Drives, Inc.

DRIVES, INCORPORATED Drives, Incorporated and District No. 102, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO. Cases 38-CA-255 and 38-CA-305' July 3, 1968 DECISION AND ORDER BY MEMBERS BROWN , JENKINS, AND ZAGORIA On October 31, 1967, Trial Examiner Abraham H. Mailer issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion . Thereafter, the Respondent and the General Counsel filed exceptions to the Decision and sup- porting briefs. 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 and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions2 and recommendations of the Trial Examiner, with the following modifications. 1. Prior to Union's organizational campaign the Respondent considered instituting a wage incentive system and announced its intention to its em- ployees. The incentive system was put into effect shortly after it was developed, at a time which coin- cided with the election campaign. The Employer made several references to the plan during the cam- paign, pointing out the advantages of the newly in- ' Case 38-RC-289, a consent election case originally consolidated with the instant cases for hearing , was severed and remanded to the Regional Director for Region 13 for further processing by an executive secretary's order dated October 31, 1967 We have been administratively advised that on December 21, 1967, the Regional Director sustained the objections and set aside the election Our action in reversing certain of the Trial Examiner 's findings of 8(a)( I)-violations (infra) is not to be construed as passing on the merits of any of the objections in Case 38-RC-289 Such rulings are made by the Re- gional Director pursuant to the consent election agreement executed by the parties r In the absence of exceptions , we adopt the Trial Examiner's conclusion that it was unnecessary to determine whether the Respondent 's conduct with regard to the Advisory Board constituted domination as well as unlaw- ful assistance However, the Trial Examiner recommended disestablish- ment of the Advisory Board, a remedy normally ordered where domination 969 stituted plan to the employees. The Trial Examiner found that although it was "innocently conceived" the Respondent used the plan to infringe on the employees' freedom of choice, thus violating Sec- tion 8(a)(1) of_the Act.3 We are unable to agree with the Trial Examiner's conclusion. The plan was conceived and developed prior to the campaign and the employees were so notified. The Respondent put into effect a previously planned benefit, and pointed out a lawfully existing benefit during the campaign. We find that this conduct was lawful and was not engaged in for the purpose of impinging upon-the employees' Section 7 rights.' 2. Two weeks prior to the election conducted in Case 38-RC-289, the Respondent mailed to its em- ployees a form for a survey of their attitudes and opinions relating to their work Specifically, the survey consisted of the employee's rating of his su- pervisor, his working conditions, and his pay rela- tive to other places of employment. Two questions dealt with employees attitudes toward a union. Em- ployees were requested to return the completed survey to the plant, and were cautioned not to sign the survey form, or indicate their identities in any manner . The cover letter accompanying the survey indicated that the Respondent would study the results of the survey and "begin as rapidly-as possi- ble to make those improvements that the majority of you indicate should be made consistent with our financial ability to do so." Subsequent to the survey certain improvements were made in the plant. The Trial Examiner found and we agree that the timing of the survey in relation to the election, together with the implied promise to improve work- ing conditions, constituted unlawful interference with the rights of employees and was violative of Section 8(a)(1) of the Act. The Trial Examiner further concluded that as the employees were not required to complete and return the survey form, the Respondent did not un- lawfully interrogate the employees by conducting the survey. As a determination as to whether the survey itself constituted unlawful interrogation has been found As we have only found that the Respondent has unlawfully assisted the Advisory Board, we conclude that the normal remedy of a cease-and -desist order and a withdrawal of recognition is appropriate here and we have modified the Order accordingly We agree with the Trial Examiner that Respondent violated Sec 8(a)(1) by denying employees permission to attend the representation hearing, and threatening to discharge them if they did attend, because we find that Respondent 's motivation therefor was not legitimate business considera- tions, but hostility to the Union and a desire to interfere with the organiza- tional activities of its employees ' N L R B v Exchange Parts Company, 375 U S 405 ' Member Brown would adopt the Trial Examiner 's 8(a)(I) finding for he believes that the incentive plan was instituted in the pressroom and promised to the other employees shortly before the election in order to in- fluence the employees'vote in the election 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would not materially change the remedy herein, we find it unnecessary to consider or pass on the Trial Examiner's additional conclusion. 3. We disagree with the Trial Examiner's conclu- sion that the Respondent's preelection campaign created the impression that a strike was inevitable if the employees selected union representation. The Respondent here spoke only of the ability of the Union to call a strike, and the risk of a strike if the Union won the election. As we find the Employer's election campaign did not characterize a strike as inevitable, we conclude it did not violate Section 8(a)(1) of the Act.5 The Respondent also told employees that if they selected the Union the Company might lose some business, which would result in a cutback of em- ployment. One of the Employer's campaign letters discussed the theory that unionization would mean that the Company could not absolutely guarantee delivery because of the possibility of work stop- pages, and absent such a guarantee several customers might give orders to some other firms in order to assure themselves a continuing supply of the product. The Trial Examiner found this was part of an effort to appeal to fear, and part of a campaign which was intended to interfere with the employees' Section 7 rights. We do not agree with this conclusion. The Respondent's statements were not indications of inevitable results of union representation, but merely predictions of possible economic consequences of the employees selecting the Union. We do not view the expression of Respondent's opinion of possible economic con- sequences of the employees' action as a violation of Section 8(a)( I) of the Act.6 4. Contrary to the Trial Examiner we conclude that the Respondent violated Section 8(a)(3) by refusing to rehire Patricia Tadlock. Tadlock was ac- tive in the Union's campaign, a fact known by the Respondent. Specifically, Foreman Van Dyke, when questioning Blaine Kostielney about the source of union authorization cards, stated that he knew "it was Pat Tadlock, and . . that Whitten [the general foreman] knew it. He was gonna take care of it." Tadlock quit the Respondent's employment in October, but on February 10, 1967, she telephoned Hogue, the personnel manager, and asked him if Respondent was hiring. Hogue replied in the nega- tive. Tadlock then asked if the Respondent would be hiring, and Hogue informed her that it probably would, and when they had a job that they felt she 5 Cf Formes Company, 160 NLRB 835 6 Formex Company, supra Member Brown disagrees He finds in the preelection speech and letters, which are quoted in the Trial Examiner 's Decision, a sustained emphasis on could do they would call her. Thereafter, Tadlock called Respondent's office at least weekly and inquired as to the availability of employment. The response was always negative. On March 14 she ap- plied for employment in person at Respondent's of- fice, but was not rehired. During this time Respondent was having a large turnover of help. From January 1, 1967, to the date of the hearing Respondent had been actively seek- ing new employees by means of newspaper and radio advertisement, and through employment of- fices. The Trial Examiner concluded that the Respon- dent did not violate Section 8(a)(3) because of its actions on March 14, the date Tadlock applied at the Respondent's office. Specifically, on that date Hogue checked with two supervisors, Van Dyke and Poel, who Tadlock claimed had indicated a desire to have her return to work. Hogue stated that Van Dyke told him that Tadlock had been dissatisfied with her earlier employment with Respondent, and he did not care to have her back. The Trial Examiner concluded that the Respon- dent's refusal to rehire Tadlock was based on this previously demonstrated dissatisfaction. However, as indicated by Van Dyke's earlier interrogation of Kostielney, both he and the general foreman knew of Tadlock's active participation in the organiza- tional campaign, and specifically of her distribution of authorization cards, and Van Dyke then at- tributed to the general foreman the attitude that "he [the general foreman] was gonna take care of it." Van Dyke was therefore