Triangle Plastics, Inc.

768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Triangle Plastics, Inc. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO. Cases 7-CA-5543 and 7-RC-7269 July 12,1967 DECISION AND ORDER By MEMBERS BROWN , JENKINS, AND ZAGORIA On March 31, 1967, Trial Examiner Paul Bisgyer issued his Decision in the abovQ-entitled proceed- ing, 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 Respondent had not en- gaged in certain other alleged unfair labor practices and he further recommended that the election held in Case 7-RC-7269 be set aside and the petition filed therein be dismissed. Thereafter, the Respond- ent filed exceptions to the Decision and a support- ing brief; the General Counsel filed cross-excep- tions and a supporting brief; and the Charging Party filed an opposition to Respondent's exceptions, cross-exceptions, and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board had 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 cases and hereby adopts the findings,2 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 Recom- mended Order of the Trial Examiner, and hereby orders that the Respondent, Triangle Plastics, Inc., Roseville, Michigan, its officers, agents, succes- 1 In footnote 37 of his Decision, the Trial Examiner inadvertently referred to certain testimony as that of employee Taravella, but the record reflects it was employee Stephenson who participated in the events described in that footnote, and the footnote is corrected accordingly 2 The Charging Party has filed cross-exceptions to the Trial Examiner's rejection of its request for a monetary remedy to make employees whole for losses they may have suffered as a result of the Respondent's unlawful refusal to bargain. We deem it inappropriate in this case to depart from our existing policy with respect to remedial orders in cases involving viola- tions of Section 8(a)(5), and therefore deny such request. However, in adopting the Trial Examiner's disposition of this matter, we do not pass on or adopt his rationale for rejecting the Charging Party's contentions sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION PAUL BISSGTYER, Trial Examiner: This consolidated proceeding, with all the parties represented, was heard before me on October 18 through 21, 1966, inclusive, in Detroit, Michigan. The principal issues formulated by the pleadings' and litigated in Case 7-CA-5543 are (1) whether Triangle Plastics, Inc., herin called the Respond- ent, refused to recognize and bargain with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, herein called the Union, as the exclusive representative of the Respondent's employees in an appropriate unit, thereby violating Section 8(a)(5) of the National Labor Relations Act, as amended; and (2) whether by this and other conduct, the Respondent interfered with, restrained, and coerced employees in the exercise of their self-organizational rights, in violation of Section 8(a)(1) of the Act. In Case 7-RC-7269, which the Board ordered consolidated with the complaint case for the purpose of taking evidence to resolve the issues raised by the Union's objections to conduct affecting the results of the election,2 the alleged misconduct is, in substantial part, the same as that alleged as unfair labor practices in the complaint case. At the close of the hearing, the parties waived oral argument but, thereafter, filed briefs which were given careful consideration. Upon the entire record and from my observation of the demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent, a wholly owned subsidiary of Boyne Products, Inc., is a Michigan corporation engaged in the manufacture and sale of molded plastic products at its plant in Roseville, Michigan. Its yearly production ex- ceeds $100,000 in value, of which finished goods valued at more than $50,000 are shipped to points located out- side the State. The Respondent admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I further find that the Respondent's operations met the Board's standards for the assertion of jurisdic- tion. II. THE LABOR ORGANIZATION INVOLVED It is conceded, and I find, that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. 1 The complaint in Case 7-CA-5543 is based on a charge filed by the Union on April 28, 1966, a copy of which was duly served on the Re- spondent by registered mail on the same day. 2 The election was held on April 22, 1966, pursuant to a stipulation for certification upon consent election executed by the parties on March 30, 1966, and approved by the Acting Regional Director for Region 7 the fol- lowing day. The Union lost the election by a vote of 23 to 20. The Board's Order directing the consolidated hearing was issued on July 11, 1966. 166 NLRB No. 86 TRIANGLE PLASTICS, INC. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence 1. The employees' designation of the Union as bargain- ing representative; the Union's rejected requests for recognition; and the filing of representation petitions Because of dissatisfaction with their working condi- tions, a number of Respondent's employees became in- terested in union representation. Accordingly, shortly after the close of the third shift at 7 a.m., March 17, 1966,3 12 employees employed on that shift and 1 second-shift employee met with Union Representatives Felix Phillip Furman and Frank Donley at a doughnut shop. Assuring the employees that the Act protected them in their organizational activities, including signing union authorization cards4 and soliciting employee signa- tures on their own time, Furman and Donley distributed cards among the employees with instructions to read both sides, complete the blanks, sign, and return them. All 13 employees presents signed and returned their cards to Furman and Donley. Then followed a question and answer period in which the Union's representatives in- formed the employees that the Union needed cards from 51 percent of the employees before it could ask for recog- nition from the Company and that if recognition were declined, it would have to file a petition for an election. At this meeting, Shirley Selby, the second-shift employee, received blank authorization cards, as did others. Early the next morning (March 18), Gloria Ferrell, a third-shift employee, transmitted to the Union 12 signed cards that Selby had obtained from the second-shift em- ployees 6 the previous day. Seven additional signed cards were thereafter secured from employees between March 18 and 31.7 With 25 signed cards in his possession on March 18, Union Representative Furman made a telephone call about 8:30 a.m. to the Respondent and spoke to Paul A. Yelinek, its vice president in charge of the plant. Assert- ing that the Union represented a majority of the Respond- ent's employees, Furman requested recognition but stated that he was willing to wait for Yelinek's answer if he desired to consult legal counsel. Yelinek replied that the Respondent did not have legal counsel and declined to grant recognition adding that if the Union had a suffi- 3 The Respondent operates three shifts around the clock -the first from 6.55 a.m to 3 p.m.; the second from 2.55 to 11 p.m.; and the third from 10:55 p.m. to 7 a.m. Unless otherwise indicated, all dates refer to 1966. 4 The front of the card is in the following form: AUTHORIZATION TO UAW DATE ........ 19.. On the reverse side appears the following language: This card will be used to secure recognition and collective bargaining for the purpose of negotiating wages, hours, and working conditions YOU HAVE THE RIGHT UNDER FEDERAL LAW TO OR- GANIZE AND JOIN A UNION By joining the UAW-AFL-CIO you have the support of one of the world's largest Unions 769 cient number of authorization cards it knew the rules and should petition the National Labor Relations Board for an election. Yelinek also expressed his general approval of unions. This elicited Furman's hopeful response that when the time arrived for collective-bargaining negotia- tions he anticipated no problems with the Respondent. Shortly after the foregoing telephone conversation, Furman addressed a letter dated March 18 to the Respondent in which the Union made a formal request for recognition. The letter advised the Respondent that a "majority of ... [the Company's] employees in an ap- propriate bargaining unit" at its Roseville plant had designated the Union as their exclusive collective-bar- gaining representative and described the unit as consist- ing of "all production, maintenance and truck driver em- ployees." The Union also noted that it was prepared to prove its "majority status by submitting signed authoriza- tion cards to a mutually selected impartial person" and expressed the desire to institute contract negotiations. The same morning Furman filed a representation peti- tion (Case 7-RC-7269) with the Board's Detroit Re- gional Office supported by the 25 authorization cards mentioned above." Two days later (March 20) the Union held a meeting of the Respondent's employees at which Furman reported his earlier conversation with Yelinek, the latter's rejection of his request for recognition, and the filing of the representation petition. On March 24, the Respondent answered the Union's March 18 letter, doubting its claim to majority represen- tation and rejecting its request for recognition and collec- tive-bargaining negotiations. Furthermore, the letter stated, questions concerning the appropriate unit and the employees properly includible therein were matters that could best be resolved by the National Labor Relations Board. Referring to the Union's proposed check of its authorization cards to determine the Union's asserted majority status, the Respondent wrote: We do not believe that questions of representation and persons to include within an appropriate unit can be resolved by a naked examination of signed authorization cards. Furthermore, we do not believe a bare examination of such cards would reveal the authenticity of the signatures or the conditions under which such cards were obtained, so as to assure that the employees have been given a free and untram- 5 They are : Gloria Ferrell, Joyce V. Robbins, Roberta Wieczorek, Nancy M. Messina, Mary Pino, Bernadine Brown, Rita M. Wilson, Betty J. O'Conner, Marcelle Antosiak, Gail A. Boyden, Shirley Hamelrath, Mary J. Stoll, and Shirley I. Selby 6 They are : Delores Stephenson, Veronica Taravella, Beverly J. Rust, Part Buday , Gil P. Conrad, Helen Cowells, Jessica A. Dalton, Betty Federico, Joan Muscat, Ann Paul, Marion L. Neihoff, and Catherine Pal- laschke. These cards were excuted by the following employees on the dates in- dicated: Herminia Leila on March 18; Marie M. Wofford on March 20; Russell Combs on March 21; Irene E Green on March 29; Clara Pallisco on March 29 , Mary L. Ashby on March 30, and Pauline Curtis on March 31. The Union also received another card dated March 29 which bore the name of Carol A. Ruggirello. The authenticity of this card is in question. In addition to the foregoing cards, there were cards signed by tool-and-die maker employees Leon M. Pionk on March 20; Emil Torok on March 20; and Walter DeVigili on March 29 . As will hereinafter be shown, these three employees were subsequently placed in a unit separate from the production and maintenance unit here involved. 