J. W. Mortell Co.

J. W. MORTELL CO. J. W. Mortell Company and United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO. Cases 38-CA-70, 38-CA-123,38-CA-162, and 38-RC-89. November 27, 1967 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, JENKINS, AND ZAGORIA On July 11, 1967, Trial Examiner Joseph I. Nachman issued his Decision in the above-enti- tled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor prac- tices alleged in the complaint. Thereafter, the Respondent filed exceptions to the Trial Ex- aminer's Decision and a supporting brief, and the General Counsel filed a brief in support of the Trial Examiner's Decision. 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 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, as herein modified. 1. We agree with the Trial Examiner's finding that the Respondent's announcement of certain em- ployee fringe benefits in early March 1965 at the height of the organizational campaign was calcu- lated solely to induce its employees to reject the Union and to discourage them from participating in union activities in violation of Section 8(a)(1) of the Act. We note that Respondent's progress toward in- creasing employee fringe benefits paralleled the in- creasing organizing activity of the Union. Although Respondent introduced evidence to indicate that a study of its employment practices, with recommen- dations for improvements, had been commenced earlier, it was admitted that such recommendations were not approved by the Company's executive committee until sometime in December 1964. Plant Manager Boulger, who made the survey and the 1 Medo Photo Supply Corp. v N.L R B , 321 U S 678, 684, N.L.R B v Exchange Parts Co , 375 U.S 405 168 NLRB No. 80 435 proposed recommendations, testified that he trans- mitted them to the executive committee in November 1964 and that they were not approved until late December 1964. Although the Trial Ex- aminer found that these fringe benefits were ap- proved by the executive committee before the com- mencement of the union organizing activity here in- volved, we must note, and so find, that the union or- ganizational activity commenced in late November 1964 by the distribution of leaflets outside of the plant and prior to the aforesaid executive commit- tee's approval of the increased fringe benefits. Respondent, of course, was well aware of the com- mencement of this early campaign activity. Thereafter, the first two union organizational meetings were conducted on February 10 and 21, 1965. The day after the first of these meetings, em- ployee Haggard was interrogated by Supervisor Francoeur regarding the number and categories of employees in attendance. The day after the second such meeting and by letter dated February 22, the Union informed management of its organizing ac- tivities and requested that supervisors be restrained from interfering with the campaign. Immediately thereafter, as if in. response to the February 22 letter, the Respondent announced a series of de- partmental meetings, which were conducted between March 1 and 5, in which the fringe benefits i n question were first announced to the employees. These consisted principally of a 5-minute washup period before lunch, a paid half-day holiday before Christmas-and the New Year, and 3 weeks' vaca- tion after 15 years' service. These benefits were further detailed in a letter distributed to all em- ployees dated March 5 which urged them to reject the Union and promised that more departmental meetings would be held in the future to discuss em- ployee grievances. We find that the timing of these events, including, particularly, the announcement of the additional benefits at an important if not crucial stage of the Union's organizational campaign, the connecting of such announcement with the appeal to reject the Union, and the promise to hold additional meetings with employees to discuss their grievances with the clear implication that additional adjustments in working conditions might follow, demonstrate that the announcement of improved benefits was in- tended to induce employees to reject the Union's organizational appeals. The inducement of em- ployees' rejection of union organization through the bestowal of benefits has long been recognized as an improper interference with employees' exercise of Section 7 rights.I Accordingly, we find that by such conduct Respondent violated Section 8(a)(1) of the Act. 2. We agree with the Trial Examiner that 336-845 0 - 70 - 29 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent disparately enforced its no-solicitation rule in violation of Section 8(a)(1) of the Act by prohibiting distribution of literature and solicitation by union adherents while encouraging or condoning similar activity on the part of such antiunion em- ployees as Ivlow, Lagesse, Doran, and Borst. The conduct of Ivlow is clear from the record. Some dozen witnesses2 testified that Ivlow made distributions of antiunion literature, both in working and nonworking areas of the plant, during the work- ing hours of the employees to whom the distribution was made, and during times which fell within Ivlow's shift hours. On one such occasion, Super- visor Vogelsang encountered Ivlow distributing literature in the timeclock room. Although he ad- vised Ivlow he was violating the no-solicitation rule ("If I were you, I would not do it."), he did not in fact require Ivlow to cease his distribution. In this regard, Vogelsang's attitude toward Ivlow stands in contrast to that displayed by him toward a union proponent. Three weeks before the election, Vogel- sang encountered employee Hartman distributing prounion literature in the same clockroom just prior to the commencement of the latter's shift. Vogel- sang ordered Hartman out of the plant: "Get out- side and pass out that stuff and I mean it." And again: "Make sure and change your clothes on your own time too." In addition, employee Graveline testified that, during working hours of the week be- fore the election, she saw Ivlow hand Supervisor Fred a sheaf of his leaflets wrapped in newspaper. Similarly, employee Clipper testified that he saw Supervisor Neblock hand company literature to Ivlow during working hours and that Ivlow im- mediately distributed this literature to Clipper, as well as to other employees. Again, on the night be- fore the election during working hours, Supervisor Fred was seen conversing with Ivlow while he was wearing an antiunion sign, and Fred made no at- tempt to require Ivlow to remove the sign. Ivlow had marched through Fred's department some half- dozen times during the course of the evening while supporting the sign. Employee Clipper also testified that he reported Ivlow's sign-wearing activities to Supervisor Neblock who agreed that Ivlow should be obliged to clock out if he were going to campaign on company time. Although Ivlow did in fact clock out for at least one-half hour, Ivlow himself testified that no one told him to clock out, that in fact he did so without permission. We therefore find that the Respondent condoned, if not encouraged, the anti- union activities of employee Ivlow.3 Similarly, the Respondent was reluctant to inhibit the procompany activities of the other three em- ployees. Doran and Borst each prepared four or The witnesses are Dale Boyer, Violet Bultman, Robert Clipper, James Creekmore, Paul James Ely, James Emling, Mary Graveline, Everette Haggard, Robert Haggard, Robert Osborne, Keith Wilkey, and George Zea. 3 We do not believe it necessary, in so finding, to rely on the Trial Ex- five antiunion documents during working hours and turned them over to Ivlow for reproduction and dis- tribution. Neither individual was ever warned by company officials about preparing or distributing leaflets on company time. On one occasion, Person- nel Director Donner went so far as to compliment Doran on one of his compositions. More significant, perhaps, was the attitude Respondent exhibited toward employee Lagesse. This employee wrote two antiunion leaflets during the campaign. She reproduced 25 copies of each on working time using company paper and equipment, and she distributed tthe leaflets during her working hours. Supervisor Kreft gave her permission to attach one of these leaflets on the window of his office. A similar copy was fixed on the glass of Supervisor Fred's office and another was observed neatly tacked inside the Company's glass-enclosed and locked bulletin board. After the first leaflet was distributed, various company officers or supervisors thanked her for her efforts on behalf of the Company, namely J. L. Mortell, Don Mortell, Kreft, Blais, and Boulger. We also agree with the Trial Examiner that the no-solicitation rule was emphatically enforced against the union adherents. At a meeting of the em- ployees of department 17, the Company informed the employees that they were prohibited from dis- tributing union literature anywhere in the plant. During the campaign, an employee, at the direction of Supervisor Kreft, twice removed union literature from the lunchroom. On another occasion, union literature was removed from underneath the purse of an employee and given to Supervisor Fred. In ad- dition, Supervisor Francoeur told employee Hag- gard he could be fired for carrying union authoriza- tion cards in his pocket, and Supervisor Davis told Haggard he could be discharged for passing out union authorization cards during working hours. Finally, as detailed earlier, Supervisor Vogelsang encountered employee Hartman passing out union leaflets in the clockroom and ordered him outside of the plant. 3. Members Fanning and Jenkins also agree with the Trial Examiner that the Respondent, through the posting of certain notices, attempted to dissuade its employees from cooperating with the General Counsel and thereby interfered with the effective- ness of the Board's processes in securing for em- ployees vindication of rights protected by the Act in violation of Section 8(a)(1). Prior to the hearing in the instant matter, on April 6, 1966, the General Counsel issued some 175 sub- penas, approximately 100 of which were directed to Respondent's employees. Shortly thereafter, Respondent posted a notice on its bulletin board in- ammer's admission into evidence for the truth of its contents that part of Ivlow's affidavit in which he stated that while passing out his literature "in the lunchroom and time clock area, [supervisors] Ken Gachet, Fred Morianty, Don Adame, Ken Neblock and Paul Kreft at one time or another saw me They never said I should stop." J. W. MORTELL CO. 437 forming its employees that if they had any questions about the subpena or letter, they should contact Personnel Director Donner. Donner testified that some six individuals responde,'1 to the notice and sought his advice, among whom was employee Karla Starr. Donner admitted informing her that she did not have to respond to the request for an in- terview. He also testified that he told her that if she did decide to go to the interview during working hours, he wanted advance notice. On April 15 Respondent posted a second notice on its bulletin board in which it stated, in substance, that those in receipt of the subpenas and letters were under no obligation to discuss the case with the General Counsel prior to the hearing, but that if they wished to discuss the matter with the government, they were encouraged to do so. In addition, this notice stated that the Union was misrepresenting the General Counsel's letter requesting an interview by "causing some of our people to believe that they must contact Mr. Eisenberg [the General Counsel's representative] at this time. This is typical of the union ethics we have all seen over the last sixteen months." Thereafter, on May 18 the General Counsel again sent out letters to those witnesses he was attempting to contact. To those employees who had failed to respond to the earlier letter, he once again requested that they contact his representative at a certain motel for an interview prior to the hear- ing. This letter indicated that if the particular em- ployee did report to the interview, he would un- doubtedly be required to spend less time at the hearing and might in fact be excused from testify- ing. "On the other hand, if you arrive at the hearing without having previously talked to me you may have to be present for many hours, or even more than one day, before you are called to testify." Respondent then posted the following notice to its employees: Feel free to go to the motel or feel free to stay away No one can legally pressure you either way. Some of you have been told you will be held in court by the government lawyers for four or five days. This is only a union pressure tactic to force you to go to the motel. We honestly do not believe the government lawyers will hold you in court just to punish you for not going to the motel. You might be required to wait in court several hours but we are confident that an orderly arrangement will be worked out. We sincerely regret these latest union pressure tactics, and we hope you will bear with us until this whole thing is concluded. Feel free to go to the motel or feel free to stay away. We do not believe, with regard to both of these notices, that they somehow gather immunity for the Respondent simply because they advised em- ployees that they may or may not cooperate with the General Counsel when in fact the substantive thrust of each notice is clearly directed to deter such cooperation. The second notice, more strongly than the first, relates the trial preparation of the government lawyers as somehow subservient and susceptible to the interest of the Union, as merely a "union pressure tactic." No more effective state- ment, perhaps, could be made by the Respondent to bring home to the employees its displeasure with those who would cooperate with the government lawyers than that which implies that the General Counsel's representatives were in fact tools of the Union. Particularly is this true in view of Respond- ent's hostility to its employees' union activities made manifest by restraining and coercive conduct. The Trial Examiner found, and we agree, that the characterization in the notice of the General Coun- sel's efforts to interview witnesses as "union pres- sure tactics" was calculated, along with the advice that they were "free to stay," to convince the em- ployees that Respondent did not want them to cooperate with the government. We find that such communications were designed to and would in fact tend to discourage employees from supplying legiti- mate information to a Board agent, thus hindering him in the investigation of the charges filed against Respondent. We find, therefore, that the above- described activities of Respondent interfered with the rights of employees to obtain redress from the Board and thereby violated Section 8(a)(1) of the Act. Certain-Teed Products Corp., 147 NLRB 1517.4 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- 4 Member Zagona would not find that the notices in question were un- lawful. Though Member Zagona is as concerned as his colleagues that ef- forts of General Counsel to interview witnesses not be impeded, in the present case it was the General Counsel who warned hesitant witnesses they might have to be present at the hearing "for many hours, or even more than one day ," if they did not discuss the case with him in advance Six employees had raised questions with the Employer's personnel director about the matter, and, following the General Counsel's warning, the Employer posted a notice which advised employees their preheanng meetings with the General Counsel were voluntary - concluding they should "feel free to go to the motel or feel free to stay away " The notice of April 15, though also advising employees of the voluntary nature of the prehearing meetings , specifically stated "if you wish to discuss the matter with him, you are encouraged to do so " The alleged "union pressure tac- tics" in the May 24 notice seems to Member Zagoria to be linked to what the Union had supposedly told employees , and not, as the majority con- cludes, to the General Counsel's efforts, the Employer's earlier notice of April 15 had likewise stated the Employer had received reports union or- ganizers had "misrepresented " the General Counsel's communications Unlike the situation in Certain-Teed Products Corp., supra, the Respond- ent's notices were temperate in tone Member Zagoria finds insufficient evidence in this case that the notices were "calculated" or "designed" to convince employees that Respondent did not want them to cooperate, or, as the majority also concludes , that Respondent would be "displeased" if they did He would, therefore , find no violation in the notices 438 DECISIONS OF NATIONAL mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, J. W. Mortell Company , Kankakee , Illinois, its officers, agents, successors , and assigns , shall take the ac- tion set forth in the Trial Examiner 's Recom- mended Order , so modified: Substitute the words "on forms provided " for the words "to be furnished" in paragraph 2(f). IT IS FURTHER ORDERED that the election con- ducted in Case 38-RC-89 be , and hereby is, set aside. [Direction of Election omitted from publication.