Atlas Truck Body Manufacturing Co.

DRYDEN MANUFACTURING CO. Dryden Manufacturing Company, Inc., d/b/a Atlas Truck Body Manufacturing Company and Upholsterers' International Union of North America, AFL-CIO. Cases 26-CA-2713 and 26-RC-2875 January 30, 1969 DECISION, ORDER, DIRECTION TO OPEN AND COUNT BALLOTS AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On May 10, 1968, Trial Examiner Sydney S. Asher, Jr., issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. On May 28, 1968, the Trial Examiner issued a Supplemental Decision, in which he found merit in certain objections to the election in Case 26-RC-2875 and recommended that the election held on May 18, 1967, be set aside if, upon the resolution of the validity of two challenged ballots which are sufficient in number to affect the results of the election, the Petitioner should not be found to have received a majority of' the valid votes cast. Thereafter, the Respondent and the General Counsel filed exceptions to said Decisions of the Trial Examiner and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with 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, his Supplemental Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings,' conclusions 2 and recommendations of the Trial Examiner with the following modifications: 'The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner' s resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A 3). We find no such basis for disturbing the Trial Examiner's credibility findings in these cases. 'We do not adopt the Trial Examiner's conclusion that he was bound, for purposes of certain allegations of violations of Section 8(a)(1) and 8(aX3) in Case 26-CA-2713, by the determination in Case 26-RC-2875 that Doyce Edwards was a supervisor See Stanley Air Tools, Division of the Case 26-CA-2713 255 1. We adopt the Trial Examiner's findings that Respondent violated Section 8(a)(1) of the Act by threatening and warning employees of reprisals in the event that they selected the Union as their bargaining representative, by promising them benefits if they rejected the Union, by creating the impression of surveillance, and by maintaining an unlawfully broad no-distribution rule. The Trial Examiner also found that certain other conduct of Respondent did not violate Section 8(a)(1). We disagree with certain of these findings for the reasons set forth below: (a) Interrogation: The evidence concerning this allegation was undisputed and consisted of the testimony of employee Bobby Coggin that sometime in March 1967, Doyce Edwards, a supervisor, asked him if he had signed a union card, to which Coggin answered in the negative. The Trial Examiner found this evidence to be too meager to warrant a finding of illegal interrogation. We disagree. Edwards, who instigated the Union organizational campaign by suggesting to Sandlin and Harmon that they bring a union in, later discouraged their union activity by warning them of Respondent's vigorous opposition to the Union. He also illegally promised a benefit to an employee, his nephew, to induce him to vote against the Union. Irrespective of whether this conduct represented a change in Edwards' own loyalties or merely reflected the attitude of higher management, we agree with and have adopted the Trial Examiner's findings that the warning and the promise of benefit by Edwards constituted violations of Section 8(a)(1). In the light of this conduct of Edwards, and Respondent's other unfair labor practices, the interrogation by Edwards was hardly an isolated occurrence which would justify dismissal of this allegation. On the contrary, we find that the interrogation violated Section 8(a)(l). (b) The allegedly coercive literature: We do not adopt the Trial Examiner's recommended dismissal of those allegations of the complaint charging that Respondent interfered with its employees by virtue of certain literature distributed to its employees. The complaint alleged that this literature impressed upon the employees the inevitability of strikes, accompanied by dire consequences to the employees, including violence and loss of jobs, if they selected the Union to represent them, and the futility of so selecting the Union. In recommending dismissal, the Trial Examiner concluded that nothing in the literature could reasonably be interpreted as a threat that the Respondent would take any action against the employees in reprisal for their selection of the Union, and that it nowhere exceeded the Stanley Air Works, 171 NLRB No. 48 However, the parties have stipulated, since the issuance of the Trial Examiners Decision, that at all times material herein Doyce Edwards was a supervisor . Accordingly, we affirm the Trial Examiner's conclusion as to the supervisory status of Edwards 174 NLRB No. 46 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bounds of permissible campaign propaganda within the protection of Section 8(c). The literature consists of 13 documents distributed during the period preceding the representation election held among these employees. Since the Trial Examiner's Decision does not contain a summary of the contents of the literature we would ordinarily find it proper and useful to include such a summary in the Board's decision herein. It is significant that we find it unnecessary to lengthen this decision by doing so because representative samples of this literature, identical except for company name and some minor variations in capitalizations and underlining, have been published in previous Board decisions where their legality, as part of an otherwise substantially similar antiunion campaign, was specifically ruled upon.3 We find that this literature emphasized not only, as the Trial Examiner found, that selection of the Union followed by a strike could result in serious detriment to the employees, but also that the Respondent would force the Union to strike rather than accede to its demands, thereby making a strike and the dire consequences depicted as flowing therefrom a likely, if not inevitable, result of selecting the Union. For the reasons stated in the cases cited in footnote 3, supra, distribution of this literature, in the context of Respondent's entire antiunion campaign, violated Section 8(a)(1).° 2. We agree, for the reasons stated by the Trial Examiner, that the discharge of employee Billy Loy Harmon was in consequence of his union organizational activities and was in violation of Section 8(a)(3) of the Act. Harmon, together with employee Carl Sandlin, was a principal organizer for the Union in the plant. On about March 6 Sandlin went to see a Union representative and received blank authorization cards. With some help from two other employees, Sandlin and Harmon obtained signatures on authorization cards from about 23 out of 25 employees in the bargaining unit. The Trial Examiner found, and we agree, that Respondent knew of the union activities of both Harmon and Sandlin. Nevertheless, the Trial Examiner concluded that the General Counsel failed to establish by a preponderance of the evidence that Sandlin's discharge, like that of Harmon, was motivated in substantial part by his assistance to the Union. We disagree with this conclusion. Sandlin was discharged on March 15, 1967, the day before Harmon was discriminatorily discharged5 and 2 days after Sandlin and Harmon told Supervisor Doyce Edwards that they had obtained 23 union authorizations. It was also on March 15 that Edwards, who had earlier encouraged these two employees to bring in a union, warned Harmon that the management was "on the war path in there this 'Yazoo Valley Electric Power Association, 163 NLRB 777, 788. See also Crystal Lake Broom Works, 159 NLRB 429; Ideal Baking Company of Tennessee, Inc, 143 NLRB 546. 'Cf Louisburg Sportswear Co., 173 NLRB No. 101. morning and you'd better keep the Union quiet because if you want to get fired this is a good morning to get fired."6 The same morning Sandlin, upon reporting to work, requested of his foreman that he be given some time off to pick up some eyeglasses for his son in a nearby town. The foreman gave him permission, but told him to be prepared to work overtime because they had a lot of work to do. As found by the Trial Examiner, Sandlin attempted to telephone the "eye doctor," but since there was no answer he proceeded instead to take care of some personal business. Sandlin returned to work about 9:45 a.m. having left at about 7 a.m. He admittedly lied to his foreman on returning by telling him that he had in fact picked up the eyeglasses. Between 11 and 11:30 a.m. Sandlin contacted Plant Manager Edward F. O'Brien and reported to him all the facts stated above including the fact that he had lied to the foreman. O'Brien told Sandlin that he appreciated his telling him. After conferring with his superior, Respondent's Vice-President A. C. Stringer, O'Brien summoned Sandlin at about 1:30 to 2:30 p.m. and told him that he was being dismissed for lying about going to the doctor. Although the Trial Examiner did not explicitly so find, O'Brien admitted that two paychecks were prepared in advance of the dismissal interview to be delivered to Sandlin upon his termination.7 The Trial Examiner, while conceding that the issue was not free from doubt, found that the General Counsel failed to establish by a preponderance of the evidence that Sandlin was h di d b f hi sc arge ecause o s union activities. In so finding, the Trial Examiner relied upon the absence of evidence that any employee, other than Sandlin, had lied to Respondent concerning an absence from work. Although no other employee had engaged in similar misconduct, and therefore the General Counsel was unable to establish disparate treatment in Sandlin's case, the unavailability of such evidence does not negate the existence of a discriminatory motivation herein. At the time of his discharge Sandlin had been employed for over a year. During the period of his employment, he had received merit wage increases in a frequency which exceeded that of the average worker. Respondent's knowledge of Sandlin's union activities is amply established as is Respondent's hostile attitude toward employee efforts to bring in 'Harmon probably would have been discharged on March 15 also, but for the fact that he did not work a full shift that day He was sent for on that date, but could not be reached A termination slip was prepared but was not completed until the next day, when Harmon was available. 