familiar with higher management's hostility to the Union in general and to Tadlock in particular; thus his answer to Hogue is of little probative weight in supporting Respon- dent's asserted reason for refusing to recall Tadlock. Furthermore, the Trial Examiner disregarded the Respondent's earlier refusal to consider rehiring Tadlock on and after February 10, at a time when the Respondent was actively seeking new em- ployees. On February 10, and on subsequent dates when Tadlock telephoned Respondent inquiring about employment, she was told that Respondent was not hiring The basis for Respondent's later as- serted reason for refusing to rehire Tadlock was not deemed a factor or even considered until over I month after she first requested reemployment. In view of Respondent's union animus, its knowledge of Tadlock's active participation in the union cam- paign, and its active recruitment of new employees, the probability of job loss because of strikes and loss of customers if the Union was victorious in the election, and he would therefore adopt the Trial Examiner 's 8(a)( I) finding here DRIVES, INCORPORATED 971 it is clear that the Respondent refused to consider Tadlock for rehiring on and after February 10, 1967, because of her union activities, which con- duct we find violated Section 8(a)(3) and (1) of the Act. 5. The Trial Examiner's Recommended Order directs that the Respondent make whole all em- ployees who were entitled to, but failed to receive, a pay raise during the Union 's organizational cam- paign . The complaint alleged and the Trial Ex- aminer found that the Respondent violated Section 8(a)(3) and ( 1) by its denial of a wage increase to employee Leon Wyncoop. As the Recommended Order extends beyond the scope of the complaint and the findings, we shall modify the Order ac- cordingly. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respon- dent, Drives, Incorporated, Fulton, Illinois, its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Recognizing the Advisory Board as the bar- gaining representative of any of its employees for the purpose of dealing with the Company concern- ing grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of em- ployment, unless and until said labor organization shall have demonstrated its exclusive majority representative status pursuant to a Board-con- ducted election among the Employer's employees. (b) Discouraging membership in District No. 102, International Association of Machinists and Aerospace Workers, AFL-CIO, or in any other labor organization of its employees, by refusing to hire, discharging, or in any other manner dis- criminating against employees in regard to hire and tenure of employment or any term or condition of employment. (c) Promising improvement of working condi- tions and/or wages in violation of Section 8(a)(1) of the Act. (d) Withholding semiannual wage increases from employees in violation of Section 8(a)(1) and (3) of the Act. (e) Interrogating employees concerning their membership in, or activities on behalf of, District No. 102, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization of its employees, in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act. (f) Giving its employees the impression of en- gaging in surveillance of the union activities of its employees. (g) In any other manner interfering with, restraining, or coercing its employees in the exer- cise of their right to self-organization, to form, join, or assist any labor organization, to bargain collec- tively through representatives of their own choos- ing, and to engage in other concerted activities for the purpose of collective bargaining or other mu- tual aid or protection, or to refrain from any and all such activities. (h) Refusing , upon request, to bargain collec- tively with District No. 102, International Associa- tion of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of all em- ployees in the following appropriate unit: All production and maintenance employees employed by the Respondent at its Fulton, Il- linois , plant; but excluding office clerical em- ployees, professional employees, guards, and supervisors as defined in the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Blaine Kostielney immediate and full reinstatement to his former or substantially equivalent position (if Respondent has not already done so), without prejudice to his seniority or other rights and privileges , dismissing if necessary any employees hired subsequent to his discharge, and make him whole for any loss he may have suffered as a result of the Respondent's discrimination against him in a manner set forth in the section of this Decision entitled "The Remedy." (b) Offer to Patricia Tadlock employment at a wage scale and with the same seniority and other rights as if she had been hired 5 days after she made her first request for reemployment on February 10, 1967, and make her whole for any loss she may have suffered by reason of the dis- crimination against her, with interest thereon at the rate of 6 percent per annum. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records necessary for the determination of the amount of backpay due. (d) Notify the above-named employees if 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. (e) Make whole Leon Wyncoop for any loss of pay he may have suffered by reason of the dis- 972 DECISIONS OF NATIONAL criminatory denial of the pay raise to which he was entitled, with interest thereon at the rate of 6 per- cent per annum. (f) Upon request, bargain collectively with Dis- trict No. 102, International Association of Machin- ists and Aerospace Workers, AFL-CIO, as the ex- clusive representative of the employees in the ap- propriate unit with respect to rates of pay, wages, hours of employment, and other conditions of em- ployment and, if an understanding is reached, em- body such understanding in a signed agreement. (g) Withhold all recognition from the Advisory Board as the exclusive representative of the em- ployees for the purpose of dealing with it concern- ing wages , rates of pay, hours of employment, or other terms and conditions of employment, unless and until such labor organization shall be certified by the Board as the exclusive bargaining represen- tative of such employees. (h) Post at its Fulton, Illinois , plant copies of the attached notice marked "Appendix."7 Copies of said notice, on forms provided by the Officer-In- Charge of Subregion 38, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (i) Notify the Officer-In-Charge, in writing, within 10 days from the date of this Decision and 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 , there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforc- ing an Order " APPENDIX NOTICE TO ALL EMPLOYEES THIS NOTICE IS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD After a trial at which all sides had the chance to give evidence, the National Labor Relations Board found that we, Drives, Incorporated, violated the National Labor Relations Act, and ordered us to post this notice to inform our employees of their rights. The Act gives all employees these rights: To organize themselves LABOR RELATIONS BOARD To form, join, or help unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things The Board has also ordered us to assure our em- ployees that: WE WILL NOT do anything that interferes with these rights. You are free to join District No. 102, In- ternational Association of Machinists and Aerospace Workers, AFL-CIO, or any other union. WE WILL NOT give the impression that we have spied on your union activities. WE WILL NOT ask you anything about a union or whether you favor it. WE WILL NOT threaten to fire you, make you quit, refuse to hire you, or treat you differently in any way if you join or work for a union, or talk to other employees about a union. WE WILL NOT recognize the Advisory Board as the exclusive representative of our em- ployees with respect to rates of pay, wages, hours of employment, and other conditions of employment, unless and until such labor or- ganization shall be certified by the Board as the exclusive bargaining representative of such employees. The National Labor Relations Board found that when we made Blaine Kostielney quit, we did this because he was for the Union. The Board found that this violated the Act. WE WILL offer him back his job and seniority and we will make up the pay he lost and also pay him 6 percent interest. The National Labor Relations Board found that we refused to rehire Patricia Tadlock because she was for the Union. The Board found that this vio- lated the Act. WE WILL offer her a job and seniority as if she had been hired 5 days after she applied for a job and we will make up the pay she lost and also pay her 6 percent interest. The National Labor Relations Board found that we failed and refused to give a semiannual pay raise to Leon Wyncoop who was entitled thereto during the Union's campaign. WE WILL make up the additional pay he lost and also pay him 6 percent interest. The National Labor Relations Board found that our conduct prevented our employees from freely indicating whether they wanted District No. 102, International Association of Machinists and Aerospace Workers, AFL-CIO, as their collective- DRIVES, INCORPORATED 973 bargaining representative and has therefore set aside the election and has ordered us to bargain with the Union. WE WILL, upon