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPH I. NACHMAN, Trial Examiner : This con- solidated complaint ' pursuant to Section 10(b) of the Na- tional Labor Relations Act, as amended (herein called the Act), alleges that J . W. Mortell Company (herein called Respondent or Company), in the course of an organiza- tional campaign by United Automobile , Aerospace and Agricultural Implement Workers of America , AFL-CIO (herein called the Union), violated Section 8(a)(1), (3), and (5 ) of the Act. Respondent's answer admits certain allegations of the complaint , but denied the commission of any unfair labor practice. In Case 38-RC-89 , the Regional Director on April 27, 1966, issued his report on objections to conduct affecting the results of the election, and an order directing a hearing on the factual issues presented by said objections. He further ordered said representation case be consolidated with the captioned unfair labor practice cases, for hearing and decision.2 Pursuant to notice , a hearing was held be- fore me at Kankakee, Illinois, on various days between June 15 and July 1, 1966, at which time the hearing was adjourned to permit the General Counsel to seek subpena enforcement. On August 10, 1966 , the hearing was resumed and concluded . At the hearing, all parties were afforded full opportunity to introduce relevant testimony, to examine and cross-examine witnesses , and to argue orally on the record. Oral argument was waived. On November 18, 1966 , I issued and caused to be served on ' Issued March 30, 1966, and amended April 7, 1966, June 3, 1966, and also orally amended at the heanng Said complaint is based on three sets of charges In Case 38-CA-70 the original charge was filed March 8, 1965, amended April 2, 1965, September 17, 1965, and March 21, 1966 In Case 38-CA-123, the charge was filed August 12, 1965, and amended March 21, 1966 In Case 38-CA-162, the charge was filed December 6, 1965, and amended March 21, 1966 2 The chronology of events in the representation case, to the extent dis- closed by this record, is as follows Apr,l 7, 1965 Petition filed by Union June 29, 1965 Direction of Election August 3, 1965 Election held resulting in 104 votes for the Union, 134 against, and 19 challenged ballots August 10, 1965 Objections to conduct affecting results of elec- tion filed by Union , containing 24 specifications April 21, /966 All objections to conduct affecting results of elec- tion are withdrawn other than those alleged as violations of Act in consolidated complaint issued March 30, 1966, as amended, April 7, 1966 April 27, 1 966 Supplemental Decision consolidating representa- tion case with unfair labor practice case , for heanng and decision LABOR RELATIONS BOARD all parties, an order to show cause why the record should not be reopened to receive certain evidence offered by Respondent on the last day of the hearing but to which objection had been sustained. The parties then entered into a stipulation with respect to the excluded evidence, which was forwarded to me under date of February 13, 1967, and which I now approve. Thereafter, pursuant to my order, a conference was held with all counsel on March 20, 1967, which conference was officially re- ported, and the orders and stipulation referred to were then made a part of the record. Briefs submitted by the General Counsel and Respondent, respectively, have been duly considered. Upon the entire record, including my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT3 1. THE UNFAIR LABOR PRACTICES ALLEGED A. The Facts 1. The setting of issues In November 1964,4 the Union began an organiza- tional campaign among Respondent's employees by dis- tributing leaflets in front of the plant. This activity was admittedly observed by Company Secretary Blais. Knowledge of the Union's activity was also brought home to Respondent by the Union's letter of February 22, in which the Union stated it was trying to organize the employees, complained about acts of interference on the part of some supervisors, and asked the Company to take prompt steps to insure that interference with employee rights promptly ceased. Also by letter dated March 8, the Union furnished the Company with the names of 38 em- ployees who, it stated, had become members of and agreed to serve on the Union's in-plant organizing com- mittee. The organizing campaign was rather extensive, and by letter dated April 6, the Union requested recogni- tion. On the last mentioned date the Union also filed its representation petition, supported by a number of authorization cards After a hearing on the representation petition, at which District 50, intervened, the Regional Director, on June 29,5 issued his Decision and Direction of Election, in which the employees would decide whether they wished to be represented by the Union, by District 50, or neither. As heretofore stated, the election was held on August 3, with a majority of the votes being cast against the Union, and to which it filed objections.6 The General Counsel contends that during the pendency of the representation petition, as well as prior and subsequent to J No issue of commerce or labor organization is presented The com- plaint alleges and the answer admits facts which establish these elements. I find these facts to be as pleaded Nor is there any issue regarding the unit alleged in the complaint and admitted by the answer 4 This was about 6 months after Respondent's employees , in an elec- tion conducted by the Board on a petition filed by District 50, United Mine Workers of America (herein called District 50), voted against union representation. 5 This and all dates hereafter mentioned are 1965, unless otherwise stated 6 The Supplemental Decision in the representation case dated April 27, 1966, does not mention District 50. It does appear that District 50 received no votes I assume that at some point between the Direction of Election and the election , District 50 withdrew from the ballot J. W. MORTELL CO. that period , Respondent engaged in conduct violative of Section 8(a)(1) and (3) of the Act, and that such conduct during the pendency of the representation petition requires that the election be set aside. The General Coun- sel also contends that at all times material the Union represented a majority of Respondent 's employees, and as Respondent had no good-faith doubt of the union majority status when it refused the latter 's recognition de- mand of April 7, such refusal was violative of Section 8(a)(5) of the Act. To remedy these violations, the General Counsel argues, Respondent should be required to bargain with the Union , on request. Because the Board , in deciding whether the results of an election should be set aside because of improper con- duct by an employer or a union , will consider only that conduct which occurred after the filing of the petition to and including the day of the election '- the so-called criti- cal period - it is necessary to state separately , the events upon which the General Counsel relies, which occurred during the critical period from that which occurred before or after the critical period. 2. Events in precritical period a. Interrogation of Haggard As heretofore stated, the Union began its campaign to organize Respondent's employees in November 1964, at which time it distributed handbills to which were attached authorization cards. Thereafter a number of employee meetings sponsored by union representatives were held at a local motel, the first on February 10. 11 The following day Francoeur, an admitted supervisor, asked employee Robert Haggard, at the latter's work station, how large the attendance was at the union meeting the preceding day, whether the greater number of those attending were from production, or from maintenance, and whether they were mostly men or women. Haggard replied that it was "about half and half' and that it was a "pretty good size meeting." Approximately a week later, Francoeur again spoke to Haggard at his work station. On this occasion Haggard had some authorization cards in his shirt pocket that were visible to Francoeur. The latter told Haggard that he could be fired for carrying the authorization cards, and directed Haggard to get them out of his pocket. Hag- gard protested that there was nothing wrong in what he was doing so long as he did not distribute them on com- pany time Also in mid-February, Pierce Davis, an ad- 'Ideal Ele tric and Manufacturing Company, 134 N LR B 1275, 1278, S N C Manufacturing Co , Inc, 147 NLRB 809, 810, 823 The rule is the same whether the election is directed, as in the instant case, or held pursuant to consent of the parties Goodyear Tire and Rubber Company, 138 NLRB 453, 454. 8 Employee Robert Haggard testifed that the first union meeting was in December 1964 The record clearly established that it was on February 10, and that Haggard was mistaken about the date I so find " Based on the credited testimony of Haggard Francoeur testified that he had only one conversation with Haggard, and that this was the occa- sion when he saw the union cards in Haggard's pocket He admitted that on this occasion he told Haggard that the latter could be fired for passing out cards during working hours, but denied that he told Haggard that he could be fired for having cards in his possession, or that he asked Haggard about the attendance at the union meeting on February 10. He did not deny that he directed Haggard to get the union cards out of his pocket. Davis, though called as a witness by Respondent, was not examined re- garding the statement attributed to him by Haggard 10 Gallois denied that she had any conversation with Scarborough about the Union She testified that although she took her breaks with the 20 em- 439 mitted supervisor, told Haggard that the latter could be fired for passing out cards on company time. Haggard de- nied that he passed them out during working hours." b Interrogation of Scarborough In the latter part of March, Gallois, an admitted super- visor, asked employee Scarborough, who was then on duty, "What is this I hear about you signing a union card? . I thought you were against the Union, you were at the last election." In the course of her statement Gallois also remarked that Chaney LaSage, a fellow employee, tells me "she has you signed up, hook, line and sinker." Scar- borough intentionally made an evasive reply so as not to indicate whether she was for or against the Union. 10 c. Management meetings with employee-improved benefits announced Between March I and 5, a series of management-em- ployee meetings were held at which improvements in em- ployee benefits were announced The full significance of these meetings require some background explanation. In 1964, the Board conducted an election among Respond- ent's employees; District 50 and Machinists being on the ballot. The election resulted in a certification that neither union was the majority representative. According to Secretary Blais, the closeness of the vote in that elec- tion caused Respondent to suspect that its then-current employee practices, which were set forth in a booklet is- sued in August 1963, and distributed to all employees," were not in accord with local practices, and its executive committee directed a study of the problem and recom- mendations for remedial actions. Thereafter, and before the commencement of the union activity here involved, the executive committee acting on the report submitted to it directed the following changes: (1) a 5-minute washup period before lunch; (2) designated as a paid holiday the last half of the regular workday prior to Christmas and the New Year; (3) modification of the va- cation plan to provide a vacation with pay of I week after I year of service, 2 weeks after 3 years of service, and 3 weeks after 15 years of service;12 (4) the promulgation of a rule prohibiting solicitation or distribution on behalf of a union;13 and (5) a profit-sharing plan. The changes in fringe benefits thus approved by the executive committee were not then made known to the employees, but were in- corporated in a revised booklet, for distribution to em- ployees under her supervision, and ate her mid-shift meal with them, she never heard a word from them about the Union from the beginning of the campaign in November 1964, through the election In view of the hard fought campaign, and the union solicitation and literature distribution in and out of the plant, I credit Scarborough 11 A copy thereof, designated as "Old Booklet," is in evidence, as a part ofJomt Stipulation I 12 Prior to this the ,acation was I week after 1 year, and 2 weeks after 3 years of service 13 The complaint alleges and the answer admits that on July 28, 1964, Respondent promulgated and, until October 1, 1965, maintained in effect rules which prohibited employees from (1) "engaging in any solicitation on behalf of any union or other organization in any area of [the] plant dur- ing work hours," and (2) distributing "any union or other literature in any working area of [the] plant at any time " The complaint does not allege, nor does the General Counsel contend, that the aforesaid rules were adopted with a discriminatory intent, rather the contention is that Re- spondent enforced said rules in a discriminatory manner, as between those who favored and those who opposed UAW 1 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees about March 1." However, because of an error in the last mentioned booklet, it was never distributed to the employees.'5 After revision, another printed booklet reflecting all the changes, including the rule prohibiting solicitation and distribution, above referred to, was dis- tributed to employees about September 9. 16 At the management-employee meetings held between March 1 and 5, the entire group of fringe benefits thereto- fore approved by the executive committee were made known to all employees. These management-employee meetings take on additional significance from a letter dated March 5, which Respondent distributed to its em- ployees. This letter, after referring to the fact that the em- ployees had rejected District 50 and Machinists in 1964, and stated, "Now another union is trying to sign up our employees in order to collect union dues." The letter also referred to the improvements in working conditions, men- tioning specifically (I) the profit-sharing plan; (2) the ad- ditional week of vacation to employees with 15 or more years of service; (3) the additional half-day holiday be- fore Christmas and the New Year; (4) upgraded wage rates which were said to compare favorably with wages paid by other plants "which have been unionized for many years." The letter of March 5 also told employees that management officials would continue to hold monthly meetings with the employees, where they could discuss grievances or make suggestions, and concluded with the plea that each employee "give this matter your serious thought," and "reject the efforts of these [UAW] union organizers at this early stage." weeks, Erich prepared and delivered to Kreft the requested list. Kreft gave the same instructions to Floor- lady Fred, an admitted supervisor. Fred also complied with Kreft's instructions, but her testimony is that she did so only on one occasion. There is no evidence that the employees knew or had reason to believe that such lists were being prepared, nor is there any evidence as to the use Respondent made thereof." b. Reply to Steen's requestfor a pay raise Employee Steen had been active in support of the Union , having attended several of its meetings and signed an authorization card in its behalf. About 3 weeks before the election , and while wearing a UAW button, hat, and T-shirt , Steen asked Supervisor Francoeur for a raise. Francoeur's reply as he walked away from Steen was, "what with that rag?"" c. Reply to Southard's requestfor a pay raise Some 2 or 3 weeks prior to the election, employee Southard also, while wearing a union button, asked Fran- coeur for a raise. Francoeur replied, "as long as you wear them damn union buttons, you ain't going to get no raise." On the day before the election, Supervisor Davis asked Southard whether he was going to vote for the Union or for the Company Southard replied that he would vote for the Union. Davis then stated that it made no difference if the Union got in or not "it is going to be hard as hell on all of us."" 3. Events in critical period The General Counsel contends that shortly after the fil- ing of the representation petition, to and including the day of the election, Respondent engaged in a course of con- duct which not only interfered with the election, but con- stituted violations of Section 8(a)(1) and (3) of the Act. The details of these incidents are: a. Instructions to prepare lists of union insignia wearers In the 3 months prior to the election, Supervisor Kreft had several conversations with Rosetta Erich, a depart- mental floorlady whose supervisory status is conceded, telling her to prepare a list of employees in her depart- ment who wore UAW insignia. Daily for the next 2 14 Respondent contends that some of these improved benefits were made known to the employees in January Although there is some testimony supporting this contention, I find it unnecessary to resolve those conflicts because assuming such announcements were made as Respondent contends, the announcements were not made generally to all employees 11 A copy thereof, identified as the "Never Issued" booklet, is also a part of Joint Stipulation 1 The principal error therein was in the "No Sol- icitation" rule which, as printed, prohibited "any solicitation on behalf of a union in any part of the plant." 