Sarkes Tarzian, Inc.

SARKES TARZIAN, INC. 587 Sarkes Tarzian , Inc. and International Brotherhood of Electrical Workers, AFL-CIO. Cases 25-CA-2490, 25-CA-2534, and 25-RC-2308 February 1, 1968 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On March 8, 1967, Trial Examiner David Lon- don issued his Decision in the above-entitled proceedings, 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 recommended that the election held herein be set aside. Thereafter, Respondent filed exceptions to the Decision and a supporting brief, and General Counsel filed a brief in support of the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with 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. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in these cases, and finds merit in Respondent's exceptions. Ac- cordingly, the Board adopts the Trial Examiner's findings, conclusions, and recommendations only to the extent that they are consistent with the fol- lowing. Respondent is engaged in the manufacture of electrical equipment at three plants in Monroe County, Indiana. The Union began a drive to or- ganize the more than 1,600 production and main- tenance employees at the three plants in April 1962. In January 1963, there was an election. The Union lost and filed objections. The Board set aside the election and directed a second election. I On May 12, 1966, the Board conducted a second election. Again the Union lost and again it filed objections to the election. It also filed unfair labor practice charges. The objections and the unfair labor prac- tice allegations were consolidated for the purpose of, a hearing. The Trial Examiner found that Re- spondent had committed multiple violations of Section 8(a)(3) and (1), and found further that these violations warranted setting aside the election. 1. The Trial, Examiner found that Respondent imposed, and kept in effect until employee Tom Beech quit, a rule against work relaxation by its maintenance employees in order to devise a pretext to discipline said employees for their union ad- herence. We disagree with this finding. Tom Beech was one of five maintenance men on the night shift. He was hired in February 1966. On this evening of April 14, 1966, he appeared at work wearing a union button, the first such button worn by an employee on the night shift . The same even- ing Payne, the night foreman , told Beech that he was being transferred to the day shift because one of the maintenance men on the day shift had quit. When Beech complained the lollowingday to Plant Manager Polley that he could not work days,2 the transfer order was rescinded, Polleyexplaining that he had mistakenly thought Beech was a cam man. There is no contention that this attempted transfer of Beech violated the Act. On the everting of April 15, Payne called a meeting of the night maintenance men and told them that henceforward , instead of being responsible for the maintenance of a particu- lar set of machines , they would be rotated on dif- ferent machines , and that they were "no longer to sit down at all and quit talking to the girls,, to keep busy at all times and if the new machines were running properly to find work somewhere along the lines even if the machines weren 't being operated. ." About a week after this talk by Payne, Beech quit. It is not contended that Beech's quitting was caused by Respondent or was unlawful. After Beech quit , several employees testified, main- tenance men sat and talked to the girls on the line "just about every night." The above facts are not sufficient to justify an in- ference that the purpose of the rule against "relaxa- tion" was to devise a pretext to discipline the main- tenance employees for their union adherence . First, the rule applied to all maintenance employees and not only to Beech. And the evidence does not show that the four other maintenance men were known adherents of the Union. Second , the rule was reasonable under the circumstances. The evidence is that the maintenance work on the night shift was not being performed properly and that operators as well as supervisors had complained of laxity. The rule itself merely required that the maintenance em- ployees keep busy rather than sit around and talk to employees as some of them did . Although the testimony that the maintenance men resumed talk- ing to production operators after Beech quit creates some doubt as to the bona fides of the reason for the rule against "relaxation," it is not sufficient to over- come the other evidence which indicates that the rule was adopted for legitimate economic rather than discriminatory reasons. 2. The Trial Examiner further found that Respondent violated Section 8(a)(1) by engaging in surveillance of employees as they entered and 1 157 NLRB 1193. 2 Unknown to Respondent, Beech was attending law school during the day 169 No. 84 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remained in the restroom in order to ascertain their union adherence or sympathies. Again we disagree. About 2 years prior to the hearing, Foreman Payne had promulgated a rule among coilwinders that two persons from the same group were not to go to the restroom at the same time. For some reason, the rule had not been applied to the girls in quality audit. In April 1966, when two coilwinders who were members of the Union's organizing com- mittee were criticized for violating the rule, they complained that the rule was not applied to girls in quality audit and they named specifically Anna Branam and Reva Robertson, two other members of the organizing committee. As a result of these complaints, Respondent in mid-April 1966 ex- tended the rule to the quality audit girls. Thereafter, Reva Robertson testified, every time she went to the restroom she was followed by Assistant Foreman Porter, or a group leader, who remained there as long as Robertson, and then followed her out. Anna Branam testified that, on April 14, she saw Foreman Payne and Assistant Foreman Porter "sitting on the line directly in front of the restroom. They had a pad of paper and a pencil and each time a girl would go in and out they would write down something on this paper." She also testified that whenever she went to the restroom she was fol- lowed by Porter. On April 18, Branam complained to General Foreman Parish that she was "being fol- lowed and watched at all times." When asked by Parish if she had any idea why this was being done, Branam answered it was because she attended union meetings. Parish replied that what she did "after 12:30 is strictly [her] own business." The Trial Examiner did not find the original rule against two girls going to the restroom together, or the extension of the rule to the quality audit girls, unlawful. As set forth above, the original rule was promulgated before the Union's organizing cam- paign and the extension of the rule to quality audit girls resulted from the complaint of members of the union organizing committee. The Trial Examiner found only that Respondent had engaged in surveil- lance of its employees, relying on the testimony of Robertson and Branam that they had been observed and followed into and out of the restroom by super- visors, and that two foremen had sat outside the restroom and had written something on a pad each time a girl went in or out of the restroom. There is no evidence that the watching of Robertson and Branam had anything to do with their union activi- ties. Both had been singled out by other members of the Union's organizing committee as violating the rule against employees in the same group going to the restroom together. When Branam complained to General Foreman Parish about being watched and attributed this to the fact that she had attended union meetings, Parish replied in substance that her attendance at such meetings was her own business. Neither girl was reprimanded for engaging in or- ganizing activities in the restroom. As for the foremen who made notes outside the restroom, there is no evidence of what they wrote. It is sheerest speculation that the surveillance of em- ployees entering and leaving the restroom was, as found by the Trial Examiner, for the purpose of ascertaining the union sympathies or adherence of employees. An equally tenable inference is that the surveillance was for the purpose of enforcing the lawful rule against certain employees going to the restroom together. Under the circumstances, we find that the General Counsel has not proved by a preponderance of evidence that Respondent en- gaged in unlawful surveillance of its employees. 