8 It was stipulated that these cards bore the stamp of the Regional Of- fice indicating that they were received by that office at 11 a.m ., March 18 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meled choice which we understand the National Labor Relations Board regards as essential. The Respondent, however, concluded its letter by offer- ing to accept a card check by a mutually selected impar- tial person provided this individual "is authorized to ex- amine all conditions and circumstances of such signing and to disallow any cards which were signed under du- ress, or improper promise, or mistake." Since the condi- tions thus imposed by the Respondent on the card check were not acceptable to the Union, the Union did not bother to reply. On March 30, a conference to arrange for a consent election was held at the Board's Regional Office which the Union and the Respondent's attorney attended. Because of the Respondent's objection to the inclusion of tool-and-die makers in the production and maintenance unit, the Union agreed to exclude the former group and filed a separate representation petition (Case 7-RC-7287) for these employees. A stipulation for cer- tification upon consent election for each unit was then ex- ecuted by the parties and approved by the Acting Re- gional Director. Pursuant to these stipulations, separate elections were scheduled for April 22. At one point dur- ing the discussions, Union Representative Furman again proposed recognition on the basis of a card check in lieu of an election. However, the Respondent's attorney would agree only on the terms set forth in the Respond- ent's March 24 letter. This counterproposal was not ac- ceptable to the Union. 2. The Respondent's opposition to the Union; preelec- tion employee meetings; adjustment of employee complaints; and improvements in working conditions With the admitted purpose of inducing the employees to vote against the Union at the scheduled election, the Respondent instituted a series of meetings with em- ployees on the various shifts. Theretofore, the Respond- ent had never met with the employees in a group. These meetings, most of which lasted about 2 hours, were held in the plant on April 4, 8, and 18. Except for the initial joint meeting of the first and second shifts, the meetings were generally confined to the employees on a particular shift.9 The principal spokesman for the Respondent was Donald Ford, its president, who served in the same capacity at Boyne Products, the parent body. Until these meetings , Ford was unknown to the employees. In his address to the assembled first- and second-shift employees on April 4, Ford outlined his personal and business background and discussed at length his economic philosophy, the unity of interest shared by the employees and the Company, and the plant expansion plans he had already undertaken to effectuate since Boyne had acquired this Company 15 months ago. Although Ford had some complimentary things to say about unions generally and their past accomplishments, he observed that a union was not needed at this plant because it would only cause dissension and create "a house divided" which would impair the Company's economic objectives. Ford also alluded to the fringe benefits that employees were then enjoying and added that the Company's business success would undoubtedly redound to the employees' advantage in the form of higher wages and improved benefits. Evidently regarding the Respondent and himself as parties in the election con- test, Ford appealed to the employees to vote for them and against the Union. Later in the day, Ford met with the third-shift em- ployees with the intention of repeating his foregoing re- marks. However, during the course of his speech, em- ployees challenged some of his statements and the meet- ing evolved into a question and answer session where em- ployees voiced their long-standing complaints, grievances, and problems concerning their working con- ditions and treatment, which were previously ignored by their supervisors.10 At some point during these discus- sions, Ford, either directly or indirectly, invited further comments, questions, and complaints from the em- ployees. Regardless how these complaints or grievances originated, Ford made a note of them, assuring the em- ployees that he would look into these matters. The same question and answer procedures were pursued at the sub- sequent meetings at which Ford reported the matters raised by other shift employees. True to his word, Ford investigated the complaints and at resumed shift meetings , reviewed the problems previously presented, and announced the corrective action that he had taken in the interim or intended to take in the future. In listing the changes he had already made, according to the uncon- tradicted testimony of employee Ferrell, Ford asked the employees at the third meeting of the third shift, whether they were pleased with what he had done thus far and whether they noticed any difference in the conduct of foremen, which was a source of much unhappiness among employees. Another employee, Selby, also credibly testified that at the third meeting of the second shift Ford pointed out that the employees should be aware that he was trying to keep his word by making the promised changes. As summarized below, Ford's action during the preelection period resulted in improved terms and condi- tions of employment, the removal of some job inequities, and monetary benefits to employees. a. Hospitalization benefits For some time the Respondent had a group hospitaliza- tion program for its employees. However, because of a nonduplication provision in the Respondent's insurance policy, married female employees who were covered by their husbands' hospitalization insurance were ineligible to participate in the Respondent's program and were required to sign a waiver. At the third-shift meeting on April 4 and at others as well, the married female em- ployees, who comprised a substantial segment of the Respondent's work force, complained that their exclusion from the hospitalization program was inequitable. After taking the matter under advisement, Ford agreed with these employees and announced at the April 18 meetings that each excluded employee would henceforth receive monthly $9.03 representing the cost of such insurance to the Company were such employee covered. The first such payment was made on April 28 for the payroll period ending April 24. S The Respondent thus met three times with the employees on each shift. Also attending some of these meetings were Vice President and General Manager Yelinek, supervisory personnel, and the Respondent's legal counsel. 10 For example, employee Robbins credibly testified, without con- tradiction, that employees complained to foremen all the time about their working conditions and put suggestions in the suggestion box but to no avail. TRIANGLE PLASTICS, INC. 771 In addition , Ford announced at various preelection meetings that the employees in question were also enti- tled to participate in an accidental death and dismember- ment insurance policy, which had been a part of the Com- pany's insurance program since February 1965. He further stated that a separate certificate to this effect in the amount of $5,000 would be issued to these employees and to the other employees who had been previously covered but who had never been given an individual cer- tificate. After the election the Respondent distributed in- dividual certificates effective as of April 1. b. Third-shift starting day At the initial third-shift meeting, the employees requested Ford to change the starting day for the third shift from Monday night to Sunday night. The net effect of such a change would be to give the employees Satur- day night off. Employees told Ford that in December 1965 the employees had submitted to management a signed petition, requesting this change but that the peti- tion was neither answered nor acted on. At a subsequent preelection meeting, Ford announced that the change would be made in July. Thereafter , the Respondent ful- filled its pt omise. c. Leader pay At the April 4 third-shift meeting , employee Robbins told Ford that she had been a leader for 13 months and asked why she had not received the leader pay differential for the first 2-1/2 months that she had acted in that capacity. Robbins also stated that this matter had been taken up with her foreman and Plant Superintendent Lindsey and that the only answer given her was that there was no space on the check to show this amount. Ford replied that he would look into this matter . At a later meeting, Ford reported that Robbins was entitled to 6 months' differential pay in the amount of $58. Robbins, however, stated that he was in error and that a lesser sum was due her. After company records were rechecked, and before the scheduled Board election , Robbins was paid $9.16 for her acting leader services during a 5- to 6-week period in May and June 1965. This adjustment was an- nounced by Ford at one or more preelection meetings. d. Show-up pay At a third-shift meeting, employees Messina and Pino complained to Ford why they had not been paid show-up time to which they were entitled under company rules, as their foreman had informed them . It appears that about a month or so previously they were laid off without prior notice when they came to work. Ford assured them that he would check into it, which he did, and reported favorably at the next meeting. Before the election Mes- sina and Pino each received $1.55. e. Reimbursement of employees improperly laid off At one of the meetings, an employee brought up the subject of the layoff of four employees (Pallaschke, Con- rad, Federico, and Neihoff) in disregard of seniority. This occurred the preceding January . Ford stated that he would investigate the complaint and, if true, these em- ployees would be reimbursed for their loss of pay. At the next meeting before the election , Ford admitted the Com- pany's error and announced that the employees would be reimbursed and they were. f. Pay for 5-minute shift overlap Employees have been required to be at their machines 5 minutes before their regular shift began so that produc- tion information may be transmitted from one operator to the other. As a result, employees worked an extra 5 minutes each day for which they were not compensated. At a second- and third-shift meeting the employees protested to Ford that they were not being paid for the 5 minutes. Ford responded that he would consider their complaint. At subsequent meetings before the election, Ford announced that henceforth employees would be paid time and a half for the 5 minutes' overtime work. g. Discontinuance of the practice of posting of "report cards"; change in discipline policy At various preelection meetings employees objected