16 A copy of this, designated "New Booklet," is likewise a part ofJoint Stipulation 1. 11 Based on the credited and uncontradicted testimony of Erich and Fred regarding this matter Kreft, when testifying, did not deny that he gave such instructions 18 Francoeur testified that Steen frequently asked him for a raise and that he always replied to the effect that regulations of the Board did not permit raises while an organizational campaign was in progress He ad- mitted that the request by Steen was probably made while the latter was wearing UAW insignia, but denied that he made the statement attributed to him, or that he referred to the UAW T-shirt as a rag I credit Steen d. Disparate enforcement of no solicitation-distribution rule As heretofore stated, the Company's 1963 work rules, set forth in the "Old Booklet," above mentioned, con- tained no prohibition against union solicitation or litera- ture distribution by employees.20 Prior to the Union's campaign, the Company announced to the employees and posted in the plant a rule prohibiting union solicitation in the plant during working time.21 Shortly after the Union began its campaign, Respondent installed a glass enclosed and locked bulletin board where company notices to em- ployees were posted. This was obviously installed to ena- ble Respondent to control the material to be posted 19 As in the case of Steen, Francoeur admitted that Southard asked him for a raise and that he replied that it could not be given because Board regulations prohibit such in the course of a union campaign He denied that he made any comment to Southard about union buttons Davis ad- mitted that he had a number of conversations with Southard regarding the union campaign, but that such conversations were started by Southard. He denied that he asked Southard how the latter would vote in the elec- tion or that he made the precise statement attributed to him by Southard. According to Davis, he told Southard, as well as other employees, that the union campaign "would be pretty hard on all of us, because of the bicker- ing [and] hard feelings among some of them." In each instance I credit Southard 20 The "Never Issued" booklet did contain a prohibition against sol- icitation, but this was not given to employees because of an error therein. The "New Booklet," containing a corrected no-distribution rule was not distributed to employees until about September 9, over a month after the election 21 The General Counsel agrees that the rule is valid on its face, but con- tends that enforcement thereof by the Company, as between the pro- and anti-union employees, was disparate J. W. MORTELL CO. 441 thereon .22 The evidence shows that employees Alex Ivlow, Jeanette Lagesse, William Doran, and Dean Borst distributed antiunion literature in the plant. The circum- stance of such distribution, Respondent's knowledge thereof, and its reactions thereto, will now be stated. (1) Activities of Alex Ivlow Ivlow was the group leader on the second shift in de- partment 17, where the work is largely the unloading of inbound materials. Respondent conceded that Ivlow is not a supervisor within the meaning of the Act. During the relevant period, Ivlow's shift was from 3:30 to 11.30 p.m., with a half-hour meal break at 5:30. From sometime in March, to and including the day preceding the election, Ivlow prepared approximately 12 pieces of antiunion literature for distribution among the employees. Some of these Ivlow composed himself, others were given him by Doran or Borst in draft for final preparation. All work on the material which Ivlow prepared was done at his home with materials which he paid for .23 About half of the documents prepared by Ivlow were prepared in quantities of 25 or less, but the remainder were run off in quantities of about 300, and distributed in the plant, chiefly by Ivlow. A number of employees testified that within a month or two before the election, they received from or observed Ivlow distributing his literature in work areas of the plant while they were at work, and in some instances they fixed a time that falls within Ivlow's work hours. 24 it also appears that on a day about 2 weeks before the elec- tion when Ivlow was on vacation, the latter went to the plant, arriving about 11:30 a.m. and spent about 45 minutes distributing his literature in the lunchroom, cof- fee shop, and clockroom areas of the plant.25 Ivlow, a wit- ness who was plainly hostile to the General Counsel, and strongly opposed to the Union, admitted that on this oc- casion while he was passing out his literature in this clockroom, he encountered Production Manager Vogel- sang, who told Ivlow that he should not be distributing the literature; that he (Ivlow) stated, "they [union proponents] do it. 1 am only putting my stuff where they put theirs"; and that Vogelsang replied, "well you know the rules, if I were you, I wouldn't do it." Aside from this statement, Vogelsang did not reprimand Ivlow or make any effort to stop him from distributing literature in the plant.26 Indeed, the evidence shows that throughout the period Ivlow engaged in his distribution of literature, aside from the one conversation with Vogelsang, no management representative asked Ivlow when or under what circumstances he prepared his material, or cau- tioned him as to when or where he could or could not dis- tribute it. The evidence also shows that on one occasion ivlow had marked up a newspaper article dealing with strikes, and that the same article, marked as it had been by Ivlow, later appeared tacked up inside the glass en- closed and locked bulletin board to which no employee had a key. There is no evidence nor is there any claim that anyone tampered with this bulletin board. Although Ivlow testified that he could not recall whether he was seen by other supervisors on the vacation day that he dis- tributed literature in the plant, in an affidavit he gave the General Counsel, in the course of the latter's investiga- tion, Ivlow stated that while passing out his literature "in the lunchroom and timeclock area, [supervisors] Ken Gachet, Fred Moriarity, Don Adame, Ken Nebloch and Paul Kreft at one time or another saw me. They never said that I should stop." Of this group of supervisors, only Kreft testified, but no questions on this point were put to him. Although Ivlow's affidavit was received only for impeachment purposes, I find, based on his demeanor and evident hostility to the General Counsel, the above- quoted statement from his affidavit to be true. I do so because I regard this as an appropriate case for the appli- cation of the rule approved by the Supreme Court in N.L.R.B. v. Walton Manufacturing Company, 369 U.S. 404, 409. The evidence shows that during working hours of his shift (3:30 - 11:30 p.m.) preceding the election on August 3, Ivlow was particularly active in the plant. Thus, Ivlow admits that during his working hours and during the work- ing hours of the other employees involved, he paraded through the plant27 wearing a sign with the legend, "Do not horsecollar Mortell."2K Although Ivlow first said that he could not recall and later denied that any supervisor observed him displaying the aforementioned sign, his af- fidavit given during the investigation states that Super- visor Fred saw him wearing the sign, but she did not tell him stop.2' Employee Robert Clipper credibly testified that after observing Ivlow with the sign, he reported to Supervisor Neblock what Ivlow was doing, but there is no evidence that Neblock took any steps to stop Ivlow or to reprimand him for this activity. In view of the duration of Ivlow's activity during the evening of August 2, the fact that he admittedly engaged in it throughout the plant, and the testimony of Clipper, which I credit, I find that Ivlow's activity came to the attention of Respondent's management officials, and that none of them took any steps to stop lvlow's activity. (2) Activities of Jeanette Lagesse Lagesse was a clerk in the mail and shipping room, who, in connection with her work, used a typewriter and mimeograph machine. During the election campaign, Lagesse prepared two antiunion leaflets; the first entitled "Why Bite The Hand That Feeds You" and the other "Do you Know That Other Unions Have No Use For U.A.W." Lagesse prepared about 25 copies of each 22 As Company Secretary Blais expressed it, ". . we knew there was an organizing attempt imminent so we thought we had better get a [glass enclosed] bulletin board which was a little less accessible to the em- ployees." 23 Ivlow testified, without contradiction, that all mimeograph work was done on a machine belonging to his church, but available to him 24 Based on the composite of the credited testimony on this point by Paul Ely, James Creekmore, Robert Osborne, Everette Haggard, Dale Boyer, George Zea, Mike Emling, Robert Haggard, and Mary Gravelme 25 In going to the plant, while on vacation, Ivlow violated company rules. Company Secretary Blais testified that such rules prohibit an em- ployee from being on plant premises more than 10 or 15 minutes prior to their scheduled work period, and that while on vacation, employees should not be in the plant at all 26 Vogelsang denied that he ever saw Ivlow distribute literature in the plant, but that on some unidentified occasion he found a pamphlet in the plant bearing lvlow's name, that he sought out Ivlow and told him, "re- member this, you are not to pass this out on Company time or inside the clockroom " To the extent that Vogelsang's testimony conflicts with that of Ivlow, I credit the latter 2] As Ivlow put it, "I was every place " Ze Mow described the sign as about 18 inches or more in width, suspended from a string around his neck and extending from the top of his chest to about 4 inches below his belt 29 Supervisor Fred, although called by Respondent after i vlow testified, was not asked about Ivlow's activity in her department 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD leaflet on company time, using company equipment. She did this in her work area located 10 to 15 feet from her su- pervisors' glass enclosed office. After preparing the first leaflet, Lagesse posted six copies on departmental bul- letin boards,"" where they remained for some undisclosed time, and she gave one copy of it to her supervisor. In ad- dition, Lagesse showed a copy of the first leaflet to Super- visor Kreft and asked for permission to post it on the glass portion of his office partition. Kreft agreed and Lagesse affixed the leaflet to the glass on the inside of his office (located in a work area of the plant), but with the written material facing out so that it could be read from the outside. A copy of this leaflet was also on the glass partition of Supervisor Fred's office, and tacked up inside the glass enclosed and locked bulletin board. How the leaflet reached the two last mentioned locations, the record does not disclose. There is no evidence that any supervisor inquired of Lagesse as to when or under what circumstances she prepared or distributed her antiunion material. However, management officials J. W. Mortell, Don Mortell, Kreft, Blais, and Boulgar thanked Lagesse for her activities in that regard saying, according to Lagesse, "they were pleased to know that somebody was for the Company and was not afraid to say SO. `31 (3) Activities of William Doran During the month of July, Doran prepared four antiu- nion poems. These were prepared in longhand during working hours, and delivered to Ivlow, who typed and returned them to Doran for distribution and posting. Typed copies, over Doran's signature, were posted in various areas of the plant. No supervisor or management official asked Doran when or how the material was prepared or whether it was distributed and posted in com- pliance with Respondent's plant rules. pervisors told at least two employees that they could be fired for having authorization cards in their possession while in the plant, or for distributing them during working time. The evidence shows that this attitude toward dis- tribution of union literature on its premises continued during the period of the election campaign. Thus: (I) About 3 weeks before the election, employee Hart- man was in the clockroom with an estimated 50 to 100 leaflets in his hand.33 Production Manager Vogelsang ob- served this and as he passed through the clockroom, told Hartman to get outside to "pass out that stuff." Hartman, however, remained in the clockroom and when Vogel- sang came back a little later, he told Hartman, to get out- side to pass that stuff out and I mean it and added, "make sure you change your clothes on your own time, too." Hartman then went outside to pass out leaflets. (2) Rosetta Erich, at the direction of Supervisor Kreft, twice removed union literature from the lunchroom tables and delivered the same to Kreft. (3) On a day about 3 weeks prior to the election, em- ployee Gremar had placed a quantity of UAW literature under her purse on a table provided for that purpose. After being away from her work area for a few moments to look for her supervisor, Gremar observed her super- visor walking with Supervisor Kreft and the latter had in his hand the UAW literature which Gremar had left under her purse. Nothing was said to Gremar about this incident nor did Kreft make any explanation of it when he testified. (4) About 2 weeks before the election, the Company called a meeting of the employees in department 17 and the shipping department. One of the employees attending was Dale Boyer, who testified that Company Secretary Blais spoke at this meeting and in the course of his re- marks stated that employees were prohibited from dis- tributing union literature anywhere in the plant.34 (4) Activities of Dean Borst Borst wrote some four or five antiunion documents which he delivered to Ivlow to be put in final form. Ivlow mimeographed two of the documents in substantial quan- tities and typed the remainder. This typed material, over Borst's written signature, was posted on the bulletin boards in the lunchroom and the canteen room.32 The mimeographed material he distributed to employees in front of the plant. No supervisory employee asked Borst when or under what circumstances he prepared the posted material, what other use he made of it, nor was he reprimanded for posting it, but Borst did testify that he was told by his foreman not to distribute literature on company time. (5) Company attitude toward UAW literature distribu- tion in the plant As heretofore set forth (supra, sec I, A, 2, a), in the period prior to the filing of the representation petition, su- 30 These are not enclosed Also posted on these boards were UAW literature 3' Of this group the only ones to testify to matters of substance were Kreft, Blais, and Boulger None denied the statement attributed to them by Lagesse 32 These bulletin boards are not glass enclosed 33 The evidence does not indicate the reason for Hartman being in the clockroom He did testify that he was on his own time 34 Respondent sought to contradict Boyer by his pretrial affidavit, in e. Literature distribution and speeches by Company The General Counsel contends that during the month preceding the election , Respondent distributed to its em- ployees various leaflets which, when considered together and in their context , communicated to them the threat of the "inevitability of a strike and other dire consequences" if they selected the Union. He points to: (1) By letter dated July 1, Respondent told its em- ployees that it would shortly answer such questions as, "Is the UAW really a `strike happy union?"' and "What union had more employees on strike last year than all other unions put together?"35 (2) The letter of July 13, entitled "The High Cost of a Union," told the employees that $1.25 of the Union's $5 monthly dues "goes to the UAW strike fund," and that the dues could be raised "as high as they want." (3) The letter of July 23, discussed "The UAW Strike Record." This record, the letter asserted, "was unbe- lievable," and that the reason for this record, according to comment was "that the UAW officials just didn't care." which he said that Blais was present a:. this meeting but that he could not recall which speaker told them not to distribute in the plant Neither Blais nor any other company official denied making the aforementioned state- ment I therefore find that the statement was made by a responsible offi- cial of the Company but I make no finding as to who it was 31 This letter concluded with a statement to the effect that increased wages and improved fringe benefits do not result simply from voting in a union, and that a union that wins an election gets only the right