3. The Trial Examiner found that Respondent constructively discharged Agnes Felty and Reva Robertson and discharged Bobby L. Bennett, all in violation of Section 8(a)(3). We disagree. Agnes Felty Mrs. Felty was hired in April 1962. She was given the standard job classification test for new employees and her performance indicated that she was best suited for crimp and solder work. As a result, she was given a crimp and solder pattern. In- itially she did solder work with a hand iron. About 6 months later, Respondent transferred her into the production machine shop where she operated a number of different machines. She remained in this shop until September 1965, when, together with a number of other employees, she was transferred to a production assembly line where she did crimp and solder work. About a week later, she was trans- ferred to another assembly line where she per- formed solder work. In November 1965, Felty brought Respondent two statements from her personal physician. In sum, the statements recommended that Felty be given a 30-day medical leave of absence because of her sensitivity to solder fumes. Respondent granted the request. On December 13, 1965, Felty returned to work with clearance from her physician to do so. Respond- ent assigned her to her former job. Again bothered by the solder fumes, she saw her physician anq several days later brought a statement from him, which said that she was still allergic to solder fumes) and should not work in this type of atmosphere. Respondent reassigned her: first, for a day or so straightening little blades which had been bent in the tuners; then, in the machine shop; and, finally, to the initial position on a production assembly line where she put contacts in solder rings. This last job required no soldering although some solder work was performed 5 or 6 feet farther down the line. On April 18, 1966, the assembly line on which Felty was working was dissolved. Of the 12 girls adversely affected by the dissolution, 6 decided to quit and 6 were reassigned. Felty was transferred to another assembly line where she did crimp but no solder work. The next morning Felty reported SARKES TARZIAN, INC. 589 directly to the plant nurse and complained about solder fumes which were bothering her. The nurse then directed her to Production Manager Polley to whom she repeated her complaint about the solder fumes. Polley told her, as he had the day before when she had made a similar complaint, that she had been hired as a crimp and solder worker, that the only openings outside of crimp and solder work were in the machine shop, and these jobs were being saved for older girls. He then asked Felty to at least try her new job, for otherwise he would have to let her go. Felty went back to the assembly line. Her station was between two girls who were using solder irons, although she did only crimping. Fifteen to twenty minutes later her foreman, acting on Polley's in- structions, brought her a small adjustable table fan which solderers normally used to blow away fumes, and placed it directly in front of her on a conveyor belt. A short time later she told her assistant foreman that she did not feel very well and that she was going to go home at the 9 o'clock break. The assistant foreman said she would tell the foreman that Felty was going home at the break. About 8:20 a.m. the foreman returned with a relief girl and said that if Felty felt that bad she could go home im- mediately. Felty left the line, checked out through the dispensary, and went home. On April 25, Felty returned to the plant with a statement from her physician which said that Felty had a respiratory condition which was aggravated by solder fumes and that she "must not come in contact with such fumes." After reading the statement, Polley told her that he was forced to put her on medical leave because he could not allow the Company to be sued as the result of her health problems. She never returned to work. The Trial Examiner found that Respondent con- structively discharged Felty on April 19, 1966, by assigning her to a job which Polley knew was injuri- ous to her health and which he knew she would not and could not accept. The Trial Examiner also found that Respondent was motivated in its conduct by Felty's union activities. Felty was a member of the Union's organizing committee during the 1962 organization campaign and has' been a member of the Union ever since. During the 1962 campaign, she passed out more than 100 union cards. On March 18, 1966, she passed out 20-30 union cards in the plant and per- sonally solicited the signatures of five employees to such cards. She also attended several union meetings and passed out union literature and union key charms while working on her line. The Trial Examiner inferred that since these activities were carried out openly, Respondent's supervisory per- sonnel "must have been, and was, aware thereof," although Respondent denied such knowledge and there is no direct evidence of knowledge. In any event, the Trial Examiner found that on April 25, 6 days after Felty had been "constructively discharged," Plant Manager Polley knew of her union membership when she appeared at the plant seeking reemployment wearing a large button which identified her as a member of the Union's organiz- ing committee. We find it unnecessary to decide whether the Trial Examiner's finding that Respondent was aware of Felty's union activities was justified because, in any event, we find that she was not con- structively discharged. Before April 19, there are numerous examples of efforts made by Respondent to accommodate Felty and retain her in its employ. When she asked for a 30-day leave of absence, she received it. When she returned to work with a statement from her doctor that she was allergic to solder fumes, she was reas- signed to a job which did not require soldering. Even when her assembly line was dissolved, Respondent assigned her to crimp work and not to soldering. And when Felty complained that solder work performed by other employees was bothering her, Respondent asked her to try to make a go of it and furnished her with an adjustable fan with which to blow away the solder fumes.3 This conduct on the part of Respondent is inconsistent with an in- ference that Respondent was trying to get rid of Felty as an employee. The Trial Examiner appears to have believed that Respondent could have done more to find employ- ment for Felty which would not bring her into con- tact with solder fumes. For example, he refers to the fact that Felty had worked for almost 3 years as a machine operator where she was not bothered by solder fumes and could have performed such work again. However Respondent's uncontradicted evidence is that Felty had always had a solder and crimp pattern; that there is a separate pattern for machine operators which is reserved for people with high seniority who have difficulty performing other jobs in the plant; that employees with less than 6 years' seniority are never considered for a machine operator's pattern (Mrs. Felty had only 4 years' seniority); that jobs calling for employees having a machine operator pattern are never filled with employees having a crimp and' solder pattern unless there are no employees having the machine operator pattern available; that Felty together with other employees having crimp and solder patterns worked in the machine shop before September 1965 because of a shortage of personnel with the machine operator pattern; that in September 1965 all girls in the machine shop having crimp and solder patterns, including Felty, were transferred elsewhere ' The Trial Examiner found that Supervisor Young so placed the fan that it blew smoke and fumes into her face But the evidence is that this was an adjustable fan regularly furnished solderers to draw smoke away from their faces. Crimp operators do not normally have fans. Felty could have positioned it any way or shut it off entirely in order to keep fumes from blowing mto her face. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because of a seniority layoff; and that on April 19, when Felty was transferred to a new line to perform crimp work, there was no vacancy in the machine operator pattern except for a temporary opening on line 4 resulting from the fact that the regular opera- tor in that position had suffered a back injury and had to be taken off the line for 2 weeks. Although Felty presumably could have performed this tempo- rary work, the job, in accordance with Respon- dent's policy, was assigned for 2 weeks to a girl with less seniority than Felty who had been doing the same work on the recently dissolved line. The Trial Examiner further found it "incredible" that with a large payroll, and with its admitted need for employees for whom it was contemporaneously advertising, Respondent could not transfer Felty either to a machine operator's job or to any of the other jobs which she had held which were not injuri- ous to her health. However, the evidence is that there were no regular machine operator jobs availa- ble during this period, and that there were no other jobs for which Felty was suitable which would not bring her into contact with soldering fumes. We note, moreover, that Respondent had assigned her to a crimp job, which did not involve soldering, im- mediately prior to her alleged constructive discharge. For the foregoing reasons, we are not satisfied that Respondent constructively discharged Felty on April 19, 1966, or that it unlawfully refused to reemploy her on and after April 25. Reva Robertson Reva Robertson had been employed by Respon- dent on three different occasions, the last time beginning on January 31, 1966, as an inspector as- signed to quality audit on the night shift. Of the four inspectors on the night shift, three, including Robertson, were assigned to the coilwinding depart- ment, and the fourth to the production machine shop. Robertson signed a union authorization card on April 7, 1966, attended a union meeting about a week later, and became a member of the union or- ganizing committee on May 4. She wore a union button conspicuously while at work, and passed out union designation cards as well as union literature during nonworking time. On February 12, Robertson was transferred to the production machine shop or "stick room," a small enclosed area. When she brought a doctor's certification saying she could not stand the dust and material in the "stick room" she was returned to her former job as inspector in the coilwinding depart- ment. In May 1966, Respondent determined to reduce the number of quality audit inspectors by one girl . There is no contention that this decision was discriminatorily motivated. On May 19, Respondent told Twila Robbins, the inspector then working in the production machine shop, that, as she had the least seniority of the inspectors, she would be laid off, unless she was willing to accept a job as a coilwinder. This she did. Foreman Parish then called in the other inspectors and told them that Robertson, as the inspector with next lowest seniority, was being assigned to the production machine shop in place of Robbins. When Robertson complained that she could not work in that shop because of the dust and fumes and referred to the doctor's certificate of the previous February, Parish offered her a coilwinder job, the same job offered to and accepted by Robbins. Robertson declined to accept the alternative job because, about 10 years earlier, she had been bothered by solder fumes. In- spector Anna Branam offered to take a "layoff" so that Robertson could retain her job as inspector; in- spector Rita Clemmons offered to take the "stick room" job in place of Robertson. Respondent refused to accept either offer. Robertson thereupon quit. The Trial Examiner found that, as in the case of Felty, Robertson was constructively discharged on May 19 because of her union activities. He relied in part on a finding that Robertson was afflicted with "asthma bronchitis," and that Respondent was allegedly aware that she had for that reason been removed from the jobs which were tendered to her on May 19; and, further, that Respondent offered no satisfactory evidence for not accepting the offers of two of Robertson's fellow inspectors which would have made a transfer of Robertson from the coilwinding department unnecessary. Although Respondent initially offered Robertson a job in the production machine shop, it did not in- sist that she accept this offer when she reminded Respondent of the February certificate from her doctor. As to the alternative job, Robertson testified that 10 or 12 years previously she had been bothered by solder fumes and had brought a doc- tor's certificate that she was allergic to such fumes. However, not only was this baneful experience with solder fumes stale, but, a week previous to May 19, Robertson had offered to trade jobs for a while with coilwinders, the same job which Robertson rejected on May 19, after the coilwinders complained that the jobs in audit control were easier than their own. This casts doubt on the legitimacy of Robertson's reasons for the rejection of the offer of a coil- winder's job. Finally, Respondent's refusal to ac- cept a substitute transferee in place of Robertson must be placed against the uncontradicted testimony of Respondent that it does not permit em- ployees to decide for themselves who shall take layoffs or to choose their own positions. There is no evidence that Respondent varied this practice for other employees in other circumstances. Accordingly, as in the case of Felty, we are not satisfied that a preponderance of the testimony sup- ports the Trial Examiner's finding that Robertson was constructively discharged. SARKES TARZIAN, INC. 591 Bobby L. Bennett Bobby Bennett began her employment with Respondent in January 1966. For the first few weeks of her employment she performed miscel- laneous jobs. In mid-February she was assigned to a rivet base job on line 9. When this line was dis- solved on May 24, Bennett together with I 1 other girls was transferred to the stickwinding department for training. The girls were told that only those who were able to make a daily rate of 29 trays would be retained. At the end of 2 weeks Bennett had failed to make her required rate. As with the other girls who had similarly failed, Respondent extended her trial period an additional week. When Bennett still failed to make the rate (her maximum production was 16 trays), she was terminated together with other girls who had also failed to make the rate. There is no contention that Bennett's transfer to the stickwinding department or the production rate set for the stickwinding job were discriminatory. The Trial Examiner found, however, that Bennett's discharge on June 15 was motivated by her known union activities and to discourage employees from engaging in any ' further attempt to designate the Union as their bargaining representative. (The Union had lost the election held on May 12 by 96 votes; it had lost a previous election in 1963 by 699 votes.) In making this finding, the Trial Examiner stated that, assuming that Respondent properly removed Bennett from the stickwinding job for failure to make her quota, it failed to offer testimony as to why it failed to assign her to several other jobs which she had previously performed satisfactorily. He also relied on alleged more favorable treatment meted out to other employees who were transferred to the stickwinding department at the same time as Bennett. As to the availability of other jobs for Bennett which she had previously performed, there is no evidence that any such were open. In the case of employee Betty McLaughlin, the Trial Examiner found that' when she threatened to quit her stickwinding job unless she was transferred, back to her old job on the old production line, Respondent granted her request. It is difficult to see how this in- cident proves discrimination against Bennett; the two situations are not comparable. So far as ap- pears, McLaughlin was performing the stickwind- ing job satisfactorily, she was not in fact transferred back to her, old job on the old line but to another de- partment, and Bennett had not requested transfer to another department. Finally, the Trial Examiner refers to the reemployment on July 20 of Sandra Laven who like Bennett was discharged on June 15 for failure to make her rate as a stickwinder. How- ever, the evidence is that, unlike Bennett, Laven re- peatedly applied to the personnel department for reemployment after her discharge. Finally, she was hired at a different job, at a different plant, at another location, when a position became available. There is therefore no such discrepancy in the treat- ment of Bennett, McLaughlin, and Laven, as to support an inference of discrimination against Bennett. Accordingly, we find that the General Counsel has failed to prove by a preponderance of evidence that Respondent discriminatorily discharged Bennett on June 15. 