to the Company's practice of posting so-called "report cards" which set forth the amount of production made by the individual employees . Additionally, the employees strenuously complained to Ford that foremen utilized these "report cards" to put pressure on employees to in- crease their production under threat of discipline or discharge. At subsequent meetings before the election, Ford announced the discontinuance of the posting prac- tice. Furthermore, he assured the employees that, although he found no evidence of reprimands or discharges for poor production, he would personally review any contemplated disciplinary action. h. Miscellaneous improvements in working conditions In response to complaints of employees voiced at these meetings concerning other working conditions , Ford took the following corrective measures which he publicized at various meetings before the election: (a) Although Ford located in the plant superinten- dent's desk a supply of safety glasses whose existence was apparently unknown to the employees, Ford purchased new safety glasses which were less cumber- some and more cosmetic in appearance for the female em- ployees. (b) New, large rubber mats were provided for em- ployees to stand on at their machines . Previously, the em- ployees either stood on concrete floors or used large pieces of cardboard which constituted a safety hazard." (c) A new electric water cooler was installed to re- place a well system which was a source of dissatisfaction among the employees. (d) Two presses were raised to overcome the diffi- culty employees encountered in operating them. (e) Additional sets of small hand tools were made available to employees for use when their tools with which they were working became dull and needed sharpening. "" It appears that employees had previously discarded smaller rubber mats because of the danger of tripping over them. 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) The condition of the first-aid room was improved and its medical supplies were replenished. (g) The ladies' restroom was made more presentable by tiling the floor and making other improvements. Ford also announced that the Company was looking for a full-time janitress to keep the restroom clean.'" A janitress was hired for such purpose after the election. i. Other matters discussed at preelection meetings (1) The new lunchroom In his remarks at the initial employee meetings, Ford explained that the Respondent's plant expansion project, which was then in progress since the early part of the year, included a new lunchroom.13 At subsequent meetings, Ford called the employees' attention to a three- dimentional sketch of the proposed new lunchroom that was posted on the plant bulletin board. (2) Chairs At various preelection meetings employees requested Ford to install chairs at the machines. It appears that the Respondent had removed them in October 1965 because they were unsafe. Ford refused the employees' requests until he was convinced that it was not hazardous to return the chairs. After the election, Ford informed the em- ployees that they could have the chairs but that they would be attached to the adjacent worktables in a manner that would prevent them from tipping over backwards. The chairs were later installed about June or July. (3) Overtime for Saturday work The subject of time and one-half for Saturday work was raised by an employee at one of the preelection meetings. She wanted to know what the Respondent's policy was with respect to overtime pay where an employee with high seniority voluntarily substituted herself in a layoff for one with lower seniority and then returned to work the same week and worked on Saturday. Ford answered that it was the Company's long-established policy to pay that employee time and one-half for the Saturday work. No evidence was adduced to show that it was otherwise. (4) Wage increase During the April 4 meeting of the third shift Ford noted that wages were customarily reviewed in September and that this policy would not be changed. At about this point, employee Wieczorek spoke up and said that the em- ployees wanted more money. Ford replied that there was a good prospect of one in September , 14 as in the past when they were given a nickel raise. He added, however, that under the law he could not indicate the amount and preferred not to discuss the matter any further . A similar statement was thereafter made by Ford at a second-shift preelection meeting. 3. Personal solicitation of employees; written assurances of better working conditions Concededly determined to defeat the Union at the polls, Ford utilized the remaining 3 days before the scheduled Board election personally to visit almost all of the employees on the various shifts at their work stations. On April 20 and 21, Ford spent as much as 20 hours a day in these activities. Moving from employee to em- ployee and presenting the election as a contest between the Respondent and the Union, Ford, in a friendly and cordial manner, solicited their support and vote for the Company. On occasions, Ford appealed to some em- ployees more than once, undeterred by the fact that a par- ticular employee wore a "Vote UAW" hat and button. According to Ford's credible testimony, his remarks to the individual employees were of the same general tenor as those he made at the earlier preelection meetings to the effect that a union was not needed at the plant and that employees had more to gain by aligning themselves with the Company against the Union. More detailed, however, are the following uncontradicted accounts of some of these conversations given by solicited employees, which I also credit. Two nights before the election, Ford spoke to third- shift employee Robbins at her machine and asked for her confidence and vote for the Company. Robbins answered in the negative because she doubted the Company's relia- bility, apparently referring to Ford's assurances of better working conditions. Ford then inquired of Robbins whether she would change her mind if he gave employees a letter of assurance.15 Robbins replied that she would not because such a letter would be nothing more than an un- notarized scrap of paper. The next night Robbins resisted Ford's overtures to resume their conversation, asserting a claimed right to be free of election propaganda during the 24 hours preceding the election. Ford left but returned only to assure her that there were no hard feelings between them. Thereafter, Foreman Robert Tuten'6 undertook to proselytize Rob- bins. When asked by Tuten why she wanted a union and what she expected to get out of it, Robbins replied "respect and security." Tuten then proceeded to extol Ford as a good person and a man of his word and left. However, he soon returned to inform her that Vice Pre- sident Yelinek wanted to talk to her "to get this thing straightened out between us." Asserting again that she had a right to be left alone during the 24-hour period preceding the election, Robbins declined to speak to Yelinek. Tuten, nevertheless, returned several times but Robbins adhered to her position. As the hour of the election was approaching, Foreman Neil Zelinski'7 importuned Robbins to trust Ford and vote for the Company. Although she begged Zelinski to 12 Previously, the Respondent employed a janitor 1 day a week to clean the restroom. At other times, leader girls voluntarily tidied up this room. I' Provision for a new lunchroom was made in architectural plans which were drafted in 1963. These plans came into Boyne Products ' possession when it acquired the Respondent in 1965. 14 Ford, however, testified that at this time he knew that a wage in- crease would be given effective July I because the Respondent had al- ready decided to change the beginning of its fiscal year from September I to July I to conform with the fiscal year of its parent company, Boyne Products. 15 This letter, which is hereinafter discussed, appears to be the one Ford issued at about this time containing his "personal pledge." 16 Tuten did not testify. Ford testified that Tuten was no longer in the Respondent's employ and his whereabouts was unknown II Zelinski did not testify. TRIANGLE PLASTICS, INC. 773 leave her alone, he persisted in his efforts for about 15 to 20 minutes until a Board agent entered the plant to prepare for the election.18 In an effort to enlist the support of second-shift em- ployee Selby, Ford on April 19, 20, and 21 engaged her in several conversations at her machine. Among other things , these discussions concerned the reasons why em- ployees wanted a union and Ford's belief that employees should rely on him and give him a year to straighten out matters. Selby, however, was not persuaded by his argu- ments and retorted that Ford had been in possession of the plant for 16 months without being seen by any em- ployee until union activities began. Selby also pointed out that during this time the Company ignored employee complaints and that matters had come to a head when the Company instituted a production drive wherein it pitted employee against employee by posting their production "report cards" and warning them that they could be discharged if their production fell below the average three consecutive times. In their last conversation on April 21 before the election, Selby asked Ford whether employees would get a raise if the Union lost the election. In reply, Ford reminded Selby that he had previously told em- ployees that a raise would be granted. Ford also stated, in response to Selby's remark that employees would not be happy with a nickel raise,19 that all he could tell her was that they would be happy with the raise they were going to receive. In soliciting employee Wieczorek's support, Ford spoke to her intermittently for about 4 hours at her work station during the April 21-22 third shift. When not so engaged, Ford talked to other employees at their machines., The substance of his remarks to Wieczorek was that she was important because she represented a fraction of the vote that he needed to win the election; that, if employees would believe in him and stick by him, they would be better off than going with the Union; and that, by voting for him and sticking by him, she would benefit because she was primarily concerned with money, although he could not make any specific promises at that time. Wieczorek expressed her doubt that things would improve because Ford would not always be present in the plant. In addition to the foregoing, the record contains other instances of Ford's solicitation of individual employees20 at work at their machines a day or two before the election. Without detailing these conversations, it is sufficient to note that Ford appealed to these employees to give him a year to demonstrate the sincerity of his promises to im- prove working conditions, and to support and vote for the Company against the Union. Moreover, in his conversa- tion with one of these employees (Stephenson), Ford questioned her whether she thought that the Company needed a union and whether she thought he would keep his word, apparently referring to his promise to better working conditions. In a similar vein, Foreman Tuten told two other em- ployees (O'Connor and Wilson) that a union was not needed in the plant and that the employees should vote for the Company because Ford's word was good. On another occasion, which was the night before the election, Tuten told employee Ferrell to remove her "Vote UAW" button and to "stomp" on her UAW hat which she, like others, was wearing in the plant. One or two days before the scheduled election, the Respondent distributed to each eligible voter in the production and maintenance unit a letter addressed to the particular employee. Over Ford's signature, the letter read in part: After realizing various people would like personal assurances from me, I offer the attached as my per- sonal pledge to you. This letter not only commits me, but also the Com- pany - legally. The attached document mentioned in the letter was also signed by Ford and stated: Fellow Triangle Employees: Several people have said to me, that I do not want a Union if. 1. They are sure those programs I have started will continue. 