'Edwards had previously told them both "that the front office couldn't fire [them] for [their] union activities but they could always find something else to fire [them] for " 'A termination slip was filled out in Sandlin's presence, citing lying as the cause for dismissal , which Sandlin consented to sign , attesting it as a "true statement of the reason or cause for termination." We do not regard his attestion , under the circumstances, as probative of the motivation for the discharge DRYDEN MANUFACTURING CO. 257 the Union. Prior to the discharges of Sandlin and Harmon, Supervisor Edwards cautioned them to be quiet about the Union and stated "that the front office couldn't fire . . [employees] ... for union activities but they could always find something else to fire .. . for." Thereafter, on the morning of Sandlin's discharge, Edwards again warned Harmon, stating, "They're on the warpath this morning and you'd better keep the Union quiet because if you want to get fired this is a good morning to get fired." With Sandlin's discharge that day, and Harmon's on the following day, Respondent not only confirmed Edwards' statements as to Respondent's disposition to rid itself of union protagonists, but, through the discriminatory discharge of Harmon, confirmed Edwards' earlier warning that Respondent would seize upon pretextual grounds to rid itself of Union supporters. Furthermore, when one considers the nature of Sandlin's offense, including his relatively prompt effort, despite the absence of an accusation, to reveal the true circumstances of his absence to management, together with the severe discipline imposed against this productive worker, the conditions surrounding Sandlin's discharge are consistent with the pattern often followed by employers who are bent on discouraging employee organization by terminating those most responsible for a union campaign. Against this background, and considering Respondent's antiunion animus, its knowledge of Sandlin's role in the organization campaign, its announced disposition to discharge on pretextual grounds, and the timing of his discharge both in relation to the commencement of union activities and the pretextual discharge of Harmon, Sandlin's coorganizer, the conclusion is inescapable that Sandlin's union activities were a substantial contributing factor to his discharge. Accordingly, we find, contrary to the Trial Examiner, that the General Counsel has established by a preponderance of the evidence that Sandlin was discharged in violation of Section 8(a)(3) and (1) of the Act Case 26-RC-2875 We agree with the Trial Examiner that the Respondent maintained an illegal no-distribution rule which interfered with the employees' free choice in the election of May 18, 1967. In adopting the Trial Examiner's recommendations with regard to that election we rely also upon the distribution of the literature which we have found above to have violated Section 8(a)(1), and upon the other Section 8(a)(1) violations found by the Trial Examiner and adopted by the Board , which occurred during the period between the filing of the election petition and the election . These consist of the threat of reprisals made by A. C. Stringer, Stringer's creation of the impression of surveillance, and the promises of benefit made by both Stringer and Doyce Edwards." Since we have found that the discharge of Billy Loy Harmon and Carl Sandlin were discriminatorily motivated, we hereby overrule the challenges to the ballots cast by them. As these ballots are determinative, we shall direct the Regional Director to open and count them, and prepare a revised tally. THE REMEDY Having found that Respondent engaged in unfair labor practices in addition to those found by the Trial Examiner, we shall order Respondent to cease and desist therefrom and to take the additional affirmative action necessary to effectuate the purposes of the Act. We have found, contrary to the Trial Examiner, that Respondent discriminatorily discharged Carl Sandlin. We shall therefore order Respondent to offer immediate and full reinstatement to Billy Loy Harmon and Carl Sandlin and make them whole for any loss of earnings they may have suffered by reason of the discrimination by payment to each of them of a sum of money equal to the amount he normally would have earned as wages from the date of his discharge to the date of offer of full reinstatement, computed in accordance with the formulas set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Dryden Manufacturing Company, Inc., d/b/a Atlas Truck Body Manufacturing Company, Wren, Mississippi, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or activities on behalf of Upholsterers' International Union of North America, AFL-CIO, or any other labor organization, by discharging employees or by discriminating in any other manner in regard to their hire, tenure of employment, or any term or condition of employment. (b) Maintaining any rule or regulation prohibiting its employees from distributing literature on behalf of the above-named or any other labor organization in nonworking areas of the plant, during their nonworking time. (c) Threatening its employees with reprisals and with adverse economic consequences, including strikes and job loss, if they select the above-named or any other labor organization as their bargaining representative. The Trial Examiner's Supplemental Decision contains certain inadvertent errors that have been noted and corrected 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Promising benefits to its employees if they reject . the above-named or any other labor organization as their bargaining representative. (e) Coercively interrogating its employees as to their union membership, or indicating to its employees, or otherwise creating the impression among them, that it is engaging in or has engaged in surveillance of their union activities. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to reinstate Billy Loy Harmon and Carl Sandlin to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings suffered by reason of the discrimination against them, in the manner described in the section of this Decision entitled "The Remedy," and notify them, if they are presently serving in the Armed Forces of the United States, of their rights to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (b) Preserve and, upon request, make available to the National Labor Relations Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to determine the amount of backpay due hereunder. (c) Post at its plant in Wren, Mississippi, copies of the attached notice marked "Appendix."9 Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by a representative of the Respondent, shall be posted by it immediately upon receipt thereof and maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. 'In the event that this Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " DIRECTION TO OPEN AND COUNT BALLOTS It is hereby directed that, as part of his investigation to ascertain the representative for the purposes of collective bargaining with the Employer, the Regional Director for Region 26, shall, pursuant to the Board's Rules and Regulations, within 10 days from the date of this Direction, open and count the ballots cast by Billy Loy Harmon and Carl Sandlin and thereafter prepare and cause to be served upon the parties a revised tally of ballots, including therein the count of said ballots. In the event that the revised tally of ballots shows that the Petitioner has received a majority of the valid ballots cast, the Regional Director shall issue a Certification of Representative to the Petitioner as the exclusive bargaining representative of the employees in the appropriate unit. Should the revised tally of ballots show that the Petitioner has not received a majority of the valid ballots cast, the following Order and Direction of Second Election shall become applicable. ORDER It is further ordered that the election conducted herein on May 18, 1967, in Case 26-RC-2875 be, and it hereby is, set aside, and that Case 26-RC-2875 be, and it hereby is, remanded to the Regional Director for Region 26 for the prupose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative. [Direction of second election'() omitted from publication.] "An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 26 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election . No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed Excelsior Underwear Inc . 