to talk to the employer J. W. MORTELL CO. After quoting the Chicago Daily News which called a UAW strike against General Motors, its dealers , and sup- pliers, during the fall of 1964 , "a gratuitous kick in the teeth ," the letter asked , "would it [UAW] hesitate one minute to do the same at J. W . Mortell Company?" The letter then tells the employees that even successful strikes for higher wages result in monetary losses to employees which they recoup only after the lapse of a considerable period of time, dependent upon the duration of the strike, and pointed to UAW strikes against other employers which lasted from 4 weeks to 8-1/2 months . After stating that United States Department of Labor statistics for 1964, showed that "the UA W had more major strikes in manufacturing industries than all other unions put together" the letter concluded: When we add it up, we come to one conclusion. The UAW is strike-happy. We leave it up to you to de- cide if you think the UAW would treat J. W. Mortell employees differently than it had treated other em- ployees. (4) The final preelection letter, dated July 27, after telling the employees that wage increases would not come automatically if the Union won the election , but would be a matter of negotiation with the Company, stated: Would the UA W have a good or bad effect on your wages at J. W. Mortell Company? Our Company supplies major automobile manufacturers. For some products we are the sole supplier. The bulk of our goods are not sold to the public. We must give prompt and uninterrupted services to the auto manu- facturers . If we can't provide service , we stand to lose our business. As you know , American Motors is one of our big customers . Several months back an American Motors supplier in Chicago, Young Spring and Wire Company , was called out on strike by an AFL-CIO affiliate union of the UAW. This strike shut down American Motors. We have not checked to see what happened to this supplier of American Motors , but it is possible that American Motors "split sources." The auto manu- facturer, when his supplier is unionized and faces a strike, may want to buy his requirements from two or more companies . If one supplier is out on strike, the other supplier can keep the manufacturer supplied. We don't know if our auto customers would follow the "split source" idea, but we feel sure about one thing. If the UAW called a strike at J. W . Mortell which shut down American Motors or some other auto company , our continued volume of business would seem shaky. We don't know if the UAW would call you out on strike, and we hope they never would , but their strike record is bad . In 1964, all you read about in the newspaper was one UAW strike after another. (5) On July 29 and 30 , Company Secretary Blais gave one speech to seven groups of employees. In these speeches , Blais spoke on the theme of UAW's proclivity for strikes , saying that in 1964 one-half of the Union's membership was on strike for some period , and stated that this was of concern to Respondent because: Our business operation has been successful in the past because we have built our reputation on the basis of dependability and service . We cannot and do 36 It was stipulated that in making these statements , Woltman was act- ing as an agent of Respondent. Blass admitted that in the five other 443 not want to risk to even have the possibility of our plant affected by a strike of any duration. Blais then referred to two strikes by UAW at a nearby auto plant , customers of Respondent , stating that because the plants were struck Respondent could not ship its product to them , thus causing a loss of business, and added: As a matter of fact , [UAW] is so strike-oriented that of the dues they ask you to make of $5.00 a month, $1.75 goes into a strike fund . One out of every $3.00 you are asked to pay in the form of dues goes into a strike fund . It certainly sounds to me like they use strikes at the drop of a hat. Blais then told the employees that Respondent was against UAW because that Union "has a traditional record of interfering with the rights of management," and added "that the most significant reason that Studebaker [formerly a very good customer ] is not making automo- biles today is because of the iron-clad policy pursued by [UAW] in the handling of Studebaker's management af- fairs." At this point , in two of his speeches , Blais called upon Purchasing Agent Woltman, a former Studebaker employee for 39 years, who spoke about several incidents he regards as indicative of the Union's inflexibility toward the assignment of personnel to specific classifica- tions, and concluded by saying, "these are some of the ridiculous things that I think greased the skids for Stude- baker."36 In his speeches to the employees , Blais several times referred to the Union as "strike happy," and ad- mitted that he stated that one of the reasons he would not vote for the Union was that he "would have to consider the possibility of going on strike if management and our bargaining committee could not come to terms." The theme of UAW's proclivity to strikes was also kept be- fore the employees by means of newspaper accounts of UAW strikes at other plants , some five or six copies of which Blais admitted were posted by the Company in its glass enclosed bulletin board , during the 4-month period prior to the election. - f. The Barbieri appreciation dinner Frank Barbieri began his employment with Respondent in July 1928. In mid-July Respondent gave a dinner party to honor Barbieri for his years of service. The party was attended by several of Respondent's management offi- cials, and a large number of Barbieri's coworkers. At the dinner Barbieri was presented with a watch. It is con- ceded that Respondent paid the cost of the party and of the watch, but the amount of this is not disclosed by the record. Secretary Blais, who had been with the Respond- ent for 7 years, could not recall such a party or gift by Respondent prior to the one for Barbieri. There is no evidence, however, that any other employee had worked for Respondent as long as Barbieri; nor is there any evidence that the Union or union activity was discussed at this party. g. The gift of caulking materials About July 15, Respondent posted a notice to its em- ployees that it was discontinuing the production of 15 specified colors of oil-based caulk in cartridges , and that speeches he made, when Woltman was not present, he tried to convey the same point. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such material would be available to employees free of charge, so long as the supply lasted. It is conceded that about 3,000 cartridges, having a retail value of 28 cents each, were given to the employees. No distribution to em- ployees of its manufactured products had theretofore been made by Respondent Although the notice posted by Respondent indicated, at least by implication, that Respondent's reason for distributing the caulk was that it had discontinued production of the specified colors, the testimony adduced by Respondent was that due to a de- fect in the cartridge or the process of sealing it, air had en- tered the container causing the caulk to harden and become unfit for use; that for a period of 8 or 9 months it tried to sell this material at greatly reduced prices, but was unable to find a buyer at any price; and that to avoid handling the material in a fiscal inventory to be taken the latter part of August, it was decided to give it to the em- ployees. However, some employees who took the caulk testified credibly that they encountered no difficulty in using it. h Revocation of Emling promotion James Emling had worked for Respondent about 4-1/2 years. His duties included distributing packaging materi- als to the various departments, storing finished products in the warehouse, and removing them when necessary for filling orders. During the early part of 1965, Emling was an open and active supporter of the Union: he attended union meetings, signed an authorization card, solicited at least one employee to do the same, and, for some undis- closed period, wore a union button at work. On April 16, about a week following the filing of the representation petition, in the course of conversation with Management Representatives Adame, Boulger, and Blais, Emling was asked if he would take on the responsibility for ordering packaging material;37 that the job would be given him for a 90-day trial period, and he would receive an immediate 15-cent hourly increase in pay .311 1 Emling accepted, and his pay was increased as above stated.39 Upon assuming his new duties, Emling ceased the activities on behalf of the Union, in which he had for- merly engaged. However, sometime in June, Emling resumed his union activities, again wearing union buttons in the plant, participated in the Union's in-plant commit- tee, sought to convince his fellow employees to assist the Union, and distributed literature in front of the plant. About a week after Emling resumed his union activity, Foreman Adame sent for Emling and told the latter that he was spending too much time in department 7 (where mostly women are employed), and that he should not go there without permission. Prior to this occasion, Adame had not criticized Emling's job performance. On July 19, Emling not having been told whether he was satisfactorily performing the additional duties as- signed him on April 16 went to Plant Manager Boulger and asked what decision had been reached in that regard. Boulger stated he would look into the matter. Two days later, Emling was called to Personnel Director Donner's office.40 There he found Donner, Blais, and Adame. The first remarks were by Donner, who told Emling that he (Donner) had heard that Emling was sol- iciting for the Union on company time. Emling denied that he did so, but admitted that he had asked an em- ployee a question. Donner replied that the next time he heard of this, Emling could consider himself in "hot water."41 Blais then told Emling that the 90-day trial period with respect to the extra duties assigned him in April had been extended another 30 days. Emling asked why, and Blais replied that it was because of Emling's at- titude toward supervisors, and referred to an incident when Emling allegedly called Supervisor Kreft "a damned fool." Blais also told Emling to discuss the al- leged incident with Kreft.42 Emling ,discussed the matter with Kreft, and the latter referred to an incident some 3 weeks before, when Personnel Manager Donner was present that, as Kreft felt, Emling had referred to him as "a damned fool." Emling replied that he had no recollec- tion of having made such a remark, but if he had, he apologized. Kreft told Emling to forget It.93 It is not disputed that in the 3-week interval, neither Donner nor Kreft mentioned this incident to Emling, or in any way reprimanded him for the alleged remark. The 30 days' extension of Emling's trial period expired on or about August 19, the Board election having been conducted the intervening August 3. On August 17, Su- pervisor Adame told Emling that all overtime for him would be eliminated, effective immediately, and with respect to his extra duties added, "Well, probably we will save that shock for you for another day. "44 The following day Plant Manager Boulger told Emling that the extra du- ties assigned to him in April, and the increased pay therefor, were being taken away as of the end of that week. Boulger admitted that the return of these duties to Kreft meant reverting to the system prevailing just prior to April 1965, that Kreft continued to perform those du- ties until the end of 1965. " Blais described the job as keeping abreast of the Company's require- ments for packaging material , and initiating procurement when the necess- ity therefor was indicated 38 At this time , Blais testified , the ordering of packaging materials had been the responsibility of Supervisor Kreft, but that he was overloaded, and that at times packaging materials were not available when needed 18 The duties so assumed by Emling were in addition to those he nor- mally performed 4° About 3 hours before going to Donner's office, Emling had some discussion in Respondent 's warehouse , with his fellow employee Doran, regarding the Union Doran is one of those who had distributed antiunion literature in the plant, as set forth, supra, sec 1, A, 3, d, (3) 41 Although Donner denied making other statements attributed to him by witnesses for the General Counsel , he did not deny this statement at- tributed to him by Emling 42 Blais gave substantially the same version of this incident According to Blais , he told Emling we are extending your trial period by another 30 days We want you to know that generally you are doing the job satisfactorily How- ever, we don't like your attitude towards management We have a re- port that you called Mr Kreft a damned fool and that you , in general, have a surly attitude toward other members of the supervisory peo- ple We would hope that you would correct this attitude in the next 30 days 4' Kreft testified that he was unable to say that Emling did or did not call him a damned fool According to Kreft, he heard Emling say any damned fool," but there were also other words which he did not hear Kreft admitted that, in conversation with Emling some 3 weeks after the event , the latter apologized He did not deny that Emling told him he had no recollection of having called him a "damn fool," nor did he deny that he told Emling to "forget it " 44 Based on the uncontradicted and credited testimony of Emling Adame did not testify i. The X-1 incident J. W. MORTELL CO. 445 The General Counsel contends that during the month of July, a group of female employees, who worked the second shift in department 7, came to work wearing union buttons and hats, as well as other UAW insignia affixed to their clothing, and that Floorlady Fred moved these insignia wearers from their normal work stations to an isolated portion of the department, stating that she was doing so to keep the other employees from seeing what these employees were wearing, and that she hoped these employees would not lose their jobs because of it, and that she (Fred) would not lose hers.45 The General Counsel claims that these employees were assigned to what is known as the X - 1 machine, as Graveline, Bult- man, and Gremar testified. Floorlady Fred denied that she made the remarks above set forth. She also denied that the fact that the em- ployees involved wore union insignia had any part in her decisions on work assignments, or that there was any in- tent to segregate or isolate wearers of union insignia. To support this denial, Respondent introduced a chart prepared from its basic records.46 The chart is as follows: Number of second=shift Dates X -- 1 operated in July 1965 employees assigned to X -- 1 Total button wearers assigned to X -- 1 July 1 12 3 7 11 4 8 13 4 9 10 3 15 13 4 16 10 4 " 17 11 3 " 19 13 3 " 20 10 3 " 21 12 4 22 18 5 24 14 1 26 13 3 27 12 5 28 14 2 29 10 2 30 13 3 Fred's testimony is clear that the entries in the third column do not appear in any basic record; she reached these figures because the basic record indicates the product being produced at the time, and based on her knowledge of the operations required to produce that 45 Witnesses on behalf of the General Counsel who gave testimony as to this incident were not entirely consistent Witnesses Gremar and Bult- man testified that five employees were involved in this incident (Love, Gremar, Craig , Graveline, and Bultman) Witness Gravelme testified that six were involved, the five heretofore mentioned and Ervin Gravelme testified that the incident happened "a little bit before the election"; Gremar said "about a week before the election", and Bultman at one point said "about 4 weeks before the election," and at another point that it was "about a week before the election " Floorlady Fred said six employees wore UAW insignia naming in addition to those mentioned by the other three witnesses, Carmicel. Fred admitted, however, that Carmicel wore union insignia on some days, but not on others , and there is no evidence to establish that she did so on the occasion in question I find it unnecessary to resolve these conflicts,. because the only critical factors to be deter- mined are (1) did the event occur in the critical period and it does not appear to be disputed that it occurred sometime in July, (2) were the em- product, the operations which particular employees per- formed, and knowing those who wore union insignia, she was able to determine the number of insignia wearers as- signed to X - 1 on a particular day. j. Election day parking of vehicles The hours of the election on August 3, were between 6 and 8 a.m. and 3:30 to 4:30 p.m. When Union Representative Polich arrived at the plant about 5:45 a.m., he observed a number of motor vehicles parked on both sides of the street on which Respondent's plant faces.47 The vehicles remained so parked until--after the balloting was over at 4:30 p.m. During the morning, ban- ners were affixed to a number of the parked vehicles that read "Think Mortell Company, Job. Security Since 1895." About noon a larger sign reading, "Why take a chance on strike-happy UAW? Keep these units rolling, vote NO," was affixed to one of the vehicles, and remained there for the balance of the day. Blais conceded that the Company does not ordinarily park its vehicles on the street, and that this is perhaps the only time it did so. Respondent offered no testimony with respect to the reason for parking the vehicles as above set forth. k. The material-throwing incident Between 11 and 11:30 p.m., on August 2, four representatives of the Union including Robert Polich, were on the public sidewalk in front of the plant distribut- ing handbills to employees going to or from work. Sud- denly, and without warning, a quantity of fibrous material hit one of them in the chest, and splattered the others. At the time, no one on the outside, so far as the evidence shows, knew who threw the material, where it came from, or the circumstances which caused it to fall. Shortly after the material fell, Personnel Director Donner came out on the street and upon being informed by Union Agent Polich about the falling of the material replied with a grin, "I take it someone else does not want you around here." The evidence shows that the idea of throwing the material on the union agents originated with employees Doc Jones and V. G. Board, both of whom had signed cards on behalf of the Union. As Board and Jones were going toward the roof to carry out their purpose, they met Personnel Director Donner and Supervisor Neblock, told them what they proposed to do, and asked Donner and Neblock what they thought of the idea. Donner replied, as Board testified, "that if we did, just not to involve him, don't let anybody know that he knew anything about it. So, we did [throw the material]."48 There is no evidence ployees in fact segregated , and (3 ) if they were , was this in reprisal for wearing UAW insignia. 