Carlisle Paper Box Co.

706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carlisle Paper Box Company and United Glass and Ceramic Workers of North America, AFL-CIO. Cases 4-CA-4131 and 4-CA-4165 December 6, 1967 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On August 10, 1967, Trial Examiner Sidney J. Barban issued his Decision in the above-entitled proceeding, finding that 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. He also found that Respondent had not engaged in the other unfair labor practices alleged in the complaint and recommended dismissal of these allegations. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with these cases 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.I The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in these cases 2 and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the modifa- cation set forth in the Board's Order herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that Respondent, Carlisle ' Respondent contends that the Trial Examiner erred in not striking the testimony of General Counsel witnesses Charles Laughman, Hattie Bowne, and Ruth Martin on the ground that the General Counsel did not produce their statements until a few days after they testified. The record shows that when the hearing was resumed , after a recess of several days, the General Counsel, who had previously stated that he did not recall hav- ing in his possession further statements from the foregoing witnesses, stated that he had found in his files affidavits which he offered to Re- spondent although he was of the belief that they dealt with a matter not relevant to the instant proceeding , namely, the layoff of the affiants The Trial Examiner did not pass on their relevancy but nevertheless offered, if requested to do so by Respondent, to recall the three witnesses for further cross-examination As the affidavits were produced by the General Coun- sel and Respondent did not avail itself of the opportunity to cross-examine on the basis thereof, we find Respondent was not prejudiced 2 Respondent's request for oral argument is hereby denied, as the record and brief adequately present the issues and positions of the parties. Paper Box Company, Carlisle, Pennsylvania, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order, as so modified: Substitute the following paragraph for the penul- timate paragraph in the Appendix to the Trial Ex- aminer's Decision: As the Board found that we violated the law when we fired Genevieve Morin over the Union, WE WILL offer her old job back and give her backpay. - IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges un- fair labor practices not specifically found in the Trial Examiner's Decision. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE SIDNEY J. BARBAN, Trial Examiner: These matters were heard before me at Carlisle, Pennsylvania, on March 28, 29, 30, 31, April 4, 5, and 6, 1967, upon al- legations in the consolidated complaint issued on January 23, 1967, as thereafter amended, based upon charges filed on November 16, 1966, and December 30, 1966, that the above-named Respondent had violated Section 8(a)(1), (3), and (5) of the Act. In its answer to the consolidated complaint, as amended, Respondent denied that it had violated the Act, and asserted certain affirmative defen- ses which will be considered hereinafter. Upon the entire record in this case,' from observation of witnesses, and after due consideration of the extensive briefs filed by the General Counsel and the Respondent, the Trial Examiner makes the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent, a Pennsylvania corporation, in the course of the manufacture and sale of setup paper boxes at its plant at Carlisle, Pennsylvania, during the past year, received at and shipped from its Carlisle plant goods and materials in interstate commerce of a value in excess of $50,000. Respondent is an employer engaged in com- merce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues 1. Respondent asserts that it is justified in its refusal to bargain with the Union on the basis that the Union's certification as representative of the employees is void. In ' A separate order has been issued [not published] correcting the trans- cript in this matter In a number of instances in which testimony is quoted from the transcript herein punctuation has been added 168 NLRB No. 89 CARLISLE PAPER BOX CO. support of this position, in its answer to the complaint, Respondent argues, in effect, that the certification issued by the Regional Director was invalidated by asserted error (1) on the part of the Regional Director in failing to pass on the validity of certain challenged ballots, acid in determining that Respondent's objections to an election conducted by the Regional Director were without merit, and (2) on the part of the Board in holding that the Re- gional Director's decision upon the objections and chal- lenged ballots were made pursuant to an agreement for consent election, and thus final and binding on the parties, and in refusing to consider Respondent's attempted ap- peal from the Regional Director's decision. At the hearing, Respondent, for the first time specifi- cally, asserted that the Regional Director's actions were void because arbitrary and capricious. For reasons noted hereinafter, the Trial Examiner ruled that this was the only ground of attack upon the Regional Director's ac- tions properly raised here. 2. The complaint alleges that Respondent engaged in certain acts of interference, restraint, and coercion of em- ployees, and discharged Genevieve Morin, in violation of the Act. These allegations are denied by Respondent, which also affirmatively asserts that Morin was discharged for cause. The resolution of these issues de- pends largely upon a determination of credibility of the witnesses, which matters have been extensively treated in the briefs. B. The Validity of the Union's Certification 1. The first election The Union's attempt to organize employees of Re- spondent at its Carlisle plant began in July 1966.2 On August 8, Respondent and the Union executed the Board's normal form "Agreement for Consent Election," which provides, inter alia: 1. SECRET BALLOT - An election by secret bal- lot shall be held under the supervision of the said Re- gional Director .... Said election shall be held in ac- cordance with the National Labor Relations Act, the Board's Rules and Regulations, and the applicable procedures and policies of the Board, provided that the determination of the Regional Director shall be final and binding on any question, including questions as to the eligibility of voters, raised by any party hereto relating in any manner to the election, and provided further that rulings or determinations by the Regional Director in respect of any amend- ment of any certification resulting therefrom shall also be final. 6. OBJECTIONS, CHALLENGES, REPORTS THEREON. - Objections [to an election] may be filed with the Regional Director .... The Regional Director shall investigate the matters contained in the objections and issue a report thereon. If objec- tions are sustained, the Regional Director may in his report include an order voiding the results of the election, and, in that event, shall be empowered to Unless otherwise noted, all dates herein are in 1966. Quotations from pp. 9-10 of Respondent's objections to the second election 707 conduct a new election under the terms and provi- sions of this agreement at a date, time and place to be determined by him. If the challenges are determina- tive of the results of the election, the Regional Director shall investigate the challenges and issue a report thereon. The method of investigation of objec- tions and challenges, including the question whether a hearing should be held in connection therewith, shall be determined by the Regional Director, whose decision shall be final and binding. At the election held on August 30, pursuant to this agreement, a majority of the ballots cast were for the Union. Objections to the election were duly filed by Respondent, and, in accordance with the Board's established policy, see Allied Electric Products, Inc., 109 NLRB 1270, the Regional Director set the election aside and directed a new election because of use of a facsimile official ballot marked in favor of the Union. 2. The second election Prior to the second election, scheduled for October 11, Genevieve Morin, an officer of the local union group, was discharged. There is a dispute, considered hereinafter, as to whether, at the time of her discharge, Morin was struck and injured by George Tay, Respondent's president, in the presence of a number of employees. The Union thereafter issued some strongly worded leaflets referring to an alleged assault upon Morin. While Respondent avers that these handbills assert an attack by Tay upon Morin, it is noted that, in fact, Tay is not mentioned in the leaflets, which, for the most part, refer to an assault (without specifying the attacker), which, it is stated, "dozens of employees witnessed," and also to Morin's asserted injury and illness. (See p. 5 of Employer's Exceptions to Regional Director's Report (G.C. Exh. 2(e)).) In another leaflet, dated "10/10/66," attached to Respondent's objections to the election, among other items, it is stated that the employees "know the boss was wrong when he .... mistreated Ginny Morin." While, on the basis of the entire record, it is inferred and found that the employees were aware that the leaflets referred to Tay, it is also clear, and it is found, that this awareness was based on information concerning the in- cident known to the employees quite apart from the union leaflets. On one occasion, shortly before the second election, Morin, wearing a "medical collar," appeared with a representative of the Union on the road leading to the plant while union leaflets were being distributed to em- ployees. It is Respondent's contention that on this occa- sion, in order to give "the impression to those who viewed her person that she was suffering from the injuries allegedly inflicted on her by [Respondent's] President," Morin "drastically changed her appearance by removing her cosmetic face make-up and ... applied make-up caus- ing her eyes to look darkened and her complexion sallow, thereby giving the viewer of her person the impression that she was suffering great distress."' It appears that thereafter, on the day before the elec- tion, Respondent presented a skit before the assembled 336-845 0 70 - 46 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees , involving a female clerical employee with disheveled appearance , wearing a medical collar similar to that worn by Morin, and made up to give the ap- pearance of paleness , sleeplessness, and bruises . The em- ployee in the skit stated that although there was nothing wrong with her, she had seen a doctor and had taken X- rays, that the make-up was for effect, that "you can't be- lieve everything you see. "4 On the day of the election , Morin, wearing the medical collar, on two occasions entered the plant , as did two other persons, Hockley and Martin, whose eligibility to vote in the election was disputed . It is asserted that there was an altercation between George Tay and Union Representative Kanatzer concerning their right to be in the plant. All three cast challenged ballots after being challenged by Respondent's observer. Morin appears to have briefly greeted and to have "touched" a number of employees in line to vote. Two persons appearing to vote, Shover and Myers, were challenged by the Union. The results of the second election show 21 votes in favor of the Union, 18 votes against the Union, with 5 votes challenged. 3. Respondent's objections to the second election Respondent filed lengthy and detailed objections to the second election. For the most part these involved the Genevieve Morin-George Tay incident referred to above. In particular, Respondent objected that the Union had prevented a fair election by the following conduct: 1. Union handbills accusing George Tay of injuring Morin, which Respondent asserted was false, and for which Respondent assertedly had no adequate opportuni- ty or means of response. 2. A union handbill claiming that a complaint of "ag- gravated" assault and battery had been lodged against Tay, and that charges would be filed with the Board against Respondent on October 12, whereas only a com- plaint of "simple" assault was lodged against Tay and no charges were filed on the date specified. 3. Morin's appearance in a medical collar, both in dis- tributing leaflets and appearing at the polls, was asserted to be "campaign trickery calculated to mislead Em- ployer's employees" (p. 10), and calculated to "wrong- fully enrage Employer's employees against Employer" (p. 11), which, "because of the shortness of time," and because knowledge of Morin 's health was "within the ex- clusive possession" of Morin and the Union and "un- available to the Employer, Employer was unable to ef- fectively reply or counteract the affect [sic] of Union's said campaign device" (p. 10). Respondent also asserted that the appearance of Morin at the polls (with disputed voters Martin and Hockley) constituted "improper, misleading and unfair campaigning at the election place" (p. 12). 4. A union handbill which, inter alia, accused Respond- ent of making "false and libellous statements against the Union," to which, Respondent claims, no opportunity to reply was available. Respondent denied the accusation. 5. Union handbills accusing Respondent of wrongfully attempting to disenfranchise Hockley and Martin, which are asserted to be false and to which, it is claimed, no op- portunity to reply was available. 