156 NLRB 1236 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in or activities on behalf of Upholsterers' International Union, AFL-CIO, or any other union, by discharging employees or otherwise discriminating against them in regard to any working conditions. WE WILL NOT maintain any rules or regulations prohibiting our employees from distributing literature on behalf of any union in nonworking areas of our plant, on nonworking time. WE WILL NOT threaten our employees with reprisals or with strikes or job loss if they select a union as their DRYDEN MANUFACTURING CO. bargaining agent. WE WILL NOT promise benefits to our employees if they reject a union as their bargaining agent. WE WILL NOT coercively interrogate our employees concerning their union membership or indicate to our employees that we have been spying on their union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form unions, to join or assist any union, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining, or other mutual aid or protection, and to refrain from such activities. WE WILL offer Billy Loy Harmon and Carl Sandlin their former jobs and pay each of them for wages he lost as a result of his discharge, with 6 percent interest. If they should currently be serving in the Armed Forces of the United States, we will notify them of their rights to full reinstatement after discharge from the Armed Forces, upon application, in accordance with the Selective Service Act, and the Universal Military Training and Service Act, as amended. Our employees are free to become or remain, or refrain from becoming or remaining members of any union. DRYDEN MANUFACTURING COMPANY, D/B/A ATLAS TRUCK BODY MANUFACTURING COMPANY (Employer) Dated By (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, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-3161. TRIAL EXAMINER'S DECISION SYDNEY S. ASHER, JR., Trial Examiner On March 17, 1967, Upholsterers' International Union of North America, AFL-CIO, Tupelo, Mississippi, herein called the Union, filed charges in Case 26-CA-2713 against Dryden Manufacturing Company, Inc., d/b/a Atlas Truck Body Manufacturing Company, Wren, Mississippi, herein called the Respondent. Amended charges were filed on April 12.' Thereafter, the General Counsel of the National Labor Relations Board issued a complaint, a first amended complaint, a second amended complaint, and an amendment to the second amended complaint. The Respondent filed an answer to each. The complaint, as amended, alleges that the Respondent, since on or about September 17, 1966, has violated Section 8(a)(1) and (3) of the National Labor Relations Act (29 U.S.C. Sec. 151, et seq.) by interfering with, restraining, and coercing its employees in the exercise of rights protected by the Act, and by discharging its employees Carl Sandlin and Billy Loy Harmon, on March 15 and 16, respectively, and thereafter failing and refusing to reinstate them, because 259 they engaged in protected concerted and union activities. Case 26-RC-2875 arises out of an election conducted by the Regional Director among the Respondent's employees on May 18, which resulted in 12 votes for the Union, 13 votes against the Union, and 2 challenged ballots which were sufficient in number to affect the results of the election. The Union filed timely objections to conduct affecting the results of the election. Thereafter, on June 13, the Regional Director issued a supplemental decision on challenged ballots and objections, in which he held in abeyance any determination as to the challenged ballots "pending the outcome of the charges" in Case 26-CA-2713 and found that the Union's objections raised material and substantial issues which could best be resolved on the basis of a hearing. In view of the identity of issues, the Regional Director consolidated Case 26-CA-2713 with Case 26-RC-2875. A consolidated hearing was held before me in Tupelo, Mississippi, on August 1 and 2, 1967. All parties were represented and participated fully in the hearing. After the close of the hearing briefs were filed by the General Counsel and the Respondent, which have been duly considered. Upon the entire record in these cases," except as otherwise noted herein, and from my observation of the witnesses, I make the following: FINDINGS OF FACT The complaint, as amended, alleges, the answer admits, the Regional Director has previously found,3 and it is hereby found that the Respondent is, and at all material times has been, an employer engaged in commerce as defined in the Act, and its operations meet the Board's jurisdictional standards;" and the Union is, and at all material times has been, a labor organization within the meaning of the Act. A. The Setting In March 1967 the Respondent employed approximately 25 rank-and-file workers at its Wren, Mississippi, plant. Edward F. O'Brien, the plant manager, was the highest official at the plant. His immediate superior was A. C. Stringer, the Respondent's vice president. Stringer's office is in Jackson, Mississippi, approximately 160 miles from Wren, but he frequently visits the Wren plant. The parties agree, and it is found, that both O'Brien and Stringer are, and at all material 'Unless otherwise noted, all dates herein refer to the year 1967 'Pursuant to Section 102 31(b) of the Board's Rules and Regulations, Series 8 , revised January 1, 1965 , the Trial Examiner struck from the record four documents dealing with the Respondent ' s petition to revoke subpoenas duces tecum . It should also be noted that G C. Exh I (u), dated June 20, and G.C. Exh. 1(aa), dated July 27, are both captioned. "Respondent's Answer to Second Amended Complaint." This is the correct caption of G.C. Exh 1(u), but the caption of G.C Exh 1(aa) probably should be "Respondent's Answer to Amendment to Second Amended Complaint." 'Case 26-RC-2875, Decision and Direction of Election, fns. 3 and 4, issued by the Regional Director on April 20, 1967. 'The Respondent is, and at all material times has been, a Mississippi corporation with a plant at Wren, Mississippi , where it manufactures refrigerator truck bodies During the 12 months immediately preceding June 16, 1967 , the Respondent shipped products valued at more than $50,000 from Wren, Mississippi, directly to destinations outside the State of Mississippi. During the same period, the Respondent received at Wren, Mississippi, supplies valued at more than $50,000, shipped directly from sources outside the State. 260- DECISIONS OF NATIONAL LABOR RELATIONS BOARD times have been, supervisors as defined in the Act. Late in February Doyce Edwards, a supervisor of the Respondent,' approached employee Billy Loy Harmon in the plant and asked whether Harmon knew "how we could get a union man in there," adding that the plant "needed a union." The record does not reveal Harmon's reply. At or about the same time Edwards approached employee Carl Sandlin while he was working and stated: "What we need is a good strong union." He added that O'Brien had told him not to press the men too hard because there was a union "slowly coming into the plant." He also asked Sandlin "how we could go about getting . . . cards signed and getting a man down here to talk to us." The record does not show Sandlin's response. About a day later Edwards returned and told Sandlin that he [Edwards] "had four or five men that was ready to sign cards" and urged Edwards to "hurry up and get the man on down here." The record does not reveal Sandlin's response to this. About the same time Edwards told Herschel Presley, who at that time was an employee, that "there was going to be some cards brought around and he would like for us to sign . . . the union cards." Edwards added that he himself wanted a union there because then "it would be a better plant." About 3 days later, Edwards told Sandlin and Harmon "to be quiet about the Union, that they had heard about it in the front office." He advised them that if anyone asked about the Union to tell the inquirer that they had not heard anything. He warned "that the front office . . . couldn't fire us for our union activities but they could always find something else to fire us for." On or about March 6 Sandlin contacted a representative of the Union, who gave him about 30 blank union cards to be signed by employees. Thereafter Sandlin, Harmon, employee Billy Nicholson and one other employee obtained signatures from about 23 employees, some at the plant and some at the employees' homes. The signed cards were then turned over to the Union's agent. On about March 13 Sandlin and Harmon told Edwards that they had obtained 23 signatures of 'A hearing was held in Case 26-RC-2875 following which, on April 20, the Regional Director issued his Decision and Direction of Election, in which, among other things, he held that Doyce Edwards was a supervisor within the meaning of the