96 The basic records were made available to the General Counsel for checking the accuracy of the chart, and for his use in cross-examining Fred who identified and testified with respect thereto . The General Coun- sel makes no contention that the basic records do not support the entries in the first two columns in the chart 47 Photographs of the scene , which are in evidence , show these con- sisted of private cars , including Blais' personal car, tractor-trailer com- binations, and straight trucks carrying Respondent's name; over-the-road tankers, apparently used to transport Respondent 's products; and trailers carrying the name of an over-the-road trucker. 4e My findings as to this incident are based on the composite of the credited and, on this point , uncontradicted testimony of Polich and Board. Neblock did not testify. Donner, a witness for Respondent, was not asked about this incident. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that any employees knew at the time or thereafter found out who threw the material, or that Donner and Neblock, or any other aagent of Respondent knew of the plan to throw it. 1. Management observance of Union's handbilling and further interrogation of Haggard On the morning of the election Union Agent Polich ar- rived at the plant about 5:45 a.m., and together with two other union agents and in-plant committee members Baker, Haggard, and Emling engaged in distributing leaflets to employees who were reporting for or leaving work. While this activity was in progress five manage- ment officials, including Secretary Blais and Production Manager Vogelsang, stationed themselves in the area and watched the handbilling. In addition, Vogelsang stationed himself at the only employees' entrance in this area, and, as employees approached, greeted and opened the door for them. Between 6 and 6:30 a.m., Blais, in the presence of Baker, Haggard, and Emling, engaged Polich in con- versation. He first told Polich not to contaminate com- pany equipment parked in the street, by leaving handbills on them, and then stated, "it looks like you are going to take a beating today." Polich asked Blais the basis for his satement, and the latter replied, "the poor attendance at your meetings," and added, "I am willing to bet on it." Blais then turned to Haggard and asked "what is the reason for your supporting the UAW, in last year's elec- tion you were opposed to the Union." Haggard replied to the effect that he did not regard UAW as much of a Union.49 About an hour later Polich went to another area adjacent to the plant to hand leaflets to the laboratory em- ployees who were then reporting for work. Blais came to this area and observed the distribution of handbills. Between 2 and 3:30 that afternoon, Polich was near the parking lot to hand leaflets to second shift employees then coming to work. From this point he had a view of win- dows in Respondent's office that faced the parking lot. While Polich was so engaged, management officials of the Company, including Blais, Mortell, and Donner, periodi- cally appeared at the window and for a period of time, ob- served the distribution of handbills to the employees. Em- ployee Gremar testified that she observed these manage- ment officials at the window for about 10 minutes. Em- ployee Bultman testified that she observed it some 4 or 5 minutes. That at least one employee was aware of such observation is demonstrated by the fact that employee Bultman called Polich's attention to the activity of Respondent's management officials at the windows. When handbilling occurred prior to the election, there was, according to Polich, no observing thereof by management, and on such occasions all but three em- ployees accepted handbills he offered them, but the day of the election such refusals were greater in number. Blais admits that between 6 and 6:30 a.m., shortly after his conversation with Polich, and while the handbilling was in progress, he went up on the roof of the building. He gave no reason for his being there, nor is there any evidence that he normally went to the roof for any pur- pose. Under the circumstances I can only conclude, as I do, that his presence on the roof, and the presence of Respondent's management officials at the windows, as above stated, was for the purpose of demonstrating to the employees that Respondent was watching their contacts with union agents, to discourage their acceptance of union literature being offered them.so 4. Postelection events a. The Clipper incident Robert Clipper was among the most active and open proponent of the Union among Respondent's employees. He signed a union card in February, attended union meetings, distributed literature in the plant during breaks, wore union insignia , discussed the benefits of union representation with fellow employees, and was a member of the Union's in-plant committee; Respondent being ad- vised of the latter fact by the Union's letter of March 8. The evidence also shows, as Blais admitted, that after one of his speeches to the employees in July, Clipper asked, in effect, that he be given equal time to state the Union's side regarding some of the comments Blais had made, and on the night of August 2, it was Clipper who complained to Supervisor Neblock about Ivlow's distribution of an- tiunion literature in the plant. Clipper began work with Respondent in December 1964, and was assigned to department 4, a production de- partment, where mix is prepared and placed in drums, and the drums moved to the trucks for shipment. Here heavy lifting is required only occasionally. In March, Clipper was transferred from department 4 to department 17, where he worked under group leader Ivlow, trucking materials to other departments, cleaning the drum shed, unloading boxcars, and general cleanup. Each day em- ployees in this department handled bags of material, some weighing over 100 pounds, in some instances lifting them above the head to properly stack them. On July 11 or 12, Clipper injured his back while lifting heavy bags of material. Whether Clipper went to the doc- tor at this time is not clear, but it is clear that Respondent knew of Clipper's injury, for when Clipper reported for work the next day, he was told by Ivlow that the latter had instructions to put Clipper on light work, and directed Clipper to operate the heister. Clipper continued to do this work, but still had difficulties with his back, and on July 29 was sent back to the doctor. On that day the doctor after taking X-rays which proved negative administered an injection calculated to relax the muscles, and by formal report dated July 29 advised Respondent that Clipper could return to work, "but no lifting," and that he should return to the doctor on August 2. On the last mentioned date the doctor discharged Clipper, and his formal report which stated that fact was received by Respondent on August 13. On August 2, Personnel Director Donner told Clipper that the latter was being permanently transferred to de- 49 Pouch testified that Blais repeated the same question to Baker and Emling However, those employees gave no such testimony Accordingly, I make no finding in that regard 50 Based on the composite of the credited testimony on this point by Polich , Gremar, Bultman, and Haggard, and the admissions of Blais As stated, Blais admitted his presence on the roof He also admitted his presence at the windows from time to time Although he would not admit that his activities were with the deliberate purpose of observing the union activities then in progress , and apparently sought to leave the impression that he was pursuing his business in normal fashion and could not avoid seeing those things which incidentally fell within his vision , he admitted that on the day of the election, "we were more conscious of the day and the tempo of things." J. W. MORTELL CO. 447 partment 10 because that was light duty.51 Actually, Clipper did not work in department 10 on August 2, because of lack of materials, but did work there on Au- gust 3, the date of the election. When Clipper reported for work on August 4, he was told that there was no more work for him in department 10, and that he should report to Ivlow in department 17. Ivlow directed Clipper not to operate the heister, but to get into the cars and lift the bags onto the pallets as the other man did. Clipper stated that he was supposed to be on light work, but Ivlow in- sisted that he do the work assigned to him, or go home until he could. Clipper, feeling that he could not afford to lose work, did as Ivlow directed and performed the heavy work required of him in department 17. About August 23, department 8 Leadman Whalen told Clipper that the latter would be transferred to department 8, where he would be assigned to wash trucks.52 Clipper expressed his lack of interest in such a job because the work had to be done out of doors and would be un- pleasant in cold weather. Whalen told Clipper that if the latter changed his mind to let him (Whalen) know because he could get the job for him if he wanted it. On August 30 Supervisor Neblock, to whom Clipper had protested Ivlow's distribution of literature the evening preceding the election, told Clipper that he (Clipper) was trans- ferred to the washer job on the second shift in department 8. This job, the record shows, had become available because employee Jones had been transferred from that job to the first shift in department 5. Clipper performed the duties required of him in department 8, until about November 18, as hereafter set forth. The transfer to de- partment 8 involved no change in pay for Clipper. Both before and after his transfer to department 8, Clipper spoke to several management representatives including Personnel Manager Donner, concerning the possibility of a transfer to department 4, a production department, where Clipper had initially worked, and was told that he would be considered for such transfer if and when there was an opening. However, such transfer was never of- fered him. It was stipulated that in the period involved five new employees were hired for work in department 4, and that one of those so hired was for work on the second shift.53 Finally, on or about November 18, Clipper in- formed Respondent that he had missed a lot of time from his job and from schoo154 because of colds and the flu, that he was in the hospital because of a relapse, couldn't stand the outside work because the cold climate did not agree with him, and that he would not report back to work. Clipper's employment with Respondent terminated as of that date. Although Respondent then had plans for moving its equipment-washing operations inside a heated building, and did so about December 1 (except for equip- ment which had carried combustible materials ), Clipper was not informed of the contemplated change.55 b. The Roger Steen wage-rate incident Steen had been employed by Respondent for some period before the Union began its organizational cam- paign. He took an active interest in the Union from the start, signing an authorization card, attending union meetings, and wore several types of UAW insignias in the plant.56 On November 1, about 3 months after the elec- tion, Steen was transferred to department 4, as a mixer- operator helper. He continued to receive the same rate of pay he got in his old job; namely, $2.30 an hour. About the same time Steen was transferred to department 4, two other employees in that department were reclassified from ""Mixer Helper" to "Mixer Operator"; Creekmore on November 8, and Grob about December 5, and their pay was increased from $2.30 to $2.40 per hour. Effec- tive February 7, 1966, Steen was reclassified from "Mixer Helper" to "Mixer Operator," and his pay was increased to $2.45 an hour.57 The papers executed at that time, under the heading "Reason or Remarks," carry the following notation: "He has become an operator-He is able to make several MBC's w/o the help of a group leader. He has operated a mixer for 3 months. Qualified for Mixer Operator's pay based on abilities shown during 3 months period."58 c. The suspension of Marion Sheets Sheets was among, if not, the most active of the prou- nion employees. She was an observer for the petitioning union at both the 1964 and 1965 elections; attended union meetings; held employee gatherings at her home; distributed union literature; testified for UAW at the representation case hearing; signed a union card and ob- tained more signed cards from her fellow employees than any other solicitor; and in the letter which the Union sent the Company on March 8 was listed as a member of the in-plant committee. That her union activities were known to Respondent is evidenced by the references to her union sympathies by both Blais and Donner, at meetings they had with employees before the election. On November 18, Sheets, while returning to her work station after the lunch break, learned from an employee that a petition was circulating asking Respondent to declare Friday after Thanksgiving a nonwork day, so as to afford an extended weekend. At her machine, Sheets engaged fellow employees Luella Hutson and Nora 51 The work assigned to Clipper in department 10 involved putting door bottoms into plastic bags and sealing them with a pressure seal Where Clipper worked between July 29 and August 2, if he in fact did work, does not appear. 52 This involved not only washing the outside of the over-the-road equipment but scraping away material that might have fallen inside trailers, scraping the inside of tankers, and the screens thereto 53 The employees so hired and their dates of hire are Richard Miller, August 25, Ace Newman, August 26, Ronald Garrett, September 20, Rufus Turner, October 16, and Frank Dunnymer, December 7 Newman was the one hired for the second shift. 