4. The Union also filed six objections to conduct affecting the second election. In agreement with the Trial Examiner, we find that three of the objections are without merit. Two of the remaining three objections allege that Respondent engaged in unlawful surveillance. In re- gard to these two objections, the Trial Examiner stated that his findings in the complaint case war- rant sustaining the objections. The first of the two objections involves the alleged 8(a)(1) surveillance alluded to previously. Our reason for dismissing the allegation in the complaint likewise applies in over- ruling the objection. The second objection was not considered by the Trial Examiner. It alleges that supervisor Russell Sloan kept employee union adherents and em- ployees receiving union literature under open sur- veillance for the purpose of coercing said em- ployees. The evidence establishes that Russell Sloan is the production manager at Respondent's plant that produces semiconductive devices. Some- time in April 1966, union supporters began passing out handbills in the parking lot outside the plant. Soon thereafter, a few employees complained to Sloan about the passing out of the handbills. One employee said she was going to take a sock at some- body. To prevent some sort of confrontation, Sloan decided to stay in the parking lot at the end of the 4 p.m. shift. On a few occasions he went up to the men who were passing out the handbills and talked to them. The conversations were friendly. Sloan never questioned their right to be there. He never asked them to leave. In fact, although there was a 5- year old company rule prohibiting nonemployees on the parking lot, Sloan allowed men who he knew worked for RCA to pass out handbills. On the basis of this evidence, we find no merit in the Union's objection. Accordingly, we shall over- rule it. The final objection, Objection 4, alleges that Respondent discriminated against Agnes Felty. As the Regional Director points out in his report on ob- jections, this objection must fail if the discharge is found to be' lawful. Having found the discharge law- ful, we find no merit in this objection and hereby overrule it. As the Union failed to receive a majority of the valid ballots cast, we shall certify the results of the election. ORDER Pursuant to'Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots has not been cast for International Brother- hood of Electrical Workers, AFL-CIO, and that the said Union is not the exclusive bargaining representative of the employees employed by Sarkes Tarzian , Inc., Bloomington , Indiana, in the unit herein involved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. That consolidated proceeding, with all parties represented, was heard by Trial Examiner David London at Bloomington, Indiana, on September 26-28, 1966, and was concluded October 28, 1966, when the posthearing deposition of Jo Belle Robinson was made a part of the record herein. Briefs from all parties were received on or about November 18, 1966, and have been fully con- sidered by me. Upon the entire record of this con- solidated proceeding,' and other specified proceedings before the Board involving Respondent of which I have been asked by the General Counsel to take judical or offi- cial notice, and upon my observation of the witnesses as they testified herein, I make the following: TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID LONDON , Trial Examiner : Upon a charge filed in Case 25-CA-2490 on April 21 , 1966, amended on May 27 , 1966, and another charge filed in Case 25-CA-2534 on June 17, 1966, by International Brother- hood of Electrical Workers, AFL-CIO, hereinafter called the Union, the General Counsel of the Board is- sued two complaints against Sarkes Tarzian , Inc., the Respondent and Employer herein . The complaint in Case 25-CA-2490, issued on June 30, 1966 , and subsequently amended, alleges that Respondent interfered with, restrained , and coerced its employees in the exercise of rights guaranteed by the Act, and constructively discharged its employees Agnes O. Felty and Reva Robertson by assigning them work which was injurious to their health and well -being, and thereafter failed and refused to reinstate them to their former or substantially equivalent positions , all in violation of Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended ("the Act"). The complaint in Case 25-CA-2534, issued on July 27, 1966, alleges that on June 15 , 1966, Respondent discharged , and thereafter refused to reinstate , Bobby L. Bennett because she also engaged in activities protected by the Act, thereby violat- ing Section 8(a)(1) and (3) thereof. On July 27, 1966, the Board's Regional Director ordered that said cases be con- solidated. Respondent , by its answers to said complaints, denied the commission of any unfair labor practices. During all times mentioned above , a representation proceeding , initiated on October 5, 1962, and known as Case 25-RC-2308 , was also pending before the Board in which the Union was seeking certification of Respon- dent's production and maintenance employees . The first election in that proceeding having been set aside, at the second election conducted on May 12 , 1966, a majority of the employees cast their votes against representation by the Union. On July 7, 1966 , the Union filed timely "Objections to Conduct Affecting the Results of [that] Election." Because four of the objections were based on conduct alleged to be violative of the Act in Case 25-CA-2490 herein , and two other objections involved disputed facts, the Board's Regional Director , on August 31, 1966 , ordered that a hearing be held to resolve the factual issues involved in those six objections. On the same day, he further ordered that Case 25-RC-2308 be consolidated with Cases 25-CA-2490 and 25-CA-2534. ' Respondent's undated motion, filed on November 18, 1966, to make four specified corrections in the official transcript of testimony herein is granted with respect to items 1, 3, and 4 as specified therein, and denied as FINDINGS AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT-EMPLOYER Respondent is now , and has been at all times material herein , an Indiana corporation engaged in the business of manufacturing electronic equipment at Bloomington, In- diana. During all times relevant herein, Respondent manufactured , sold, and shipped from its Bloomington, Indiana, plants finished products valued in excess of $50,000 to points outside the State of Indiana . Respon- dent admits and I find , that it is now, and has been at all times material herein , an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events The testimony is undisputed that, since April 1962, the Union has been continuously engaged in a campaign to organize and represent Respondent's production and maintenance employees. Pursuant to the petition filed by the Union in Case 25-RC-2308 on October 5, 1962, the first election in that proceeding was conducted on Janu- ary 25, 1963, among Respondent's production and main- tenance employees to determine whether they desired representation by the Union for purposes of collective bargaining. At that election, 510 employees voted for, and 1179 voted against such representation. Timely objections to conduct affecting the results of that election having been filed, the Board's Regional Director, on March 20, 1963, issued his report on objections wherein he recommended that a hearing be held to resolve the factual issues in- volved in certain of those objections and by additional al- leged-interference. Since the matters to be decided in the representation proceeding were identical with the matters alleged in a complaint in another unfair labor proceeding against Respondent, known as Case 25-CA-1666, he further recommended that those cases be consolidated. On April 26, 1963, the Board adopted the above-men- to item 2 thereof. It is further ordered that 11. 24 and 25 on p. 160 of said transcript be corrected to read as follows: "A. Yes, sir. He told me that 29 trays a day was not impossible, he had other girls making it." SARKES TARZIAN, INC. tioned recommendations of its Regional Director and directed that the recommended hearing be held. Following that hearing, and a subsequently reopened hearing, the Board, on March 29, 1966, rendered its "Decision, Order, and Direction of Second Election" in that consolidated proceeding (157 NLRB 1193). By that decision, of which I have taken official notice, the Board found that Respondent had unlawfully interrogated its employees concerning their union activities, threatened them with discharge for engaging in those activities, en- gaged in, solicited, and encouraged employees to engage in surveillance of the union activities of other employees, and had unlawfully discharged or refused to reemploy two employees for engaging in union activities. Because of the totality of Respondent's conduct as disclosed by the record in that proceeding, the Board further ordered that the election of January 25, 1963, which the Union lost by a margin of 669 votes, be set aside, and that a second election be conducted.2 At the second election, held on May 12, 1966, 561 em- ployees voted for the Union and 657 voted against representation by that organization. The Union filed timely objections to conduct affecting the results of that election ultimately resulting in the order directing that the instant consolidated hearing be conducted, all as described in Statement of the Case, supra. B. The Violations of Section 8(a)(1) of the Act In February 1966, while the Union was