Act Thereafter the Respondent filed with the Board a Request for Review of Regional Director 's Decision and Direction of Election, contending "It is submitted that the record is totally inadequate as to the duties and authority of . Edwards and that the hearing should be reopened to allow evidence . as to what [his] actual duties are " On May 16 the Board denied the Respondent 's request for review on the ground that "it raises no substantial issues warranting review." In accordance with Section 102.67(f) of the Board's Rules, and Regulations, Series 8, revised January 1, 1965, 1 am bound by the Regional Director's determination of Edwards' status up to April 20. Therefore, all evidence on this issue elicited at the current hearing will be disregarded. Sagamore Shirt Company d/b/a Spruce Pine Manufacturing Company, 153 NLRB 309, 313, and Heights Funeral Homes, Inc, 159 NLRB 723, 724 (fn. 1). I am aware that in each case the court of appeals disagreed with the Board and remanded the matter for further proceedings. Amalgamated Clothing Workers of America, AFL-CIO (Sagamore Shirt Co ) v N.L.R.B, 365 F.2d 898 (C.A D.C.), and Heights Funeral Home, Inc., v. N L.R B, 385 F.2d 879 (C.A 5). However, as a Trial Examiner it is my duty "to apply established Board precedent which the Board or the Supreme Court has not revised ." Insurance Agents International Union, AFL-CIO (The Prudential Insurance Company of America), 119 NLRB 768, 773, and Novak Logging Company, 119 NLRB 1573, 1575-7. And I am convinced that more recent decisions of the Board (including Wagner Industrial Products Company, 162 NLRB No 114, and Ross Porta-Plant, Inc., 166 NLRB No. 40) have not diminished the efficacy of the Board's Decisions in Sagamore and Heights employees on union cards. Edwards replied: "Damn, that's the first thing that ever went on in this plant that I didn't know about." Edwards added that this "was a good thing." On the morning of March 15 Edwards and Harmon were alone in the men's room. Edwards remarked: "They're on the warpath in there this morning and you'd better keep the Union quiet because if you want to get fired this is a good morning to get fired." Harmon answered: "Well, if they're going to fire me I want to get it done and over with."6 B. The Discharge of Carl Sandlin 1. Facts On March 15 Sandlin reported for work at his usual hour, around 7 a.m., and told his immediate superior, Oscar Poss,7 that he needed to pick up eyeglasses for his son in Pontotoc, a nearby town. Poss replied: "All right, go ahead, but get on back and be prepared to work overtime. We've got a lot of work to do." Sandlin proceeded to Okolona, the town in which he lived, and attempted to telephone to Dr. Shannon, the eye doctor in Pontotoc, but there was no answer Sandlin therefore did not visit the doctor, but instead went to an automotive parts dealer in Okolona on personal business. Meanwhile, when O'Brien arrived at the plant that morning, Poss reported to him that Sandlin had asked permission to visit Dr. Shannon to pick up glasses for his son, and that "the manner in which Mr. Sandlin told him about it seemed a little evasive," so he (Pons) had asked someone in management to check with the eye doctor. It was reported to O'Brien that Dr. Shannon was not in his office that particular day and had not received any patients. Sandlin returned to work about 9:45 a.m. Poss asked him: "Did you get your glasses?" to which Sandlin answered "Yes." Poss reported this conversation to O'Brien. About 11 or 11:30 a.m. Sandlin contacted O'Brien and explained to O'Brien what had happened. O'Brien replied that he appreciated Sandlin telling him this. O'Brien reported to Stringer, who was then in the Wren factory, what had happened, adding that "ii' he expected to maintain the respect of ... employees, it looks like he is going to have to let Mr. Sandlin go." Stringer concurred. At or about 1:30 or 2.30 p.m., O'Brien summoned Sandlin to his office and, in the presence of Stringer and Poss, told Sandlin: "You lied about going to the doctor ... I believe that's reason for dismissal." O'Brien added that Sandlin had been badly needed that morning. O'Brien filled out a termination slip, giving as the reason for termination: Employee lied about taking child to doctor as excuse to be off and then admitted he had gone somewhere else. In view of lecture on importance of attendance' we felt it necessary to dismiss. Sandlin placed his signature on the slip, attesting "that the foregoing is a true statement of the reason or cause for termination." He was paid off and left the plant 'Edwards did not testify. The findings regarding Edwards' activities are based upon the undenied testimony of the employees involved, who were witnesses for the General Counsel. 'It is admitted by the Respondent, and I find, that Poss is, and at all material times has been, a supervisor within the meaning of the Act. 'In January, O'Brien had complained to the employees that there had been excessive absenteeism , and had warned that management might have to take steps to combat this. DRYDEN MANUFACTURING CO. 261 2. Contentions of the parties The Respondent admits that it discharged Sandlin on March 15, but denies that it discharged Sandlin, and thereafter failed and refused to reinstate him, because he assisted the Union. The General Counsel maintains that the Respondent "harbored an animus toward employee organization," was aware of the part Sandlin had played in bringing the Union into the plant, that "he was fired for getting 23 cards signed for the Union," and that the reason given for the discharge was "pretextual." Conversely, the Respondent insists that there is no evidence that it knew of Sandlin's union activities at the time of his discharge, that proof of discriminatory motivation is lacking, and that Sandlin was discharged for good reason. 3. Conclusions On the record herein there is little doubt, and it is found, that at all material times the Respondent was opposed to organization of its employees.' This is shown by Edwards' warnings to Sandlin and Harmon "to be quiet about the Union"; his intimation that the Respondent could seek a pretext to rid itself of union adherents; and the admitted opposition of the Respondent to the Union.'° It also found that the Respondent knew of Sandlin's union activities at the time of Sandlin's discharge. This finding is based upon the March 13 conversation between Sandlin, Harmon, and Edwards; the small size of the plant (25 employees); and the large percentage of employees solicited (23 out of 25)." Let us turn now to the Respondent's defense. The Respondent had, of course, a right to enforce discipline in the plant, and to take steps against any employee who lied to management. The General Counsel sought to prove, by evidence on the record and argument in his brief, that the Respondent was, in fact, lenient toward absentees. But this begs the issue. Sandlm was discharged not for his absenteeism but rather for attempting to deceive, an offense which he admitted. O'Brien, who made the decision to discharge Sandlin, testified on cross-examination by the General Counsel: Q. (By Mr. Bensley) Mr. O'Brien the reason given on this termination slip is not the true reason Sandlin was fired, is it? A. The answer is, that's the only reason. The General Counsel sought to throw suspicion on O'Brien's motives by pointing out that the Respondent 'This finding is not meant to be critical of the Respondent, but is merely a statement of fact. The Respondent had, of course, a legal right to display antagonism toward the Union, so long as it took no action proscribed by the Act. N.L R B v. McGahey, d/b/a Columbus Marble Works, 233 F 2d 406, 409 (C.A. 5) But, as the United States Court of Appeals for the Fifth Circuit has said. "antiunion bias and demonstrated unlawful hostility are proper and highly significant factors for Board evaluation in determining motive." N.L.R B v Dan River Mills , Incorporated, Alabama Division, 274 F.2d 381, 384 (C A. 5) "During the hearing the Respondent's attorney stated . "I'll so stipulate that Mr Stringer was opposed to the Union coming into the plant." He later clarified this as follows- "I should have said management, meaning Mr. Stringer and Mr O'Brien." "Stringer testified that he had no knowledge of union activities until he learned of the filing of the petition on March 17 - after Sandlin was discharged This testimony did not impress me as candid , and is not credited. checked on the truth of Sandlin's asserted reason for wanting time off by trying to contact Dr. Shannon. However, as to this, O'Brien testified on cross-examination: Q. Did you use this method of checking on other employees? A. Yes. There is no evidence that any other employee lied to the Respondent about his reason for wanting time off, so there is no readily available basis for comparison. The discharge was effected promptly after investigation, but not precipitously. On the record before me, I am not convinced that Sandlin would have been treated any differently had he refrained from union activities. While the matter is not entirely free from doubt, it is found that the General Counsel has failed to establish by a preponderance of the evidence that Sandlin's discharge was motivated, in substantial part, by his assistance to the Union.' 