3 These findings are based on the Regional Director's report on chal- lenges and objections to election , and apparently are not disputed by Respondent. Respondent's written exceptions to this report merely states 4. The Regional Director 's disposition of the challenged ballots and Respondent's objections As previously noted, the five challenged ballots (Morin, Martin, and Hockley challenged by Respondent as not employees, and Shover and Myers challenged by the Union, the former alleged to be a supervisor, the latter asserted not to be an employee) were sufficient to affect the results of the election. The Union, for the purpose of the election only, agreed that the votes of Morin , Martin, and Hockley need not be opened. The Regional Director, finding apparent agreement between the parties that the ballots of these three not be opened, with no evidence submitted by either party to establish their eligibility, ruled that they were ineligible voters. Since the remaining two challenged votes could not affect the results of the election, the Regional Director found it unnecessary to pass on their eligibility and therefore held that "the Union has received a majority of the valid votes cast in the elec- tion." In the course of an extensive analysis of the objections to the election, the Regional Director found that Morin's physician had examined her on the evening of the incident alleged to have caused her disability and found "a swelling about the brachial plexus and the right side of the neck and that this was a temporary disability," and ad- vised her to wear a cervical collar. The Regional Director found that the evidence with respect to whether George Tay caused Morin's condition was in dispute and con- cluded that for the purposes of his report it was unneces- sary to resolve this issue, noting that it was the subject of a criminal charge, originally set for hearing on October 5, but postponed to October 19. In essence, and in effect, the Regional Director held that after careful consideration of the assertions of the Union complained of, and the Board and court decisions which he considered most applicable , which are cited in his report, the matters contained in the union leaflets, in the circumstances in which they were uttered, did not ex- ceed the limits of permissible or tolerable electioneering. In particular, the Regional Director noted that Morin's wearing of the collar could not be termed misrepresenta- tion because she had been directed by her doctor to wear it. He further found that Respondent had ample opportu- nity to respond to the matters complained of and did respond to the Union's leaflets concerning Morin's inju- ry. He also noted that Respondent had relinquished an opportunity to lay the matter of Tay's responsibility for the alleged injury to rest on October 5, before the elec- tion, by having the criminal proceeding continued to a date after the election. The Regional Director further found that the disputed voters had the right to appear at the polls to cast challenged ballots, and such appearance did not constitute improper electioneering. On all of the evidence and materials presented, the Re- gional Director found and concluded that the Union's conduct "did not deprive the employees of an opportunity to cast a free and thoughtful vote," and that, in fact, "the circumstances herein permitted employees to express their uninhibited desires for or against representation by the Union." The Regional Director further rejected Respondent's contention that this second election was (p 9), "In the skit the Employer tried to point out that a `beaten' ap- pearance can be given by one who has been in no way subjected to harm " CARLISLE PAPER BOX CO. not conducted under the authority of the original agree- ment for consent election , and certified the Union. 5. Respondent's attempted appeal from Regional Director's decision In response to the Regional Director's decision, the Respondent filed with the Board its "Exceptions" to the Regional Director's report , presenting in discursive form the points previously made in its objections to the elec- tion. In addition, Respondent asserted, in effect , that the Regional Director had erred in certain of his findings, rulings, conclusions , and interpretation of the applicable case law. In particular Respondent objected to the Re- gional Director's failure to pass on the merits of the disputed ballots, asserted to be mandatory , to the failure to find whether Tay had assaulted Morin, which was as- serted to be critical to the issues, to the findings that Respondent had adequate opportunity to reply to the Union's propaganda, and to the finding that the second election was conducted pursuant to the agreement for consent election. Respondent was thereafter , on November 23, advised that the Board would not consider its exceptions, pur- suant to "the firm policy of the Board," where the parties have entered into an agreement for consent election, not to intervene in the judgment of the Regional Director because of the parties' disapproval of the judgment exer- cised by the Regional Director. C. Analysis and Conclusions With Respect to the Validi- ty of the Union's Certification and Respondent's Refusal To Bargain At the outset Respondent contends that the second election was not conducted under the agreement for con- sent election. Clearly this point was decided adversely to Respondent by the ruling of November 23, noted above, and this is binding upon the Trial Examiner. In any event, the contention is obviously without merit . As previously set forth, the agreement specifically provides , in para- graph 6, that where objections to an election conducted under the agreement are sustained, the Regional Director is "empowered to conduct a new election under the terms and provisions of this agreement," which patently would include the right to pass upon challenged ballots cast and objections to the election as provided by the agreement. The principle to be applied where the Regional Director's decisions upon challenges or objections under a consent-election agreement is attacked is also well set- tled. As the Board stated in Sumner Sand & Gravel Com- pany, 128 NLRB 1368 , enfd. 293 F.2d 754 (C.A. 9, 1961), at page 1371 (citations omitted): . we will deem the Regional Director 's determina- tion in consent elections of this character to be final in the absence of fraud , misconduct, or such gross mistakes as imply bad faith on the part of the Re- gional Director, even though we might have reached a different conclusion.... only evidence as to the al- leged arbitrariness or capriciousness of a Regional Director's determinations shall be [admitted] by a In its brief, Respondent argues in support of this point that . ( 1) the in- vestigator did not include in affidavits of election observers the fact that Morin wore "a neck brace" in the vicinity of the polls ; (2) the investigator failed to interview one eligible voter; (3) the investigator "gave the im- 709 Trial Examiner in any complaint proceeding arising out of a respondent's failure to honor a Regional Director's certification following an agreement for consent election which provides for a final and bind- ing determination of all issues by the Regional Director. On the basis of this standard, it cannot be said upon consideration of the record as a whole that the determina- tions of the Regional Director here involved were arbitra- ry and capricious. In fact, Respondent in its exceptions filed with the Board, while asserting that the Regional Director's rulings and decisions were erroneous , did not then specifically claim that his determinations were ar- bitrary and capricious , although there were some state- ments to the effect that the Regional Director's failure to pass on the merits of the five challenged ballots con- stituted a violation of a "mandatory duty." With respect to the disposition of the challenged bal- lots, the agreement specifically provides that the Regional Director's "method of investigation" of challenged bal- lots shall be "final and binding." Cf. N.L.R.B. v. Saxe- Glassman Shoe Corporation, 201 F.2d 238 (C.A. 1, 1953). It cannot be said that his determination not to open the ballots of Morin , Martin , and Hockley, where both the Union and the Respondent urged that they not be counted, was arbitrary and capricious . Nor was he under any obligation to determine the validity of the remaining two disputed ballots which could not affect the results of the election. Nor is there any evidence in the record of fraud, misconduct , or gross mistakes which might imply fraud on the part of the Regional Director . It may be noted, in respect to Respondent's chief complaint of the Regional Director. that he did not find the claims of an assault upon Morin to be false and material to the results of the elec- tion, in fact, the employees themselves , many of whom were present at the incident , were in the best position to evaluate the validity and justice of the claims made. In such circumstances the Regional Director's determina- tion, without passing on its merits, would appear to be consistent with the Board's practices and policies. See Hollywood Ceramics Company, Inc., 140 NLRB 221, 224, particularly footnote 10 and the sentence to which it is attached. After careful consideration of the evidence in the record as a whole , it is further found that there is no merit in Respondent's additional contention that the investiga- tion of the second election by the Regional Director's agent was conducted in an "improper, arbitrary and capri- cious manner."5 On the basis of the record in this case, the Trial Examiner cannot find that there was miscon- duct, fraud, or gross error in the investigation of Respon- dent's objections to the election. Lastly, in support of Respondent 's motion to dismiss the allegation that it violated Section 8(a)(5) of the Act, Respondent urges that the Trial Examiner reexamine the Regional Director's certification of the Union and find it to be invalid, in view of the allegation of the complaint in this matter that Morin was a discriminatorily discharged employee at the time of the election. Respondent argues in its brief that "Consequently her status , for the purpose of the motion [to dismiss], is presumed to be that of an pression to the employees being interviewed by him that he had a bias in favor of the Union ;" and (4) that he burned some interviews and told one witness that her statement could not be used if she refused to sign it 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eligible voter. The determinative challenges [i.e., those of Morin, Myers, and Shover] not having been resolved, the certification in this case improperly has issued. Re- spondent, therefore, has not, by refusing to bargain, vio- lated Section 8(a) of the Act." However, the agreement for consent election makes it abundantly clear that, where the Regional Director is not shown to be arbitrary or capricious, his certification is final.6 Without question, the Regional Director was authorized to pass on the eligibility of the challenged voters on the basis of the circumstances as of the time of his decision, Stainless Welded Products, Inc., 104 N LRB 204; Happ Manufacturing Company, 124 NLRB 202, and was not required to withhold determination because of a possibility that the status of certain voters casting disputed ballots might thereafter be raised in other proceedings. See Happ Manufacturing Company, supra. On the basis of the above, and upon the entire record, it is found that the Regional Director's certification of the Union was valid and is final and binding. Respondent, therefore, by refusing to bargain with the Union upon request, has engaged in and is engaging in conduct in violation of Section 8(a)(5) of the Act. D. Credibility of Witnesses The issues in this proceeding, as in so many of these cases, turn mainly on the resolution of credibility problems, which have been fully argued in the briefs of both Respondent and the General Counsel. General Counsel's case in support of the allegations of the complaint was presented through five witnesses who had previously worked at the plant and through two representatives of the Union. Respondent's chief witness was George I. Tay, its president. Certain other witnesses were offered in support of Tay's testimony, or in attack on the credibility of General Counsel's witnesses. In essence, Tay's testimony, with certain exceptions considered hereinafter, constitutes a flat denial of con- duct attributed to him by General Counsel's witnesses. Tay, however, was not a convincing witness, either in the manner or content of his testimony. He is contradicted on material points by testimony which the Trial Examiner considers, without doubt, to be reliable. Nor was he, on material points, candid and straightforward in his testimony. As an example, the Trial Examiner finds incredible Tay's attempted explanation of the situation giving rise to a written reprimand of Genevieve Morin shortly before she was discharged, and, in particular, Tay's denial that he was aware of Morin's union activity at the time. Thus, although the reprimand was personally written by him to Morin for "using Company time to solicit for other or- ganization," Tay testified that he did not hear what Morin was talking about and did not know she was active in the Union at the time; and, when pressed for an explanation of his reference to an "other organization," he evasively answered, "As far as I know, she could have been selling shirts. But she wasn't working for me. She was either working for herself as an organization or for some outside organization, but not for me." Paragraph I of the consent election agreement not only provides that determination of the Regional Director shall be "final and binding" on "any question .. relating in any manner to the election," but that his Other evidence, considered hereinafter, confirms the fact that at the time of this incident and for some period prior thereto, contrary to his denial , George Tay was aware that Morin was an officer in the Union and active on its behalf. In addition to other evidence on this point, it may be noted that among the employees in this rather small plant, a number of them, including employees elected to minor union office, were reporting to Tay with respect to these matters. Indeed, it is argued in Respond- ent's brief (p. 43), in connection with certain allegations in the complaint, that "As a practical matter, it would not have been necessary for George Tay to interrogate [Joann Swartz and Genevieve Morin] as to what em- ployees were officers of the Union. He had readily availa- ble to him individuals who were more than willing to divulge that information." At the close of General Counsel 's case, and before ad- ducing any testimony , Respondent advised that it had several prominent citizens who would testify to George Tay's reputation as a peaceable man and further to his reputation for truth and veracity in the community and requested General Counsel to stipulate that such persons would testify as indicated . The Trial Examiner ruled that a basis had been laid for receipt of testimony as to George Tay's reputation for peaceableness but no basis had been shown justifying receipt of testimony as to his general reputation for truth and veracity . See Homan v. U.S., 279 F.2d 767, 772 (C.A. 8, 1960); Commonwealth v. Ford, 184 A.2d 401, 404-405 ( Pa. Super. Ct., 1962); McCommon v. Johnson, 187 A. 445 (Pa. Super. Ct., 1936); notes 15 ALR 1065, 33 ALR 1220, 78 ALR 643. General Counsel stipulated that these witnesses would have testified as to George Tay's reputation for peaceful- ness and this has been considered in assessing Tay's testimony. Moreover, the Trial Examiner, upon con- sideration of Respondent 's offer, has determined that the witnesses' opinion ofTay's veracity would not overweigh the personal assessment of his credibility which has been made herein upon observation of the witnesses and study of their testimony. Further reference to George Tay's testimony, and to the testimony of other Respondent witnesses, where necessary , is made hereinafter. The lack of confidence which the Trial Examiner has in the testimony of George Tay, however, has been balanced with a deep concern with the testimony of a number of the witnesses for the General Counsel. Among them, Respondent showed that Joann Swartz admittedly gave false testimony in the criminal proceeding involving the claim that George Tay struck Morin, upon matters to which Swartz did not testify in this proceeding . General Counsel's witness Ruth Martin was a highly emotional witness who testified under extreme tension and broke down weeping under the stress of cross-examination. Her inconsistency as to details of what she saw when Tay is alleged to have struck Morin , heavily relied upon by Respondent as discrediting her, apparently arose not from conscious effort to color her testimony , -but her overwrought condition ; nevertheless, it seriously impairs the reliability of her account of that situation . Morin, also, was an emotional