engaged in its continuing campaign to organize Respondent's em- ployees, Respondent hired Thomas Beech, a student at the law school of the University of Indiana in Blooming- ton, Indiana, where Respondent's plants are located. Beech was employed as a machine maintenance man on the night shift, 4 p.m. to 12:30 a.m., and voluntarily quit that employment on April 22, 1966.3 During that period, he attended four or five union meetings and, on the even- ing of April 14, was the first employee to wear a union button on that shift. About 7:30 p.m., the same evening, Assistant Foreman Grace Porter told Group Leader Sharon George to watch Beech and "if he sat down to report him." About an hour later, Foreman Payne told Beech that effective the fol- lowing Monday he was being transferred to the day shift. When Beech complained to Payne that Respondent was informed by Beech when he was hired that he could only work nights, Payne replied that he had nothing to do with the transfer, but that it had been ordered by Jennings Pol- ley, Respondent's production manager. Polley was the same man who, together with other officials and super- visors of Respondent, had been found guilty in the prior proceeding (157 NLRB 1193) of spying upon, and induc- ing employees to spy upon, other employees with respect to their union sympathies. Before reporting for work on the following afternoon, Beech went to Polley's office and repeated what he had told Payne the prior evening. Polley rescinded the transfer order. Prior to April 15, it was the practice of the main- tenance employees to "relax" during their work period until they were called upon by machine operators to repair the machines. Shortly after the night shift reported 2 The court of appeals ordered full enforcement of this Board Decision and Order. Sarkes Tarzian, Inc. v. N .L.R.B., 374 F.2d 734 (C.A. 7). ' Unless otherwise indicated , all references to dates herein are to the year 1966. 4 George, a witness for Respondent , testified that Porter instructed her 593 on April 15, Payne called all the maintenance employees to a meeting and instructed them that they "were no longer to sit down at all ... to keep busy at all times [even] if the machines were working properly." From that time on, until Beech quit his employment a week later, Porter, Payne, and Group Leader Sharon George constantly "kept an eye on [him] wherever [he] went, even when [he] went, even when [he] left [his set of machines] and went down to the far end of the plant where no one was present, one of them would drift down."4 After Beech left his employment, maintenance men sat and talked to the girls on the line "just about every night." On April 14, 1966, in a departure from the existing practice, Respondent also promulgated a rule that "no two friends or any close relations [sic] that worked together were to go to the restroom together." Thereafter, Reva Robertson, one of the alleged discriminatees herein, observed that every time she went to the. restroom she was followed by Assistant Foreman Porter, or a group leader, who remained there as long as Robertson, and then followed her out. Anna Branam, employed by Respondent at the time of the hearing herein, became a member of the Union's or- ganization committee in the latter part of April 1966 and thereafter, while at work, wore a large button identifying her as a member of that committee. On April 14, 1966, Branam observed Foreman Payne and Porter "sitting on the line directly in front of the restroom. They had a pad of paper and a pencil and each time a girl would go in and out they would write down something on this paper."5 Branam further testified, and I credit her testimony not- withstanding Porter's denial thereof, that whenever she went to the restroom she was followed by Porter. On April 18, Branam went to the office of General Foreman Parish and told him that she could not continue to work "under the pressure" to which she was being sub- jected. Parish asked her to explain, and she told him that she was "being followed and watched at all times." When Parish asked whether she had any idea why this was being done, she answered it was because she attended union meetings. Parish did not deny the accusation, his only comment being that what she did "after 12:30 is strictly [her] own business." On the entire record I find that on or about April 14 Respondent imposed, and kept in effect only until Beech quit on April 22, its rule against "relaxation" by its main- tenance employees, its purpose being to devise a pretext to discipline said employees for their union adherence. By that conduct, Respondent violated Section 8(a)(1) of the Act. I also find that on and after April 14 Respondent violated the same section of the Act by engaging in sur- veillance of its employees as they went into and remained in the restroom, in order to ascertain their union ad- herence or sympathies. C. The Discharge ofAgnes Felty Agnes O. Felty, alleged to have been constructively discharged by Respondent on April 19 , 1966, because of her union activities, began her employment with Respon- dent in April 1962. After 6-7 months in crimp and solder- "to watch the maintenance employees and make sure that they were working all the time." 5 Porter did not deny this testimony, and Payne was not called as a wit- ness. 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing work's she was transferred to the machine shop where she operated shaft machines , base machines , drill presses, "and just about any kind of machine they had." She remained in the machine shop until 1965 when she "went back to crimp and solder." In November 1965, the solder fumes and smoke generated by solder work irritated her nose and throat, choking her so that she could not speak above a whisper. She consulted a physician, Dr. K. Hibner, who, on. November 23, 1965, gave her a certificate reading as fol- lows: "[Agnes Felty] is under my care for nasal and upper respiratory inflammation . This is most likely due to or aggravated by soldering fumes. She should therefore be transferred away from such fumes." On November 29, 1965, she received another statement from Dr. Hibner certifying that she was in his "care for an upper respiratory allergy" and she should have medical leave for approximately 30 days. Both of these documents were delivered to Della Haynes, Respondent's personnel assistant and plant nurse. Felty remained away from work until December 13, 1965, at which time she gave Haynes the following cer- tificate from Dr. Hibner: "[Agnes Felty] is under my care for respiratory allergy. She is definitely sensitive to soldering fumes and should not work in this type of atmosphere." Upon returning to work on December 13, Felty was given various assignments on machine shop jobs and on an assembly line, none of which required her to do any soldering or brought her in close contact with solder fumes. On April 19 , line 8 , which Felty and about 40 girls were working, "was broken up," and she was again as- signed to line 4 and a job close to soldering fumes. Mar- garet Hopkins, also on line 8 but who had been employed by Respondent only 4-5 months, was put on a "rivet base" job. Other girls were transferred to the tube room, and some were retained as "extras ," filling in for absent workers . Felty complained of the assignment to Polley, Respondent's production manager and apparently the top man in the plant, who told her she was a "crimp and solder" worker. Though he admitted that he was aware of her condition and also that he had other jobs which she could safely perform, he was unable to assign her to any of those jobs as he was "saving them" for older em- ployees. Instead , he directed her to return to line 4 and re- port to Vance Young, her foreman. Felty returned to that line where Young , who had charge of about 200 em- ployees, placed her between two girls using soldering irons. After Felty punched in at 7 a.m., the following morn- ing, April 20, she went immediately to Haynes and told her that she would "have to be moved out of solder [because she] just couldn't take the solder fumes and smolie." Haynes told her she could not do anything for her and directed her to Ann East, Polley's administrative assistant in charge of work assignments . East, however, also told her she could not do anything for her and took her to Polley's office. When Felty asked Polley to transfer her out of solder, he told her she was a "crimp and solder" worker, and that was all he had for her, if she could not do that work, he would "probably have to let [her] go." Felty remonstrated that she could not work in e Respondent , in its brief, described this work as follows: "Crimp work is work performed by an operator through the application of a tool upon a part and wrapping, crimping, or