request, bargain collectively with District No. 102, International Associa- tion of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours of em- ployment, and other conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. WE WILL notify Blaine Kostielney and Patricia Tadlock if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. DRIVES, INCORPORATED (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive 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 Subregional Office, Fourth Floor, Citizens Building , 225 Main Street, Peoria, Illinois 61602, Telephone 673-9282. TRIAL EXAMINER'S DECISION ABRAHAM H. MALLER, Trial Examiner: In Case 38-RC-289, pursuant to a Stipulation for Certifica- tion Upon Consent Election, an election by secret ballot was held on November 4, 1966.' A tally of the ballots showed that there were approximately 141 eligible voters and that 129 ballots were cast, Df which 53 were for District No. 102, International Association of Machinists and Aerospace Workers, AFL-CIO, the petitioner, herein referred to as the Union, 72 were against the Union, and 4 were chal- lenged. The Union filed timely objections to con- duct affecting the results of the election. Thereafter, on March 24, 1967, the Regional Director for Region 13 issued and served upon the parties his report on objections in which he found that the objections raised issues which could best be resolved on the basis of record testimony and/or other testimony developed at a hearing. He also noted that the objections included allegations which are also the subject of charges and amended charges filed by the Union in Case 38-CA-255. Ac- cordingly, he ordered that a hearing be held to resolve the issues raised by the objections and that such hearing be consolidated with the hearing in Case 38-CA-255 and that the Trial Examiner designated for the purpose of conducting the hear- ing prepare and cause to be served on the parties a report containing resolutions of credibility of wit- nesses, findings of fact, and recommendations to him as to the disposition of said issues, and that thereafter Case 38-RC-289 be severed and trans- ferred to him for further processing. In Case 38-CA-255, the Union filed a charge on November 14, a first amended charge on November 29, and a second amended charge on March 8, 1967. Upon said charges, the Acting Of- ficer-In-Charge of Subregion 38 of the National Labor Relations Board, herein called the Board, on March 22, 1967, issued a complaint on behalf of the General Counsel of the Board against Drives, Incorporated, alleging violations of Section 8(a)(1), (3), and (5) of the National Labor Rela- tions Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. In the meantime, on March 16, 1967, the Union filed another charge against the Respondent in Case 38-CA-305. On March 29, 1967, the Officer-In-Charge of Subregion 38 issued an order consolidating for hearing the two com- plaint cases mentioned above and the representa- tion case, and on April 21, 1967, the Acting Of- ficer-In Charge of Subregion 38 issued an amended, consolidated complaint consolidating the above-mentioned complaint cases and the represen- tation proceeding. In its duly filed answers to the original and amended consolidated complaints, Respondent denied the commission of any unfair labor practice. Pursuant to notice, a hearing was held before me on May 23, 24, and 25, 1967, at Clinton, Iowa. All parties were represented and were afforded full op- portunity to be heard and to introduce relevant evidence. At the opening of the hearing herein, counsel for the General Counsel asked and ob- tained leave to file a second amended consolidated complaint alleging, in addition, violations of Sec- tion 8(a)(2) of the Act and additional violations of Section 8(a)(1) of the Act. The new matters al- leged in the second amended consolidated com- plaint were based on a first amended charge filed by the Union on May 19, 1967. Respondent was permitted to answer orally the new allegations set forth in the second amended consolidated com- plaint, and denied the commission of any unfair labor practice. At the close of the hearing all ' All the events in the instant proceeding, unless otherwise specified, oc- curred in 1966 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parties were given the opportunity to present oral argument and to file briefs with me. Briefs were filed by counsel for the General Counsel and by the Respondent. Upon consideration of the entire record, includ- ing the briefs of the parties, and upon my observa- tion of each of the witnesses, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, an Illinois corporation, with its principal place of business located in Fulton, Illinois, where it is engaged in the manufacture and sale of chains, augers, and related products. During the calendar year preceding the issuance of the amended con- solidated complaint, Respondent sold and shipped goods and materials valued in excess of $50,000 from its Fulton, Illinois, plant directly to points located outside the State of Illinois. During the same period of time, Respondent purchased goods valued in excess of $50,000 directly from points located outside the State of Illinois. In view of the foregoing, I find and conclude that the Respondent is engaging in commerce within the meaning of the Act and that it will effectuate the policies of the Act for the Board to assert jurisdiction here. II. THE LABOR ORGANIZATION INVOLVED District No. 102, International Association of Machinists and Aerospace Workers, AFL-CIO, is, and has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUES 1. Whether the Respondent coerced or restrained its employees or interfered with their rights under the Act, in violation of Section 8(a)(1) of the Act. 2. Whether the Respondent constructively discharged Blaine Kostielney, in violation of Sec- tion 8 (a)(3) of the Act 3. Whether the Respondent violated Section 8(a)(3) of the Act when it refused to rehire Patricia Tadlock. 4. Whether Respondent violated Section 8(a)(3) of the Act when it denied a wage increase to Leon Wynkoop. 5. Whether the Respondent assisted and dominated the Advisory Board, in violation of Sec- tion 8(a)(2) of the Act. 6. Whether the Union represented a majority of the employees of the Respondent when it requested recognition and bargaining. 7. Whether the Respondent's refusal to bargain was based on a good-faith doubt as to the Union's majority. 8. Whether the objections to the election should be sustained. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Union 's Organizing Campaign On August 17, Edward Pope, union representa- tive, met with some of the employees of Respon- dent at an employee's home in Fulton , Illinois. Among those present were Kenneth Tadlock, Patricia Tadlock, his wife, and James Ven Huizen The employees present signed cards designating the Union as their collective-bargaining representative. They were also made official union organizers and given 25 to 30 union cards with which to solicit the participation of other employees. Subsequently, Leon Wynkoop and Blaine Kostielney were among the employees who were also made union or- ganizers . By September 22, approximately 85 em- ployees out of a unit of 155 production and main- tenance employees of the Respondent had signed union cards. On that day, the Union sent to the Respondent a letter which Respondent in its answer admitted receiving on September 23, reading as fol- lows: This is to advise that a majority of your Production and Maintenance employees have authorized and designated District No. 102, In- ternational Association of Machinists and Aerospace Workers, AFL-CIO, as their bar- gaining representative in all matters regarding wages, hours of work, working conditions, and other conditions of employment. Should there be any good faith doubt on your part of the Union's majority status, please advise and the Union will immediately submit proof of our majority status to some mutually agreeable impartial third party, such as a Minister, a Rabbi, a Priest, or a member of the Federal Mediation and Conciliation service for the purpose of ascertaining same. This will serve as the Union's request that the Company recognize and bargain collective- ly with the Union and negotiate to a conclusion the terms of a collective bargaining agreement regarding all matters pertaining to wages, hours of work, working conditions, and other conditions of employment . Please treat this request for recognition as the majority representative of the employees in said unit as a continuing request ; and in the interim it is ex- pected and requested that all matters remain unchanged unless a mutual understanding has been reached with the Union. We stand ready and willing to meet with your designated representatives at an early date , mutually agreeable to the parties, to conclude such negotiations. Receiving no response to its demand, the Union on September 26 filed a petition with Subregion 38 of the Board, requesting an election and sent 89 ex- DRIVES , INCORPORATED 975 ecuted union cards to support its petition. On the same day, the Respondent sent a letter to the Union which read as follows: We have received your "Certified Mail, Return Receipt Requested" Letter regarding recogni- tion. In this letter we believe that you are asking us to deny our Employees the "American" right to vote