witness, and perhaps not as careful or rulings and determinations with respect to "any amendment of any certifi- cation. shall also be final " CARLISLE PAPER BOX CO. 711 consistent in some details as might be expected, 7 but in general impressed the Trial Examiner as a reliable wit- ness. Charles Laughman, another of General Counsel's witnesses, was also generally believable with respect to the substance of events in which he participated or was a witness, although apparently unreliable as to certain details upon which he was closely questioned." In summary , after consideration of their demeanor on the witness stand, and the defects in their testimony as shown by the record and argued by Respondent, and upon close study of the whole record, the Trial Examiner is convinced that these witnesses presented by the General Counsel were not fabricating their testimony out of the whole cloth, as George Tay's testimony indicates, but were attempting to testify truthfully and should be credited generally as to the substance of their testimony, though not necessarily on all details, as considered hereinafter. A special comment is in order with respect to General Counsel's witness Hattie Bowne. Her demeanor as a wit- ness was quite impressive. She appeared to be a well- balanced, mature person of probity and reliability, who exhibited neither in her manner, nor in the content of her testimony, any particular bias or interest on behalf of any party. Although elected a trustee of the Union, she does not appear to have been close to the other employees. The record indicates that she was a good, responsible em- ployee, seemingly on good terms with George Tay, and apparently left Respondent's employ under amicable cir- cumstances. Her testimony was not shaken on cross-ex- amination, and is fully credited. In its brief, Respondent renews its argument made at the hearing that the testimony of Bowne, Ruth Martin, and Charles Laughman should be stricken on the basis that the General Counsel allegedly "decline[d] to furnish" certain additional statements of these witnesses in his possession upon request of Respondent 's counsel. (See NLRB Rules and Regulations, Series 8, as amended, Sec. 102.118.) The record shows that although the General Counsel, during the cross-examination of Bowne, stated he had no such additional statements in his files, at the beginning of the next day's session of the hearing, he voluntarily produced statements of Bowne, Martin, and Laughman which he had discovered, and submitted them to Respondent's counsel, prior to the commencement of Respondent's case. After being given an opportunity to read these statements, Respondent's counsel stated that he was not requesting that these wit- nesses be made available for further cross-examination. On the basis of the circumstances presented, the Trial Examiner believes that there is no basis for striking the testimony of these witnesses and affirms the ruling made at the hearing denying the motion. E. Alleged Violations of Section 8(a)(1) of the Act 1. Alleged surveillance It is alleged in paragraph 5(a) of the complaint that George Tay engaged in surveillance of employees as they were offered union literature. In this connection, Union Representative Everett Kanatzer testified that he dis- tributed literature at the plant to employees for the first time on July 23 (which was a Saturday), at I I a.m., when employees were leaving work.`' He was stationed in the center of the access road leading to the plant, not far from the point where the access road intersects Spring Garden Street, a public road. In one of the first cars leaving the plant at that time and approaching Kanatzer was a person unknown to Kanatzer, but whom he took to be a "boss." After Kanatzer gave this man, identified at the hearing as George Tay, some of the union literature , Tay drove away. However, within 2 or 3 minutes , George Tay returned, turned into the access road, stopped his car near Kanatzer, and waited with his motor running until the em- ployee cars ceased coming and the road was clear. Tay then proceeded up the road to the plant. These findings are consistent with the testimony of both George Tay and Kanatzer, except as hereinafter noted. Kanatzer further testified that when Tay stopped upon his return, and after Kanatzer asked his identity, Tay stopped in the middle of the road, with part of his car ex- tending behind Kanatzer, and watched Kanatzer for 5 minutes as he was handing out literature; further, that Kanatzer told Tay he could not do that, and, in answer to Tay's question, told him it was a violation of the law to watch while his employees took union material. Tay, who did not testify with respect to leaving the plant or the length of his absence, testified that, upon ap- proaching the plant on this occasion at the 4:30 p.m. quitting time (and thus not a Saturday), he noted two em- ployee cars coming down the plant access road, that he drew up 20 feet beyond Kanatzer, where the road "breaks over to another building," and is thus wider, waited a few seconds for the two cars to pass, and then proceeded up to the plant. Tay further stated that he did not watch Kanatzer during this period or say anything to him, although he did look back when Kanatzer "hollered, You can't do that. That's illegal. I'm going to report you." It is Respondent's testimony that two cars cannot pass in safety on the plant access road. Kanatzer testified that such passage was feasible. There was considerable con- troversy over the physical condition of the road and with respect to the pictures of the road placed in evidence. The Trial Examiner, together with counsel and representa- tives of the parties, went to the area and viewed the road. Upon the basis of that observation and the record, it is clear to me that two cars can pass one another on that Respondent showed , for instance , that although Morin admitted in this proceeding that she had "consulted" with Union Representative Kanatzer about her alleged injury by George Tay, she testified in the criminal proceeding that she did not "talk it over" or "discuss" it with Kanatzer, but "talked it over with my mother " 8 Respondent particularly attacks Laughman's credibility on the ground that his description of how he copied a certain notice from the bulletin board relating to Respondent 's no-solicitation rule strains belief. How- ever, although Respondent 's counsel originally disputed the existence of this notice, George Tay later acknowledged that Laughman's copy was substantially accurate. " The record shows the date as July 22. General Counsel's motion to correct the record to July 23 is opposed by Respondent . However, this was the exact date adopted by counsel for Respondent on cross-examina- tion of Kanatzer on the incident. The Trial Examiner's note made at the time is in accord. Kanatzer also testified that this distribution was at I I a.m., which would be the Saturday quitting time General Counsel's mo- tion to correct the transcript of Kanatzer's testimony to July 23 has there- fore been granted 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD road, but I certainly would not hold it an unreasonable ex- ercise of judgment for one car to await a clearing of the road before proceeding. I have no doubt that the conversations stated by Kanatzer, occurred substantially as he testified. As discussed hereinabove, I was not impressed with George Tay as a witness and do not credit him where his testimony conflicts with credible testimony or the record as a whole. However, it is found that, on this occasion, Tay pulled up at the side of the road, and not in the center of the road, as described by Kanatzer. I do not find that this incident, though suspicious, sup- ports the allegation of surveillance. General Counsel urges that the inference be drawn that this must have been Tay's intent because there is no other explanation for Tay's short trip away from the plant on this occasion. However, I cannot find that Tay intended to engage in il- legal surveillance in this instance merely because he did not explain his reasons for leaving the plant in the first place, or staying away a short time. On all of the facts, I find it was reasonable for George Tay to stop his car on this occasion and wait for the road to clear before proceeding. Kanatzer also testified that on a number of occasions he saw George Tay and his son, Thomas Tay, on the out- side of the plant, watching him, and sometimes pointing at him, as he was distributing leaflets, near the intersec- tion of Spring Garden Street and the plant access road, to employees leaving work. The distance involved appears to be approximately 140 yards. Respondent argues that it is not possible to recognize individuals at this distance. Thomas Tay testified that he was unable, from the plant, to recognize an individual, whom he did not know, who happened to appear at the intersection of the roads on the day before he testified. However, the situation is somewhat different here. I am satisfied, from my personal observation, that, at least on a clear day, one could recog- nize at that distance, and in those circumstances, in- dividuals whose features, movements, and contours were already familiar to the observer. Employees' automobiles would be easily identifiable. Kanatzer's testimony that on several occasions he saw George and Thomas Tay on the outside of the plant when he was distributing literature, and that, on some occasions, they motioned in his direction is credited. Both George Tay and Thomas Tay denied that they came to the outside of the plant, during the period in question, to observe Kanatzer distributing literature. It cannot be found on the basis of this evidence that Respondent engaged in unlawful surveillance of its em- ployees. The record as a whole raises certain suspicions, but more than the mere presence of a union representa- tive distributing literature nearby is required to support a holding that management cannot stand outside its plant when employees are leaving at the close of the workday and make motions, otherwise unexplained, in the general direction of the position of the union representative. 2. Alleged unlawful interrogation It is alleged in paragraphs 5(b), (f), (g), and (h) of the complaint that Respondent, through George Tay, unlaw- fully interrogated employees concerning their union ac- "' Swartz identifies Morin as being present and telling Tay on this occa- sion that she was vice president of the Union. Tay denied that he ques- tivities. Evidence adduced by the General Counsel in support of these allegations is as follows: a. Joann Swartz, who had been employed by Respond- ent for several years before she quit in December 1966, testified that in the middle of July George Tay ap- proached her at her machine and asked her if she knew who had brought the union cards in. She testified that although she was aware of the facts she told Tay she did not know. This incident was denied by George Tay. b. Later in July, Swartz stated, George Tay asked her if she knew the attitude of a former employee, Flo Jumper, toward the Union; that, when she said she did not know, Tay said Respondent would not have her back if she was "for the Union." This is denied by George Tay, who testified that he had been advised by Thomas Tay that Jumper had asserted that she was strongly opposed to the Union before she quit Respondent's employment. c. At an unspecified time, but prior to August 22, Genevieve Morin testified George Tay came to her and said, "You are not going to the meetings, attending any meetings of the Union?" She replied, "George, you know I wasn't here when the cards went through the plant.... I was off sick." He said, "Oh, that's right." Although this conversation was not specifically denied by George Tay, it was controverted in effect. Respondent also as- serts that, even if true, it would constitute only an expres- sion of George Tay's thoughts. d. Morin states that a day or two after the meeting of the Union on August 8, George Tay came to her and said, "Ginny, I will have to fire 15 employees, and he said that you will be one of them." He said, "I heard you were head of the God damn union." She replied, "Yes, George, I am one hundred percent." This was denied by George Tay specifically and in effect. e. In this same period prior to the first election, Joann Swartz testified that George Tay asked her how she "felt about the Union," and that, when she told Tay that "everybody had the right to vote their own way," Tay agreed with this and told Swartz that he did not care how she voted, but hoped that they would remain good friends. Swartz stated that she agreed with this, but that thereafter Respondent's attitude changed toward her, a matter considered hereinafter. George Tay denied that he asked Swartz how she felt about the Union. f. On August 22, the Union held an election of officers at its meeting. Thereafter, according to Morin, George Tay came up to her and "said, `I heard you are president of the Union,' and I said, `No, George, I'm not president.' `Well, then,' he said, `You must be vice-president.' He said, `Well, Joann must be the president,' and I said, `If you want to know if Joann is the president, you go back to her where she is where she works and let her tell you."' After this, probably on the same day, according to the testimony of Swartz, Tay commented to Swartz that he had heard that she was "the president." Swartz denied that she was; however, when Tay later remarked to her again that he "sure would like to meet the president," Swartz admitted that he was "looking at her." She states that Tay remonstrated, "No, Joann, it can't be you.""' At this point, Tay told Swartz, according to the latter's testimony, that he had a letter from the Union naming her as the Union's observer in the upcoming election. When Swartz protested that she knew nothing about this, Tay tioned any employee directly or indirectly as to the identity of the Union's officers. CARLISLE PAPER BOX CO. 713 went to his office and got the letter to show her. At this point Swartz asserts that Tay told her that, if she knew "what was good for her," she had "better not take it." Swartz said that she would act as the union observer any- way "and see what does happen." Tay recalled talking to Swartz about this and showing her the letter, but denied threatening her, stating it was of no concern to him who was the Union's observer. g. On an occasion after July 22, Morin testified Tay came up to the place where she and employee Dick Shaffer were working. Morin states that Tay looked at Shaffer "and said, `This girl trying to talk union to you?' Dick said, `No, nobody is.' And I said, `Come on, George, I am not as dumb as I look.' And he said, `No, but you're a liar.''' He says, `You know you might have your laugh now, your laugh and fun now, I'll have mine later ...."' This incident is not referred to in George Tay's testimony. h. According to Swartz, she also had a conversation with George Tay before the second election, in which he asked her how she "felt about voting," which was quite similar to the conversation noted above alleged to have occurred prior to the first election. This is denied by Tay. i. As noted hereinafter, George Tay, after the first election, informed Charles Laughman that by the process of elimination Tay was aware that Laughman had voted for the Union, Apparently, about this same