cutting of the part. The soldering work ... consists of the use of soldering iron in making electrical connections solder fumes and that he had her doctor's statement certi- fying thereto. Polley thereupon instructed her to go back to her line, told her he would see what could be done for her, and repeated that while he had other jobs he could put her on, he did not intend to do it, he had to save them for older girls. Felty reported back to Young who again put her "right back between two soldering irons." About 15 minutes later, pursuant to instructions from Polley, Young came to Felty's work station and placed a small 6-8 inch table fan on the back side of the conveyor line, facing Felty, where its current blew the smoke and fumes into her face. At about 8 a.m., after she had complained to LaVerne Banks, assistant foreman, that she "just couldn 't stand that smoke," Young came to her with a relief girl and told her that, if she felt that bad, she could go home im- mediately. Felty thereupon left the plant and on April 21 caused the Union to file the charge in Case 25-CA-2490, alleging that Respondent on April 19 , in violation of Sec- tion 8(a)(1) and (3) of the Act, had transferred her to a job she was not capable of holding. Respondent received a copy of that charge on April 22, 1966. Felty returned to the plant on Monday, April 25, re- ported to Haynes and showed her Dr. Hibner's certificate certifying that she was under his care "for a respiratory condition which is aggravated by solder fumes. Therefore she must not come in contact with such fumes." Haynes told her she could do nothing for her and that she would have to see Ann East. The latter, however, also told her she could do nothing for her and instructed her to report to Polley's office, where Polley read the doctor's state- ment and immediately left his office. He returned about 10 minutes later and asked her to accompany him to Haynes' office.' There, he asked Felty whether she had her tools with her and she replied affirmatively, adding that she would check them in. Polley, however, told her that he would himself check her tools in, and would mail her insurance papers and leave of absence to her. Upon informing him that she would come to the plant on Friday to pick up her check, he rejected that suggestion and told her that the check would also be mailed to her. As they left the personnel office, Felty told him she wanted to return into the plant to pay the girl with whom she shares rides to work. Polley, however, denied her request, re- marking that he had to get her out of the plant, and escorted her to the front door of the plant lobby. In the following June there was an exchange of cor- respondence between Felty and counsel who represented Respondent at the instant hearing. In this correspon- dence, Felty repeatedly stressed her continuing desire from April 19 forward to return to any job which did not "directly expose" her to solder fumes, jobs in which she had experience, and which were filled and being filled by employees with less seniority. Respondent's counsel, however, on June 15 informed her that she would be reemployed only upon presentation of a certificate from her doctor "that contact with solder fumes will no longer be injurious to [her] health and that [she] may therefore be assigned to a job where [she] may be in contact with such fumes." This was supplemented by Respondent counsel's letter of June 28 stating that in order to return or the use of solder pot which applies the bulk solder." 7 Polley testified that during this 10-minute interval he "checked" with Haynes and Woods, company counsel , about the "possible ramifica- tions." SARKES TARZIAN, INC. 595 to work she would "be required to furnish an unconditional clearance to work from [her] doctor." On the entire record I find that Respondent construc- tively discharged Felty on April 19, 1966, by assigning her to a job which Polley knew was injurious to her health and which he knew she would not, and could not, accept." I further find that this assignment and termination was imposed because of her union activities. In arriving at this conclusion, I have been fully mindful that the April 19 termination may not be adjudged violative of the Act only upon a showing of union activity by Felty which factor Respondent apparently concedes has been established by the record herein. In order to prevail, it is incumbent upon the General Counsel to establish by a preponde- rance of the evidence that Respondent had knowledge of Felty's union activities and made the assignment of which complaint is made in order to discourage such activities. Though the record does not establish by direct evidence that Respondent on April 19 had knowledge of Felty's union activities, proof of such knowledge maybe established by circumstantial as well as by direct evidence. Here, a finding that Respondent had such knowledge is fully warranted and required. The testimony is undisputed that Felty became a member of the Union's organization committee during the 1962 campaign and has been a member thereof ever since. During the 1962 campaign she passed out more than a hundred union cards. On March 18, 1966, follow- ing a meeting of the Union's organizing committee, she passed out 20-30 union cards in the plant, and personally solicited the signatures of five employees to such cards. At each union or committee meeting she attended on March 23 and 31 and April 6 and 14, 1966, she delivered to union officials additional union designation cards signed by other employees. During the same period, while working on her line, she also passed out union literature and union key charms. None of these activities were carried on in a clandestine manner and warrant the conclusion that supervisory personnel must have been, and was, aware thereof) By reason of all the foregoing, I reject Respondent's contention that it was unaware of Felty's union activity and find that it had such knowledge prior to the time Felty was assigned to work which Polley knew she could not perform without serious injury to her health. In any event, on April 25, when Polley denied Felty's request to return to work and instead escorted her out of the plant thereby clearly indicating that her further presence in the plant would no longer be tolerated, Polley was openly apprised of her union activity. On that occa- sion she wore a large round button, 2 inches in diameter, identifying her as a member of the Union's organizing committee. Turning now to Respondent's refusal to assign Felty to work she, could safely perform, Respondent, in its brief, admits "that Mrs. Felty had worked in the machine shop where apparently she was not bothered by solder fumes, and that on line 8, the line upon which she was working immediately prior to April 19, 1966, she worked on a sub- assembly rivet base job upon which she made no com- plaint of solder fume iritation." Respondent contends, however, it could not assign her to a machine shop job because she had always carried a "pattern," or classifica- tion, as a "crimp and solder" worker, and not a "machine operator pattern." The latter "pattern," Respondent con- tends, is "held for high seniority people who have difficul- ty in performing other jobs in the plant." The testimony is undisputed, however, that Felty transferred to a machine operator's job in the fall of 1962 after being employed only for 5-6 months and continued as a machine operator for almost 3 years thereafter. It is also significant that on April 19, 1966, when line 8 was broken up, Margaret Hopkins, who had been in Respon- dent's employment only 4-5 months, was transferred to a machine operator's job, others were transferred to the tube room where there was no direct contact with solder fumes, while others were retained as "extras." Respon- dent's failure to make a similar transfer for Felty is espe- cially significant in light of the testimony of Everett Sears, Respondent' s personnel manager, that it is "company policy that if an employee has difficulty, or a problem with a particular type of job that they have been working on, that the Company will give them an opportunity to try another job and thus stay with" Respondent, a policy ad- mitted by Sears to be well known by its employees, and announced personally by Sarkes Tarzian, its president. I find it incredible that Respondent, with a payroll of approximately 1,500-1,600 employees in three different plants and continuously advertising by radio and newspaper, "on and off" since January 1966 to the time of the hearing herein, was in need of help10 and could not transfer Felty, an undisputedly satisfactory and com- petent employee, to either a machine operator's job or to any of the other jobs she formerly held, none of which were