19 In addition to working a full 40-hour week for Respondent, Clipper was a full-time student at a local college. Because of his school at- tendance, Clipper could work only the second shift- 3 30 to I 1 p in 55 Respondent argues that Clipper admitted that he knew of the plans to move the equipment -washing operations inside, but I do not so construe his testimony What Clipper stated was, that he had been told by Neblock that the Company "was thinking about moving it inside" but that "tanker scraping would [continue to] be outside " I do not regard this as a state- ment that Clipper had been told that the move would be made, nor does the record show when Neblock made this statement to Clipper 55 In sec 1, D, 3, b, supra, is set forth the incident when Steen asked Su- pervisor Francoeur for a raise, and the latter, pointing to the UAW insig- nia on Steen's T-shirt, said, "what with the rag " 54 As a result of a general wage increase to all employees, effective February 7, 1966, the rate for this job increased to $2 54, and thereafter Steen was paid at the increased rate 58 The record shows that as of March 27, 1966, there were nine em- ployees in department 4, who were classified as "mixer operators," six being paid $2 64 an hour, and three at $2 54 an hour In either group, em- ployees who worked the night shift received an extra 10 cents. Of the nine, Steen was the last assigned to that classification 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roberts in conversation, and asked Roberts if she had signed the petition. Roberts said, "No." Sheets then stated that she had not signed it and, according to Sheets, stated in effect that the girls never do anything I want, so I won't do what they want, "I will get even with them if it is the last thing I do." Neither Roberts nor Hutson made any comment, and the three resumed work. About 2 hours later, Sheets was called to Personnel Director Donner's office where she found, in addition to Donner, Plant Manager Boulger and Department Foreman Kreft. Sheets was told that her aforementioned remarks to Roberts were regarded as a "threat to do bodily harm." Sheets denied making any threat, and explained that she had neither prepared nor signed the petition regarding the extended holiday. Donner replied that he had a signed statement from Roberts, which he regarded as sufficient. Sheets asked that Hutson be called in to corroborate her, but Donner refused. He did, however, at Sheets' request, call in Roberts, and, in the presence of Sheets, asked Roberts if the written statement she had given manage- ment was true. Roberts affirmed that it was.59 According to Sheets, she told Roberts that the latter had "lied." However, Boulger and Roberts testified that when Roberts affirmed the truth of her statement Sheets replied to the effect that she didn't mean it that way, or didn't mean Roberts as the person she was going to get even with.60 In any event, Donner thereupon told Sheets, "Well, you know this has happened before. I will have to suspend you for three days." To this Sheets replied, "Well there is nothing I can do about it, you won't listen to anything I have to say." Later in the day, having heard of the events in Donner's office relating to the Sheets' suspension, Hut- son went to see Donner and told him that Roberts had "lied," but Donner insisted that he would not change his mind. Sheets also telephoned Donner after work, trying to convince him that what Roberts had said could not be true. Donner told Sheets that Hutson had been to see him and corroborated Sheets, but that he needed time to check it out and would call her back. He added however, that as of that time, the fact that Hutson corroborated Sheets would not change his mind. Donner did call Sheets back and, as Sheets testified, said: He told me that he hadn't had the opportunity to check the story because all the girls that I worked with had left at the same time that I had and that he would like to check into it and ask them questions, but that he didn't think it would change his mind because it would undo everything he had done. That I was the backbone of the girls and they seemed to lean on me. And that I was pretty intelligent. That is the way he worded it to me. He also stated that he didn't know what seemed to be the matter with me lately, he had heard from past records or seen from past records that I was a very good operator. But, since my Union activities, my work had slacked off considerably.61 11 Roberts testified , and it is not otherwise denied , that Donner either read or handed her the statement The statement signed by Roberts is in evidence. It quotes Sheets as having said, when Roberts replied that she had not signed the petition, "I'll get even with you' In spite of every- thing, I'll get even with you"" and that this statement was followed by some curse words 80 1 find it unnecessary to resolve the conflict 81 Donner admitted this telephone conversation with Sheets, and that he made some statement to her about her ability and that she was a good Donner admitted that since he became personnel director on or about June 1, 1965, he had never received any com- plaint concerning threats by Sheets. He also admitted that after Roberts' complaint came to his attention, he, Boulger, and Kreft discussed the matter and reached a tentative decision to suspend Sheets before she was called in. d. Interrogation of Steczynski In January 1966, the Union held a meeting at the local Labor Temple, which Steczynski attended . In the course of the meeting Steczynski stated that Donner had tried to influence two employees against the Union . The follow- ing day, while at work , Steczynski was engaged in con- versation by Donner , who, after some general talk told Steczynski, "I see what side of the fence you are on." Replying to Steczynski's request for an explanation, Donner stated , "Well, at that last meeting , I understand you were talking about me."62 e. Interference with Board progress On April 6, 1966, in preparation for the hearing, the General Counsel forwarded subpenas and a covering letter to a number of persons whom he thought might have information to his case.63 The subpena called for the attendance of the witness at the Board's hearing then scheduled for June 14. The letter that accompanied the subpena stated that attendance at the time and place in- dicated in the subpena was mandatory, and that failure to so appear "subjects you to legal action being brought against you in a Federal Court;" the General Counsel was the only person that could grant a release from the subpena; and that only after the General Counsel had talked with the individual could it be decided whether his attendance would ultimately be required. The letter con- cluded by requesting the addressee to telephone or call upon the General Counsel's representative at a specified motel between April II and 15, 1966. Shortly after April 6, 1966, Respondent posted on its bulletin board a notice to employees, which stated in substance, that if any em- ployees had any question about the aforementioned sub- pena or letter, to see Personnel Director Donner. Donner admitted that about six employees, including Karla Starr, came to see him about the matter. Starr testified that after seeing the notice on the bulletin board, she went to see Donner and asked about the subpena and the letter which she had received, and Donner told her that she did not have to appear in court or visit the General Counsel's representative at the motel; and she told Donner that she thought she had to go. Respondent did not cross-examine Starr with respect to this aspect of her testimony. Donner, however, testified that he told Starr that she might have to appear at the trial, but that compliance with counsel's request that she confer with him at the motel, "was strictly up to her," that she could go, or not, but that machine operator. He did not deny the remainder of the statement at- tributed to him by Sheets I therefore credit Sheets as to what was said in this telephone conversation 62 Donner denied that he had any conversation with Steczynski about the Union, and specifically that he made the remarks Steczynski at- tributed to him I credit Steczynski 61 It was stipulated that such letter and subpena were sent to about 175 persons, about 100 of whom were then employed at Mortell J. W. MORTELL CO. 449 if she decided to go, and wanted time off for that purpose, that he wanted advance notice.64 1 am not satisfied that Starr meant that Donner urged her not to comply with the subpena or counsel's request that she appear for an interview. Starr was born in Ger- many, and has not acquired much skill in the reading and writing of English. For this reason I am not convinced that there is really any conflict between Starr and Donner, or that her testimony does not mean that Donner simply told her that a visit to the motel was not legally compulsory. In any event, the issue here presented may be disposed of on other grounds. On April 15, 1966, Respondent posted the following notice on its bulletin board: NOTICE TO EMPLOYEES This notice is prompted for two reasons. First, many of our employees are confused as to the meaning and importance of communications which may have been received by them from the National Labor Relations Board, asking them to contact Mr. Eisenberg. Secondly, we wish to provide you with the truth about a meeting notice passed out by union or- ganizers on April 13. 1.- On August 3, 1965 our employees rejected a union in a secret ballot election. The U.A.W. asked the N.L.R.B. to throw out the election results and give them the bargaining rights without second election. The N.L.R.B. has agreed to hold such a hearing to consider this possibility. This is the reason many of our em- ployees have received a notification about a sub- poena to appear at the hearing. Preliminary to this hearing Mr. Eisenberg wishes to ask you certain questions about the union affair. Do not confuse the subpoena with Mr. Eisenberg's request. You are under no obligation to discuss the case with him prior to the hearing. If you wish to discuss the matter with him, you are encouraged to do so. However, we have received reports that union organizers, trying to supply witnesses for Mr. Eisen- berg, have coerced and misrepresented Mr. Eisen- berg's communication, causing some of our people to believe that they must contact Mr. Eisenberg at this time . This is typical of the union ethics we have all seen over the last sixteen months. Do not be intimidated by the union organizers. Their "Notice of Meetings" handout is further intimidation to seek our cooperation with Mr. Eisenberg. They would have you believe a certified union exists and you had better play ball with them. 2. The "Notice of Meeting" handout is misleading. There is no certified Local 1387 at the J.W. Mortell Company. This is another instance of "union baloney." Whether our employees will eventually be represented by the U.A.W. will depend upon the out- come of the court hearing which will probably take several weeks. It will be months after the hearing be- fore a decision is handed down. Wonder if those attending the meeting will be obliged to pay union dues? J. W. Mortell Company The General Counsel apparently had some difficulty in contacting his witnesses, but the reason for this was not developed. In any event, on May 18, 1966, the General Counsel mailed one of two types of letters to the wit- nesses; one type to the witnesses he regarded as "friendly,"65 and the other to persons who had not responded to the General Counsel's letter of April 6;66 the number of the latter types of letters is not disclosed by the record. The so-called friendly letter stated that counsel would be at a designated motel in Kankakee dur- ing the first week of June, for the purpose of talking to the addressee regarding this case, and asked that counsel be contacted promptly. This letter also stated: By meeting with me at the motel I may be able to ex- cuse you or, in the alternative, at least reduce to a minimum the inconvenience caused you. If, after we meet, I decide you must testify, I will give you a specific hour at which you must be at court. On the other hand, if your testimony is needed and we do not get together, you may have to wait in the court- room for many hours, or even more than one day, before you are called. The letter, sent to the persons who had not theretofore responded to counsel's letter, asked the addressee to communicate with counsel at the motel during a designated period, and also stated: There is also another reason why it is advisable for you to contact me. If we meet, you may be excused or at least you will be given a definite time to appear, so as to reduce to a minimum the inconvenience caused you. On the other hand, if you arrive at the hearing without having previously talked to me you may have to be present for many hours, or even more than one day, before you are called to testify. After the aforementioned letters were received by em- ployees, Respondent, on May 24, 1966, posted a further notice to employees on the bulletin board. This notice was as follows: NOTICE TO EMPLOYEES MEETING WITH NATIONAL LABOR RELATIONS BOARD ATTORNEYS Once again employees have asked the Company if they must go to the motel of the government lawyers about the union case. Feel free to go to the motel or feel free to stay away. No one can legally pressure you either way. Some of you have been told you will be held in court by the government lawyers for four or five days. This is only a union pressure tactic to force you to go to the motel. We honestly do not believe the government ea Neither Donner, nor any other witness called by the General Coun- sel, gave any testimony regarding interviews with Donner about the sub- pena or the letters attached thereto. "5 A copy of this type of letter is in evidence as G.C Exh 24(b) ss A copy of this type of letter is in evidence as G C Exh 24(c) 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lawyers will hold you in court just to punish you for not going to the motel . You might be required to wait in court several hours but we are confident that an orderly arrangement will be worked out. We sincerely regret these latest union pressure tactics , and we hope you will bear with us until this whole thing is concluded. Feel free to go to the motel or feel free to stay away. B. Contentions and Concluding Findings 1. Interference , restraint , and coercion Upon the basis of the foregoing findings of fact, derived from the credited testimony, I find and conclude that Respondent violated Section 8(a)(1) of the Act in the fol- lowing particulars: (a) The interrogation of employee Haggard by Super- visor Francoeur in February 1965, as to the attendance at the union meeting the preceding day. The right of an employer to interrogate employees regarding their union activities is restricted to those circumstances when he has a legitimate interest in making such inquiry, and does so with adequate safeguards to demonstrate that no restraint and coercion results. See Blue Flash Express, Inc., 109 NLRB 591. Here, Francoeur had no legitimate purpose for his inquiry of Haggard. Absent such legitimate pur- pose, and Respondent's antiunion animus which is so plainly reflected by its other conduct, herein more fully detailed, this interrogation must be regarded as coercive and violative of Section 8(a)(1) of the Act. I so find and conclude. (b) The early March announcement of improved fringe benefits, even though the decision to grant such improve- ments was therefore made. In light of Respondent's March 5 letter to its employees, in which it made clear its strong opposition to the Union, such announcement, at a time when the union campaign was at its height, could only have been for the purpose of trying to dissuade its employees from their organizational activities. I so find and conclude. (c) The statements by Supervisor Francoeur to em- ployees Steen and Southard that they would not receive a pay raise because they were wearing UAW insignias. (d) The interrogation of employee Southard by Super- visor Davis as to how Southard would vote in the then ap- proaching election, and the subsequent statement by Davis that whether the Union got in or not "it is going to be hard as hell on all of us." (e) The interrogation of employee Scarborough by Su- pervisor Gallois as to whether Scarborough had signed a union card, as well as by Gallois' statement that she had been told by a fellow employee of Scarborough's that the latter had been "signed up, hook line and sinker." (f) The disparate enforcement of Respondent's plant rule against solicitation and literature distribution.67 The activities of Ivlow and Lagesse in particular, as above detailed, make it plain that Respondent must have been aware of what Now and Lagesse were doing and pur- posely refrained from taking any action to have them stop their anti-UAW activities. Conversely however, as the 61 As the evidence shows that Respondent promulgated these rules several months before UAW came on the scene, I do not find that the rule was promulgated for a discriminatory purpose. Also , as the General evidence shows, employee Hartman was reprimanded for having UAW literature in his hand while in the clockroom, a nonwork area, and directed to go outside to "pass out that stuff"; employees in department 17, during an address by Blais were told that union literature could not be distributed anywhere in the plant; Supervisor Kreft directed that union literature be removed from the lunchroom tables; and union literature which employee Gremar had left with her purse was removed apparently by Supervisor Kreft, while Gremar was absent from her work station. When this conduct is compared to that en- gaged in by Ivlow and Lagesse, and which Respondent must have been aware of and made no effort to stop, the inference is clear that Respondent intentionally enforced its rule prohibiting distribution and solicitation only against pro-UAW activity, but condoned, if it did not in- deed encourage, such activity on the part of anti-UAW employees, and thereby violated Section 8(a)(1) of the Act. I so find and conclude. (g) Blais' interrogation of employee Haggard on the day of the election, as to the latter's reasons for support- ing UAW. (h) The conduct of management officials on the day of the election in stationing themselves at the office window, and on the roof of the plant, observing the Union's dis- tribution of handbills and the reaction of the employees thereto. The evidence shows that at no time prior to Au- gust 3, had Respondent's officials engaged in such con- duct, and there is affirmative evidence that on this