and decide for themselves whether they want you to represent them. We feel you also request indirectly, on your word only, that all our Employees be committed to paying into your funds thousands of dollars in Dues; Spe- cial Assessments, and Strike Funds and that this Company absorb additional thousands in the cost of handling Union Activities. You will remember that you sent a similar request to us four years ago and that a secret ballot vote showed a result of 5 1 against to 6 for your union and after you had convinced the "Federal Labor Relations Board" that you represented our Employees. Your action in this instance was very costly to us. We also feel that your attempt to involve the Clergymen in this area in your program of Union Organization Activities is an insult to them and to the fine Christian Community, our Employees and the Managers of Drives, Inc. As you and your large staff of Union Lawyers know, all you have to do is ask the "Labor Relations Board" to verify the fact that you represent our Employees and they will call for a vote. We refuse to fall into the trap outlined in your letter for the sake of our Employees and the People of the Fulton Area who know the value of having and keeping a Progressive and Industrious Industry in this Community. We have great respect for our Employees Wel- fare and their Wishes. Please accept this Letter as a rejection to your demand for Union Recognition. Thereafter, an Agreement for Consent Election was entered into and approved, and an election was set for November 4. Following the Union's demand for recognition, the Respondent engaged in a vigorous campaign against the Union. The Respon- dent's conduct will be discussed infra. B. Alleged Restraint , Coercion, and Interference 1. Interrogation of, and threats to, Bernard Kostielney Early in September , Blaine Kostielney gave his brother Bernard a union card at the plant shortly after quitting time.2 Howard Wiebenga, foreman of the press department, was present. The following day, Foreman Wiebenga asked Bernard Kostielney what Blaine had given him the day before. Bernard Kostielney told him that it was a union card; whereupon Foreman Wiebenga said , "Anyone caught signing them in the plant or distributing them out would be fired right on the spot." A few days later, Bernard Kostielney went to the office of Maurice Hogue, Respondent's personnel manager to discuss a problem. While he was there, Hogue asked Bernard Kostielney if he had signed a union card. Bernard Kostielney admitted that he had signed one . Personnel Manager Hogue then said that "anyone caught signing them in the plant or distributing them out would be disposed of." The foregoing is based upon the credited testimony of Bernard Kostielney. Personnel Manager Hogue testified that, although he had talked to Bernard Kostielney in his office several times, he did not talk to him about the Union. Despite Personnel Manager Hogue's denial, I am inclined to credit the testimony of Bernard Kostiel- ney, who is no longer employed by Respondent and who appeared pursuant to a subpena. Bernard Kostielney would be more apt to remember a single conversation with the personnel manager, whereas Hogue as personnel manager undoubtedly had con- tact with many employees and would be less apt to remember in detail each conversation that he had with the employees. Thus, he testified that he had no recollection of a girl named Judith Meekum being fired by Foreman Van Dyke. However, Van Dyke testified that he had fired a girl named Judith, had written up a report on the incident, and had given it to Hogue In sum , Hogue's memory may not be reliable in this instance. Accordingly, I find and conclude that Hogue in- terrogated and threatened Bernard Kostielney in violation of Section 8(a)(1) of the Act.3 2 Interrogation and threats by General Foreman Lloyd Shaver Around the end of September, General Foreman Shaver approached Leon Wynkoop at the latter's bench and asked if he could have a man-to-man talk with him. Wynkoop answered in the affirma- tive. General Foreman Shaver then asked Wyn- koop, "How do you feel about the union? What can the union do for you?" Wynkoop and Shaver then discussed the Union and the effect that it would have on the plant and on working conditions. Dur- ing the course of the conversation, Shaver said that: ... the majority of our business was based ' As there are two Kostielneys, Bernard Kostielney is identified herein by his full name , whereas Blaine Kostielney , also known in the plant as Jim Kostielney, is referred infra by his last name only ' The General Counsel did not allege that Foreman Wiebenga 's threat to Bernard Kostielney was violative of the Act, nor does he so argue in his brief Accordingly, I make no finding of a violation in this regard However, Wiebenga's participation in the event can and does form the basis for the subsequent interrogation and threat by Hogue , for I infer from the sequence of events that the incident was reported to Hogue by Wiebenga That the incident did occur rests not only on the credited testimony of Bernard Kostielney , but also on the fact that Respondent did pot call W iebenga to deny it 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on repeat customers that was confident in ob- taining their products from our company, due to the fact that it wasn't union and there would be no strike. That we would very likely lose those customers. ... they couldn't rely on our reliability of obtaining the products, due to the fact that we were unionized and probably evidently be out on strike. Shaver admitted that he had a conversation with Wynkoop to ask him if the employees who were against the Union would be forced to join if the Union won the election, but denied threatening Wynkoop. However, Shaver did not deny the foregoing statement attributed to him by Wynkoop. It would therefore appear that Shaver did not re- gard the foregoing statement as coercive. The Board, however, has held that it is. Harvard Coated Products Co., 156 NLRB 162. On another occasion, in October 1966, employee James Ven Huizen was stopped in the toolroom by Les Whiting, another employee, who attempted to argue with him against the Union. Ven Huizen refused to argue with Whiting and told him that he did not want to discuss the subject until after work. Shortly after Ven Huizen teturned to his job, Foreman Shaver approached him and told him that "if I was talking Union talk, I could be fired on the spot." Foreman Shaver denied talking to Ven Hu- izen. I do not credit his denial. Shaver's testimony revealed a lack of frankness. Thus, he did not want to admit that Blaine Kostielney was a good worker, a fact which Foreman Van Dyke readily admitted and which was corroborated by employee Wintjen. Accordingly, I find and conclude that the aforesaid conduct of Foreman Shaver was violative of Section 8(a)(1).4 3. Threat by Foreman Richard Drury At lunch periods during the Union's organiza- tional campaign, some of the employees discussed the Union. Wynkoop argued for organization. On one occasion, the discussion became particularly heated, with Wynkoop arguing for the Union. After the whistle blew and the employees returned to work, Richard Drury who was Wynkoop's foreman approached Wynkoop and told him that "I should watch myself or my news wouldn't be so good." The statement was made at a time when Wynkoop was expecting a semiannual wage increase.' Foreman Drury's statement made in connection with Wynkoop's expectation of a wage increase was reasonably calculated to, and was made for the ob- vious purpose of, restraining Wynkoop in the exer- cise of his right openly to support the Union and was therefore in violation of Section 8(a)(I) of the Act, and I so find. 4. Threats and impression of surveillance by Foreman Gilbert Van Dyke Gilbert Van Dyke, foreman of the roller chain department, admittedly had several conversations with employee Blaine Kostielney about the Union. According to the credited testimony of Kostielney, he was at the back door of the roller chain depart- ment shortly after lunch when Foreman Van Dyke saw a union card in his pocket. Van Dyke asked Kostielney where he got the card, and Kostielney replied, "A girl gave it to me." When Van Dyke asked who the girl was, Kostielney refused to tell him. Van Dyke then said he knew "it was Pat Tadlock, and ... that Whitten [general foreman] knew it. He was gonna take care of it." In subsequent conversations with Kostielney, Foreman Van Dyke told him that "if the union got in, we'd lose our Christmas bonus, our monthly bonus, we'd make less money, 'cause we had to pay the union dues; and he said that the company would probably close the doors if the union got in." During another conversation Foreman Van Dyke told Kostielney, "If I was you, I wouldn't step out of line on this union deal." He also told Kostielney that Personnel Manager Hogue "knew who the in- stigators were, and they were gonna get fired." Kostielney asked Van Dyke if he was going to get fired, and Van Dyke replied, "No, but if Whitten [general foreman] knew what I knew about it, you'd get fired." During another conversation which occurred at the 550 bench, Foreman Van Dyke told Kostielney that "Whitten was gonna make it mighty damn hot on everyone around there, until this union deal was cleared up." The foregoing is based upon the credited testimony of Blaine