time, accord- ing to the testimony of Ruth Martin, Tay sought to con- firm this conclusion through a query to her, stating that both Tay and Charles Shover standing nearby "know that Charles Laughman voted for the Union, didn't he?" Mar- tin said that she did not know how any of the employees had voted. This conversation was denied by Tay. The testimony of General Counsel's witnesses with respect to these matters is credited and it is found that George Tay in substance and effect engaged in the con- duct attributed to him.12 Respondent argues, in effect, that the matters testified to do not constitute coercive in- terrogation. Without considering what their effect might be if they stood alone or in the abstract, it is plain that the conduct involved here, in the context of this record, tended to interfere with, coerce, and restrain Respond- ent's employees in the exercise of their rights under Sec- tion 7 of the Act, and was so intended by George Tay. This conduct therefore violated Section 8(a)(1) of the Act. 3. Alleged threats It is alleged in paragraphs 5(d), (i), (j), and (n) of the complaint that Respondent, through its president, George Tay, threatened employees in connection with their union activities or support. The record shows the following: a. Morin testified, as previously noted, that a day or two after she attended a meeting of the Union on August 8 (the first which she attended), George Tay told her, dur- ing a conversation concerning her union sympathies, that "Ginny, I will have to fire 15 employees and you will be one of them." Morin further stated that "a couple of days later, he came to me and said that if the God damn union gets in, he will have to fire or lay 15 employees off because he would lose the Puritan order and he said that I was the only one he had threatened."18 b. Employee Joann Swartz testified that about 2 weeks before the first election, George Tay "told me not to say anything to any employees and he said that he might, we might lose the order of Puritans and I asked him why and he said well if the union get in that we would lose the order of Puritans." According to Swartz, shortly thereafter, on a Saturday, when she had gone down to the helper's table, at which employees Quigley and Bowne were located, George Tay said to her "Well, Joann, I'm going down to save that God damn Puritans." She states, "and I told him, `I wish you good luck,' and he said, `You don't have to wish me any good luck,' and I walked away." On another occasion, as part of another conversation, Swartz states Tay said that, if the Puritan order were lost, he would have to lay 15 off. c. Bowne, who was one of Swartz' helpers, recalled an occasion in which George Tay had stated at her table that he and his son "were going to Jeanette to see about the Puritan contract and he said if in case we should happen to lose it there may be some of you will have to look for jobs." Bowne indicated this would cause her no alarm, that she could return "where I came from," where she had previously worked for 13 years. Bowne also detailed a prior occasion on which Tay came to her workplace to ask her if she had ever heard him say anything about laying 15 or so off, if the Union came in. Bowne told Tay she had not, and he thanked her. d. Ruth Martin also testified that Tay came to her while she was at work and said that "if the union got in he'd have to lay off or fire 15 employees." On another oc- casion, according to Martin, Tay told her that "if the union got in he would lose half of the Puritan order or all of it." e. According to employee Charles Laughman, after the first election, George Tay spoke to him about losing the Puritan business if the Union came in, in which case "he would have to lay off 15 or 20 people and I would be one of them.14 He also told me that he was surprised at me because I had voted against him in the Labor Board 'i Earlier that day, according to Morin's testimony, George Tay had come to her at work and told her that the F.B.I wanted to see her in his of- fice. Morin completed her task and was on her way to Tay's office when he called to her that there was "no F.B.I. in that office that wants to see you " Morin states that she stated, "George, you sure do lie," to which he replied, "Ginny, you are the biggest liar." This is one of a series of in- cidents involving conduct of Tay, by which it is alleged employees were subjected to abuse and ridicule because of their union activities and sym- pathies. I t is denied by Tay '° Respondent was permitted, over General Counsel's objection, to question its own witnesses, who are employees, as to whether Respondent had, as to them, engaged in any of the conduct alleged in the complaint, and Respondent now argues that their negative answers constitute strong proof that this conduct did not occur. This, of course, does not follow. It might as easily be argued that Respondent's failure to call other witnesses, some of whom were specifically identified as present at some of these in- cidents, indicates that they would have testified adversely to Respondent. II Kanatzer, the union representative, testified that, when he called George Tay by telephone to arrange for "a card check," on the day after sending his letter requesting recognition, dated July 22, Tay said that "he could lay these people off." In response to Kanatzer's remonstrance that Tay "wouldn't do a thing like that," Kanatzer admitted that Tay said "he did not mean it." George Tay denied this. Thomas Tay, his son, testified he was in his father's office at the time and that the latter did not say this. 14 Laughman asserted that at that time Tay showed him a letter post- marked "Jeanette," which he read then, but was unable to recall at the hearing. 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election." Laughman states that Tay said "that all he had to do was to get down II and he knew who the [rest] were that voted against him and I was one of them."'", f. Bowne testified that, in the last 2 weeks in July, George Tay, while at the table at which she was working, stated to her that he did not know whether she had or had not signed a card for the Union, "but if you did, the one who got you to sign it is your worst enemy you ever had." g. As previously noted, Swartz asserts that Tay, upon advising her that she was the observer selected by the Union, also told her that she should not accept the assign- ment, "if she knew what was good for her." h. Charles Laughman testified that, on August 29, the day before the first election, George Tay told him that he should not go to the union supper scheduled for that even- ing because Kanatzer, the union organizer, was only try- ing to cause trouble between them." As Tay walked away, according to Laughman, he said, "Remember dis- aster rhymes with Kanatzer." Tay denied saying this to any employee. i. Other alleged threats by George Tay are considered in connection with the alleged discriminatory discharge of Morin. It is found that the testimony of General Counsel's wit- nesses to the matters set forth above is substantially accu- rate and it is credited. George Tay denied threatening any employee with respect to the Union, and, either specifi- cally or in effect, denied telling specific employees that he would have to lay off 15 or 20 people if the Puritan order were lost. Tay stated that he might have stated that, if he lost a large order, he "would have to lay off some peo- ple," but denied that this was connected to the Union. Bowne's testimony shows that George Tay did make threatening remarks related to employee union activities. Her testimony also makes clear that Tay did tell the em- ployees that some of the employees would lose their jobs if the Puritan business were lost. Tay's query of Bowne as to whether she had heard him say that 15 or so would be laid off if the Union came in attests to the currency of this threat in the plant and Tay's awareness of it. 17 This testimony, the mutual corroboration of the several wit- nesses that George Tay did make such threats, and the factors previously discussed persuade the Trial Examiner that Tay engaged in the conduct set forth above.'" Respondent asserts, with respect to the Puritan busi- ness, that, even if the statements had been made as al- leged, they would constitute no more than valid economic predictions and thus were not violative of the Act. I do not agree. It may be that, if Respondent were actually faced with the loss of business if the Union came in, with a consequent loss of jobs, it would be within its rights to reasonably acquaint the employees with the facts, Is G.C Exh. 2(b) shows that there were I I votes against the Union in the first election. General Counsel has requested that the record be cor- rected to reflect the testimony as above. Respondent opposes the motion on the ground that Laughman misspoke and that this affects his credibili- ty The Trial Examiner's note, made at the time, is that Tay told Laughman that "Tay knew the I I who voted for him." Since General Counsel's request reflects the clear intent of the testimony, it has been granted ifi Respondent had scheduled a dinner in honor of employee Paul Myers, who was retiring, to be held that same night An office clerical went among the employees to determine which of them were staying for Meyers' dinner. When Tay discovered that Morin was not listed as stay- ing for the Myers' affair, he came to her and remonstrated that she must remain. 11 Bowne was careful to say that she did not recall Tay stating specifi- without threats or coercion, so that they might make an informed choice. Cf. Park Sherman Company, 161 N LRB 1559, 1564. But in this case there was no showing that any loss of business was actually imminent or even a possibility. What does appear is that speculation in this regard was used by Respondent as a vehicle to threaten the employees in respect to their union activities. This and the other conduct found above constitute a violation of Section 8(a)(1). 4. Alleged impression of surveillance In paragraphs 5(c) and (k) of the complaint it is alleged that George Tay, in conversations with employees, by references to "spies," and otherwise, gave the employees the impression of surveillance of their union activities. The record shows the following: a. According to Morin, the day after the union meeting of August 22, she had a conversation with George Tay, as follows: "He says, `tinny, I heard there were spies at the meeting last night.' I said, `George, if there were any spies there you must have sent them.' He said, `Who are they?', and I said, `I'm not going to tell you ...."' b. Laughman asserted that , on this same day, Tay came to him and told him that "the union man had called him and told him that I was one of the leaders in the Union"; "he also said the union man told him I was a spy for the Company."' " c. Joann Swartz testified that on the same day that George Tay spoke to her about acting as an observer at the first election, he also said to her, "`You know, Joann, there's somebody going to meetings and telling me about what's going on,' and he said he said he didn't give a God damn- what was going on at the meetings, and I told him `Yes, George, I know there was a spy that goes and comes back and tell you,' . . . and he said, `Who is it?', and I said, `Well, George, you know just as well as I do who the person is,' and I didn't say the name." d. Employee Ruth Martin testified that, after the first election, George Tay told her that he knew that she had voted for the Union. When she asked how he knew this, Martin stated that Tay replied that he had a machine "he could see through a wall with." Martin's testimony in- dicates that this latter remark was not meant, nor was it taken, as a literal statement of fact. The matters set forth were denied by George Tay either specifically or generally. The testimony of the em- ployee witnesses set forth shows that Tay sought to spread the impression that there were employees who were regularly reporting to him on the employees' union activities at the union meetings, as the Trial Examiner is convinced was actually the case. It is so found. Without cally that the Union would be the reason that the Puritan order would be lost, or for which the employees would be laid off, but she made it clear that, in the context , that was her understanding of the message conveyed by George Tay. II In coming to this conclusion, the fact that Joann Swartz testified in the criminal proceeding that she had not been threatened by George Tay has been considered. Her explanation for that previous testimony is per- suasive and her testimony here is consistent with and corroborated by the testimony of other witnesses "' Laughman, on cross-examination, denied that he had volunteered to spy for the Respondent at union meetings , or that Tay told him not to "do a thing like that." However, he later agreed that Tay had told him, in the presence of Morin, that, if he went to the union meeting and brought hack information to Tay, Tay would fire him. CARLISLE PAPER BOX CO. 715 question , such conduct, particularly in the context of threats and other repressive conduct shown by this record, could only serve to inhibit the free exercise of the employees' rights of self-organization as guaranteed by the Act. It is immaterial whether Tay asked for, en- couraged, or even discouraged such tale bearing , or even that he claimed that he was not interested in such infor- mation.20 What is material is that he engaged in a course of conduct aimed at "needling" union adherents with the fact that whatever they did with respect to the Union was known to him. This conduct, creating the clear impres- sion that Respondent was engaged in surveillance of the employees' union activities , violated Section 8(a)(1) of the Act. 5. Alleged promises of benefit The complaint alleges (par. 5(e)) that on certain occa- sions George Tay promised employees benefits if the Union were not selected as bargaining representative. a. Morin testified that on the day before the first elec- tion, while George Tay and Myers (whose retirement party was that day) were visiting the warehouse, Tay commented on what a good job Morin was doing to keep the warehouse clean. Morin states she then asked Tay, "How about a raise?" In reply, she says, "He said, `I can't give you a raise until I see if the union gets in. If the union doesn't get in, I'll give you a raise.' I said, `Okay, but how about a break [period]?' He said, `I'll give you a 10 minute break, too."' b. Joann Swartz related an instance before the election in which George Tay spoke to her and two other named employees. According to Swartz, "he had come over and he had told us that 13 or 18 cents more that we would get that if the union did not get in, and we told him, well, 18 cents is more, and he said that he thought that we would go along with it."21 Swartz testified that in this same con- versation Tay stated that, if the Puritan order were lost, 15 employees would have to be laid off. The above testimony was generally denied by George Tay. Respondent further argues it would not have made "good sense" for Tay to have made such promises, because it was assertedly not feasible for Respondent to schedule regular breaks or grant "bonuses." These argu- ments, and the asserted facts on which they are based, have been fully considered. In the opinion of the Trial Ex- aminer, the facts relied upon by Respondent do not make it improbable that Tay made the statements attributed to him, and the testimony of General Counsel's witnesses are credited with respect to these matters. Even if the plant operations must be maintained on a continuous basis to prevent hardening of the glue , as Respondent asserts'22 this would not foreclose institution of a system of break periods among the employees, nor does it appear that there was any impossibility of increasing the com- pensation of the employees, as Tay promised. Nor would the illegal effect of these promises made when the vote on representation by the Union was closer at hand be coun- teracted, as Respondent contends, by the statement in Tay's mimeographed letter to the employees dated Au- gust 4, that it was illegal for him to make such promises. It is found that by the conduct set forth Respondent vio- lated Section 8(a)(1) of the Act. General Counsel presented no proof that Respondent promised increased insurance benefits and it is recommended that allegation of the complaint be dismissed. 