2. They are sure there will be no Discrimination or Recriminations after the election. 3. They can reach me confidentially. I Pledge: 1. Those programs I have started will continue and be expanded, Particularly Dignity, Respect, and Basic Rights. I Pledge: 2. There will be no Discrimination or Recriminations after the election. I Pledge: 3. My Detroit office phone is open to any person calling and giving No Name but saying to the secre- tary A Triangle Person is calling. Phone No. 871-1415. Remember: Even though I know my Pledge is Good, Sincere, and Honest, if anyone does not believe me, re- member you may go directly (at no charge) to the National Labor Relations Board, which is the same place the Union must go. The National Labor Rela- tions Board Region Number 7 1249 Washington Blvd. Detroit, Michigan 48226 Telephone: 226-3244 How about trying me for one year -I would sincere- ly appreciate your confidence, support, and vote.21 18 There is also undisputed and credible testimony by employees that, with the Respondent's knowledge, an employee identified as "Max" or "Mac" similarly visited employees Robbins, Pino, and others to persuade them to trust Ford and give him a chance to prove himself. 19 This was the hourly amount of the general raise given to employees in September 1965 . As indicated below, employees were later given a 12- cent-per-hour increase effective July 1, 1966. 20 See the undisputed testimony of employees Ferrell, Messina, Wilson, Piro, O'Conner, Brown, Taravella, and Stephenson, which I credit. 21 The letter and the attachment were also posted on the bulletin board. Employee Ferrell testified that she received the letter and the attachment with her paycheck on April 21. 308-926 0-70-50 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD An incident associated with Ford's electioneering ac- tivity, alleged to constitute an unfair labor practice and a ground for setting aside the election, involved employee Herminia, Leija, who at that time was a union adherent. It is charged that on April 21 Ford offered her a transfer from the first shift on which she was then working to the midnight shift she wanted. The only evidence adduced at the hearing to substantiate this charge was given by Leija and Ford and may be summarized as follows: On two occasions in the latter part of January or February, before the advent of the Union, Leija asked her foreman for a transfer from the first to the third shift. She was informed that she could have it when an opening arose. In the early part of the week of the election, Plant Superintendent Lindsey notified her that she could have a third-shift job which an employee had just vacated On April 21, a day before the election, Ford engaged Leija in a conversation at her machine for about 30 minutes. Commenting on the UAW hat and button that she was wearing, Ford observed that she was inclined toward the Union.2'2 He, nevertheless, solicited her support for the Company. According to both Ford and Leija, the shift change was never mentioned. After this conversation ended and Ford departed, Leija continued to wear her UAW hat and button for about 45 minutes when she de- cided to remove them. This elicited cheers from several employees. Upon being informed by a foreman of Leija's action, Ford returned to Leija and, in the presence of other employees, congratulated her on her new allegi- ance. Subsequently, Ford requested Leija to act as com- pany observer in the scheduled election, which she did. On April 25 or 26, Leija began working on the third shift. 4. The election; filing of objections by the Union On April 22, pursuant to the stipulation for certifica- tion upon consent election, the Board conducted a secret election in the plant among the production and main- tenance employees. The Union lost by a vote of 23 to 2023 and the next day filed objections to conduct affect- ing the results of the election, a copy of which was also promptly served upon the Respondent. On April 28, the Union filed a charge against the Respondent, alleging in- terference, restraint, and coercion of employees in the ex- ercise of their statutory rights and an unlawful refusal to recognize and bargain with the Union. 5. The April 25 meetings ; announcement of wage increases On April 25, after the Union had filed objections to the election, Ford held separate shift meetings, as he had done before. Expressing satisfaction with the results of the election, he thanked the employees for their support in rejecting the Union. Ford reiterated his position that the Company did not need a union and added that big companies preferred not to deal with smaller companies, like Triangle which, if unionized, would not be in a posi- tion to fill their orders in the event of a strike. In his speech Ford also assured the employees that there would be no discrimination against anyone who started the union movement or voted for that organization. At one point, employee Robbins referred to the possibility that the Union might file objections to the results of the elec- tion. This elicited a remark from the respondent's attor- ney who was present that he was familiar with the Union's practice of filing charges when it lost a represen- tation election. At these meetings, Ford also used the occasion to an- nounce that effective July 1, employees would receive a wage increase of 12 cents an hour.24 In explanation of the July 1 date, instead of September when the Respondent had granted its prior general wage increase, Ford stated that it was due to the fact that the Respondent had changed the beginning of its fiscal year from September 1 to July 1. In addition, Ford announced that leaders were going to receive more money but that the precise amount had not yet been determined. Lastly, Ford in- dicated that other employee fringe benefits were under consideration and that the unfinished things he had previ- ously undertaken to do would be done. B. Concluding Findings 1. With respect to interference, restraint, and coercion As noted above, the Respondent is quite candid in its admission that it waged an election campaign to defeat the Union at the polls. The question here presented is whether its conduct exceeded permissible limits as to constitute a violation of Section 8(a)(1) of the Act which prohibits interference, restraint, and coercion of em- ployees in the exercise of their self-organizational rights. I find that it did. Although there is no evidence that the Respondent resorted to unlawful threats of reprisal or other coercive tactics designed to frustrate employees in their efforts and desires to be represented by the Union, it did engage in an affirmative program favorable to employees, which had the same calculated purpose and inhibitory effect. Thus, as discussed earlier in this decision, during the preelec- tion period the Respondent satisfied long-standing grievances and complaints of employees, granted and promised them benefits, corrected inequities, and im- proved physical working conditions. These actions the Respondent publicized among all the employees to whom it also gave written and oral assurances that it intended to continue and expand this rewarding program in the fu- ture, if they supported the Company and voted against the Union. Significantly, this beneficence was in sharp contrast with the Respondent's prior negative attitude' toward employee complaints and problems before the Union's appearance in the plant. Indeed, it is quite clear that its good works were intended to remove the sources of the employees' discontent and the reasons for their union interest and thereby to demonstrate to the em- ployees that a union was not needed to represent them to secure improvements in their terms and conditions of em- ployment. In defense of its conduct, the Respondent contends 22 Leila had previously signed a union authorization card on March 18. She appeared to me to be less than frank when she testified that Ford did not ask her to vote against the Union. 2 As indicated previously, a separate election was held at the same time among the tool-and-die makers pursuant to a stipulation for certification upon consent election (Case 7-RC-7287). The Union won this election which is not involved herein. 24 As noted above, this increase was greater than the nickel raise granted employees the previous September and was in line with the as- surance Ford gave employee Selby when he solicited her vote prior to the election. TRIANGLE PLASTICS, INC. that the improvements in working conditions and the granting of benefits either were necessitated by business considerations or were adjustments of inequities, cor- rections of past errors, or were trivial in nature. I find no merit in this contention. While it is true that some changes served business interests, it can hardly be doubted that they were inspired by the Union's appearance in the plant and the Respondent's desire to undermine that organiza- tion. Moreover, the evidence undeniable shows that the improvements in working conditions and the grants and promises of benefits were timed to influence the outcome of the election. Certainly, the Respondent had adequate opportunity before the advent of the Union to rectify em- ployee complaints and other plant problems but preferred to ignore them at that time. In these circumstances, it is reasonable to infer that, were it not for the employees' union sympathies, the Respondent would not have taken the action it did. Confirming this conclusion, is the per- sistent appeals of the Respondent's President Ford to the employees to give him I year-evidently to be free of the Union-to enable him to prove himself and to carry out his promises. As for the Respondent's claim that some of the improvements and benefits were too trivial to amount to unlawful interference, the short answer is that they were part of pattern of improperly motivated conduct and not simply inconsequential acts. In sum, I find that the Respondent's conduct, designed as it was to induce employees to repudiate the Union, en- croached on their right to self-organization and their freedom to choose a collective-bargaining representative in a Board election, in violation of Section 8(a)(1) of the Act.25 There can be no doubt, as the Supreme Court so aptly stated in N.L.R.B. v. Exchange Parts Co.:26 . that [Section 8(a)(1)] prohibits not only intrusive threats and promises but also conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect .... The danger in- herent in well-timed increases in benefits is the sug- gestion of a fist inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged. I further find that the Respondent's announcement of a 12-cent hourly wage increase on April 25, 1966, effec- tive July 1, 1966, was also violative of Section 8(a)(1) of the Act. It is undisputed that the announcement was made 2 days after the Union filed timely objections to conduct affecting the results of the election and before the objections could be investigated by the Board. Moreover, no reason was presented why the announcement could not have been withheld until the Board had ruled on their merit. It is also noted that this wage increase exceeded the one granted employees the previous September and was in fulfillment of the Company's preelection statement to employee Selby that the amount would exceed the nickel raise previously given to the employees. 