Kostielney. Although Van Dyke admitted that he had had several conversations with Kostielney regarding the Union, he testified that he never made any statements about the Union. I find it difficult to believe that these conversations about the Union, which Van Dyke admittedly held with Kostielney, consisted of monologues by Kostielney. Under all the circumstances, including my observa- tion of Van Dyke's demeanor while testifying, I do not credit his denials. Foreman Van Dyke's statements to Kostielney were violative of the Act in several respects: The threat of loss of a Christmas bonus if the Union got - ' The fact that, during the Union's organizational campaign , the Respon- dent issued instructions to its supervisors not to engage in interrogation, threats, etc is of no avail to the Respondent in this regard or in relation to other instances of violations of Sec 8(a)( I) by supervisors infra inasmuch as there is no showing that the employees were ever apprised of these in- structions , nor does it appear that Respondent ever attempted to ascertain whether its instructions were being carried out N L R B v Landis Tool Company, 145 F 2d 152, 155 (C A 3), enfg 51 NLRB 718, N L R B v Laufer-Kauffmann Aircraft Corporation, 144 F 2d 9, 13 (C A 8 ), enfg 52 NLRB 261 ' The credited testimony of Wynkoop. Foreman Drury was not called as a witness to deny Wynkoop's testimony DRIVES , INCORPORATED 977 in was clearly restraint , coercion , and interference, in violation of Section 8(a)(1) of the Act. The statement that Respondent would probably close its doors if the Union came in, though stated as a probability , cannot be considered as a mere opinion or prediction , coming as it did from one identified with management and, in the eyes of the em- ployees, in a position to translate to them the views of management . Shop Rite Foods , Inc., 141 NLRB 1013, 1021; Wilder Finishing Co., Division of Jervis Corporation , 138 NLRB 1017 , 1018. Such a state- ment had a reasonable tendency to coerce the em- ployees in the exercise of their rights , and it was therefore violative of Section 8(a)(1) of the Act, and I so find . The statements that Van Dyke knew that Tadlock had given Kostielney a card and that Personnel Manager Hogue knew who the instiga- tors were and that they would be fired gave Kostiel- ney the impression that the employees ' union ac- tivities were under surveillance . It is well settled that giving employees "[a]n impression of surveil- lance might well instill in the employee a fear of reprisal from the employer " and "is violative of Section 8(a)( I) as it could inhibit the right of em- ployees to pursue their union activities untram- meled by the fear of possible employer economic coercion or other forms of retaliation " (N.L.R.B. v. Ralph Printing & Lithographing Co., 379 F.2d 687 (C.A. 8)). See also Texas Coca-Cola Bottling Com- pany, 146 NLRB 420, 433-434, enfd . 365 F.2d 321 (C.A. 5); Opal Cliffs Food Center, 148 NLRB 301, 303. Indeed , in the instant case , Van Dyke overtly acted to instill a fear of reprisal when he added that "he was going to take care of it." 5. Threats by General Foreman Ronald Whitten A Board hearing in the representation proceed- ing was scheduled to be held October 18. On that day, Blaine Kostielney asked his foreman, Van Dyke, for permission to attend the hearing. Van Dyke denied that Kostielney told him he wanted to go to the Board hearing , but admitted that he "fig- ured" that Kostielney wanted to go to the hearing. Admittedly , Van Dyke told Kostielney that he, Van Dyke , would have to take the matter up with the of- fice . About 45 minutes later , General Foreman Whitten approached Kostielney and told him that he could not leave the plant, that if he did, "I'll have to pull your time card and it will be up to the office." According to Kostielney , he told Whitten that the employees who wanted the Union thought some of the employees ought to be at the meeting; otherwise , there would be only company officials and union officials there. Whitten replied that the Union would have sent a letter asking for him if they wanted him to attend . Kostielney then told Whitten that he was a union organizer . According to Whitten , Kostielney refused to tell him where he wanted to go, but Whitten admitted that he thought Kostielney wanted to attend the hearing. Whitten also testified that he had two conversations with Kostielney on October 18, and that it was only in the second conversation which occurred in the af- ternoon that Kostielney told him that he wanted to attend the Board hearing . At that point , according to Whitten , he told Kostielney that it was too late to go and that the meeting was over at that time. On the same day employee Larry Wintjen also asked Foreman Van Dyke for permission to attend the Board hearing . According to Wintjen, Van Dyke did not reply to his request . Later, in the af- ternoon , General Foreman Whitten came to Wint- jen and asked him if he had asked for time off in order to go to the Board hearing . When Wintjen replied in the affirmative , Whitten said , " Anyone who left the plant today without a good excuse like being ill or something like that , that they would be fired." General Foreman Whitten remembered that Van Dyke told him about Wintjen 's wanting to be off and that he had told Van Dyke that he would talk to Wintjen about it. Whitten also admitted that, although he had talked to Wintjen that day, he could not remember what the conversation was about , and denied that he talked to Wintjen about the request for time off. It is undisputed that both Kostielney and Wintjen had on many other occasions requested time off and were never denied permission . This was the only time that permission was denied to either of them. There can be no doubt that Kostielney and Wint- jen, in requesting time off in order to attend the Board hearing, were exercising the rights guaran- teed them by Section 7 of the Act to "self-organiza- tion ," to "assist labor organizations," and "to en- gage in" concerted activities for "collective bar- gaining or other mutual aid or protection." Con- sequently, in refusing to permit them to take time off and in threatening to discharge them if they left the plant, Respondent was interfering with their rights under Section 7 of the Act. Pearson Corpora- tion , 138 NLRB 910, 918-920; Chautauqua Hard- ware Corporation , 103 NLRB 723, 728-731, enfd. 208 F .2d 750 (C.A. 2). There is no evidence in the record that the presence of these men in the plant on October 18 was required for production pur- poses . To the contrary , Foreman Van Dyke in- ferred that there were other employees who could perform Kostielney 's work . Moreover , it is clear from the testimony of Foreman Van Dyke and General Foreman Whitten that the basis for Respondent 's refusal to permit the two employees to take off and the threats of firing them if they did was Van Dyke's and Whitten's belief that Kostiel- ney and Wintjen desired the time off in order to at- tend the Board hearing . Accordingly , I find and conclude that Respondent 's refusal to permit Kostielney and Wintjen to take time off in order to attend the hearing and the threats to these men that they would be fired if they did take time off for that 354-126 O-LT - 73 - pt. 1 - 63 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purpose were violative of Section 8(a)(1) of the Act.6 6. Respondent 's institution of a wage incentive system Prior to the Union 's organizational campaign, Respondent considered the feasibility of instituting a wage incentive system in its plant . On June 2, it sent a letter to the American Metal Trades, requesting that it study the plant and set up job classifications with a view of instituting a wage in- centive system . By letter dated June 22 , Respon- dent announced to its employees that it intended to put an incentive system into effect in its plant. The incentive system for the pressroom was ready to be put into effect on October 4, but was delayed until October 17 , when Respondent by letter announced to its employees that the incentive system had been put into effect that day in the press department and soon would be effective throughout the production departments. If the matter had ended there , it might be con- cluded that the Respondent 's action in putting the incentive system into effect less than a month prior to the election was purely a coincidence and was not unlawfully ' motivated . Divco-Wayne Industries, Inc., 154 NLRB 974, 977. Compare Betts Baking Company, 155 NLRB 1313 However , Respondent immediately began to capitalize on the wage incen- tive system and used it repeatedly as an argument to the employees that they did not need a union Thus, in several talks to employees in various de- partments in the latter half of October , Vice Pre- sident Den Besten told the employees that it would be possible for them to make more money under the incentive system. According to the credited testimony of employee Kenneth Tadlock, Den Besten a week before the election told the em- ployees that " he didn 't think the union was our way out ... once we got piece work in the force, that they could be able to pay us more money." Also, employee James Ven Huizen testified credibly that in one of his talks, Den Besten told them "how we could do much better with piece work , than if we had a union." Respondent