6. Alleged harassment of employees a. The complaint alleges (par. 5(1)) that George Tay subjected employees to abuse and ridicule because of their union sympathies and activities . The record reveals a number of alleged instances of unusual behavior on the part of George Tay, for the most part affecting Genevieve Morin. They are denied by Tay. Some of them are con- sidered elswhere herein, as in footnote 11 above, and in connection with the discussion of Morin's discharge hereinafter, and will not be detailed here. b. The only instance under this allegation relied upon by General Counsel which does not involve Morin, was an occasion in which Tay ridiculed Union Respresenta- tive Kanatzer to Ruth Martin by stating Kanatzer would look "funny up a tree. " This comment clearly did not vio- late the Act. The Trial Examiner also believes that it is not necessa- ry to consider in detail the evidence concerned with the allegation of the complaint (par. 5(m)(5)) that Respondent harassed employees because of their union activities by criticizing them for previously unnoticed work habits or deficiencies , in some cases making them cry. This allega- tion has reference particularly to Joann Swartz. Respond- ent's activities with respect to her raise certain suspi- cions because of the abruptness and sharpness of the change in Respondent's attitude , and the context in which it occurred , but there is no question but that Swartz made at least one serious and costly error, or series of errors, on 211 Tay's conduct throughout is marked in the record by a strong pattern of ambivalence, Thus, though he made much of spies and spying on union activities , he also asserted he was not interested in hearing about these matters and forbade Laughman (although apparently not others) to bung him information. Although he, on occasion, told Swartz that he wished that they continue friends , and stated his agreement that she should be free to vote as she wished, on other occasions he attempted to repress her union activities. Though he clearly respected Bowne , he also plainly threatened her if she became a union adherent . This apparently impulsive inconsistency is also apparent in the case of Morin, to whom Tay's at- titude, at least before the first election , vacillated between pleasant and antagonistic . After the election. as discussed hereinafter, Tay became in- creasingly hostile toward Morin 21 Swartz repeated the substance of this conversation on a number of occasions. Respondent argues that on one occasion, on cross-examina- tion, Swartz omitted any reference to the Union in her testimony , thus im- pairing her credibility. This has been carefully considered. The pertinent part of that testimony is as follows Q. Mrs. Swartz, you testified this morning concerning the working conditions and the union in the plant and you specifically raised the issue of the bonus of 13 to 18 cents. . A. That's right. Q. Now what was said concerning that bonus? A. Well, there wasn't too much said. We were down there picking off bad lids and he came over, he was going around to each one of us, and he came over, and he asked us something about 13 or 18 cents more, and we said, well , 13 or 18 cents [is] more and he said it is more, and he said we could go along with it .. . Swartz stated that this was the whole conversation. Considering the manner in which the question was raised on this occasion, and the fact that on all other occasions Swartz specifically stated that Tay connected Union with these matters , the Trial Examiner concludes that Swartz' original testimony was not impaired by the above- quoted testimony 'Z There is, however, a luncheon break which must present the same problem. 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one order, after the advent of the Union, which would jus- tify Respondent in being more critical of work than previ- ously. Other changes in treatment of employees generally, and Morin, in particular, are considered elsewhere herein. c. It is alleged in paragraph 5(m) of the complaint that the Respondent engaged in a campaign of harassment of employees in reprisal for their selection of the Union as bargaining agent, which included the institution of a system of warning slips, requiring doctor's excuses for absences due to illness and changing its previous prac- tices of permitting employees to make medical appoint- ments during working hours. In paragraph 5(o) it is al- leged that Respondent maintained and enforced a rule restricting activity on behalf of labor organizations which violated the Act. (1) The testimony of Respondent's witnesses, as well as those appearing for the General Counsel, show that prior to the last part of August or the first of September, working conditions at Respondent's present plant had not been formalized in writing, and were somewhat flexible and permissive. Although Respondent had been in this plant for about 2 years, it had not previously erected a plant bulletin board. However, about the last of August or the first of September, a bulletin board was erected near the timeclock. One of the first notices posted on the bulletin board was one requiring employees absent from work to call in on the first day off, reporting why they were off and when they would be back, providing that "Notes from Doctors, etc., should be turned in on your first day back to work," and requiring that employees who anticipate that they will be absent from work shall request permission in advance. (2) Another notice, posted about the middle of Sep- tember, advised the employees that, "you are expected to make doctors', dentist, etc., appointments after working hours when they have office hours after our working hours, except in emergencies. "23 (3) Lastly, on a date which is disputed, but which was certainly before Morin's discharge on September 16, the following notice composed by George Tay was posted: We will not tolerate any soliciting in any way, shape or form from any employee from outside organiza- tions or on company property. Any person [solicited], [harangued ] or otherwise approached should report it at once. Failure to do so will result in your dismissal. Laughman testified that the notice had been up about a month,prior to the time he copied it from the bulletin board at Morin's request. Employee Quigley, called as a witness for Respondent, indicated that she had seen the notice on the bulletin board after the Union started or- ganizing, "because the bulletin board, I believe, was put up about the time." George Tay asserted that it was posted after Morin was discharged and remained posted for only a few days, when he took it down and destroyed it. Tay stated that he intended to put up a revised notice, but never did so. On the record as a whole, as noted above, it is found that this notice was posted before Morin's discharge. 23 It was shown that some employees, including Genevieve Morin, had turned in doctors' certificates for absences even prior to the posting of this notice referred to above. Also, although it appears that at least some of the older employees were aware that doctors' appointments should be made after working hours, permission to take off during working hours to see Both Morin and Laughman credibly testified that Morin was still employed when he copied it. Laughman gave a written statement, referred to in his testimony, which was dated September 16, and which refers to this notice. While it is not essential to this decision to determine the length of time this notice was posted, it does not seem likely that it was posted as long as Laughman's testimony would indicate. Other than Laughman, no witness refer- ring to the notice gives any clear evidence of being aware of it prior to the week in which Morin was discharged. Morin's credited testimony is that on September 15, be- fore work, George Tay asked her if she were aware of the notice prohibiting solicitation which he had posted. It seems most probable that the notice was copied by Laughman after this. (4) Although Respondent's operations had been con- ducted under the direction of the same person, George Tay, in the present and prior plant locations for a number of years, Respondent had not had any system of written warnings for employees prior to September 1, when the first such written warning was given to Genevieve Morin, under circumstances discussed hereinafter. Both George Tay and Thomas Tay, who had also occupied a manageri- al position with Respondent for some years, assert that they had previously considered this change in policy because, it was stated, employees tended to forget or distort oral warnings. However, it was stated, nothing was done about this until an incident with Morin caused Respondent to immediately institute a system of written warning notices referred to as "pink slips." The one characteristic of this concatenation of events which becomes immediately apparent is their timing. Thus, coincident with the holding of the first representa- tion election on August 30, Respondent appears to have been galvanized into action, providing a bulletin board and written rules of conduct which Respondent had not found necessary to publicize for at least the 2 years it had been in its present plant. Respondent, indeed, does not even suggest any reason for this surge of unwonted activi- ty just at this time, except that heretofore noted for start- ing the "pink slip" system. Further, as considered hereinafter in connection with the discussion of the discharge of Morin, and in view of the timing and context within which the "pink slip" system was instituted, the Trial Examiner is convinced that this change in policy was also part of Respondent's pattern of reprisal against the employees for their activities on behalf of and support of the Union and so finds. Although George Tay testified that the notice for- bidding solicitation "while on company property" ac- tually permitted solicitation on company property on the employees' own time, it is plain that this inference cannot be fairly drawn from the terms of the notice itself, which Tay stated was a "fair copy" of the notice he posted. It is clear that the notice prohibited union activity on Respond- ent's property at any time, and sought to enforce that prohibition by threat of discharge even of employees who failed to report such in-plant solicitation. To the extent that Tay or other witnesses may have asserted a contrary interpretation, such testimony is not credited.24 The rule the doctor because of illness of the employee or the employee's children seems to have been normally given pnor to the notice set forth above. '' There is evidence that later, in mid-October, George Tay agreed with Swartz that she could engage in union activities in the plant on her own time. CARLISLE PAPER BOX CO. 717 as stated is clearly violative of the Act. Stoddard-Quirk Manufacturing Co., 138 NLRB 615. The notices requiring doctors' or other certificates for absences, and prohibiting medical appointments during working hours must be considered within this context. In and of themselves the rules set forth are reasonable, although apparently less liberal and more rigid than the preceding unwritten practices, but in the context in which they were published, and particularly in their timing, they must necessarily have impressed the employees as promulgated in retaliation for their union activities. In- deed, as noted above, Respondent offered no other reason or necessity for their publication in written form at the time at which they appeared. Upon the record as a whole it is found that by the in- stitution of a system of warning slips, posting its notice requiring doctors' and other excuses for absences, chang- ing its previous practices with respect to doctors' appoint- ments during working hours, and maintaining and enforc- ing a rule invalidly restricting employee union activity on Respondent's premises, the Respondent interfered with, restrained, and coerced employees in the exercise of rights under Section 7 of the Act and thus violated Sec- tion 8(a)(1) of the Act. F. Genevieve Morin's Discharge 1. Events from the first election to September 16 Morin was employed by Respondent on April 27, 196625 So far as the record shows she was considered a satisfactory employee at least until after the first election. Morin testified that George Tay complimented her on her work before the first election and once thereafter told her she was a good worker. This was not denied by Tay, who did not contend that the quality or character of Morin's work was deficient. The day after the election held on August 30, 1966, Morin states that George Tay came to her and said, "Gin- ny, you know the union man has left ... he said he wouldn't be back either." When Morin stated that she didn't know about that, she states that Tay replied, "Now I can even make it hard for you." This is denied by Tay. The next morning Morin was involved in a situation which Respondent strongly emphasized at the hearing and argues in its brief as proof of Morin's unsatisfactory conduct. According to Morin, she became ill during the morning and went into the ladies' room to lie on a cot. When George Tay ascertained that Morin was in the ladies' room, he sent his secretary, Lillian Kingsborough, to tell her to come out and go to work, or arrangements would be made to send her home. Morin indicated that she wanted to work and came out of the restroom with Kingsborough. Tay asked Morin when she had gone into the restroom and, when she said that it was about 8 o'clock or a little after, Tay told her that she had gone in earlier than that. According to Morin, Tay said, "You know you are working on my time, you are not working on union time," and further told her, "You're not sick." Morin states that Tay asked "Why didn't you ring out your timecard when you got sick," to which she replied that she had to vomit and she did not feel like going over to the timeclock which was some distance away.26 Morin asserted that George Tay stayed in the area in which she was for the 2 hours,until noon. During this period, Morin asserts that Tay told her that he could fire her for not ring- ing out her timecard when she went into the ladies' room, to which she replied that Tay was "picking" on her, that he was "picking on the wrong person.'27 Tay was "picking" on her, that he considered this a threat and thereupon took a piece of paper and wrote out the follow- ing summary of the incident: At 7:30 a.m.