2-, In so doing, I find it unnecessary to rely on President Ford's preelec- tion remarks and conduct with respect to the lunchroom, chairs, Saturday overtime work, and the Leit a incident On the other hand, I find indepen- dently violative of Section 8(a)(1) of the Act the Respondent's letter and attachment dated April 20, 1966, quoted above, in which the Respondent and Ford, purportedly, in response to the offer of several employees to repudiate the Union, pledged to continue and expand the programs they 775 On the basis of the entire record, I am convinced that the postelection announcement of the general wage in- crease which was made at a time when the election "was clearly subject to invalidation if the objections were meri- torious," was "an attempt to gain [employee] support and to assure a continued majority against the union representation in the event a second election was directed by the Board."27 I also find that the amount of the in- crease was intended as a further inducement to em- ployees to vote against the Union should the Board direct a second election. Accordingly, I find that the Respond- ent's announcement of the wage increase interfered with the Board's election procedures and made a fair election- impossible and therefore constituted an additional viola- tion of Section 8(a)(1) of the Act.28 The complaint also alleges that the Respondent coer- cively interrogated employees with respect to their ad- herence to the Union and offered one of these employees a change of shift if she withdrew her support of the Union. I find insufficient evidence in the record to sustain these allegations. Accordingly, I recommend their dismis- sal. 2. With respect to the refusal to recognize and bargain a. Appropriate unit; the Union's majority status As discussed above, the Union on March 18 initially requested the Respondent to recognize it as the collective-bargaining representative of all the Respond- ent's "production, maintenance and truck driver em- ployees." Apparently, the Union contemplated the inclu- sion of the Company's tool-and-die makers. Such a com- posite unit could, of course, be appropriate for collective- bargaining purposes. However, at the March 30 Board conference, which was held to arrange for a consent elec- tion, the Union acceded to the Respondent's proposal to establish separate units for the tool-and-die makers and the production and maintenance employees. Accordingly, a stipulation for certification upon consent election for each group was executed by the parties. The evidence is quite clear and I find, that on this occasion the Union again requested recognition on the basis of a card check which the Respondent rejected unless the card check was conducted on the terms outlined in the Company's letter of March 24. The Respondent's proposal was not ac- ceptable to the Union. In essence, it is the position of the General Counsel and the Union that the Respondent failed to discharge its statutory obligation on March 30, as well as before, when it was the exclusive bargaining representative duly designated by a majority of the employees in an ap- propriate unit. Since the Respondent's rejection of the Union's latest request for recognition occurred on March 30, there appears to be no particularly useful purpose to be served to determine the Union's majority status at any time other than that date. The record discloses that on March 30 there were not more than 51 employees in the production and main- had already started Favors or benefits promised employees under such circumstances are prohibited by the Act. Medo Photo Supply Corporation v. N.L.R B , 321 U.S. 678, 686. 26 375 U S. 405, 409 17 Ralph Printing & Lithographing Co., 158 NLRB 1353, fn. 3. 28 Ralph Printing, supra,, Northwest Engineering Company, 148 NLRB 1136,1144-45 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tenance unit.29 To support the Union's claim to majority representation, the General Counsel and the Union rely on at least 30 union authorization cards signed by unit employees.3° As previously indicated, these cards unequivocally authorize the Union to represent the signers in collective bargaining, stating additionally on the reverse side that these cards "will be used to secure recognition and collective bargaining for the purpose of negotiating wages, hours and working conditions." How- ever, the Respondent challenges the sufficiency of 21 cards as proof of the Union's majority status for the reasons indicated below. Wofford, Combs, Pallisco, Green, and Curtis: The Respondent argues that the authorization cards signed by these employees should not be counted for the reason that they were executed after March 18, which was sub- sequent to the Union's initial recognition request. Since I have found above that the Union had renewed its request at the Board conference on March 30, there is no plausible reason why this date may not be used to deter- mine the Union's majority status. Accordingly, I find the Respondent's contention completely without merit with respect to the cards signed by Wofford on March 20, Combs on March 21, and Pallisco and Green on March 29. By the same token, however, I shall exclude from the computation, Curtis' card which was executed on March 31. In addition to the foregoing contention, the Respondent urges that Green's card should not be counted for the further reason that the card was not intended as a designation of a representative but only to get the girls "off her back." Green gave the following account of the circumstances under which she signed the authorization card: Before March 29, various employees asked her to sign a card which she refused to do. At the suggestion of her coworkers, Green attended a union meeting of company employees on that date. Union Representatives Furman and Donley addressed the group and asked the em- ployees who had not previously signed to do so. Green obtained a blank card which her coworkers urged her to sign, stating that she had nothing to lose if she did. After reading both sides of the card, she filled in the blanks, signed it, and returned it to the union representatives. Although she testified that she signed the card "to get the girls off- [her] back," she conceded that she was never threatened or mistreated by them. Green also stated that she did not know what the term "collective bargaining" mentioned in the authorization card meant. I find that the circumstances under which Green executed the authorization card were not such as to "negative the overt action of having signed a card designating [the Union] as bargaining agent. "31 Accordingly, I include in the compu- tation, the cards of Green, Wofford, Combs, and Pallisco. Wilson, Messina, Pino, and O'Connor: The Respond- ent objects to the cards signed by these employees on the ground that they were misled into believing that the cards would be used only to secure an election. These cards were signed at an organizational meeting which Union Representatives Furman and Doniey held on the morning of March 17 at a doughnut shop. Attending this meeting were 12 third-shift employees and 1 (Selby) from the second shift. According to Furman,3' whose account of the meeting I find to be the most reliable, he advised the employees of their statutory rights and then proceeded to distribute authorizations cards among them with instructions to read both sides of the cards and to complete, sign, and return them. After receiving the ex- ecuted cards from all the 13 employees who were present, a brief question and answer period ensued during which the employees expressed a desire to have a union quickly installed in the plant. Furman explained that, in order to secure recognition, the Union needed authorization cards from 51 percent of the employees. He further stated that if the Company declined to grant the Union recognition, the Union would have to file a representation petition with the Board. Wilson testified that after she read the card she signed it because she wanted the Union to bargain for "higher wages and to begin work on Sunday nights." 33 However, she also testified rather vaguely that, when Furman handed her the blank card, he said that the Union had to have a number of cards "[b]efore they could present it to the government to okay an election." Messina testified that she signed an authorization card after she read it. She further testified that she signed the card "to have some representation" in respect to job security, which employees did not have, and in order to eliminate the production "report card" system, discussed earlier in this Decision. However, on cross-examination, she testified that, after the cards were signed Furman said that the Union needed signed cards from 51 percent of the employees "so that the UAW could authorize an elec- tion." She further testified that the "purpose of the card was to be represented by the UAW, which, in turn would lead to an election." According to Pino, she voluntarily signed an authoriza- tion card at the March 17 organizational meeting, after she read the front and back of the card, as the union representatives told the employees to do, and then passed it back to the union representatives. She also testified that she signed the card because she believed that the em- ployees needed a union in order to obtain job security, eliminate the production pressures caused by the Com- pany's use of "report cards," and to help employees with various problems arising out of their employment. She further testified that, after the cards were signed and col- lected, a union representative stated that the Union 21 This number includes Robert Hoffman, whose supervisory status is hn dispute, and Kathleen S. Filbum who quit on March 30, neither of whom signed authorization cards. The question of their inclusion in the unit need not be resolved since, as I find below , the Union's majority status is unaffected whether or not they are counted as unit employees. 