injurious to her health. On the entire record, I find that by transferring Felty to line 4 on April 19, 1966, when Polley was well aware that she could not work there, Respondent constructively discharged her. I further find that this discharge and Respondent's refusal to reemploy her on and after April 25, a matter which was fully litigated, were both imposed in order to discourage Respondent's employees from supporting the Union at the impending election which the Board had ordered only a few weeks before. By that conduct Respondent violated Section 8(a)(3) and (1) of the Act.'1 D. The Discharge of Reva Robertson Robertson has been employed by Respondent onAiiree different occasions, the last time on January 31, 1966. She signed a union authorization card on the following April 7, attended a union meeting on April 13, and 8 "Plainly, § 8(a)(3), when it speaks of `discrimination in regard to . condition of employment,' includes an unreasonable and improper condi- tion for retaining employment." N.L.R,B . v. Ra-Rich Mfg. Corp., 276 F.2d 451,454 (C A. 2). ' Though the burden of establishing such knowledge rests on the General Counsel, it is worthy of note that Polley, while testifying at length herein in behalf of Respondent , was never asked by its counsel whether he had knowledge of Felty's umon activities . In the prior proceeding (157 NLRB 1193), Polley admitted with respect to employee Wilber, found by the Board to have been discharged for his union activities, that he had heard rumors that Wilber was "pretty" active in the Umon. The Board also found that Polley had engaged in extensive espionage activities seek- ing to ascertain the union views and interests of Respondent's employees 10 Sears admitted that "people are in scarce supply in this community " 11 Having so found, I deem it unnecessary to further consider or pass upon the additional allegation of the amended complaint that Respondent violated Section 8(a)(4) of the Act by refusing to reinstatement Felty on June 20, 1966, because unfair labor practice charges had been filed in her behalf. 350-212 0-70-39 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD became a member of its organizing committee on May 4. Robertson wore a union button similar to that worn by Felty and also had a large button, 3 inches in diameter, reading "Vote I.B.E.W." attached to her purse, which .she kept exposed at her work station where William Payne, her foreman, drank his coffee. "Everytime" dur- ing this period, when she had occasion to go to the restroom, Robertson was followed by Grace Porter, assistant foreman, or one of the group leaders, who remained in the restroom as long as Robertson was there and then followed her out. Commencing about May 5, she passed out union designation cards and about May 10 began circulating union literature during her supper hour at 8 p.m. During this period, when Robertson complained to Payne that she and employee Anna Branam were being watched by Porter, Payne commented on the union but- ton Robertson and Branam were wearing and told them that he knew how they "stood before [they] started wear- ing union buttons" and that Robertson had been watched by Porter.12 According to Respondent's records, when Robertson was rehired on January 31, 1966, her pattern or classifi- cation was that of an inspector and she continued in that work until Saturday, February 12, when she was as- signed to the "stick room," a small enclosed room. After working in that room for about 2 hours, she had to be "taken out" of that room because of the prevailing fiberglass dust. On the following Monday, she brought her doctor's statement to Payne, certifying that the "wheezing, coughing, etc.," of which she complained was "due to the large amount of dust and material in the air" and recommending that she be removed from that area. She thereupon was taken off that job and resumed her work as an inspector. On May 19, Robertson and other employees were called to the office of Wilbur Parish, general foreman in charge of quality control. There, she was told by Payne that their staff was being reduced and, since Robertson was lacking in seniority, she would either have to take the job in the stick room from which she had been removed on the preceding February 12, or a coil winding job which would bring her in contact with soldering fumes. With respect to the stick room job, Robertson told Payne that she had the doctor's statement of February 12 and he acknowledged that he was aware thereof. With respect to the alternative, she complained that during earlier em- ployment by Respondent she had to be taken off that job because she "couldn't take the solder fumes." When Anna Branam, an inspector who was present, volunteered to take a layoff so that Robertson could keep her job as an inspector, Payne replied that there would be "no layoffs." Rita Clemmons, who had greater seniority than Robert- son, also vounteered to take the stick room job tendered to Robertson but the latter was told that the matter would have to be taken up with Polley, who apparently was not present. Robertson called Parish the following morning and was told that he had not yet talked to Polley. During the afternoon, however, Parish called and told her that there was no change in the situation. On the entire record, and for substantially the same reasons I concluded that Felty had been constructively discharged, I also find that Robertson was similarly discharged on May 19 because of her union activities and to discourage Respondent's other employees from engag- ing in such activities. Robertson was afflicted with "asthma bronchitis," and Respondent was aware that she had for that reason been removed from the jobs she was tendered on May 19. Nor was there any satisfactory evidence offered by Respon- dent why it did not accept Branam's offer to take a layoff so that Robertson could retain her job as an inspector or, in light of its policy on transfers, it did not accept Clem- mons' offer to take the job which Robertson could not ac- cept without injury to her health. I conclude that Respon- dent constructively discharged Robertson on May 19 for the reasons indicated above thereby violating Section 8(a)(1) and (3) of theAct. E. The Discharge of Bobby L. Bennett Bennett began her employment with Respondent on or about January 13, 1966, and, for a period of 3-4 weeks thereafter, was engaged in a number of "odd jobs" of which no complaint was or is made. At the end of that period, in approximately mid-February, she was trans- ferred to a rivet base job on line 9 and remained there until May 24. While so engaged, she had a "rate" or quota of performance which she met and of which no complaint is made. On May 24, she was transferred to a stick winding job where the daily rate was 29 trays, a quota which she never achieved, her maximum performance being 16 trays. On or about June 8, she was called to Foreman Trinkle's office, informed of her failure to make the rate, and asked if she could achieve it if given another week. Bennett attributed her failure to make her rate to a con- stant shifting from one machine to another, machines that were not working properly. During one of these days, be- fore noon, she performed her work on 7 different machines. On June 15, Bennett's group leader told her to report to Trinkle's office where she was instructed to proceed to the office of Della Haynes. There, Haynes told her that she was being discharged because she had not made her rate. Bennett remonstrated that she had made her rate on the rivet base job and that there was no complaint con- cerning her work on that job, a fact of which Haynes acknowledged she was aware. Apparently construing this as a request by Bennett that she be transferred back to that job or remain in Respondent's employment in another capacity, Haynes told her she didn't "have anything else except night shift on stick winding," 13 the very operation which she had just been declared to be in- capable of performing satisfactorily.14 Bennett designated the Union as her collective-bar- gaining representative on March 29, 1966, on a card given to her by Felty. She attended all union meetings ex- cept the first, became a member of its organizing commit- tee in April 1966, and wore its button since about 2-3 weeks before the May 12 election. During the campaign, she passed out union cards and literature in the restroom or before work in the morning. About 2 weeks before the election, Bennett and about 15-20 girls were called to the "chapel" for an address by Sarkes Tarzian. When Tarzian told the employees that they "didn't need a third party" to tell them what to do, 12 Payne was not called as a witness. 11 Bennett's entire testimony warrants the conclusion that she was em- ployed on the day shift. 