-Sept. 1st Ginny Morin told 2 persons she was ill and without further notice went to rest room until we at 9:55 sent Mrs. Kingsborough in to check - she then came out and stated she went in at 8:30 but did not ring out her work card. She made a statement to me "That I was talking to the wrong one in talking to her" clearly a threat. Geo. Tay Tay testified that he attempted to give this paper to Morin, but that she refused to take it and let it fall to the floor; that he thereupon called over employee Monismith and in Monismith's presence read a copy of the slip to Morin, exactly as written thereon, including his name, and had Monismith sign the copy 26 Tay testified that Morin made no response to this reading, that as to being "courteous or discourteous," she did not appear "either way on this particular thing." Tay stated, "she started to become upset and she seems to have a delayed shock reaction to some things." Morin went into the restroom again during the noon lunch period where she had fellow workers get her some additional patent medicine. At this point she determined that she should go home and requested employee Joann Swartz to call her mother to come get her.29 Morin was absent from work that afternoon and the following morn- ing. Upon her return she brought in a doctor's excuse for her absence. George Tay testified that the office was thus aware of Morin's absence on the afternoon of September 1, but that she was delinquent in not marking her timecard to show that she was not at work from 7:30 to 10 a.m. Tay testified that, if Kingsborough had not brought this to his attention, Morin might well have been paid for that 25 Respondent adduced evidence that Morin was also employed for a few days in 1946, which Morin asserted that she did not recall. So far as appears , Respondent's only purpose in raising the issue was to show that Morin did not remember this. 26 George Tay testified that he told Morin to mark her timecard to show that she had been in the ladies' room from 7.30 to 10:00 and that Morin made no comment to this. Kingsborough testified that Morin told Tay that he could mark the timecard if he wanted to. Morin denied that she was told to mark her timecard. Respondent contends that Morin varied this on cross-examination. The Trial Examiner finds it unnecessary to resolve this point, since it is not essential to the decision of this matter, as set forth hereinafter. 2' Monn also testified that she said he was "talking to the wrong per- son " Tay testified that Morin said he was "talking to the wrong person when you talk to me like that " 28 Monismith confirmed his participation in this incident. Morin denied that the document was read to her by Tay on this occasion. 29 Swartz testified to going to the office , asking permission from King- sborough to use the telephone, and calling Monn's mother. Apparently as part of Respondent's attack on Swartz' credibility, Kingsborough denied that this occurred. 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period.32 Respondent asserts that these actions of Morin furnish part of the basis for Morin's discharge on Sep- tember 16. Within a few days later, according to Morin's undenied testimony, George Tay said to her that he could have fired her for not ringing out her timecard the day she was sick and had gone to the restroom, but that he had done Morin "a good deed," and "he said, `I was talking to my attorney last night and my attorney told me to give you another chance, not to fire you because you are a good worker."' On September 14, George Tay testified that he saw Morin away from her work on two occasions talking to other employees. He stated, "In addition to the other times mentioned, I've seen her and verbally warned her before about not staying at her work position.31 So on this particular date I decided verbal warnings just weren't getting through to her. So I ... wrote up a written warn- ing and brought it out and handed it to her." Tay testified that he did this on the morning of September 14. Morin testified that she did not receive this notice until early the next morning, confirmed by certain notations she made on the back of the warning slip.32 The warning slip given Morin read as follows (matter underlined written in on document, which was otherwise mechanically reproduced): 2nd Warning Date Sept. 14-1966 Name of Employee Ginny Morin Offense disrupting production by using company time to solicit for other organization. Repetition of this or any other offense may result in your dismissal. Signature of Geo. Tay Tay, however, as noted previously, testified that he did not hear what Morin was talking about, or know what or- ganization she was working for, and further denied that on that date he even knew Morin was active on behalf of the Union. When asked why, on this and previous occa- sions, he was critical only of Morin for these conversa- tions, Tay gave as a principal reason that Morin was the "ringleader" in these activities. Also on this date, according to Morin, George Tay ac- cused her of taking money from a union representative, and, after her denial of this, said he would send her flowers because she was going to die. This is supported by the testimony of Laughman. It is denied by George Tay. Thomas Tay testified that on this same afternoon he reviewed Morin's work file and put a summary which he had made into her file on that date. Thomas Tay stated that a review of Morin's file "indicated to me that there were a number of mentions in her work file, her per- formance and also that her attendance record was very poor." Thomas Tay stated that he put an analysis in the file showing that she was absent from work 23 percent of the time.33 Tay testified that he considered she was "one problem" that his father might have while he was away for two weeks on a tour of duty with the Army Reserve. He therefore recommended that if there were any more trouble with Mrs. Morin that she be discharged. The next morning, Morin relates that, as she was going in to work with employees Kirtz, Donna Swartz, and Myers, George Tay came up and asked her if she had read the notice he had put up "about not talking union on my premises;" that further, when she said she had not read the notice, Tay said he had proof she was "talking union to these girls in there." Morin says that she denied this and told Tay what she was talking about was none of his business.34 According to Morin, Tay said he was going to fire her, to which she replied that he could "just go ahead." Morin states that as she started to walk away, 30 Respondent argues in its brief that Morn's delinquency in marking her timecard would have resulted in her being paid for the entire day, if Kingsborough had not caught the card. This is a misconstruction of the testimony, caused by Tay's assent to a quite leading and suggestive con- clusion of counsel, as the following shows- A. [George Tay] . . So that, they [Respondent's office] had figured her card for five hours, from 6:55 to 12:00 o'clock, giving her five hours for that morning. Q. [Mr. Beckley] Well, what about ringing in after 12 for the rest of the day , what happened to that time? A. They apparently knew that she was off that afternoon I think that she had later brought in a medical certificate. Had she not brought in the medical certificate, she very easily could have been paid for the whole day, eight hours - or nine, I think at that time. Q. So, based on Mrs. Morin's handling of the card , she would have received a full day's pay had it not been caught in your office? Mr Subnn: Objection ... A. Yes. That's correct 31 Tay testified that he saw Morin away from her work on two other oc- casions, talking to other employees . Tay states that, on August 16, he saw Morin with a group of employees "in a circle and Mrs. Morin was doing quite a bit of talking to them and everybody was laughing and nobody was working." Tay asserts that he told Morin to get back to work and that broke up the group. On August 29, Tay states he saw Morin talking with a group of employees which broke up as he approached. It does not appear Tay said anything to Monn on this occasion, or that any employee was given a written warning slip on either occasion . Tay's testimony did not support the assertion on Resp. Exh. 39(a) that he had spoken to her about talking to other employees on August 29. Monn denied that she had been warned on these occasions. 32 In a previous affidavit given the investigating agent of General Coun- sel by Morin, it is stated that she received the slip on September 14, which General Counsel suggests was a clerical error made by the investigating agent. However, this conflict, like some others litigated at the hearing con- cern matters which clearly do not have to be reached in order to decide the critical issues in this case. See, e.g., the conflict between Kingsborough and Swartz referred to in fn. 29. 33 A document asserted to be Morin's absentee record was marked but not offered. The record as a whole, however, indicates that the major part of Morin's absences were due to illness for which she presented a doctor's certificate and which were excused In addition Respondent points to several occasions on which Morin rang out from work early. Monn testified that this was done with the permission of or at direction from Su- pervisor Sharpe. Morin's explanations were convincing in this respect. Sharpe's demeanor and testimony was not and his denials are not credited. On one occasion Morin asserts that she obtained permission from Thomas Tay to leave early to bung her mother home from the hospital, which Tay, supported by Kingsborough , denies. However, he admits, knowing shortly thereafter of this early leaving and said nothing to Morin about it. Morin's explanation of this incident was persuasive and she is credited. Thomas Tay's testimony and Resp. Exh. 39(b) assert that Tay talked to Morin on June 13, about her absences and the necessity of obtaining per- mission to leave early, which Morin denies. There is no evidence of any absences of Morin -prior tq that date with the exception of two occasions on which it is found, in accordance with Morin 's testimony, that she ob- tained permission from Sharpe. 34 General Counsel suggests that this was a reference to the conversa- tion between Morin, Donna Swartz and Myers who had just come from a car. CARLISLE PAPER BOX CO. Tay said, "Well, get the hell in there, and go to work," to which she replied she would. Morin asserts that, shortly after she clocked in for work that morning, George Tay gave her the pink warning slip previously discussed. The events related by Morin were denied specifically or in ef- fect by George Tay.35 2. The events of September 16 According to Morin, George Tay stood around near her work on September 16, more than usual, and watched her. During the course of the day, Morin testified, she saw Tay make a gesture of scorn or derision toward her. This last was corroborated by Laughman.36 At quitting time that afternoon occurred the dramatic events during which Morin was discharged. Morin testified that, after she had rung out her timecard, "I walked over to the bulletin board and Charles Laughman was standing there and I stood beside him and I said, `Charles what is that notice he just put up.' He said, `I can't find it myself,' ... I was bent over looking at the bulletin board and I was bent over, somebody came and hit me." Morin testified that she fell against Laughman and thereafter straightened and turned to the right. Con- tinuing, Morin stated, "and I turned around and George Tay was behind me. I looked at him and I said, `George, what did you hit me for.' He said, `You're reading the bul- letin board on my time.' I said, `No, I'm not, I already rang the timecard out.' He says, `No, you didn't.' So while he was talking to me about that, he hit me here in the ribs and he grabbed me by the arms and shaking me I said, `Wait a minute, George.' I said, `Damn it, you hit me twice, but you are not hitting me the third time.' He said, `I can hit you or do anything I want do to, you're in my place.' So I walked away and went over toward the line [where employees were in the process of ringing out and leaving the plant]. The girls were coming through and he looked over at me and said, `You are fired.' He said, `Come in the office and get your God damn check.' I said, `George, I don't want that damn check.' I said, `and furthermore I was not going into the office with you because I'm afraid of you.' So I walked out to where the table was and he came in front of me and ... I was crying and I was hurt ... and I was getting a hankie out of my pocketbook ... and he said, `You know, Ginny, I've been trying to get something on you for a long time and I did.' He said, `You can't work in here for me and work for that God damn union man.' So I picked my pocketbook up and walked out and he walked me clear to the front door. And I was crying going down over the hill." Tay's version of the events was: "I try (everyday that I'm at the plant and ... I can make it and ... I don't get too busy with some other thing) to go out to the checkout clock at quitting time and stand there and see if everybody looks happy and say good night to them and try to be pleasant to them ... [on September 16] I was 35 Before joining Kirtz , Swartz, and Myers on this morning, Morin had been talking to employee Dorothy Hill. Hill , called as a witness for Respondent, denied that she had witnessed the events Morin described Kirtz, Donna Swartz, and Myers were not called as witnesses. 