day the reluctance of employees to accept literature from the union agents was markedly greater than at any other time in the campaign. Respondent offered no evidence to justi- fy this conduct, nor does its brief advance any argument in justification thereof. While this was Respondent's pro- perty and its officials were at places they had an un- doubted right to be, and were not required to close their eyes to the activities which the Union chose to carry on directly within their line of vision, I am convinced and find that Respondent's activity was engaged in with the intent and purpose of demonstrating to the employees that Respondent was watching their contacts with union agents in order to discourage their acceptance of union literature being offered them. This fact distinguishes the instant case from Salant & Salant, Inc., 92 NLRB 417, 446-447. Certain-Teed Products Corporation, 153 NLRB 495, 498, 507. See also Atlanta Gas Light Com- pany, 162 NLRB 436. (i) Donner's statement to employee Steczynski that the latter had talked about Donner at the union meeting held the preceding night. In view of the fact that the state- ment was made so closely following the union meeting, and the accuracy of Donner's statement, I find and con- clude that said statement gave the impression that Respondent had the union activity of its employees under observation and surveillance and, therefore, violated Sec- tion 8(a)(1) of the Act. Precision Products & Controls, Inc., 160 NLRB 1119. (j) The notices posted by Respondent on April 15 and May 24, with respect to the letter sent to prospective wit- nesses by the General Counsel. In light of Respondent's antiunion animus, which so clearly appears from the record as a whole, and its purpose to dissuade the em- ployees from selecting union representation, albeit the Counsel concedes that the rule is valid on its face, I do not find its mere existence to be violative of the Act. J. W. MORTELL CO. 451 means employed were in many instances not proven to be unlawful, I must and do find and conclude that Respond- ent posted the notices referred to with the intent and purpose of instilling in the minds of employees, by in- nuendo it is true, the thought that Respondent would prefer that its employees not cooperate with Board coun- sel, as the latter had requested. So viewed the notices in- terfered with the right of employees to have their statuto- ry rights vindicated in the manner provided by the Act. If such was not Respondent's intent and purpose, it is dif- ficult to understand why it would tell the employees that they were "free to stay away" from the General Counsel, and thereby inject itself into the General Counsel's ef- forts to marshall his evidence and present it with the least inconvenience to all concerned, and characterize coun- sel's efforts in that regard as "these Union pressure tac- tics," when Respondent well knew- that it was the General Counsel, and not the Union, that was seeking to interview the witnesses, in the discharge of his duty to vindicate the public interest.68 2. The 8(a)(3) and (1) allegations a. The Emling promotion Upon the facts summarized above (sec. I, A, 3, h), I find and conclude that Respondent's extension of Emling's trial period on July 21, and the August 18 ter- mination of the additional duties and rate increase granted him on a trial basis the preceding April 16, were dis- criminatorily motivated. The following factors lead me to that conclusion: (1) When Emling was given the additional duties and pay increase, he ceased the union activities in which he had theretofore engaged. However, sometime in June he resumed his union activities, wearing a union button in the plant, distributing union literature in front of the plant, and serving on the Union's in-plant committee. (2) Until July 21, when his trial period was extended, Emling's performance of the additional duties was not criticized. The 90-day trial period having expired July 16, Emling on July 19 asked Plant Manager Boulger what decision had been reached in that regard..Boulger's reply was that he would look into the matter. Two days later, Emling was told by Blais that the trial period was being extended for 30 days. 69 It is important to note that at this time Blais told Emling "generally you are doing the job satisfactorily," and that only Emling's "attitude towards management," which he hoped Emling'would correct in the 30-day period, was what prompted the extension. Specifically, Blais referred to an incident when Emling al- legedly called Kreft, under whose supervision Emling performed the additional duties, a "damned fool," and suggested that Emling discuss that incident with Kreft. (3) It is significant that Kreft did not support Respond- ent regarding the incident upon which it places its greatest reliance. Kreft testified that there was an occa- sion when he heard Emling use the words "any damned fool," but admitted that Emling then used other words which he (Kreft) did not hear, and refused to say that Emling's language was directed at him. Proof of the foregoing facts made out a prima facie case on behalf of the General Counsel's contention with respect to this incident, which imposed upon Respondent the duty of going foward with the evidence and giving an adequate explanation for the extension of Emling's trial period and subsequently relieving-Emling of his extra du- ties and the additional compensation therefor. Only by doing so could Respondent dissipate the unfavorable in- ferences to be drawn from the General Counsel's evidence. In view of the admission by Blais on July 19 that generally Emling was "doing the job satisfactorily," and that Respondent's principal objection was to Emling's alleged language regarding Kreft, which Kreft does not support, it is only reasonable to infer that there is another motive-an unlawful motive-which Respond- ent desired to conceal. Shattuch Denn Mining Corp. v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9). Upon considera- tion of all the facts, I am convinced that the motivating reason for the extension of Emling's trial period until after the election was -the- fact that in June he had openly resumed the extensive union activities which he had abandoned in April,-when he was given the additional du- ties and increased pay, and that after the Union lost the election on August 3, Respondent took away from Emling the additional duties and increased pay, in retalia- tion for his union activities in the latter part of his trial period. I so find and conclude. - b. The Clipper incident Upon the facts summarized supra (sec. I, A, 4, a), I find and conclude that Clipper's transfer to department 8 was discriminatorily motivated, and that his termination on November 18 constituted a constructive discharge by Respondent. I am led to this conclusion by the following factors: (1) The fact that Ivlow on and after August 4 required Clipper to perform the full duties of department 17 would indicate that Respondent knew at that time that Clipper had been discharged by the doctor and that there was no necessity for keeping him on light work. But even if that fact was not known to Respondent on August 4, it was certainly so informed on August 13, when it received the doctor's final medical report. (2) A week prior to his transfer to the equipment- washing job in department 8, Clipper told Whalen, the leadman in that department, why he was not interested in such a job. As it was Whalen who first informed Clipper of his contemplated transfer to department 8, it is reasonable to infer, as I do, that management had discussed the proposed transfer with Whalen, and that the latter after his talk with Clipper informed management of Clipper's lack of interest, if not actual distaste for the de- partment 8 job. (3) It is reasonable to infer, as I do, that during the late fall and winter season, in downstate Illinois, washing equipment out of doors is a more onerous job than even the heavy work required in department 17. That Re- spondent recognized this is made evident by the fact that it went to the expense of moving that work inside as of December 1. 68 The complaint charges a number of additional incidents as being violative of Sec 8(a)(1) of the Act I find it unnecessary to consider or pass upon those additional allegations , as substantial violations of Sec 8(a)(1) of the Act, many within the critical period of the representation case have been found These findings will require a broad remedial order, and the setting aside of the election. No different order or relief would result if all the remaining complaint allegations were considered and found violative of Sec 8(a)(1) 69 At this time Respondent knew that the August 3 election was im- minent ; the Decision and Direction of Election having issued June 29. 336-845 0 - 70 - 30 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (4) Although Clipper made numerous requests of management for assignment to department 4, and during the period involved it hired new employees for that de- partment, no such an assignment was offered Clipper. No evidence was offered even tending to show that Clipper was not qualified for the work in department 4, where he had previously worked. (5) When Clipper called on November 18 and stated that he could not stand the outside work because of the cold climate, and for that reason would not return to work, he was not told that the work was being moved in- side. No reason was advanced for withholding that infor- mation from Clipper. The reason assigned for transferring Clipper to depart- ment 8 was that he was unable to perform the full duties required in department 17; Personnel Manager Donner had been orally informed by the doctor that Clipper should refrain from lifting for quite sometime, or there could possibly be a recurrence of his back trouble; Respondent acted prudently in minimizing the risk of in- jury to Clipper by transferring him to light work; and it took until August 30 to find a suitable job for him. The facts, I find and conclude, do not support Respondent's contentions. To begin with the testimony is clear that Clipper did in fact perform the full duties of the job in department 17 from August 4 until his-transfer to department 8, on Au- gust 30, a period of almost 4 weeks. If Respondent was in fact concerned about a possible recurrence of Clipper's back problems, it strains credulity beyond the breaking point to believe that Respondent would have kept Clipper performing the full duties of department 17, including lift- ing of heavy bags - precisely the kind of work most likely to produce the very results it was allegedly seeking to avoid. It is also difficult to believe that in a plant of about 300 employees it would take nearly 4 weeks to find light work for an employee whom it had to guard against the recurrence of a back injury. I believe it to be more logical that Respondent, because of Clipper's outspoken support of the Union's cause, down to the evening before the elec- tion when he complained of Ivlow's activity in the plant, (supra, sec. A, 3, d, (1)), and learning from Whalen that Clipper regarded the washing job as onerous and distaste- ful, assigned Clipper to that job in the hope that he would quit, and it was for this reason when Clipper called to say that he was quitting and the reason therefor, that Re- spondent withheld from him the information that equip- ment-washing operations were being moved indoors. I so find and conclude. Having so found, it follows that Clipper's transfer to department 8 was discriminatorily motivated, and his subsequent quitting a constructive discharge by Respondent. c. The suspension of Marian Sheets Although I am inclinded to the view that Sheets did not threaten Roberts, and that Respondent had no reasonable basis for believing that she did so,70 I find it unnecessary to and do not decide whether or not Sheets in fact did so. For assuming that Sheets did in fact threaten Roberts, or that Respondent in good faith thought she had done so, upon the entire record, I find and conclude that Respond- ent's suspension of Sheets was motivated by her union activity, and that the alleged threat to Roberts was only a pretext seized upon to obscure the real motive of Respondent's action. My reasons for so concluding are: (1) Respondent, as I have found, entertained a strong union animus. (2) Sheets, as heretofore found, was among if not in fact the most prounion employee in the plant. That Respondent was aware of this fact is made evident by reason of references to her union sympathies by manage- ment officials, including specifically Personnel Manager Donner, at meetings they had with employees. Moreover, in the telephone conversation between Sheets and Donner on the day of her suspension, Donner referred to Sheets' union activities, and claimed that her work had suffered because of it. (3) Although Donner told Sheets during the interview on November 18, that "this has happened before," he ad- mitted when testifying that he theretofore received no complaints as to threats by Sheets. (4) Donner's admission that after Roberts' complaint came to his attention, he, Plant Manager Boulger, and Su- pervisor Kreft met and discussed the matter, and, without further investigation or inquiry of Sheets, decided tentatively to suspend her. When Sheets was interviewed about the matter and stated that Hutson was a witness to her conversation with Roberts, Donner refused to inter- view Hutson. Moreover, when Huston went to see Donner, and, as Donner admitted, corroborated Sheets, he insisted that even that would not change his mind. Failure to conduct a full and fair investigation of an em- ployee's alleged misconduct is evidence of a discriminato- ry intent, especially when viewed in the light of Respond- ent's hostility to the Union. Norfolk Tallow Co., Inc., 154 NLRB 1052, 1059; Shell Oil Company v. N.L.R.B., 128 F.2d 206, 207 (C.A. 5). d. The Steen wage-rate incident The facts relating to this incident (supra, sec. 1, A, 4, b) lead me to the conclusion that the General Counsel failed to prove by a preponderance of the evidence that there was discrimination in the wage rate paid Steen, as the General Counsel contends. Although Steen was active in the Union, his principal activity concerning which Respondent was put on notice was his wearing of union insignia in the plant, as did a great number of other em- ployees. Although there is some evidence that Steen was for a period paid at the rate of 10 or 15 cents an hour less than the apparently proper rate for his job, l find no con- vincing evidence that this was motivated by any desire to discriminate against Steen because of his union activity. Accordingly, I shall recommend dismissal of this allega- tion of the complaint. 3. The 8(a)(5) allegations The General Counsel contends that when the Union made its bargaining demand on April 7, it represented a majority of the employees ; Respondent then had no good- faith doubt of that fact ; its refusal to honor the Union's demand was unlawful ; having interfered with the election 70 In the first place it just does not seem reasonable that Sheets would threaten Roberts concerning the signing of a petition which she knew Roberts did not sign, and which Sheets herself did not wish to sign Secondly, assuming that Roberts correctly understood Sheets as saying I'll get even with "you," it seems farfetched , bearing in mind the realities of conduct between employees in an industrial plant, that Respondent would have seriously construed this as a threat J. W. MORTELL CO. 453 held on August 3, the election should be set aside; and on the authority of Bernel Foam Products Co., inc., 146 NLRB 1277, Respondent should be ordered to recognize and bargain with the Union To prove the Union's majority in the appropriate unit," on the demand date, the General Counsel established that the Union obtained 167 authorization cards in the course of its campaign; 154 allegedly ex- ecuted on or before the demand date, and 13 on various dates on or after April 8, but before the election. The better part of this more than 2,000 page record was devoted to testimony dealing with the validity of the cards as designations of the Union '72 and the employee status of certain persons on the demand date, so that the numeri- cal composition of the unit necessary to determine whether the Union had a majority might be fixed.73 However, in the view which I take of the case, it is un- necessary to decide those questions because I find and conclude that assuming all issues are resolved in favor of the General Counsel, the Union did not have a majority at any relevant time. On August 10, 1966, the final day that testimony was taken, Respondent sought to adduce testimony to the ef- fect that during the same period that the Union was con- ducting its organizational campaign, District 50 was also engaged in organizing Respondent's employees, that ap- proximately 60 employees signed authorization cards on behalf of District 50, and that a substantial number of these were among the 154 card signers upon which the General Counsel here relies to support majority status as of April 7. Regarding the testimony as going to the question of Respondent's "good faith doubt," I sustained the General Counsel's objection to the proffered testimony. Respondent made an offer to prove the aforesaid facts Subsequently, the Board's Decision in Bendix-Westinghouse Automotive Air Brake Co., 161 NLRB 789, came to my attention. There the Board ad- hered to its longstanding rule that where an employee signs an authorization card for each of two competing unions, the card for neither union will be regarded as a valid designation, for it is not possible to determine which union the employee is designating as his exclusive bargaining representative. 