2 C. The Discharge of Billy Loy Harmon 1. Facts Since December 1965 the Respondent has maintained an inspection system based upon an inspection report for each truck body produced. The report is divided into nine parts, corresponding to the nine major steps in the construction of a body. Each step is broken down into its component parts, and each component part graded for quality as either good, fair, or poor. The inspection and grading of each step is assigned to an individual presumably familiar with that particular step, and he is required to initial his respective step on the inspection report. The purpose of the inspection report is twofold- (1) each step should be inspected for errors before the next step is begun; and (2) individual responsibility for workmanship can be established. A bonus to the employees is tied in with the inspection, a certain sum being paid into the bonus fund (ultimately to be shared by all employees) for each completed body properly inspected. Prior to December 1966 if an official of the Respondent noticed on a particular inspection report that initials were lacking in any of the nine spaces provided, Harmon was given the inspection report and told to take it to the employee who had failed to initial the step in question, and have him grade the work and place his initials on the appropriate line. In that month, at a meeting of employees, the Respondent announced that from then on the sum normally paid into the bonus fund would be reduced pro tanto for each step where the employee responsible for grading failed to initial. Thus the employees would, in effect, be penalized for each such omission because the Respondent's contribution to the bonus fund would be lessened. Stringer pointed out that a particular individual might be capable of inspecting some steps but not others. He warned the employees "that under no condition was anybody to sign for someone else; and if they did they would be subject to discharge immediately." Bryant (Buddy) Griggs, a painter, was the employee charged with looking over each body when the painting was completed (eighth of the nine steps), determining "Compare Comfort, Inc., 152 NLRB 1074, 1085 (DeGeus), enfd. in part (not here material) 365 F.2d 867 (C.A. 8). 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whether it was good, fair, or poor, and initialing the inspection report accordingly. After painting, each body was processed in the final step, "Finishing Out." Harmon was the individual responsible for inspection of this final step. On several occasions Harmon noticed that Griggs had neglected to indicate grades for painting on the inspection reports or to put his initials on , and called Griggs' attention to, this Griggs answered, "Oh, hell, sign my name to it," but did not tell Harmon what grades to mark the painting Harmon complied, using his own judgment (rather than Griggs') in grading the painting work, and signing Griggs' initials to the eighth step inspection under "Painting." On one such occasion, the date of which does not appear on the record, Edwards was present but did not object when Griggs told Harmon to sign his initials for him on the inspection report." Stringer testified that in January and February he "was faced with quality problems and this became extra heavy in the last part of February." According to his testimony, during the last week in February or the first week in March, he was at the Wren plant and examined some inspection reports and "saw that one person was doing a lot of signing . . . [but] didn't tell anyone at that time because Mr. Poss and everybody in the factory was concerned." On March 13, while Stringer was in Jackson, he received a telephone call from an official of the Wren plant describing a customer's complaint concerning the quality of a particular body. Stringer ordered that the inspection report for the body in question be pulled. He arrived at the Wren plant on the morning of March 15 and examined the inspection report in question. According to Stringer, this examination "further substantiated the observation I had made the preceding week that one person was signing several places. . . I had an opinion that it was Billy Harmon." After investigating other inspection reports, Stringer became convinced, he testified, "that if these were signed by Billy Harmon, others had been signed by Billy Harmon " Stringer consulted O'Brien, and they "came to the conclusion that this was Billy Harmon doing the signing " Griggs was summoned and shown a stack of 15 or 20 inspection reports purporting to contain his initials in the step in which painting was graded. Griggs pointed out about four in which his initials had been placed there by someone else. He told O'Brien that he had authorized Harmon to sign for him. O'Brien remarked that Griggs knew he wasn't supposed to let anybody else sign his name. Griggs admitted that he knew better. O'Brien described this as "forgery," pointing out that the deception prevented the Respondent from making a pro rata reduction in the bonus fund. O'Brien warned Griggs: "Never do it again." Stringer sent for Harmon, but he was absent from work that day. On the next morning , March 16, at about 9 or 9:30 a.m., Harmon was called into O'Brien's office. In the presence of Stringer and another official of the Respondent, O'Brien confronted Harmon with a number of inspection reports and asked whether Harmon had signed Griggs' initials on them. Harmon admitted that he had done so.'" -O'Brien asked him "why he would do a thing like that" and he responded: "Well, Buddy Griggs told me to." O'Brien answered that Griggs had no "authority to delegate that responsibility." O'Brien then filled out a termination slip giving as the reason for termination: "To the extent, if any, that Harmon's testimony conflicts with that of Griggs, Harmon impressed me as the more credible of the two. Employee admittedly forged other employees names to records to improve cash amounts paid to employee quality bonus fund. Employees had been specifically instructed not to do this. When this was handed to Harmon for his signature, he stated "Yes, it's true and I'm man enough to admit it," but he refused to sign. He was then paid off and left the plant 2. Contentions of the parties The Respondent admits that it discharged Harmon on March 16, but denies that it discharged him, and thereafter failed and refused to reinstate him, because of his union activities. The General Counsel contends that Harmon "was singled out for punitive action because he alone among the inspectors had organized the plant." Conversely, the Respondent maintains that there is no evidence that it knew of Harmon's support of the Union prior to his discharge, that proof of discriminatory motivation is lacking, and that Harmon was discharged for good cause. 3. Conclusions For reasons described above, it has been found that the Respondent harbored animus against the Union at all material times. And for reasons similar to those already related in Sandlin's case, it is found that the Respondent knew of Harmon's union adherence at the time of Harmon's discharge. Let us examine the Respondent's defense that Harmon was discharged for affixing the initials of other employees to certain inspection reports. In this connection it should be recalled that on at least one occasion Harmon did so in the presence of Edwards, a supervisor, who raised no protest. It is also not without significance that Stringer - who made the decision to discharge Harmon - had strong suspicion as to what had occurred several days before Harmon's discharge, but said nothing. During the intervening days - on March 13 to be precise - management learned of Harmon's union activities. It was only after this knowledge had been obtained that Stringer was spurred to action. The most significant factor of all is the treatment accorded Griggs. The fact was, as the Respondent well knew by the end of March 15, that Griggs had solicited Harmon to sign his (Griggs') initials thus setting the chain of events in motion. Even aside from this, and assuming arguendo that Harmon, rather than Griggs, took the initiative, the Respondent's management could not have overlooked Griggs' part in the episode To put it succinctly, the Respondent discovered that Griggs and Harmon engaged in joint conduct which resulted im the Respondent being misled into believing that Griggs, instead of Harmon, had inspected and graded the painting of a number of bodies. Such conduct undermined the purpose and effectiveness of the inspection reporting system. Under these circumstances, it would be reasonable to expect the Respondent to treat Griggs and Harmon alike. It did not do so, letting Griggs off with a mere oral reprimand (not even a written one although on occasions the, Respondent "Harmon also admitted to O'Brien that he had signed the initials of employees Bobby Harrow and Billy Archer However, in the view I take of the case, it is unnecessary to determine whether Harrow or Archer consented. They had left the Respondent's employ before March 15 and therefore were unavailable for questioning by the Respondent DRYDEN MANUFACTURING CO. does issue written reprimands