36 George Tay denied this testimony. He asserted that he was in the fac- tory that day much less than usual since he spent much of the day with his son going over matters that would have to be taken care of in his son's absence from the factory This was confirmed by Thomas Tay. 37 This statement , which is rather critical to Tay's explanation of events which followed, was not elaborated on direct examination . On cross-ex- 719 a little bit late because I had been talking to my son and I was in a little bit of a hurry. A few people apparently had already rang out when I got there ... I could see the line of people standing and I specifically saw Genevieve Morin in the line." Tay states that when he got to the line he saw Morin with her back to him leaning over the bul- letin board. Laughman was at her left also facing the bul- letin board, with his back to Tay. Tay continued, "She was leaning over the bulletin board; and we had had some things disappear from the bulletin board37 . . . I went through the line, come up behind Mrs. Morin ... I reached out and touched her [with his open hand just about the top of the shoulder blade on her left side] and said, `tinny, you can't take stuff from the bulletin board."' Tay denied that he hit or struck Morin and stated that he touched her entirely on a garment she was wear- ing. Tay states that Morin did not stagger or fall and turned to her left, counterclockwise, until she faced :"'n, not to the right as she testified. Tay testified that in reply to his statement, Morin replied, "It's none of your God Damn business what I do. I'm on my own time." Tay added, "I'm astounded at somebody swearing at me like this, and I probably said, `You're still on my property.' ... She kept moving around. This whole thing lasted only a few seconds, a very few seconds. She kept moving around. She was swearing and cursing under her breath at me -I mean not under her breath that I can't hear it. I can hear swearing and cursing, but so many things and such a jumble that I can't be expected to remember everything she is saying. And she bears herself up against me so hard I put my arm out to fend her off. Just as we got to the line she says, you hit me. `You hit me.' And I said, `That's a lie. That's a damn lie.' And she got through the line and she said, `I'll have your ass in jail for this.' And she kept swearing and cursing at me. I turned around and said, `I think I've had enough. I don't think any man operating a business can operate it with the other em- ployees seeing him held in such disrespect as this.' I turned around and said, `Ginny, you're fired. Come in the office and get your check."' Tay states that he doesn't re- call what she said then, but that he left and went to his office.38 Tay denied that he walked with Morin to the em- ployees' exit, or saw her cry or take out her handkerchief on this occasion. The General Counsel adduced testimony from three witnesses, Laughman, Martin, and Bowne, in support of Morin's version of the incident. Only the account of Bowne will be considered here. For the reasons previ- ously given, the Trial Examiner believes that her testimony is highly reliable and it is credited. Bowne checked her timecard out that evening at 3:31 p.m., and turned to leave the plant. After taking a few steps she "saw Mr. Tay coming my way and to me he looked like he was cross about something." Bowne said that she thought Tay was angry, "[b]ecause I looked at Mr. Tay and whenever something doesn't seem to be right he seemed to color up in the face and that is why I amination, Tay asserted that "different notices" had disappeared, that he did not "know particularly which ones," that "[t]hey weren't terribly im- portant but I just didn't like people taking our notices off the bulletin board." 38 George Tay, Thomas Tay, and Kingsborough testified that, although the latter two were in the office at the time, George Tay said nothing to them about what had occurred. Morin's discharge was confirmed by letter from George Tay, dated September 16, stating that her check was en- closed. 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thought something was disturbing him"; in addition, Tay was "moving quickly" and "seemed to be in a hurry." As Bowne turned to follow Tay's passage through the line of employees at the timeclock, she became conscious of the fact that she had not deposited her timecard in the recep- tacle provided for the purpose and returned for that pur- pose, giving her a view of Tay behind Morin and Laughman at the bulletin board. At this point, Bowne saw Tay with his right hand raised with palm open, about the level of his ear, beginning a sweeping motion downward, "as if he were going to lay it on her shoulder." As Bowne momentarily averted her head to put her timecard in the receptacle, she "heard a crack, it sounded like a slap."39 Bowne continued, "And I turned around and as I did Genevieve was raising up, she had been stooping over from the waist. When she raised up and seemed to stagger40 and she said to Mr. Tay, `George, what did you hit me for?' and he said `Well, you're reading the bulletin board on my time.' She said, `I'm not, I rang my card out,' and then the next thing I saw was Mr. Tay had his hand on her arm between the elbow and the shoulder and he told Genevieve that she was to come to the office and get her God damn check, she was fired. In the meantime - pardon me - Ginny said you hit me twice - George what did you hit me for and after that she said you hit me twice and don't hit me again and then he told her she-was [to] come to get her check to the office and get her God damn check, she was fired." Bowne states that Morin replied, "I am not coming into the office, I don't want that damn check, I'm afraid of you." At this point Bowne turned and left and did not see what may have occurred between Morin and Tay thereafter. Respondent argues that the testimony of employee Mary Jane Frysinger establishes that Bowne could not have seen what she states she saw. I have reviewed Fry- singer's testimony with care, and, based on her testimony as a whole and on her demeanor as a witness, I would not credit her testimony which conflicts with that of Bowne. In essence, Frysinger, who rang her timecard out at 3:30 p.m., and thus preceded Bowne, testified that she was in line to ring her card out when she jumped back to let Tay pass through the line on the way to the bulletin board where Laughman and Morin were standing. She states that she saw Bowne standing on tiptoes behind a pile of boxes, where she could not see the incident. Fry- singer, whose account of what happened at the bulletin board area largely supports Tay's testimony, asserts that she saw and heard part of the altercation before she rang her timecard out and part of it as she was backing down an aisle away from the timeclock and more of the en- counter from her work station to which she retreated.41 The evidence indicates that it is much more probable that Frysinger's contact with Tay, if any, occurred after she had clocked out, and whatever she saw and heard oc- curred thereafter. Frysinger indicated that there were 30 Respondent presented testimony that the plant loudspeaker system erratically gives off crackling noises and the timeclock makes a sharp noise. No witness, however, identified either of these noises with the crack or slap some heard at the time of this incident. 40 Bowne also stated that at this point, Morin "seemed to tilt," and fell against Laughman, turning to the right to face Tay, Laughman also testified that Morin fell against him. 41 After Frysinger indicated the path of her retreat, Respondent's coun- sel, asserting that Frysinger was misled by Respondent's photograph of the area, expressed doubt that she could see the bulletin board, as she said she could, from the positions she indicated. only five employees, including Morin, ahead of her in the checkout line, just before the incident. Three of these, Morin, Hill, and Quigley, had clearly clocked out before Tay reached the line, and it appears that the fourth, Joann Swartz, had also checked out well before Tay came to the line. The fifth employee, Hildebrandt, did not testify. It is indicated that the employees were checking out quickly. Quigley stated that she and Morin clocked out al- most simultaneously. This, together with other evidence noted and Frysinger's lack of credibility generally, is con- vincing that Frysinger had clocked out before Tay reached the line. Lastly, Frysinger admitted that she had previously stated, in a statement given to the agent of the General Counsel investigating the charges in this matter, that she did not see or hear anything connected with the incident. She explained at the hearing that she gave this knowingly "false testimony ... because I felt it was one way to stay out of it." Another witness produced by the Respondent, Lillian Walters, who clocked out at 3:31 p.m., asserts that she saw Tay touch Morin lightly, observed Morin turn to the left to face Tay without staggering or falling, and that then "He asked her what she was doing. She said she was on her own time. He said, `You're still on my property.' And there were words, but I couldn't hear what Mr. Tay was saying. He talks in a low voice." Walters testified that she heard Morin say, "God damn" and "sonofabitch"; as Tay and Morin walked through the line behind her, Walters also heard Tay tell Morin to come to the office to get her check. Later, Walters saw Morin and Tay at a table in the plant, where she states she saw Morin take out a cigarette and light it, and tell Tay that she was "going to have your ass arrested."42 Joann Swartz testified that, the morning after Morin's discharge, George Tay came to her, "Well, Joann, I got rid of one and you will be the next one going out, but not the same way Ginny went out, over the back." Swartz states that she answered, "George, there won't be no other way. The only way I always go out is on my own two feet," and that Tay did not answer. This was denied by George Tay. 3. Conclusions with respect to the discharge of Morin It is clear that George Tay was much upset by the results of the first election, in which a majority of the em- ployees voted in favor of representation by the Union. He appears from his own testimony to be a person highly sensitive of the good will of his employees toward him personally. This was brought out in his testimony with respect to the unusual efforts he makes every day to be at the timeclock to greet the employees as they leave for the day, "to see if everybody looks happy and say good night 42 Frysinger testified that Morin said this to Tay as the two were walk- ing along in the plant, approaching Frysinger's table. Frysinger states that Tay accompanied Monn to the door of the plant and told Morin at that point to get out, that she was fired and that Morin shouted that Tay had done just what she wanted him to and she was going to have "his ass ar- rested." She states she saw Morin smoking a cigarette . Morin denies lighting a cigarette in the plant or telling Tay she was going to have his "ass arrested." She also denied the comments outside the plant attributed to her by Frysinger. Tay, as has been noted, denied any contact of conver- sation with Morin after they left the timeclock area CARLISLE PAPER BOX CO. 721 to them and try to be pleasant to them."43 This rejection of his good will must have been difficult for him. Morin testified that she saw him crying after the election. Tay denies this, referring to the fact that he even joked with Kanatzer after the results were known. However, Tay's demeanor, the record as a whole, and his own testimony indicate his rather emotional nature.44 It is found, in ac- cordance with Morin's testimony, that, after the election, Tay did give visible evidence of his vexation over the results. Thereafter, it appears that Tay's resentment was directed at Morin in increasing measure. Thus, the day following the election, Tay told Morin that, now the elec- tion was over, the union representative would leave and he could make it hard on her. The next day, Morin became sick and went to the restroom. It is rather difficult to understand Respondent's contention that Morin's con- duct was improper on this occasion. There is no question that she was sick in this instance, and her actions cer- tainly appear reasonable under the circumstances. Tay's rather harsh attitude toward Morin on this occasion, which appears quite unlike his normal tolerant attitude'45 and his rejection of the notion that Morin was sick, is ex plicable by his resentment of her union activities, as is shown by his accusation to her, on that occasion, that she was "working on my time, not on union time." Nor is Respondent's argument persuasive that Morin committed a grave fault in failing to mark her timecard on this occa- sion. As the record shows, the matter involved was 3 hours or less, and Morin could reasonably believe that Respondent was aware of and would adjust this matter, as actually occurred. As George Tay thereafter advised Morin, Respondent, in view of her past good work, did not consider that this occurrence justified her discharge. Later the same morning, however, George Tay decided that it was necessary, for the first time in Respondent's history, to give Morin a written reprimand for her con- duct on that day. Tay asserted that this was occasioned by the "threat" made to him by Morin. Considering the basis out of which this reprimand arose, the fairly mild na- ture of the statement which is asserted to have given of- fense, and Tay's own recognition of Morin's distraught condition - Tay referred to her state of "delayed shock reaction" during this period - it is found that this written reprimand constituted an additional manifestation of Tay's displeasure with Morin because of her union activi- ties, and was not occasioned merely by her conduct on September 1.46 It is further found that Tay's decision, on September 14, to give Morin a further written reprimand arose out of his displeasure with her association with the Union and adherence to it. There is no question but that Tay on this occasion had reference to the Union when he stated Morin was soliciting for another organization. Morin de- nied that she was engaged in such conduct, stating that she was talking about her work. Tay states that he did not hear what was said, and apparently made no investigation of the incident. None of the other employees involved testified concerning this. Morin's testimony is therefore credited as to the nature of this conversation. Also during this day Tay again made "needling" com- ments to Morin about her-relationship to the Union. That afternoon, Thomas Tay apparently took particu- lar note of Morin's file and, assertedly, determined that she was one employee who might cause trouble during Tay's projected 2-week absence from the plant. The Tays agreed that afternoon that Morin should be discharged, assertedly if she caused trouble again. It seems plain that this discussion between the Tays was based on Morin's union adherence and activities, and that the decision to discharge her at the first opportunity was grounded on these considerations. As just discussed, all of Morin's difficulty with Respondent for the previous 2 weeks or more, as shown by the record, had arisen out of Respondent's resentment at her union activities. No other reason is shown which would explain why Thomas Tay reviewed Morin's file on that Wednesday, the same day Morin was allegedly engaged in soliciting for an "other organization," as discussed above. So far as is shown, the file of no other employee was so reviewed. It is also further strange, and quite unexplained, why Respondent reviewed Morin's file and made this decision on that Wednesday, when, according to the testimony of both Thomas and George Tay, it was not until Friday, Thomas Tay's last day in the plant, that the two sat down to discuss the problems that might be occasioned by Thomas Tay's absence from the plant. Morin's testimony is credited that the next morning (after the Tays had decided to discharge her at the next opportunity), George Tay upbraided her about talking about the Union, advised her of the notice which he had posted forbidding solictation on Respondent's premises, and threatened to discharge her. On September 16, as the credited testimony of Laughman and Morin shows, Tay made a derisive gesture toward Morin during the workday. That afternoon oc- curred the incident at the bulletin board. There is no question in the Trial Examiner's mind, based on the record as a whole, and Bowne's testimony in particular, that George Tay, upon seeing Morin at the bulletin board that afternoon with Laughman, concluded that she was again using his time for her own purposes, and, agitated by his prior upset with Morin over her alleged use of com- pany time for union purposes, and conscious of his prior determination to discharge her if this happened again, of which he had warned Morin, hurried to Morin and ac- cused her of reading the bulletin board on his time, rather 43 Further illustration of this concern for the good opinion of his em- ployees is mirrored in his volunteered statement that, when he stopped his car near Kanatzer, on July 23, this was not to observe Kanatzer, but in courtesy, for "[t]hese were my employees and I would like for them to think I'd treat them well." 44 Two illustrations from Tay's testimony give some index to his emo- tional state : Thus, he volunteered, when asked whether Morin cried at the time of the bulletin board incident, that she did not, but that "I almost did." Further, in denying that he threatened Swartz the day after Morin's discharge, Tay added that he was still so upset over that incident "that I would't have enough guts to threaten anybody if they had come at me with a hammer." 