74 Accordingly, on November 18, 1966, 1 issued and served on all parties an order directing them to show cause why the record should be reopened to permit Respondent to establish the facts covered by his offer of proof. Pursuant to my order, the parties advised me that they had no objection to reopening the record, and thereafter, under date of February 13, 1967, submitted to me a stipulation of fact, which has been incorporated in the record as "TX Exhibit 6," and which 1 approve. By this stipulation the parties agreed that during January, February, and March 1965, 14 employees who signed cards on behalf of UAW (and which are included among the 154 upon which the General Counsel relied as proof of the Union's April 7 majority), also signed cards for UMW.75 Applying the rule of Bendix-Westinghouse, supra, to the instant case, the 14 dual card signers must be ex- cluded from the 154 cards relied on by the General Coun- sel in support of the Union's April 7 majority, thus leav- ing him with 140 cards. As the General Counsel concedes that the unit consisted of at least 287 employees on April 7, it is clear that the Union did not have majority status when it made its demand, even assuming that each of the remaining 140 cards constituted a valid designation of the Union. Nor is the evidence sufficient to support a finding that the Union acquired majority status at any time after April 7. The only thing in the record bearing on the composition of the unit after April 7 is the stipulation of counsel that employee Tipsword quit on April 8, that employee Hayes quit on April 9, and that these were the only changes in the composition of the unit between April 7 and 9. That there was at least one change in the unit after April 9 is clear from the evidence, which shows Wilkins was hired June 3 and quit on July 12, and it is at least inferable that in a unit of almost 300 other changes more than likely oc- curred. Be this as it may, the General Counsel has the burden of proving that the Union represents a majority, and in the case of a contention that such majority was acquired after the initial demand, he has the burden of showing when such majority was acquired. As only two cards were signed between April 7 and 9, these, assuming their validity, did not give the Union a majority. Not only did the General Counsel fail to show the composition of the unit after April 9, but in his brief, and during the con- ference held on March 20, 1967, admitted that he was making no argument that there was a majority after April 9. Accordingly, I find and conclude that at no time materi- al had the Union been designated by a majority of Respondent's employees in the unit involved as their col- lective-bargaining representative, that Respondent's refusal to bargain with the Union did not violate Section 8(a)(5) of the Act, and the allegations of the complaint in that regard should be dismissed. I shall so recommend. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: 71 The unit alleged in the complaint was the one fixed in the Regional Director's Direction of Election. No question was raised as to its ap- propriateness 72 The validity of virtually every card offered by the General Counsel was contested 72 If the General Counsel's unit contentions are fully accepted it con- sisted of 287 employees on the demand date If Respondent's contentions are fully accepted the number is 294 74 In addition to Bendix-Westinghouse, supra, see 1. Posner, Inc., 133 NLRB 1573, Weirton Ice and Coal Supply Company, 103 NLRB 810, Adam Goetti dlbla International Metal Products Company, 104 NLRB 1076 75 The stipulation also provided that the parties, by entering into same, did not admit the relevancy or materiality of the stipulated facts and reserved the right to object to the receipt in evidence of such facts, to the extent permitted by law Counsel for the Charging Union has submitted to me a memorandum (in the record as "CP - I") objecting to the receipt in evidence of the stipulated facts on the grounds, in addition to lack of relevancy and materiality, that (1) such facts are presented untimely, (2) the facts are at variance with the defense raised by Respondent's answer and in all prior stages of the proceeding, and (3) there is no evidence that Respondent was aware of the existence of the cards signed for District 50 when it refused to bargain with the Union, nor did Respondent predicate its refusal on that ground I find these objections without merit Respond- ent's refusal to bargain, its answer to the complaint, and its defense of the case, were all predicated on the theory that the Union did not have a majority The facts established by the stipulation are consistent with that theory under the Board's holding in Bendix-Westinghouse, supra The contention that the evidence is untimely, I do not comprehend, in view of the circumstances under which the question arose Accordingly, the Charging Party's objections to the receipt in evidence of the facts stipu- lated by the parties is overruled. 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By the conduct set forth in section I,B,1, above, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act, and thereby engaged in and is engag- ing in unfair labor practices proscribed by Section 8(a)(1) of the Act. 4. By depriving Emling of a promotion previously granted him on a temporary basis, by suspending Marian Sheets, and by transferring Clipper and thereafter con- structively discharging him, because of their activities in support of the Union, all as heretofore found, Respondent discriminated against them in regard to their hire or tenure of employment, and terms and conditions of em- ployment, discouraging membership in the Union, and thereby has engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 6. The evidence fails to establish that Respondent dis- criminated against Roger Steen because of his activities on behalf of the Union, and that allegation of the com- plaint should be dismissed. 7. Neither on April 7, 1965, nor at any material time thereafter, was the Union the collective-bargaining representative of Respondent's employees in the unit in- volved, and the allegation that Respondent refused to bar- gain with the Union in violation of Section 8(a)(5) and (1) of the Act should be dismissed. THE REMEDY Having found that Respondent engaged in unfair labor practices , it will be recommended that it be required to cease and desist therefrom and take the affirmative action set forth below , found necessary and designed to effectu- ate the policies of the Act. It having been found that Respondent interfered with, coerced , and restrained its employees in the exercise of rights guaranteed by Section 7 of the Act, I conclude from the nature and totality of its conduct, that Respond- ent should be required to cease and desist from in any manner interfering with, restraining , or coercing its em- ployees in the exercise of rights guaranteed them by Sec- tion 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 523 (C.A. 4); California Lingerie Inc., 129 NLRB 912, 915. Having found that Respondent discriminated against Robert Clipper, James Emling, and Marian Sheets because of their assistance to and support of the Union, it will be recommended that Respondent be required to (1) offer Robert Clipper , immediate , full, and uncondi- tional reinstatement to the job he was transferred from on August 30 , or a substantially equivalent job, without prejudice to his seniority or other rights privileges or working conditions ; (2) restore James Emling to the job held by him immediately prior to August 18, as then con- stituted , and with the rate of pay for such job , without prejudice to his seniority or other rights, privileges, and working conditions ; (3) vacate and annul the November 18 suspension of Marian Sheets, removing from its per- sonnel records, and all other records where such fact may be recorded, all references to such suspension, and advise Marian Sheets, in writing, that it has done so; (4) make whole Robert Clipper, James Emling, and Marian Sheets, severally, for any earnings lost by reason of the dis- crimination against them, by paying to each a sum of money equal to the difference between the amount he or she would have earned but for the discrimination, and the amount he or she did in fact earn, computed in ac- cordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716; and (5) preserve and, upon request, make available to authorized agents of the Board, all personnel and other records necessary or use- ful in computing the backpay herein provided for, or determining compliance with the order herein. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that the National Labor Relations Board order that J. W. Mortell Company, its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating any of its employees re- garding their activities on behalf of United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, or any other labor organization. (b) Threatening to deny pay increases or other benefits to employees because of their membership in or support of a union. (c) Engaging in surveillance of the union activities of its employees, or any conduct which can reasonably be calculated to convey to its employees the impression that their union activities are under its surveillance. (d) Announcing improvements in the fringe benefits of employees for the purpose of influencing their organiza- tional activities. (e) Interfering with the processes of the National Labor Relations Board by advising employees that they need not respond to the efforts of Board agents to inter- view them as to information they have regarding a Board proceeding. (f) Disparate enforcement, as between prounion and antiunion protagonists, of its plant rules prohibiting sol- icitation and literature distribution. (g) Discouraging membership in the above-mentioned or any other labor organization of its employees by in any manner discriminating against employees in regard to their hire, tenure, or term or condition of employment. (h) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such ac- tivities. 2. Take the following affirmative action found neces- sary and designed to effectuate the policies of the aforesaid Act: (a) Offer to Robert Clipper, immediate, full, and uncon- ditional reinstatement to the job held by him immediately J. W. MORTELL CO. prior to August 30, 1965, or a substantially equivalent job, without prejudice to his seniority or other rights, privileges, or working conditions, and if the said Robert Clipper is presently serving in the Armed Forces of the United States, forthwith notify him of his right to full and unconditional reinstatement, upon application, in ac- cordance with the Selective Service Act and the Univer- sal Military Training and Service Act, as amended. (b) Restore James Emling to the job held by him im- mediately prior to August 18, 1965, as said job was then constituted, and with the rate of pay applicable to said job, without prejudice to his seniority or other rights, privileges, or working conditions. (c) Vacate and annul the November 18, 1965, suspen- sion of Marian Sheets without prejudice to her seniority or other rights, privileges, or working conditions, remov- ing from its personnel and other records all reference to such suspension and notifying Marian Sheets, in writing, that such action has been taken. (d) Make whole Robert Clipper, James Emling, and Marian Sheets, for any loss of earnings they may have suffered severally, by reason of the discrimination against them, by paying to each a sum of money equal to the dif- ference between the amount they would have earned but for such discrimination, and the amount they did in fact earn, as provided in the section hereof entitled "The Remedy." (e) Preserve and, upon request, make available to the Board or its agents, all personnel and other records neces- sary or useful in computing the backpay herein provided for, or effectuating compliance with this Order (f) Post at its plant in Kankakee, Illinois, copies of the attached notice marked "Appendix."76 Copies of said notice, to be furnished by the Officer-In-Charge of Subre- gional Office 38 (Peoria, Illinois), after being signed by its authorized representatives, shall be posted immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places were notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the aforesaid Officer-In-Charge, in writing, within 20 days from the date of receipt of this Decision, what steps it has taken to comply herewith.77 IT IS FURTHER RECOMMENDED that the complaint herein, to the extent that it alleges discrimination against Roger Steen, and that Respondent unlawfully refused to bargain with the Union, be dismissed. II. REPORT ON OBJECTIONS TO CONDUCT AFFECTING THE RESULTS OF THE ELECTION Having found that Respondent engaged in conduct constituting substantial violations of Section 8(a)(1) and (3) of the Act, most of which occurred during the critical 76 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the aforesaid Officer-tn- Charge, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith " 455 period, it follows that the election in Case 38-RC-89, held on August 3, 1965, must be set aside, and I so recommend. See Dal-Tex Optical, Company, Inc., 137 NLRB 1782; Leas & McVitty, Incorporated, 155 NLRB 389, and the cases there cited. It is further recommended that the Board remand the aforesaid representation case to the Regional Director for Region 13, under whose su- pervision said case is being processed, with instructions to conduct a new election at such time as he deems cir- cumstances will permit the employees to freely express their choice with respect to a collective-bargaining representative. APPENDIX NOTICE TO ALL EMPLOYEES 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 coercively interrogate you regarding your membership in or activities on behalf of United Automobile , Aerospace and Agricultural Implement Workers of America, AFL-CIO, or any other union. WE WILL NOT threaten to deny you pay increases or other benefits because of your membership in or support of any union. WE WILL NOT spy on your union activities or en- gage in any conduct from which you may reasonably infer that we are spying on your union activities. WE WILL NOT announce improvements in your wage or fringe benefits for the purpose of influencing you to abandon or withhold your support of any union. WE WILL NOT advise you not to respond to the ef- forts of Labor Board agents to interview you as to in- formation you may have concerning any case being processed by said Board. WE WILL NOT enforce our plant rules against sol- icitation and literature distribution in such a manner as to discriminate between those employees who are in favor of, and those who are opposed to a union. WE WILL NOT discriminatorily transfer , suspend, or reduce the job status of any employee to discourage membership in the above-mentioned Union , or any other union. WE WILL NOT in any other manner interfere with, restrain , or coerce you in the exercise of your right to self-organization , to form , join, or assist unions, to bargain collectively through representatives of your own choosing , and to engage in other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer Robert Clipper, full and uncondi- tional reinstatement to the Job held by him just prior to August 30, 1965, or a substantially equal job, and restore James Emling to the job held by him just prior to August 18, 1965, as said job was then constituted, and with the rate of pay applicable thereto, without prejudice to their seniority or other rights , privileges, or working conditions. WE WILL vacate and annul our November 18, 1965, suspension of Marian Sheets, removing from our records all reference thereto, and notify her, in writing, that we have done so. 456 DECISIONS OF NATIONAL WE WILL make whole Robert Clipper, James Emling, and Marian Sheets for the wages they lost by reason of the discrimination practiced against them, as set forth in the Trial Examiner's Decision. All our employees are free to become , remain, or refrain from becoming or remaining , members of UAW or any other labor organization. Dated By J. W. MORTELL COMPANY (Employer) (Representative) (Title) LABOR RELATIONS BOARD Note: We will notify Robert Clipper if presently serv- ing in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces. 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 Office, Fourth Floor, Citizens Building, 225 Main Street , Peoria, Illinois 61602, Telephone 673-9061.