14 Haynes was not called upon to testify in the instant proceeding. In the prior proceeding against Respondent (157 NLRB 1193) she was found guilty of extensive surveillance and spying upon Respondent's employees. SARKES TARZIAN, INC. Bennett publicly announced she was "100 percent for the Union and hoped that when the [election ] came those girls would make the right decision." Three or four days before the May 12 election, Mary Tarzian, the wife of Sarkes Tarzian and vice president of Respondent, also called a meeting of employees in the chapel. During "a question and answer period" at that meeting, Mrs. Tarzi- an asked Bennett whether she ever belonged to "the Union and she replied that she was 100 percent for the Union." During a discussion concerning working condi- tions at the nearby RCA plant whose employees were ap- parently represented by a union, Mrs. Tarzian named Sue Crowe as an employee who "was fired from RCA within 3 days after she went there," and that she, Mrs. Tarzian, had proof of the conditions that prevailed at RCA. In the discussion, Mrs. Tarzian told Bennett that "maybe [she] should go where they have [a union] and see what its like," quickly adding, however, that she did not want Bennett to quote her as saying that she had been "told. .. to leave," as Respondent would "like to have [her] stay anyway."15 On the following day, Bennett was called to Mrs. Tarzian's office, and , pointing to a girl then present, Mrs. Tarzian said: "Here is the girl that can tell you." The girl, though not otherwise identified, was not Sue Crowe. According to Bennett , "all this girl succeeded in telling [her] was that some woman ... at RCA had been absent from work because of illness of her child . . " At that point, Bennett's testimony was abruptly broken into and diverted , and it seems reasonable to infer, from Mrs. Tarzian's remarks of the day before, that the girl had been summoned to Mrs. Tarzian's office for the purpose of relating to Bennett some disciplinary action imposed upon her. On the entire record , I find that Bennett was denied further employment by Respondent on and after June 15, 1966 , because of her union activities and her firmly an- nounced " 100 percent" support of that organization. Respondent does not deny , as indeed it could not deny, being aware of Bennett's active interest in the Union for, insofar as the record discloses , Bennett and Felty were among the most active union propagandists employed by Respondent. Assuming that Bennett's failure to meet her quota on the stick winding job was due to her inaptitude thereby justifying her removal from that task, Respon- dent offered no testimony to establish why, contrary to its established policy and its continuing advertising cam- paign seeking new employees , it failed to assign her to any of the several other jobs Bennett had performed satisfactorily before she was transferred to a job she ap- parently could not perform. Respondent made such transfers with respect to Betty McLaughlin who was transferred to stick winding at the same time as Bennett . When McLaughlin told Foreman Trinkle that she would quit unless she was transferred back to the job she formerly had, Trinkle sent her back to her old job. Respondent also applied its policy and gave considerate treatment to Sandra Laven who was first em- ployed by Respondent on or about May 19, 1966 . Laven, like Bennett, was discharged on June 15 for failure to make her rate as a stick winder. Unlike Bennett, how- 15 Neither Sarkes Tarzian , nor Mrs. Tarzian , were called upon to testify herein. 16 The vacation period began at about that time. 17 In another proceeding against Respondent not previously referred to, but of which I have taken official notice , the Board found Respondent guilty of violating Section 8 (a)(3) of the Act by requiring an employee to 597 ever, Laven was told by Haynes when she was discharged on June 15,16 that she would "see if something might come up later." Accordingly, and again unlike Bennett, Laven was reemployed on July 20 doing test work, and was so engaged at the time of the hearing herein. I am convinced and find that Respondent discharged Bennett on June 15 without any intention of ever employ- ing her in any capacity because of her union activities and to discourage its employees from engaging in any further attempt to designate the Union as their collective-bar- gaining representative. Respondent was aware on June 15 that the Union had reduced the margin of 669 by which it lost the first election in 1963, to 96, by which number it lost the election on May 12, 1966. It ac- cordingly had reason to believe that the union campaign for recognition , which had been continuously waged since April 1962, was mounting and would not abate. To defeat that campaign, Respondent on June 15, as it did with respect to Robertson on May 19, resorted to the most powerful weapon it possessed , a major stratagem of those bent on interfering with the exercise of employees' rights to organize , the discharge of a bold and forceful advocate in behalf of the Union. By that conduct, Respondent vio- lated Section 8(a)(1) and (3) of the Act.17 THE OBJECTIONS TO THE ELECTION Of the Union's six objections to the election which I am required to consider, I find no probative evidence suf- ficient to sustain Objections 1,3, and 7. Objections 2 and 6 deal with unlawful surveillance of Respondent's em- ployees of which I have heretofore found Respondent guilty and as being violative of the Act. In accordance with those findings , I sustain the Union 's Objections 2 and 6. 18 Objection 4 is concerned, inter alia, with the ef- fect that the discharge of Felty had on the outcome of the election. It having previously been found that Felty was discriminatorily discharged prior to the election and while the Union's campaign was pending, I accordingly sustain its Objection 4. On the basis of the foregoing findings and rulings, I further find and conclude that Respondent inter- fered with the election of May 12, 1966 , and deprived its employees of their freedom of choice. I therefore recom- mend that the election of May 12, 1966 , be set aside. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section I, above , have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices , it will be recommended that it be perform work which it knew he was incapable of performing. Sarkes Tar- zian, Inc., 149 NLRB 147 is While Objection 2 complains of the surveillance of "non-union adherents," I am convinced that this was an inadvertent description, and that its intent was to complain of the effect on union adherents. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ordered to cease and desist therefrom and that it take cer- tain affirmative action designed to effecutate the policies and purposes of the Act. It is recommended that Respondent offer employees Agnes O. Felty, Reva Robertson, and Bobby L. Bennett immediate and full reinstatement to their former or sub- stantially equivalent positions, positions that will not be injurious to their health and which it knows they can per- form, without prejudice to seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, by payment to them of a sum of money equal to that which they would have earned as wages from the date of the discrimination against them to the date of offer of reinstatement, less interim earnings, in a manner consistent with Board policy set out in F. W. Woolworth Company, 90 NLRB 289, and Crossett Lumber Company, 8 NLRB 440, together with interest at the rate of 6 percent per annum as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. I further recommend 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 recommendations. In order to make effective the interdependent guarantees of Section 7 of the Act, I recommend that the Respondent cease and desist from, in any manner, infringing upon the rights guaranteed in that section. N.L.R.B. v. Express Publishing Co., 312 U.S. 426; N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4). Upon the basis of the above findings of fact and upon the entire record in the proceeding , I make the following: CONCLUSIONS OF LAW 1. 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. By discriminating in regard to the rehire or tenure of employment of Agnes O. Felty, Reva Robertson, and Bobby L. Bennett, thereby discouraging membership in the above Union, Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Sec- tion 8(a)(3) of the Act. 4. By engaging in interference, restraint, and coercion of its employees in the exercise of rights guaranteed in the Act, Respondent has engaged, and is engaging, in unfair labor practices as proscribed by Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. [Recommended Order omitted from publication.]