also emphasized the incentive system as an argument against unionization in its letters to the employees . Thus, in a letter dated October 26, Respondent told its employees: LET'S TALK ABOUT INCENTIVES * Drives Incorporated also has incentives: 1. Incentive to make this plant one of the best paying plants in this part of the country. The new incentive plan will make it possible for all concerned to achieve these goals. We know from the results that have already been achieved, that this incentive plan has pro- vided substantial increases in the Press Depart- ment, and it will be applied in all other Produc- tion Departments as rapidly as possible. Frankly we don't understand why the union is against your making more money. Our incentive plan is like putting you in busi- ness for yourself, and you will not take a cut in your present wages. VOTE [X] NO, November 4th and protect your Democratic way of living. In another letter dated October 29, Respondent wrote to its employees as follows: LET'S TALK ABOUT WAGES We feel with the new incentive plan, it will enable all of you to increase your earnings sub- stantially. Some of our people on incentive have all ready [sic] made as much as 40 cents per hour above their day rate. DON'T BE FOOLED BY UNION PROPAGANDA VOTE [X] NO-November 4th. In view of the foregoing , it can hardly be said that Respondent 's conduct in putting the incentive plan into effect and in announcing it to the em- ployees shortly before the election was pending was purely coincidental . Rather, though innocently con- ceived, the incentive plan was used by the Respon- dent for "the express purpose of impinging upon their [the employees '] freedom of choice for or against unionization and ... [was] reasonably cal- culated to have that effect" (N.L.R.B. v. Exchange Parts Company, 375 U.S. 405 , 409). Accordingly, I find and conclude that the Respondent's conduct in this regard was violative of Section 8(a)(1) of the Act. 6 StandardPackaging Corporation, Royal Lace 'aper Division , 140 NLRB 628, and United Aircraft Corporation (Hamilton Standard Division), 144 NLRB 492, are distinguishable from the instant case In Standard Packag- ing, the respondent relied upon its work schedule as the reason for its un- willingness to release more than two employees to attend a decertification hearing, and the Board pointed out that "there is no evidence in the record which indicates any hostility on the part of Respondent toward the collec- tive activity of its employees, whether for or against any of the labor or- ganizations involved" (id at 630) In United Aircraft, the employee in- volved sought time off in order to meet with the Board 's investigator during working hours In holding that the employer 's conduct in refusing to permit the employee to take time off for that purpose was not violative of the Act, the Board pointed out that "the record shows that [the employee] did meet with the Board agent that day after [ the employee 's] working hours, and there is no claim that the Union's case was in any way preju- diced thereby Because it found no reason compelling enough to justify an interruption in its own business, the respondent denied the Union's request that [the employee ] be excused during his working hours" ( 144 NLRB at 494) DRIVES, INCORPORATED 979 7. The Respondent 's attitudes and opinion survey On October 21, Respondent mailed to its em- ployees a form for a survey of their attitudes and opinions. In the letter accompanying the survey form, Respondent promised that it "will make an immediate analysis of the surveys and begin as rapidly as possible to make those improvements that the majority of you indicate should be made consistent with our financial ability to do so." The letter requested the employees to bring in the completed survey form to the plant on Monday, October 24, and drop it into a designated box. Both the letter and the survey form cautioned the em- ployees not to sign the survey or to indicate their identities in any manner . Treasurer Richard Kum- merer testified that Respondent had decided to take such a survey because employees were stand- ing around talking in small groups, were grumbling and were unhappy, and because the Company's ef- ficiency was down and it was falling behind on or- ders. In general, the survey consisted of multiple cho- ice questions which required merely a check mark. However,- several of the questions required the em- ployee to write in his answers , and a space was pro- vided for the employees to write in any comment about any unfavorable situation or condition which was not covered by the listed items. Briefly , the sur- vey consisted of the employee's rating his superior, his working conditions , and his pay relative to other places of employment . Two items, however, dealt with the employee's attitude toward a union: 16. I don't think we need a union in this plant because: (Check several if you wish) -Company is doing all it can for employees at the present time. -I feel free to take grievances up with my foreman, without outside help. -I feel that union organizers are just after my money. -I feel that the management of this firm can do a better job of providing job security for me if left alone by outside union organizers. -We would probably have a lot of strikes if we had a union. -I feel I am getting fair treatment by manage- ment. -I might lose my job if the union came into this plant because of the unreasonable de- mands that the union would make of the company to back up their promises as they have done at other plants that are now closed. -Company is having a tough time trying to stay in business and a union could be the "straw that broke the camel's back." 17. I think we need a union in this plant because: (Write in your answer) Following the deadline for the return of the sur- vey forms , Respondent sent a letter to the em- ployees on October 26 entitled "LET'S TALK ABOUT INCENTIVES" which has been previously mentioned under the topic of the wage incentive. In that letter , Respondent said inter alia: Drives Incorporated also has incentives: 4. Incentive based on the results of the survey to improve the working conditions of this plant. * * * VOTE [X] NO, November 4th and protect your Democratic way of living. Also in his speech to the employees on November 2, Kummerer said: Let's talk about what you have in the way of working conditions. We want to know the things which you feel could be improved. We feel that everyone works better and is happier when working conditions are as pleasant as possible. Your comments on the new survey have pointed up some areas that perhaps we had not given enough thought to up until this time . We want to correct any conditions that bother you, and will do so as we have the money to make changes. Kummerer admitted that after the survey, Respondent improved the toilet facilities for the women employees, installed new drinking foun- tains, has been trying to clean up the shop, and built a new room to improve the eating facilities for the women employees. With regard to the survey, the General Counsel makes two contentions: First, that it constituted un- lawful interrogation of the employees, in violation of Section 8(a)(1) of the Act; and second, that the r Vice President Den Besten testified that the foregoing improvements were not the result of the survey , but had been decided upon before the survey was sent out and were part of the Respondent 's expansion program Den Besten admitted that he was responsible for contracting out the im- provements and purchasing the various items involved , and that the Com- pany had records regarding these matters However , Respondent did not introduce any of these records to indicate when the improvements were or- dered I do not credit Den Besten's testimony Den Besten denied that he was interested in the employees ' attitude about the Union and testified that he did not try to learn their opinions on this matter His testimony in this re- gard is contradicted by items 16 and 17 in the survey which Den Besten ad- mitted , when he was asked to look at the survey, were very clear on the point 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD timing of the survey implying the future granting of benefits in the form of improved working condi- tions interfered with the rights of the employees under Section 7 of the Act, in violation of Section 8(a)(1) of the Act. In support of the first conten- tion, the General Counsel relies principally upon the case of Cannon Electric Company, 151 NLRB 1465 , where the Board found an employer 's survey of employees ' attitudes and opinions about a recent union campaign constituted interrogation in viola- tion of Section 8(a)(1) of the Act. While the Can- non case bears a marked resemblance to the instant proceeding, there are significant differences which make the case distinguishable from the instant case. Thus in the Cannon case, the first three questions of the survey related to the individual employee's sex, length of employment with the respondent , and the name of the department in which the employee worked. This obviously facilitated identifying the individual employee. In the instant case, the survey asked the employees to indicate by a check mark their department and to write in the name of the foreman. It is apparent that identification of the employee could be made with the aid