to employees), while visiting upon Harmon the extreme penalty of discharge. On this phase of the discharge, Stringer testified on cross-examination: Q. (By Mr. Bensley) Why was no disciplinary action taken against Mr. Griggs? A. Mr. Griggs was, as he testified and the record will show, he was chewed out by Mr. O'Brien. * Q. (By Mr. Bensley) Is this, chewing out as I believe you used the phrase, is that all that happened to Mr. Griggs about it? * * * * * THE WITNESS: He was chewed out and given a good reprimand. Q. (By Mr. Bensley) What kind of reprimand? A. Verbally. Q. By whom? A. By Mr. O'Brien. Q. Why was there a disparity in treatment between Harmon and Griggs? THE WITNESS: In a criminal case the forger is responsible for the act and is punished, not the forgee, if that be the correct word. This is a lame explanation; the reference to forgery and criminal acts is quite farfetched. Clearly Griggs was no mere "forgee," no innocent bystander, but on the contrary the instigator or at the least an active participant, as the Respondent recognized by "chewing him out" I therefore cannot accept the Respondent's explanation for the disparate treatment, but on the contrary consider the reason assigned for the discharge to be a mere pretext to cloak the real reason On what considerations, then, was the disparate and discriminatory treatment accorded Harmon actually based? The answer is found in the Respondent' s union animus; Harmon's known aid to the Union; Edwards' threat to Harmon on March 15 that "you'd better keep the Union quiet because if you want to get fired this is a good morning to get fired"; and the timing of Harmon's discharge only 3 days after his union adherence became known and less than a day after Edward's warning that union activity might lead to discharge. In the light of these factors, I am convinced, and find, that the discharge of Harmon on March 16 was motivated, in substantial part, by his union activities.15 263 entitled "Company Policies. 1116 A copy has been given to each new employee hired since then. So far as the record shows, no part of the booklet has ever been altered or deleted. It contains the following: SAFETY, HOUSEKEEPING AND PRODUCTIVITY A great deal of housekeeping can be avoided simply by preventing disorderly material, leaflets, phamphlets, or other literature on the company premises. This is grounds for immediate dismissal This includes our parking lot, roadways, walkways, service areas and other areas of the plant. The Board, with court approval, has held that the right of employees to distribute union literature on nonworking time "require[s] only that employees have access to nonworking areas of the plant premises" and accordingly that a restriction on the distribution of literature "is presumptively invalid on its face as applied to employees who may wish to distribute union literature, [if] its reach is not limited to working time or to the working areas of the plant."" Applying this standard to the rule here in question, it is clear that it is too broad and presumptively constitutes an unreasonable impediment upon activities protected by Section 7, insofar as it prohibits the distribution of union literature by employees on nonworking time in nonworking areas of the plant The Respondent has failed to rebut the presumption by demonstrating that the rule was necessary in the interest of plant efficiency, discipline, or safety And it is no defense to point out, as the Respondent does in its brief, that the record lacks evidence of any enforcement of the rule, for the very existence of the rule poses a serious threat of discharge and therefore necessarily inhibits legitimate protected activity Finally, the Respondent urges that, the rule came into existence long before the Union's advent in the plant and therefore cannot be illegally motivated. The short answer to this is that only the maintenance ' of the rule, not its original promulgation, is alleged herein as a violation of the Act. 18 It is accordingly found that the Respondent has violated Section 8(a)(1) of the Act by maintaining the above-quoted rule since September 17, 1966 (6 months before service of the charge herein)." D. Interference, Restraint, and Coercion 1. The no-distribution rule In January or February 1966 the Respondent distributed to each employee of the Wren plant a booklet "The General Counsel introduced evidence tending to show that Stringer directed O'Brien to accompany Harmon out of the plant, that Harmon thereupon remarked - "Yeah, you'd better go because I might steal something," to which Stringer responded "Bill, you know I know better than that," and that when Harmon accused O'Brien of firing him "for signing The union card," O'Brien answered: "I wouldn't as much as to say that." In my opinion these remarks, assuming that they were made, are ambiguous. I therefore do not rely upon this testimony in concluding that Harmon's discharge was discriminatory. "Although the cover contains the words "Amory, Mississippi" it is evident, and I find, that this was a reference to the Wren plant "Stoddard-Quirk Manufacturing Co, 138 NLRB 615, 621 ; and P R. Mallory & Co., Inc v N L R B., 389 F.2d 704, 67 LRRM 2119, 2122 (C.A. 7) "In any event, the coercive effect must be tested by the tendency of the conduct to impinge upon protected activities, rather than the Respondent's motive American Freightways Co., Inc, 124 NLRB 146, 147, followed in Exchange Parts Company, 131 NLRB 806, 812, affd 375 U.S. 405 See also Welch Scientific Co, Inc v. N L R.B, 340 F 2d 199, 203 (C.A. 2), and N L.R.B v. Yokell, d/b/a Crescent Art Linen, 387 F 2d 751, 757 (C.A 2) "The Respondent cites J H Rutter-Rex Manufacturing Company, Inc., 164 NLRB No 10;' Doubleday Bros & Co, 163 NLRB No 144, and William L. Bonneli 'Co., 164 NLRB No 17. In my opinion , these cases are, on their facts, distinguishable from the instant case 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The conduct of Doyce Edwards The complaint, as amended, alleges, and the answer denies, that Doyce Edwards, a supervisor and agent of the Respondent: (a) "on four dates . in February, 1967, and in about the first week of M arch, 1967, . interrogated . . . employees concerning [their] union membership, activities and desires"; (b) "about the middle of February 1967 . . . and on or about March 15, 1967, threatened . . employees with discharge if [they] gave assistance or support to the Union"; and (c) "on or about May 11, 1967, promised its employees raises if they voted against the Union." The allegations of illegal interrogation rests entirely upon the testimony of Bobby Coggin, an employee, that "sometime in March" the following occurred: "Doyce [Edwards] asked me did I sign one of them union cards and I told him no at the time," an answer which was apparently false. I am not convinced that a finding of illegal interrogation is warranted by such meager evidence. So far as the other two allegations concerning Edwards are concerned, the undenied and credited testimony of the General Counsel' s witnesses establishes the following: In February, as described above, Edwards warned Sandlin and Harmon "to be quiet about the Union" adding that while the Respondent's officials "couldn't fire us for our union activities . they could always find something else to fire us for." This constituted a thinly veiled threat of discharge in reprisal for union activities and was therefore intimidatory. Likewise, the previously described remark of Edwards to Harmon on March 15 that "you'd better keep the Union quiet because if you want to get fired this is a good morning to get fired" was in the same vein. Sometime in March Edwards also warned Presley "the office got wind of [the union activities] and for us to be quiet about it." In the same month, Edwards told Sammie Carr, an employee, to "hush up about the union; that the front office had found out about it and if they caught us talking about it we'd be fired." These remarks illegally inhibited legitimate union activities protected by Section 7 of the Act. The petition in Case 26-RC-2875 was filed by the Union on March 17, shortly after the discharges of Sandlin and Harmon. A hearing on the matter was held on March 31 and on April 20 the Regional Director issued his Decision and Direction of Election. Pursuant thereto, the election was held on May 18. About three weeks before the election, Doyce Edwards spoke in the plant to his nephew Thomas Edwards, Jr., then an employee of the Respondent. According to Thomas Edwards, Jr.'s undenied version, which I credit, Doyce Edwards told his nephew "we didn't need no union down there and if I didn't vote for it we'd get more money." It is found that, by this remark, Doyce Edwards illegally promised his nephew financial benefit if he voted against the Union. Such conduct violates Section 8(a)(1) of the Act. 3. The conduct of A.C. Stringer The complaint, as amended, alleges, and the answer denies, that Stringer (a) on or about May 18 "threatened ... employees with shortened work weeks if the Union was selected by the employees as their collective bargaining representative"; (b) on or about the same date ' created among [the] employees the impression of surveillance of employees' union activities by