) is sustained on the basis of testimony that union adherents were photographed by and in the presence of a supervisor. In the absence of a right to forbid the wearing of union shirts, counsel's warning or threat at the preelection conference that pictures would be taken does not exculpate the Company. I do not join in the "inference" or implication of plant closure claimed on the basis of notices posted, and therefore overrule objection 12(b). The findings with respect to the no-solicitation rule, above, and objection 1 were at least in part based on and cover the discriminatory treatment with respect to the devices mentioned in objection 12(c), which need not be reasserted and is therefore overruled. [Recommended Order omitted from publication.] that the employer had "embarked on a course of action, involving serious violations of the Act, which resulted in the dissipation of the Union's majority and the destruction of the conditions for a fair election in which the Union could have demonstrated that majority." As shown, we do not have such a situation here 41 Wooster Division of Borg-Warner Corporation, 113 NLRB 1288; 121 NLRB 1492, enfd. 236 F 2d 898 (C.A 6), 356 U S. 342 45 Aiello DairyFarms, 110 NLRB 1365