of a hand- writing expert, if Respondent wanted to go to the trouble and expense of engaging one. More impor- tantly, the employees in Cannon were brought into a conference room in groups of 40 to 50 during working hours and asked to fill out the survey and leave it in a box by the door before leaving the room . The Board noted that this circumstance im- parted an atmosphere of compulsion, pointing out at page 1471: The employees did not appear voluntarily to answer the questionnaire . They were brought into the conference room from their work sta- tions by their supervisors during working hours, and requested to fill out the question- naire before leaving the room. The atmosphere was thus redolent with compulsion. By way of contrast, in the instant case the em- ployees received the questionnaire in the mail and were asked to deposit it at work. Thus, employees were free to answer the questionnaire or not to answer it as they saw fit. As the element of compul- sion was lacking in the instant case, I find and con- clude that in conducting the survey, the Respon- dent was not guilty of interrogation in violation of Section 8(a)(1) of the Act. The General Counsel's second contention, how- ever, is meritorious and must be sustained . The tim- ing of the survey in relation to the election , with its implied promise by the Respondent to improve working conditions as disclosed by the survey, fol- lowed by Respondent's stated "incentive based on the results of the survey to improve the working conditions of this plant," which in turn was coupled with the request that the employees vote against the Union, was all part of a unified plan of the Respon- dent which was reasonably calculated to influence employees in the exercise of their rights guaranteed in Section 7 of the Act. The conduct was also designed to impress upon the employees that they did not need a union to secure improvement of working conditions . I therefore find and conclude that Respondent thereby violated Section 8(a)(1) of the Act. Flomatic Corporation, 147 NLRB 1304, 1306-07; Northwest Engineering Company, 148 NLRB 1136, 1139-40. 8. Respondent 's predictions of strikes , loss of jobs, and effect upon its competitive position, in the event the Union is certified While the election was pending , the Respondent engaged in a vigorous campaign against the Union, consisting of speeches by management and letters to the employees, in which it made frequent references to the fact that unionization of the plant would result in strikes and would have an adverse impact upon the Company's position vis-a-vis its competitors , with a resulting loss of jobs. In its letter to the employees under date of October 14, the Respondent, inter alia, asked: Are they [ Union outsiders ] interested in peace or will they produce unrest, strikes, and shut- downs? On October 31, it sent its employees a letter cap- tioned "STRIKE STRIKE STRIKE ." In this letter, it examined the "truth " of things "which the Union had told you," in pertinent part as follows: 1. The Union says it can get you higher wages. This is not true . The only thing the Union can get you for sure is a Strike, which puts you out of work and you can never make up the money you lose while you're out of work.... 2. The Union says it can get job security. This is not true . Certainly , the right to strike isn't job security. Whether you have a job or not de- pends entirely on whether the company you work for has enough orders from customers to keep it in operation . If the union forces us to raise our prices above our competitor, we lose business and you lose your jobs. The way things are right now, there is absolutely no reason why this should happen. You've been able to work steadily in the past and we want you to be able to in the future. * VOTE NO in the election and protect your- self against forking out a lot of money to big time union organizers and risking a STRIKE which puts you out of work, .. . On the same day, Respondent sent its employees a letter signed by Gerry Kopf, sales manager, enti- tled "AN OPINION REGARDING THE STATUS OF DRIVES, INC., AND THE -PROSPECT OF DRIVES, INCORPORATED HAVING A UNIONIZED SHOP." In pertinent part the letter read as follows: Why has the company expanded so fast? Per- haps our customers have the answers to that. There are four major suppliers of agricultural chain. Ours is the only non-union supplier. Purchasing agents appreciate having at least one source to pull them through strike periods with other suppliers. We have realized con- siderable growth because we are non -union. Hardly a week passes but what some customer asks me of our union status.... These customers know too that our company is flexi- ble enough to come up with new dies and new products, and can adjust quickly to a change in their orders. Union shops generally restrict ad- justments of this nature until it hurts business for a company.... To my thinking, the presence of a union could be most detrimental to our company because of this capital situation. Older established com- panies can weather the shock of a strike or two because they have various divisions, and have working capital. On the other hand, Drives, Inc. because of its newness is prone to im- mense harm if the present pattern is at all disrupted . Our customers are always aware of this too, and this is the reason they constantly ask about our union status . They can't afford to take the chance in this time of short supplies and long lead times to work with a shaky sup- plier. In the case that our employees became unionized, it is my opinion that labor leaders from outside our area would be involved in the case of a strike, and would not be as con- siderate of the precarious situation of a small, one-product, new company, having had most of their fighting experiences with large cor- porations. This very thing had been pointed out to me in two communities within two hun- dred miles of Fulton at LaCrosse, Wisconsin and Ottawa, Illinois. Small company deaths oc- cured [sic] here due to unrealiztic labor de- mands and almost devestated [sic] these com- munities five to ten years ago. When it was too late and the big labor representatives had left town, the local laborers came back offering to work at reduced levels in order to hold the companies in these localities. On November 1, Respondent sent its employees a statement purporting to compare the claims of the Respondent and that of the Union. The docu- ment consisted of two columns one headed "DRIVES, INC.," the other, "IAM UNION." Under the topic "Job Security," the Respondent in its column stated in part: "With no union, we can get more than our share of the business in our field because we can guarantee delivery: No strikes-No lock-outs-No slow-downs, etc." In the opposite column labeled IAM UNION, Respondent made the following statement: 981 Clinton Engines at Maquoketa had the IAM union and today there are 800 people out of work at this plant. Herman Nelson at Morrison had the IAM union and that plant is also closed up. Under the topic "STEADY WORK," Respondent in the IAM column stated: Due to strikes and seasonal "ups and downs" no IAM union plant in this area has this good a record . Clinton Engines & Herman Nelson are closed up-no work. On November 2, Treasurer Richard Kummerer read a prepared speech to the employees on com- pany time. In pertinent part, Kummerer's speech is as follows: This union will promise you many things which it cannot give. The reason it cannot give these things is because these promises can't possible be met and still keep our plant in operation. If that comes to pass, just keep in mind that we will no longer be your employer, so you will have to look to the UNION for your job security; wages; vacations, etc. In fact, one of the things the union has been talking about is increasing the rates of pay. The truth is, the only rate of pay they can guarantee is the rate they pay for picket duty, which I understand is about $25.00 per week! The only vacation they can guarantee is a striker's vacation. Perhaps the most important thing that you should consider when you vote on Friday-is that this election concerns YOU MORE DIRECTLY than any election you have every [sic] voted in. It affects your pocket, your JOB SECURITY. Here's why: When Joe and Gerry go into a customer's place of business and asks them for an order for our chain, the first question that they ask is, "CAN YOU GUARANTEE DELIVERY?" Granted, the price and quality have to be good; but the most important thing to our customers is that they can be sure of getting our chain on time so that their production lines won't be shut down. So far, we have been able to answer "YES- WE CAN GUARANTEE DELIVERY."This has given us a tremendous advantage in getting orders which, in turn, has given YOU regular work-52 paychecks a year, or 352 paychecks during the last 7 years. Now, if we had a union we couldn't say "YES-WE CAN GUARANTEE DELIVERY" because how would we know when the union might call a STRIKE; OR A SLOWDOWN; OR A WALKOUT; OR A WORK STOPPAGE in thisplant?? 