telling them he knew they were attending union meetings"; and (c) on or about May 16 "promised . employees raises if they voted against the Union." The General Counsel produced three employee witnesses whose credited testimony reveals the following:20 A few weeks before the election of May 18, Stringer walked up to employee Guy Gann in the plant and, after stating that the Respondent did not want the Union in the plant, pointed out that no matter how slow production became, the Respondent always provided its workers with 40 hours of work weekly. On the morning of the election, before the polls opened, Stringer told Gann that he knew that Gann had attended union meetings and had been meeting with "union men." He added that the employees were "getting 40 hours a week but if the Union went in, if [they] were caught up with [their] jobs [they] might be sent home, he didn't know." On the same morning, before the polls opened, Stringer drew Carr aside where others could not overhear, and stated that although he knew that Carr had been going to some of the union meetings he hoped that Carr would "support the company." According to Carr's credited testimony, Stringer said: if we went out on strike I would probably lose work [and] . . . that they had provided work for us during the time, 40 hours a week, and if the union came into the plant we might lose time. Despite the Respondent's efforts to demonstrate that Stringer's above-quoted remark was intended to describe only the adverse effect that a strike might have on Carr's earnings, I am convinced and find that it must reasonably be interpreted as threatening loss of working time should the Union succeed in winning the election. It is concluded that in these conversations with Gann and Carr, Stringer deliberately planted in their minds the impression that he had been spying upon their union activities, and threatened them with shorter workweeks should the Union win the election. A few days before the election Coggin asked Stringer for a pay increase. According to Coggin's credited testimony, Stringer replied: "vote right about the election and the chances are [you will] get one after the election." There is no doubt, and it is found, that this was a promise of benefit in exchange for withholding support from the Union. As such it violated the Act." 4. Literature distributed by the Respondent The complaint, as amended, alleges, and the answer denies, that from about April 10 to about May 18 the Respondent distributed to its employees literature which impressed upon its employees: (a) . . the inevitability of strikes with the dire consequences which would follow if they selected the Union to represent them, including violence, loss of jobs, loss of benefits, suffering, loss of job security, and no unemployment compensation. (b) the futility of selecting a Union to represent them. "Although Stringer contradicted the testimony of the three employees, Stringer's denials were not convincing and are not credited. 'The General Counsel elicited testimony tending to show that after the election employees Thomas Edwards, Jr, and Coggin went to Stringer and sought wage increases, but Stringer refused their request I am unable to ascertain how such testimony , if credited, relates to the complaint, as amended. Accordingly, I will refrain from making any fmdmgs with regard thereto. DRYDEN MANUFACTURING CO. At the hearing the parties stipulated, and it is found, that from on or about April 8 to on or about May 18 (between the hearing in the representation case and the election) 13 pieces of literature were distributed by the Respondent to its employees. These were identified and received in evidence. I have examined these documents. They emphasize that should the Union be selected and should it then call a strike, the employees could suffer violence, loss of pay, loss of jobs, and loss of unemployment benefits." Bearing in mind the admonition of the United States Court of Appeals for the Sixth Circuit that "the utterance of either side in an election campaign ought not to receive a narrow or strained construction,"13 I am unable to detect in the literature put out by the Respondent anything which can reasonably be interpreted as a threat that the Respondent will take any action against the employees in reprisal for their selection of the Union as their bargaining agent. Nor is their any promise of benefit should the Union be defeated in the election. It is accordingly concluded, in agreement with the Respondent, that its utterances in question constituted permissable campaign propaganda within the protection of Section 8(c) of the Act. E. The Representation Case In the normal course of events, after a hearing before a hearing officer on challenged ballots and objections, the Regional Director issues a decision thereon. Indeed, in my opinion, Section 102.68(c) of the Rules and Regulations of the National Labor Relations Board, Series 8, as revised January 1, 1965, places upon the Regional Director, in the first instance, the responsibility to "issue a decision disposing of the issues and directing appropriate action." Here, neither the Board nor the Regional Director has directed me to make any proposed findings or recommendations, nor were any instructions issued as to the procedure to be followed in the representation case after the close of the'hearing. In this posture of the case, I shall refrain from making proposed findings or recommendations, and shall instead remand the matter to the Regional Director for such action as he deems appropriate. Upon the basis of the above findings of fact and upon the entire record in this case, I make the following CONCLUSIONS OF LAW 1. Dryden Manufacturing Company, Inc., d/b/a Atlas Truck Body Manufacturing Company, is, and at all material times has been, an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Upholsterers' International Union of North America, AFL-CIO, is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating with respect to the hire and tenure of employment of Billy Loy Harmon, thereby discouraging membership in the above-named labor organization, the Respondent has engaged in and is "For example a letter dated April 29 states- "If you let the union in our plant, you will be faced with danger of strikes, loss of work, and loss of pay." And a letter dated April 19 states: "Thousands of union members all over the country have lost their pay, their benefits, and their jobs because of union strikes " "Union Carbide Corp. v N.L.R B, 310 F.2d 844, 845 (C A. 6) 265 engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the conduct described above, and by other conduct interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The above-described unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. The General Counsel has failed to establish by a preponderance of the evidence that the Respondent illegally interrogated its employees or that it discriminated against Carl Sandlin within the meaning of Section 8(a)(1) or (3) of the Act. THE REMEDY As the unfair labor practices found to have been committed by the Respondent are persuasively related to other unfair labor practices proscribed by the Act, the danger of their commission in the future is to be anticipated from the Respondent's past conduct. It will therefore be recommended that the Respondent cease and desist, not only from the unfair labor practices found, but also from in any manner infringing upon the rights of its employees guaranteed in Section 7 of the Act. Affirmatively, it will be recommended that the Respondent offer Billy Loy Harmon immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to the rights and privileges he previously enjoyed, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him, by paying to him a sum of money equal to the amount he would normally have earned from March 16, 1967, the date of the discrimination against him, to the date of the offer of reinstatement, less his net earnings during this period, computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, including the payment of 6 percent interest as set forth by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. In addition, it will be recommended that Respondent preserve and make available to the Board, upon request, all records necessary to compute the amount of backpay due hereunder, and post appropriate notices. It will further be recommended that the complaint herein, as amended, be dismissed, insofar as it alleges that the Respondent illegally interrogated its employees or discriminatorily discharged Carl Sandlm. Upon the basis of the above findings of fact and conclusions of law, and upon,the entire record in these cases, I make the following: [Recommended Order omitted from publication.] TRIAL EXAMINER'S SUPPLEMENTAL DECISION SYDNEY S. ASHER, JR., Trial Examiner: Pursuant to the Regional Director's Decision and Direction of Election in the above-designated case, an election was conducted on May 18, 1967, to determine whether or not the employees in the appropriate unit desired to be represented by the Petitioner for purposes of collective bargaining. The results were 12 votes for the Petitioner, 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 13 votes against the Petitioner , and 2 challenged ballots which were sufficient in number to affect the results of the election . The Petitioner filed timely objections to conduct affecting the results of the election . Thereafter, on June 13,' the Regional Director issued a Supplemental Decision on Challenged Ballots and Objections, in which he held in abeyance any determination as to the challenged ballots pending the outcome of the charges in Case 26-CA-2713 and found that the Petitioner's objections raised material and substantial issues which could best be resolved on the basis of a hearing. In view of the identity of issues, the Regional Director consolidated this case with Case 26-CA-2713. "A consolidated hearing was held before me on August 1 and 2, 1967. On May 10, 1968, I issued my Decision in these cases , in which I held, with respect to the representation proceeding: E. The Representation Case In the normal course of events, after a hearing before a hearing officer on challenged ballots and objections, the Regional Director issues a decision thereon. Indeed, in my opinion, Section 102.68(c) of the Rules and Regulations of the National Labor Relations Board, Series 8, as revised January 1, 1965, places upon the Regional Director, in the first instance, the responsibility to "issue a decision disposing of the issues and directing appropriate action." Here, neither the Board nor the Regional Director has directed me to make any proposed findings or recommendations, nor were any instructions issued as to the procedure to be followed in the representation case after the close of the hearing. In this posture of the case, I shall refrain from making proposed findings or recommendations, and shall instead remand the matter to the Regional Director for such action as he deems appropriate. I accordingly issued the following Order: It is hereby ordered that Case 26-RC-3875 be, and it hereby is, severed from Case 26-CA-2713, and is remanded to the Regional Director for Region 26 for such action as he deems appropriate. Thereafter, on May 15, 1968, the Regional Director issued the following: ORDER It is hereby ordered that this case, Case No. 26-RC-2875, be transfered back to Trial Examiner Sidney (sic) S. Asher, Jr., for the purpose of rulings and a decision by him on Petitioner's Objections 1, 2 and 3, and that thereafter the case be transferred to and continued before the Board in Washington, D.C., and that the provisions of Section 102.46 and 102.96(e) of the Board's Rules and Regulations, Series 8, as amended, shall govern the filing of exceptions. Upon the entire record in this case, and from my observation of the witnesses, I make the following: SUPPLEMENTAL FINDINGS OF FACT A. Petitioner's Objection I Petitioner's Objection 1 reads as follows: Since on or about September 17, 1966, and continuing to date, the Employer has enforced and maintained the 'All dates herein refer to the year 1967, unless otherwise noted. following rule at page 8 of its Company Policies Handbook at its Wren plant: . . . A great deal of housekeeping can be avoided simply by preventing disorderly material, leaflets, phamphlets, or other literature on the company premises. This is grounds for immediate dismissal. This includes our parking lot, roadways, walkways, service areas and other areas of the plant.... This rule interfered with the employees' rights to a free choice in the election. In my original Decision of May 10, 1968, 1 found that in January or February 1966 the Employer distributed to each employee of the Wren plant a copy of a booklet containing the above-quoted rule. A copy was likewise given to each new employee hired after that. So far as the record shows, no part of the booklet has ever been altered or deleted. The Employer contends, in substance, that no objection to conduct affecting the results of the election can be based upon the rule because it existed and was well known to the employees prior to the filing of the petition herein on March 17, 1967 Z I cannot agree. The rule continued in effect after March 17, and therefore must be considered as an objection.' In my original Trial Examiner's Decision I concluded that the Employer had violated Section 8(a)(1) of the Act by maintaining the rule. Accordingly I now find that, in addition, the rule interfered with the free exercise of choice by the employees in the election. Petitioner's Objection 1 is therefore meritorious. B Petitioner's Objection 2 Petitioner' s Objection 2 reads as follows: Since on or about March 17, 1967, the Employer through its supervisors and agents , interrogated its employees concerning its employees' union membership, activities and desires. This interrogation interferred [sic] with the employees freedom of choice in the election. In my original Decision I found that , "sometime in March," Supervisor Doyce Edwards asked employee Bobby Coggin if he had signed a union card , and that Coggin answered in the negative . As there is inadequate proof that this conduct occurred after the petition was filed on March 17, it cannot be considered as a basis for an objection. There is no other evidence that the Employer engaged in illegal interrogation during the period between the filing of the petition and the election. Petitioner' s Objection 2 is accordingly unsubstantiated on the record. C. Petitioner's Objection 3 Petitioner's Objection 3 reads as follows: The Employer also interfered with the employee's right to make a free choice in the election by distributing numerous pieces of literature which constantly stressed the inevitability of strikes, strife and trouble if the Union won the election. In my original Decision herein I found that, from about April 8 to on or about May 18, 13 pieces of literature were distributed by the Employer to its employees. I further found that the contents of this literature fell 'See The Ideal Electric and Manufacturin Company, 134 NLRB 1275, 1278. 'Ralph Wells & Co., 151 NLRB 1384, 1396, and Edmont, Inc, 139 NLRB 1528, 1529 DRYDEN MANUFACTURING CO. "within the protection of Section 8(c) of the Act." However, this is not decisive of the issue herein, for it is well settled Board law that Section 8(c) is not determinative of questions involving election interference. In the light of this principle, I have reconsidered the 13 pieces of literature in question. In my opinion they contain only campaign rhetoric and did not interfere with the employees' freedom of choice in the election. Therefore Petitioner's Objection 3 is lacking in merit. Upon the basis of the above supplemental findings of fact and upon the entire record in this case, I make the following: SUPPLEMENTAL CONCLUSIONS OF LAW 7. Because the Employer maintained an illegal no-distribution rule between March 17, 1967, and May 18, 1967, Petitioner's Objection 1 is sustained. 8. By the above-described conduct, the Employer interfered with its employees' freedom of choice in the election of May 18, 1967, and the said election was not conducted in an atmosphere free of restraint and coercion. 9. The Petitioner has failed to establish that, between the said dates, the Employer engaged in the conduct described in Petitioner's Objections 2 and 3, and these objections are overruled. Upon the basis of the above supplemental findings of fact and supplemental conclusions of law, and upon the entire record in this case, I make the following: 267 SUPPLEMENTAL RECOMMENDED ORDERS As mentioned above, the two challenged ballots are sufficient in number to effect the results of the election. The Regional Director has not yet disposed of these challenges, nor has he included them among the matters which, according to his Order of May 15, 1968, are to be decided by me. Presumably, when he does dispose of them he will take other appropriate action, such as issuing a revised tally of ballots. Should the revised tally indicate that a majority of the valid votes has been cast for the Petitioner, and the Petitioner then be certified, no new election would need to be held.' Conversely, should the revised tally show that a majority of valid votes has not been cast for the Petitioner, it is recommended that no Certification of Results of Election be issued, but instead that the election held on May 18, 1967, be set aside, and a second election directed.6 'Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1787, fn . 11, and Eagle-Picher Industries , Inc.. Electronics Division, Precision Products Department, 171 NLRB No. 44, fn. 1. 'In his brief filed after the close of the consolidated bearing, the General Counsel requests that I "order that the election held on May 18, 1967, be set aside and a new election conducted " Of course, the Regional Director now has before hun the transcript of the consolidated hearing, and could have himself set the election aside and directed a new election, had he chosen to do so. 'At the consolidated hearing the Employer moved to dismiss the petition on the ground that "the election should never have been directed in the first place inasmuch as there was a tainted and improper showing," I denied the motion, stating : "I do not think that I have the authority to pass on the motion." The Recommendation set forth above are therefore, of course, subject to any disposition made on this issue.