41 Thus, Frysinger testified that, on a previous occasion during which she was having what can be only described as a temper tantrum in the plant, "throwing things right and left," Tay temporized with her, asking if she "hated" him and asking whether she did not like to work for him, until she started crying and got over her upset. It does not appear that Fry- singer was criticized for her upset, or for throwing things around on this occasion. 46 It is found, however, that Tay did read the notice to Morin on this oc- casion as he and Monismith testified. 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than checking out and leaving the plant as the other em- ployees were doing. Tay's contrary testimony is not credited. It also is quite apparent that Tay directed his accusa- tions at Morin alone on this occasion, and not at Laughman also, for the same reason that he had previ- ously criticized Morin alone for allegedly using company time to talk with other employees in the plant: because Tay, as he stated, considered her to be the "ringleader." It is not necessary to determine whether George Tay, on this occasion, hit Morin so that she was injured.47 Very probably, because he was upset and had been hurry- ing, he put his hand on Morin with more force than he in- tended. Morin clearly staggered against Laughman and almost fell, as Bowne, Morin, and Laughman testified. It is possible that Morin injured herself in this manner rather than being struck again by Tay as she clearly thought. This must have been observed by Tay, who was immediately made aware that Morin thought she had been hit and was emotionally upset, as evidenced by Morin's complaint that Tay had hit her, in fact had hit her twice, and that she was not going to permit it again. Both Bowne and Morin testified that it was at this point that George Tay fired Morin and this is credited. Walters testified that she heard Morin say "God damn" and "sonofabitch" in a loud voice, before she was fired. This is not supported by the credited testimony of Bowne, or, as to the latter item, by George Tay. Walters' original affidavit does not mention this and indicates that Walters did not hear Morin use this language. Walters also states that she did not see Morin fall or stagger, con- trary to the account of Bowne and others, and gave as her opinion that Tay touched Morin lightly and did not harm her.48 This testimony is not credited. However, the Trial Examiner does credit Walters with respect to her state- ment that Tay and Morin proceeded into the plant and, at a table where they paused, Morin lit a cigarette and told Tay that she was going to have his "ass arrested ."4, It is further found that Tay while at the table said to Morin, as the latter testified, that he had been trying to get something on Morin and had finally done so, that she could not work for Respondent while working for the "U- nion man." Because of the Trial Examiner's complete lack of confidence in Frysinger's testimony with respect to these occurrences, her account also of what Morin is alleged to have done and said outside the plant that after- noon, which was denied by Morin, is not credited. From the above, and the record as a whole, the Trial Examiner is convinced and finds that George Tay ap- proached Morin at the bulletin board on September 16, with the intent of discharging her because of his resent- ment against her union activities, and that Morin gave him no cause for his action. It is therefore found that Respondent, by discharging Genevieve Morin and thereafter refusing to reinstate her, engaged in and is en- gaging in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. While this conclusion has been reached independently of the testimony of Joann Swartz as to the statements made to her by George Tay on September 17, Swartz' testimony as to that conversation is credited and supports the conclusion reached. CONCLUSIONS OF LAW 1. The Respondent 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. The following unit of Respondent's employees is appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees including truckdrivers and print shop employees at the Respondent's Carlisle, Pennsylvania, plant, but ex- cluding all office clerical employees, guards and all supervisors within the meaning of the Act. 4. Since November 10, 1966, the Union has been and continues to be the exclusive representative of the em- ployees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. The Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, which unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that the Respondent engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. It will be recommended that the Respondent offer Genevieve Morin immediate and full reinstatement to her former or substantially equivalent position, without preju- dice to her seniority and other rights and privileges, and make her whole for any loss of earnings she may have suf- fered by reason of the discrimination against her to the date of offer of reinstatement, less interim earnings, and in a manner consistent with Board policy set out in F. W. Woolworth Company, 90 NLRB 289, and Crossett Lumber Company, 8 NLRB 440, to which shall be added interest at the rate of 6 percent per annum as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. In making the above recommendation, the Trial Ex- aminer has considered the fact that Morin, after being discharged, lit a cigarette in the plant and told George Tay in crude language that she would have him arrested. Respondent contenas that this justifies it in refusing Morin employment. However, the record shows that Respondent has not inflexibly observed its no-smoking rule in the plant. Moreover, it does not appear that the lighting of the cigarette was a deliberate act of defiance, but quite probably was a reflex action caused by the rather traumatic experience immediately preceding, which itself was the climax of a period of harassment of Morin sufficient to exacerbate steadier nerves than I judge her to possess. Her comment to Tay that she was going to have him arrested, though crudely put, was also 47 Tay was acquitted in the criminal proceeding of assaulting Morin. 48 In both her testimony and her affidavit Walters also stated that Tay grasped Monn's garment. She is the only one to so testify. 49 Although no reliance is placed on Frysmger's testimony, it is noted that on this point her account substantially parallels Walters '. Morin agreed that she threatened to have Tay arrested, but not in these terms. Tay's testimony that such statement was made before Monn's discharge and that he discharged her for cursing is not credited CARLISLE PAPER BOX CO. 723 a natural consequence of these same emotional ex- periences, as were Morin's tears, which she testified were her reaction to the events. It is therefore concluded that by these actions Morin is not disqualified for reinstate- ment as recommended above. It will also be recommended that Respondent preserve and make available to the Board or its agents, upon request, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records and reports necessary to analyze the amount of backpay due and the right to reinstatement under the terms of these recom- mendations. Respondent's posted no-solicitation rule has been found to be invalid and it will be recommended that the rule be rescinded. Respondent's two other written rules considered herein, and its system of written reprimands are not unreasonable on their face, but violate the Act because they were published in order to interfere with, restrain, and coerce employees in the exercise of their rights under the Act, and are more stringent and less per- missive than Respondent's prior practices. It will not be recommended that these rules be rescinded, but it will be recommended that such rules not be instituted, ad- ministered, or enforced in the future in a manner which will interfere with, or for the purpose of interfering with, employees in the exercise of such rights. In order to make effective for the employees of the Respondent the guarantee of rights contained in Section 7 of the Act, it will be recommended that the Respondent cease and desist from, in any manner, infringing upon the rights guaranteed in that section. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case, it is recommended that Respondent , Carlisle Paper Box Com- pany, Carlisle , Pennsylvania, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees in order to discourage membership in and sup- port of United Glass and Ceramic Workers of North America, AFL-CIO, or any other labor organization. (b) Threatening employees with discharge , layoff, or other reprisals if they become or remain union members or give assistance or support to a union. (c) Threatening , instituting, or enforcing rules or con- ditions of employment for the purpose of discouraging, or in a manner which will discourage union membership or union activities , or otherwise penalizing or harassing em- ployees because of their exercise of rights under Section 7 of the Act. (d) Interrogating employees concerning union mem- bership or union activities in a manner violative of Sec- tion 8(a)(1) of the Act. (e) Promising employee benefits in order to discourage union activities or membership. (f) Engaging in conduct creating the impression of sur- veillance of union activities of employees. (g) Threatening employees that they will lose work if they select a union to represent them in the plant. (h) Subjecting employees to ridicule or embarrassment in order to discourage union activities or membership. (i) Reprimanding or issuing written warnings to em- ployees for the purpose of discouraging union activities or membership. (j) Continuing in effect or enforcing the rule against union solicitation or activities discussed herein which was posted by Respondent in September 1966. (k) Refusing to bargain collectively with United Glass and Ceramic Workers of North America, AFL-CIO, as the exclusive bargaining representative in the appropriate unit set forth herein. (1) In any other manner interfering with, restraining, and coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the purposes of the Act: (a) Offer to Genevieve Morin immediate and full rein- statement to her former or substantially equivalent posi- tion without prejudice to her seniority, or other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of Respondent's dis- crimination against her as set forth in the section of this Decision entitled "The Remedy." (b) Upon request, bargain collectively with United Glass and Ceramic Workers of North America, AFL-CIO, as the exclusive representative of the em- ployees in the unit herein found appropriate, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an agreement is reached, embody such understanding in a signed agree- ment. (c) Preserve and make available to the Board or its agents, upon request, the records necessary to determine the adequacy of reinstatement of Genevieve Morin and the adequacy of backpay due her, as set forth in the sec- tion of this Decision entitled "The Remedy." (d) Rescind the written rule forbidding union solicita- tion and activities posted in September 1966. (e) Post at its plant at Carlisle, Pennsylvania, copies of the attached notice marked "Appendix."50 Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by Respondent's representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 4, in writ- ing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.51 IT IS FURTHER RECOMMENDED that all allegations of unfair labor practices in the complaint except for the un- fair labor practices herein found be dismissed. 50 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." si In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith." 336-845 0 - 70 - 47 724 DECISIONS OF NATIONAL 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 discharge or otherwise discriminate against employees in order to discourage member- ship in or support of United Glass and Ceramic Wor- kers of Noth America, AFL-CIO, or any other labor organization. WE WILL NOT threaten employees with discharge, layoff, or other reprisals if they become or remain union members or give assistance or support to a union. WE WILL NOT harass or penalize employees because of their membership in or activities on behalf of a union by the institution or enforcement of rules, changed working conditions, or otherwise. WE WILL NOT interrogate employees concerning union membership or activities in a manner that will interfere with the rights of employees under the Act. WE WILL NOT promise employee benefits in order to discourage union activities or membership. WE WILL NOT engage in conduct creating the im- pression of surveillance of union activities of em- ployees. WE WILL NOT threaten employees that they will lose work if they select a union to represent them in the plant. WE WILL NOT subject employees to ridicule or em- barrassment in order to discourage union activities or membership. WE WILL NOT reprimand or issue written warnings to employees for the purpose of discouraging union activities or membership. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the Act. WE WILL rescind the written notice posted on the bulletin board which prohibited employees from en- LABOR RELATIONS BOARD gaging in union activities on plant property on non- work time, and WE WILL permit employees to engage in union activities on plant property on nonwork time. WE WILL bargain collectively, upon request, with United Glass and Ceramic Workers of North Amer- ica, AFL-CIO, as the exclusive representative of all our employees in the appropriate bargaining unit with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employ- ment, and, if an agreement is reached, embody such understanding in a signed agreement. The appropriate bargaining unit is: All production and maintenance employees including truckdrivers and print shop employees at the Company's Carlisle, Pennsylvania, plant, but excluding all office clerical employees, guards and all supervisors within the meaning of the Act. WE WILL offer Genevieve Morin immediate and full reinstatement to her former or substantially equivalent position without loss of seniority or other rights and privileges, and WE WILL make her whole for any pay she lost because of the discrimination, with interest. All our employees are free to become or remain, or refrain from becoming or remaining, members of United Glass and Ceramic Workers of North America, AFL-10, or any other labor organization. Dated By CARLISLE PAPER Box COM- PANY (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1700 Bankers Scurities Building, Walnut & Juniper Streets, Philadel- phia, Pennsylvania 19107, Telephone 597-7601.