10 Twenty-five of these cards were signed on March 17 , one on March 18; one on March 20; one on March 21; and two on March 29. Because I find that the cards signed by Mary Lou Ashby on March 30 is not needed to establish the Union's majority status, I exclude it from the com- putation, although the General Counsel and the Union would also rely on it With respect to a card purportedly signed by Carol A Ruggirello on March 29, upon which I reserved ruling at the hearing whether to receive it in evidence, I also find it unnecessary to pass on the question for the reason that such a determination will not affect the Union's majority status . Accordingly, I will not receive this card (G.C 's Exh. 47 for identification) or the documents containing her specimen signatures (G.C.'s Exh. 48, 49, and 51 for identification) in evidence 31 Joy Silk Mills Inc. v. N L.R.B., 185 F.2d 732, 743 (C A.D.C). 32 His testimony is corroborated in many respects by various em- ployees. 33 As discussed above, the Respondent had ignored a petition previ- ously submitted by third-shift employees to change the starting day of the workweek so that they would be off Saturday night TRIANGLE PLASTICS, INC. 777 required "fifty-one or fifty-five percent vote or cards signed in order to get a letter sent to-Washington-or something of some sort -to okay if they could have a vote into Triangle Plastics." At another point in her testimony, Pino stated that a union representative advised the group that the Union needed 51 or 55 percent "of factory signa- tures in order to get a vote, a letter sent to the Company to get a vote for whether we wanted a union or not." O'Connor testified that she, too, signed the card after reading it and returned it to a union representative. She further testified that, before she and the employees signed the cards, Furman explained that the card was "an authorization-to come in to organize the union" and "if they got fifty-one percent of ... [the employees ] signed that they had a right to come in and bargain for a union." In another part of her testimony she quoted Furman as saying "if they had enough cards signed they could come in and bargain for an election." Later in her testimony O'Connor testified that, after the cards were signed, a union representative told the employees that if "they had fifty-one percent of the cards signed that they could come in to organize the union." Finally, she testified that the reason she signed the card was to obtain job security, which she lacked and which a union could secure for the employees. From a careful evaluation of all the evidence in the record, I am persuaded that Wilson, Messina, Pino, and O'Connor signed the cards with the intention of having the Union represent them for collective-bargaining pur- poses. I further find that these employees were told by Furman after they signed that a representation petition might have to be filed with the Board, should the Respond- ent decline to grant the Union recognition. Accordingly, whatever misunderstanding or recollection these em- ployees had regarding the events surrounding the execu- tion of the cards, I find that they were not misled by the union representatives . I, therefore, conclude that the ef- ficacy of the cards as proof of the Union's designation, as bargaining representative , was not imparted and the cards will be counted.34 Antosiak, Boyden, Hamelrath, and Stoll: It is the Respondent's position that the cards bearing their names should not be counted because they were not properly authenticated. These cards were received in evidence through the testimony of Union Representative Furman who came into possession of these cards at the organiza- tional meeting held at the doughnut shop on March 17. The record is replete with evidence that these 4 em- ployees were among the 13 employees who were present at this meeting ; that the 13 employees were given cards with instructions to read and sign them if they wanted to; that all the cards were promptly filled out , signed, and returned to Furman who then counted them; and that the next morning, March 18, Furman filed a representation petition (Case 7-RC-7269) at the Board's Regional Of- fice, in support of which he submitted a sufficient number of authorization cards of employees including those bear- ing the names of the 4 employees in question.35 In these circumstances, I find , contrary to the Re- spondent's contention, that the cards of Antosiak, Boy- den, Hamelrath, and Stoll were properly authenticated, even though neither these employees nor anyone else who had personally seen them sign were called as wit- nesses. Accordingly , I find that the disputed cards are valid designations entitled to be counted in determining the Union's majority status.36 Stephenson: The Respondent objects to her card being counted because employee Selby, who solicited signatures on behalf of the Union, once told her that, even though she (Stephenson) signed a card, she still could vote as she pleased. The only evidence on this subject was given by Stephenson who testified as follows: Several weeks before March 17, which would be before the advent of the Union, she and Selby engaged in a union discussion, during which, in answer to Selby's question, she stated that she favored a union. Selby replied that, as soon as she obtained authorization cards, she would give her one. On this occasion, Selby, without specifically mentioning the prospect of an election being held, also remarked that, despite the fact that she signed a card, she still could vote any way she desired. On March 17, Stephenson, having been informed that cards were available in Selby's purse which was lying on her work table obtained a card, proceeded to the ladies' room, read both sides of the card, completed and signed it, and then returned it to Selby's purse. Stephenson further testified that she signed the card because she wanted the Union to represent her in collective bargaining. In view of the foregoing, I find that Stephenson's card was a valid designation of the Union as her bargaining representative . The card will , accordingly,be counted. Rust: The Respondent challenges the use of her card as evidence of the Union's majority status. It argues that Rust was told by Selby, who solicited her signature, that she could vote any way she pleased, even though she signed a card. Rust's uncontroverted account of her signing the card is, as follows: Selby gave her a card, explaining that "it was just about the UAW just trying to get the union in; that I didn't have to vote for the union ; but they needed a percentage of the people to start the union." She then went to the restroom where she read the card , as Selby had instructed her to do, filled it out, signed and brought it back to Selby. When questioned whether she un- derstood what the woad "represent" meant in the phrase in the card "authorize UAW to represent me in collective bargaining," she answered, "it's to help you" but did not know in what respect. In view of the fact that Rust admittedly read the authorization card before signing, as Selby had told her to do, and in view of the further fact that card is a clear and unequivocal designation of the Union as the signer's col- lective-bargaining representative , I find that Rust in- tended to designate the Union as her bargaining represen- tative. Accordingly, Rust's card will be counted. Paul, Buday, Conrad, Cowells, Federico, Muscat, and Pallasche: The Respondent maintains that these cards should not be accepted as evidence of the Union 's majori- ty for the reason that they were not sufficently authen- ticated. I find this contention not sustained by the record. The following are the undisputed facts: Selby was the only second-shift employee who attended the March 17 organizational meeting, previously described. There Selby received a batch of blank authorization cards from Union Representative Furman. Shortly before starting 34 Cumberland Shoe Corporation, 144 NLRB 1268 , enfd. 35 F.2d 917 (C A 6). 35 These cards bore the Regional Office stamp indicating that they were received by that office at 11 a.m., March 18. 38 Cf. I Taitel and Son, 119 NLRB 910, 912, enfd 261 F.2d 1(C.A. 7), cert. denied 359 U.S. 944. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work the same day, Selby told some 8 or 10 girls in the lunchroom that she had union authorization cards which had to be signed by a majority of the employees in order to get the Union to represent them. She also stated that, after they read, completed, and signed the cards, she in- tended to turn them over to the "union man so that he could take them to the Labor Board-in order to show the Labor Board that the majority in the plant wanted the union in." Selby further informed them that, if anyone wanted a card, it would be available in her (Selby's) purse which she kept at her machine. Later in the day, while Selby was working, employees, including the seven in question, came by her machine and removed cards from her purse and departed. After the cards were executed, some of the girls in Selby's presence either put them in Selby's purse, under it, or on the table. Two or three other employees personally handed their cards to Selby while Selby was on her "break." By quitting time, she had col- lected 12 signed cards37 from the employees on her shift. During the change of shift, Selby told employee Fer- rell, whose shift was about to begin, that she was going to leave the signed cards in Ferrell's locker, which was open at that time. This Selby did and closed the locker with a lock. The next morning, March 18, Ferrell delivered the 12 signed cards to either Furman or Donley. Later the same morning, Furman filed a representation petition at the Board's Regional Office, supported by authorization cards which included those received from Ferrell. In view of the foregoing, I find that the General Coun- sel laid a sufficient foundation for receiving the disputed cards in evidence. Absent any evidence refuting the truth of what the cards purport to be, I shall consider them in ascertaining the Union's majority status. On the basis of all the evidence, I conclude that at least on March 30, when the Union renewed its request for recognition, the Union was validly designated by a majority of 30 out of 51 employees in the appropriate unit as their collective-bargaining representative. b. The Respondent's rejection of the Union's request for recognition As previously discussed, the Union at the March 30 consent-election conference renewed its request for recognition on the basis of a card check to which the Respondent would agree only on its own terms.38 As these terms were not acceptable to the Union, it decided to prove its majority at the Board election scheduled for April 22. The Respondent insists it acted in good faith in questioning the Union's majority. Recently, the Board in the Hammond & Irving case,39 reiterated the employer's statutory obligation to recog- nize a union on the basis of authorization cards, and the factors to be weighed in evaluating his attitude toward the collective-bargaining process, in these words: The Board has long held that an employer may in- sist upon a Board election as proof of a union's majority if it has a reasonable basis for a bona fide doubt as to the union's representative status in an ap- propriate unit. If, however, the employer has no such good-faith doubt, but refuses to bargain with the majority representative of its employees because it rejects the collective-bargaining principle or desires to gain time within which to undermine the union and dissipate its majority, such conduct constitutes a violation of Section 8(a)(5) of the Act. In determining whether the employer's action was taken to achieve either of the said invalid purposes, the Board con- siders all the surrounding circumstances as well as direct evidence of motivation. Absent such direct evidence, where extensive violations of the Act ac- company the refusal to grant recognition, they evidence the employer's unlawful motive and an in- ference of bad faith is justified .... While unfair labor practices committed at or about the time of an employer's refusal to bargain often demonstrates the bad faith of the respondent's position, not every act of misconduct necessarily vitiates the respondent's good faith. For, there are some situations in which the violations of the Act are not truly inconsistent with a good-faith doubt that the union represents a majority of the employees. Whether the conduct in- volved reflects on the good faith of the employer, requires an evaluation of the facts of each case. In the present case, the Respondent, within a few days after signing the consent-election agreement, embarked on a campaign of meetings and personal solicitation of employees aimed at destroying the Union's majority and defeating it at the polls. This conduct, found unlawful above, consisted of adjusting long-standing unresolved employee grievances and complaints, granting and promising various benefits, correcting previously ignored inequities, improving other terms and conditions of em- ployment, publicizing these actions, assuring employees of its sincere intention to continue these programs in the future -all with the manifest purpose of inducing the em- ployees to support the Company and to vote against the Union. Indeed, only a day or two before the election, in response to a purported offer of several employees to repudiate the Union if the Respondent would assure them that it would, among other things, continue its programs of improving terms and conditions of employment, the Respondent distributed a written pledge of this nature to all employees in the unit and posted it on the company bulletin board. Moreover, with the same transparent ob- jective of undermining the Union's strength in the event the Board ordered a rerun election, the Respondent an- nounced a 12-cent hourly wage increase only 2 days after the Union filed timely objections to the results of the elec- tion, although the effective day of such increase was more than 2 months away. Viewing all the evidence in the record, I am convinced that the Respondent's conduct, involving as it did serious unfair labor practices, actually had the calculated and sig- nificant effect of dissipating the Union's majority and of destroying the laboratory conditions for a fair and free 39 Employee Taravella credibly testified, without contradiction, that on March 17 she had taken a card from Selby's purse, which she signed in the restroom; that she met in the restroom Buday, Federico, and another em- ployee, who also had cards; that she personally observed Buday fill out her card; and that, before leaving, all four employees placed their cards in an envelope. Taravella further credibly testified that, as she and the other employees passed Selby's machine, one of them placed the envelope con- tasmng the cards in Selby's purse 38 These terms and conditions were contained in the Respondent's letter of March 24, in which it stated that it would accept a card check "provided the person mutually selected is authorized to examine all condi- tions and circumstances of such signing and to disallow any cards which were signed under duress, or improper promise, or mistake." 39 Hammond & Irving, Incorporated, 154 NLRB 1071, 1073 (fns. omitted). TRIANGLE PLASTICS, INC. election at which the Union could demonstrate its majori- ty. In such circumstances, I find it difficult to believe that the Respondent entertained a good-faith doubt of the Union's majority status when after virtually forcing the Union to go to an election to test the Union's strength, the Respondent utilized the preelection period to un- dermine it. Accordingly, I find that the Respondent, in disregard of its statutory obligation, refused to recognize and bar- gain with the Union as the exclusive representative of the Company's employees in an appropriate unit and thereby violated Section 8(a)(5) and (1) of the Act.40 Under set- tled law '41 this finding is not precluded by the fact that the Union lost the election where, as here, the unlawful preelection conduct is also embraced in the Union's meri- torious objections to the results of this election. IV. 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 operations of Respondent as described in section I, above, have a close, intimate , and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and its free flow. V. THE REMEDY Pursuant to Section 10(c) of the Act, I recommend that the Respondent cease and desist from engaging in the un- fair labor practices found and in like and related conduct and that it take certain affirmative action designed to ef- fectuate the policies of the Act. To remedy the Respondent's unlawful refusal to fulfill its statutory obligation, I recommend that it be directed to bargain, on request, with the Union as the exclusive representative of the Company's employees in the unit found appropriate herein. Even were I to find that the Respondent did not violate Section 8(a)(5) of the Act, I would still recommend that it be directed to bargain with the Union, on request, in view of the Respondent's seri- ous preelection misconduct which resulted in the dissipa- tion of the Union's majority and the destruction of the conditions for a free and fair election in which the Union's strength could be reliably tested .42 The Union, however, is not content-perhaps rightly so -with a simple bargaining order which the Board nor- mally issues in cases of this type because it permits the re- calcitrant employer, at the expense of his employees, to profit materially from his wrongful refusal to perform his bargaining obligation. It argues that during this nonbar- gaining period, which may last several years before the 40 Joy Silk Mills, Inc., 85 NLRB 1263, 1264, 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); Cumberland Shoe Corporation, 144 NLRB 1248, enfd 351 F 2d 917 (C A. 6); Cameo Lingerie, Inc, 148 NLRB 535; and Edward Fields, Inc. v. N.L.R.B., 325 F.2d 754 (C.A 2), relied on by the Respondent are clearly distinguishable on their facts. 41 Bernel Foam and Irving Air Chute, supra. 42 See, for example, Irving Atr Chute, supra, and Northwest Engineer- ing Company, 158 NLRB 624. 11 Section 10(c) reads, in relevant part, that when it has been found that an unfair labor practice has been committed the Board is empowered to 779 Board's order is judicially enforced, the employer reaps the financial rewards that avoidance of bargaining affords him, to the economic detriment of his employees who are thus deprived of their statutory rights and the monetary benefits they would have derived if their bargaining representative had the opportunity to negotiate with their employer with respect to their terms and conditions of employment. To remedy this situation, the Union urges that provision be made for the reimbursement of the em- ployees for the "monetary losses" they suffered by reason of the Respondent's unlawful refusal to bargain. Such a remedy, the Union states, will recreate the status quo existing at the time of the Respondent's unlawful refusal to recognize the Union, at the same time serving as an effective deterrent to employers who are disposed to violate their bargaining obligation. In determining the amount of "backpay" due the em- ployees (and it is not clear whether this would also in- clude fringe benefits), the Union proposes that this can be done at a separate hearing to be ordered by the Trial Ex- aminer "in at least two ways": 1. By comparing the increases given Respond- ent's employees from March, 1966, until Respond- ent begins to bargain with the Union with the average increase negotiated by this Union with other Michigan or Detroit area located employers engaged in the manufacture of molded plastic parts and molds. 2. [By using the] less desirable comparison of Respondent's employees' economic gains with Bu- reau of Labor Statistical average figures of negotiated increases for the geographical area or for the particular industry. It is well established that Section 109c)43 vests the Board with broad discretion to devise remedies to meet the needs of particular situations.44 However, this discre- tion is not without limitation. The "power to command af- firmative action is remedial, not punitive,"45 as the Supreme Court has observed, and does not enable the Board "to inflict upon the employer-any penalty it may choose because he is engaged in unfair labor practices, even though the Board be ofthe opinion that the policies of the Act might be effectuated by such an order. 1146 I seriously doubt that the Board-at least on this record -can justify the reimbursement order requested by the Union. It is quite clear that the proposed order is based on an assumption, unsupported by any evidence, that had the Respondent bargained in good faith with the Union, as the Act requires, an agreement would have been reached with ascertainable monetary terms. How- ever, although it is the purpose of the Act to encourage the practice and procedure of collective bargaining with the ultimate aim that a contract be reached, such objec- tive is not always achieved dispite the good faith of the require the wrongdoer "to cease and desist from such unfair labor prac- tice, and to take such affirmative action including reinstatement of em- ployees with or without back pays as will effectuate the policies of this Act .. " 44 Phelps Dodge Corp. v. N.L R.B , 313 U.S. 177, 194, Local 60, United Brotherhood of Carpenters and Joiners ofAmerica, AFL-CIO v. N.L.R.B. (Mechanical Handling Systems, Inc.), 365 U S. 651, 655. 45 Republic Steel Corporation v. N.L R B , 311 U S. 7, 12 See also Local 60, Carpenters, supra. 46 Consolidated Edison Co. of New York, Inc. v. N.L.R.B, 305 U.S 197,235-236. 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties. Nor am I persuaded that the "monetary losses," suffered by the employees as a result of the Respondent's failure to bargain, can be determined by comparing the wage increases or economic gains obtained by the em- ployees since the date of the unlawful refusal to bargain with those negotiated by the Union with other employers in the industry , or by comparing the employees ' increases and benefits with available economic statistics , as sug- gested by the Union . It appears to me that such a deter- mination would rest on no firmer foundation than specu- lation which, in turn, would be tantamount to inflicting punishment on the Respondent for committing an unfair labor practice . This, of course , the Board may not do.47 Moreover, were the Board to determine the economic benefits the employees would have received had there been bargaining and required the Respondent to pay such sums to the employees during the period of its delinquen- cy, the Board, in effect, would be fixing terms and condi- tions of employment retroactively which, I believe, is beyond its statutory authority. The Supreme Court has cautioned the Board that it "may not, either directly or in- directly, compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements."48 The Union, nevertheless, contends that the Board, with court approval, has issued backpay orders to redress 8(a)(5) violations . While this is true, those cases are plainly distinguishable from the present case. Thus, in Fibreboard' 49 relied on by the Union, the Supreme Court sustained the Board's exercise of discretion in fashioning a backpay remedy where the employer's unlawful refusal to bargain resulted in the discharge of employees . There, the amount of lost earnings was readily ascertainable and was not based on any speculative premises . Also distin- guishable from the present case is the line of cases" where the Board found an unlawful refusal to bargain because the employer declined to sign an agreement reached by the parties . In those cases, the Board ordered the employer to execute the agreed-upon contract and to give retroactive effect to the provisions of that contract. Clearly, this is not the situation presented in the instant case. Finally, the Union urges that the deterrent effect that a backpay order would have on employers disposed to avoid their statutory bargaining obligation warrants the issuance of such order. Certainly, deterrence is desirable, but as the Supreme Court has long ago held, it is an insuf- ficient justification for an order.51 Although I am mindful of the fact that the inevitable delays incident to litigation deprived employees of the op- portunity to enjoy their statutory rights during such period, I am unable to find on the record before me a legal justification for imposing on the Respondent a backpay order. Accordingly, I deny the Union's request. Upon the basis of the foregoing findings of facts and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 47 Consolidated Edison, Republic Steel, and Local 60, Carpenters, supra. 98 N.L.R.B. v American National Insurance Co., 343 U S. 395, 404. 49 Fibreboard Paper Products Corp v. N.L.R.B., 379 U.S. 203, 215-217. 50 See, for example, Quiel Bros. Electric Sign Service Co., Inc., 153 NLRB 326, 331; Ogle Protection Service, Inc., 149 NLRB 545.547. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All production and maintenance employees, includ- ing truckdrivers, employed by the Respondent at its Roseville, Michigan, plant, but excluding tool-and-die makers, office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, and at least on March 30, 1966, the Union has been the exclusive bargaining representative of the employees in the aforesaid ap- propriate unit within the meaning of Section 9(a) of the Act. 5. By refusing on March 30, 1966, to recognize and bargain collectively with the Union as the exclusive representative of the employees in the aforesaid ap- propriate unit, the Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) of the Act. 6. By reason of the foregoing conduct, and by adjust- ing longstanding unresolved grievances and complaints, granting a wage increase and other benefits, promising ad- ditional benefits to employees, correcting previously ignored inequities, improving other terms and conditions of employment, publicizing these actions among the em- ployees, and assuring employees of its intention to con- tinue and expand these programs, in order to induce the employees to abandon the Union and vote against it in a Board-conducted representation election, the Respond- ent has interfered with and restrained employees in the exercise of their statutory rights within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 8. The Respondent has not coercively interrogated employees or engaged in other conduct in violation of ection 8(a)(1) of the Act, except as found above. Recommendations Respecting Case 7-RC-7269 I have found above that the Respondent had engaged in unlawful preelection conduct which frustrated em- ployees' right freely to select a bargaining representative. Accordingly, I sustain the Union's objections52 and recommend setting aside the election. However, as I have also found that the Respondent has violated Section 8(a)(5) of the Act and recommended an order directing the Company to bargain collectively with the Union, on request, I recommend that the petition filed in Case 7-RC-7269 be dismissed.53 RECOMMENDED ORDER Upon the foregoing findings of the fact and conclusions of law, and upon the entire record in the case, and pur- suant to Section 10(c) of the National Labor Relations Act, as amended, it is ordered that the Respondent, Tri- 51 Republic Steel Corporation v. N.L.R.B., 311 U.S. 7, 12, see also Local 60, Carpenters v. N.L.R B. (Mechanical Handling Systems, Inc.), 365 U S. at 659. 52 However, I find Objection 4 not sustained by the record. 53 Bernel Foam Products Co., Inc., 146 NLRB 1277, and Irving Air Chute Company, Inc., 49 NLRB 627, enfd. 350 F.2d 176 (C.A. 2). TRIANGLE PLASTICS, INC. angle Plastics, Inc., Roseville, Michigan, its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, as the exclusive representative of the em- ployees in the unit described below, concerning rates of pay, wages, hours of employment, and other conditions of employment: All production and maintenance employees , including truckdrivers, employed by the Respondent at its Roseville, Michigan, plant, but excluding tool-and-die makers, office clerical employees , professional em- ployees, guards , and supervisors as defined in the Act. (b) In the future, adjusting employee grievances and complaints , granting or promising employees a wage in- crease or other benefits, correcting inequities , improving other terms and conditions of employment , publicizing these actions to employees, and assuring employees of its intention to continue and expand these programs , in order to induce employees to abandon their designated bargain- ing representative or vote against it at a Board-conducted representation election. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following action which is necessary to ef- fectuate the policies of the Act. (a) Upon request , bargain collectively with the above- named Union as the exclusive representative of all the employees in the unit described above concerning rates of pay, wages, hours of employment, and other conditions of employment and, if an understanding is reached, em- body such understanding in a signed agreement. (b) Post at its plant in Roseville , Michigan, copies of the attached notice marked "Appendix."54 Copies of the said notice , to be furnished by the Regional Director for Region 7, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter , in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced, or covered by any other material. (c) Notify the Regional Director for Region 7, in writ- ing, within 20 days from the date of receipt of the Trial Examiner's Decision, what steps the Respondent has APPENDIX NOTICE TO ALL EMPLOYEES 781 Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: WE WILL NOT in the future adjust employee grievances or complaints ; grant or promise em- ployees wage increases or other benefits ; correct in- equities ; improve other terms and conditions of em- ployment; publicize these actions to employees, or assure them of our intentions to continue and expand these programs, in order to induce employees to abandon International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, or any other labor or- ganization , or to vote against that union in a Board- conducted representation election. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce employees in the exer- cise of their rights guaranteed in Section 7 of the Act. WE WILL bargain collectively, on request, with In- ternational Union, United Automobile , Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, as the exclusive representative of all our employees in the unit described below with respect to rates of pay , wages, hours of employment, and other conditions of employment and if an un- derstanding is reached , embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees, in- cluding truckdrivers , employed at the Com- pany's Roseville , Michigan , plant, but excluding tool-and-die makers , office clerical employees, professional employees , guards, and supervisors as defined in the Act. All our employees are free to become or remain, or refrain from becoming or remaining , members of the above-named Union , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. TRIANGLE PLASTICS, INC. (Employer) taken to comply herewith.55 Dated By IT IS FURTHER ORDERED that the allegations of the complaint that the Respondent coercively interrogated employees or engaged in other conduct violative of Sec- tion 8(a)(1) of the Act, except as found in the Trial Ex- aminer's Decision , be, and they hereby are , dismissed. IT IS ALSO RECOMMENDED that the election heretofore held in Case 7-RC-7269 be set aside and that the representation petition filed therein by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America. (UAW), AFL-CIO, be dismissed. (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, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 226-3200. 54 In the event that this Recommended Order is adopted by the Board, , peals Enforcing an Order" shall be substituted for the words "a Decision the words "a Decision and Order" shall be substituted for the words "the and Order." Recommended Order of a Trial Examiner" in the notice. In the further 55 In the event that this Recommended Order is adopted by the Board, event that the Board's Order is enforced by a decree of a United States this provision shall be modified to read- "Notify the Regional Director for Court of Appeals, the words "a Decree of the United States Court of Ap- Region 7, in writing, withm 10 days from the date of this Order, what steps Respondent has taken to comply herewith.