982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If we can't guarantee delivery to a customer, he will protect himself by spreading his busi- ness to several chain companies. This could result in a 30% to 35% drop in production and in JOBS. If our orders go down, the number of weeks you get to work go down. We personally think that one of our com- petitors is responsible for the union trying to get into our plant. If the union can gain control of this place then this competitor will get some of our business. This hurts YOU. Clinton En- gines at Maquoketa, Iowa had the same union that is trying to get in at this plant-today there are 800 people out of their jobs. Herman Nelson at Morrison, Illinois, had the same union that is trying to get in here-they too; are out of business . These two examples prove that this union cannot guarantee job security- only good management working with good em- ployees can provide job security. We suggest that it's just good business to make it possible for us to say "WE CAN GUARANTEE DELIVERY." In other words, if you vote "NO" in the election on Friday, we can say to our customers and employees on Monday.... SURE, we can make delivery and SURE, we can give you regular steady employ- ment.8 It is clear that by means of the foregoing, Respondent created the impression of the inevita- bility of a strike if the employees selected the Union as their bargaining agent and warned of the loss of jobs. This unremitting effort on the part of the Respondent to impress upon the employees the dangers inherent in their selection of the Union as their bargaining agent, particularly the danger of job loss, was not an attempt to influence the em- ployees by reason, but was an appeal to fear. Ac- cordingly, I find and conclude that Respondent's entire preelection, antiunion campaign , when con- sidered as a whole, was intended to interfere with, restrain, and coerce its employees in the exercise of their rights guaranteed by Section 7, and was there- fore violative of Section 8(a)(1) of the Act. Nebraska Bag Processing Company, 122 NLRB 654, 655; Harvard Coated Products Co., 156 NLRB 162; Ideal Baking Company of Tennessee, Inc., 143 NLRB 546, 552; Climate Control Division, The Singer Company, 160 NLRB 765. C. The Constructive Discharge of Blaine Kostielney Blaine Kostielney worked in the roller chain de- partment under Foreman Van Dyke. At the start, he was assigned to running small presses . After a few days, Van Dyke made him his assistant, giving him the duties of a setup man to make sure that everybody had parts. In July, Kostielney's father became sick in California, and Kostielney asked Van Dyke for a leave of absence. Van Dyke refused the request because he was going to go on his vaca- tion shortly. Thereupon,-Kostielney quit his job. About the middle of August, Kostielney returned and applied to the Respondent for reemployment. Personnel Manager Hogue asked Foreman Van Dyke if he would like to have Kostielney back. Van Dyke replied that he would, that Kostielney was a good worker. Van Dyke thereup on assigned Kostielney to operate the tumblers. At the time, Foreman Van Dyke told Kostielney that he would like to give him back his old job as assistant, but that this would be unfair to employee Larry Wint- jen who had been made assistant when Kostielney quit. Kostielney worked with a minimum of supervi- sion. When he had spare time, as when all tumblers were running, he would dip chains, band boxes, or help bench employees who were behind in their work. Sometimes, he would ask Foreman Van Dyke if there was anything special he wanted him to do. As previously noted, Kostielney was an em- ployee-organizer for the Union. He solicited between 20 and 25 employees to sign union cards. The Respondent's knowledge of Kostielney's union membership is revealed not only by Foreman Van Dyke's and General Foreman Whitten's threats set forth above, but also by Foreman Van Dyke's testimony to the effect that some 6 weeks before Kostielney left, he had shown Van Dyke his union card. Prior to this incident, Foreman Van Dyke had never criticized Kostielney's work. A few days later, Van Dyke began giving Kostielney increasingly more work assignments . On October 20, Foreman Van Dyke gave Kostielney a work assignment, but before Kostielney could finish it, Van Dyke told him to start doing another job. When Kostielney did so, Van Dyke returned and wanted to know why the first job wasn't finished. Van Dyke then told him to return to the first assignment. Later, 8 Also as previously noted , in the survey questionnaire which Respon- dent sent out on the same day to its employees , the Respondent in item 16 set forth the following , inter alia, as suggested reasons for not having a union in the plant We would probably have a lot of strikes if we had a union s s s I might lose my job if the union came into this plant because of the un- reasonable demands that the union would make of the Company to back up their promises as they have done at other plants that are now closed Company is having a tough time trying to stay in business and a union could be the "straw that broke the camel's back " Three tumblers, a large one and two small ones, are operated in the roller chain department Manufactured parts are put in the tumblers for the purpose of removing burrs The usual duties of a tumbler operator include going to the front of the plant, getting the parts that are to be tumbled, and carrying them back to the tumblers The parts are dumped on the floor and then shoveled into the tumblers If the parts are heavy, it takes an operator between 10 and 15 minutes to load the large tumbler After a tumbler has been loaded , the doors are closed and the tumbler and a blower are turned on The tumbler rotates, tumbling the parts inside a sufficient length of time to remove the burrs The length of time that a tumbler operates de- pends on the type of parts placed in the tumbler, as well as the quantity of parts, varying between 15 minutes and 45 minutes , or even longer After the operator deems the parts have been tumbled for a sufficient length of time, he follows a reverse sequence , unloading the parts and moving them to the place where they are to be used DRIVES, INCORPORATED Van Dyke came back and inquired why the second job hadn't been completed, and directed him to do another job. As Kostielney put it, "he just had me running all over and doing everything." Matters finally reached the breaking point on Oc- tober 24. After punching in, Kostielney got the fork- lift truck, brought a load of parts back to the tum- bler area, and dumped them on the floor in front of one of the small tumblers. As he was loading the parts into one of the small tumblers, Foreman Van Dyke came over and told him to dip some chains. Kostielney proceeded to dip the chains, but before he finished, Foreman Van Dyke directed him to band some boxes. Before that operation was finished, Foreman Van Dyke told Kostielney to move some boxes that were lying in the aisles. As Kostielney began to move the boxes, Van Dyke came to him and wanted to know why the boxes were not banded. When Kostielney told him that he had directed him to move the boxes, Van Dyke became upset and wanted to know why the tum- blers were not loaded. Kostielney replied that Van Dyke had told him to do the boxes. Van Dyke then said, "That's the first thing you're supposed to do when you come in in the afternoon is to get them tumblers loaded. That's your very first job." Kostielney then went to the tumblers and proceeded to load the parts into a small tumbler. As he was doing so, Foreman Van Dyke came and, referring to a pile of parts that the day crew had dumped in front of the large tumbler, asked Kostielney why he had dumped the parts there. Kostielney replied that the day crew had left them there. Van Dyke then directed Kostielney to load the parts left by the day crew. When Kostielney replied that he had already had some parts in the small tumbler, Van Dyke ordered him to load them anyway. At this point, Kostielney demonstrated his disgust, whereupon Foreman Van Dyke said, "Well look, Jim,10 if you're going to mess around, you can go home." Kostielney did not reply but proceeded to take out the parts that he had already loaded in the small tumbler and shoveled in the parts which had been left by the day crew. After starting up the tumbler, Kostielney went to Foreman Van Dyke and told him, "Gib, I can't take any more of this," and handed Van Dyke his glasses and grease rag. Van Dyke replied, "All right." Kostielney there- upon left the department. As he was on his way out of the plant, Kostielney ran into Personnel Manager Hogue who had Kostielney's timecard in his hand and a piece of paper which he handed to Kostiel- ney. Kostielney said, "You ain't going to have to worry no more Morey; I quit." Hogue replied, "Well, Jim, you can't say it was me. I've always been fair to you." Kostielney then punched out and left the plant. Foreman Van Dyke's version is as follows: ".. . when it was time to start working, I told him to run 983 the tumblers. That's what he did. He had to do the fork lift work first, and there was a box sitting out in the aisle; and while he was on the fork truck, I asked him to move it. He said he didn't want to. I told him to go ahead and move it anyhow. He finally did, but he really didn't want to." About 45 minutes later, Kostielney came to Foreman Van Dyke, handed him his glasses and his grease rag, told him that "he was tired of this-place," and quit. Foreman Van Dyke further testified that he said nothing in response and was not surprised when Kostielney quit. I do not credit Foreman Van Dyke's version which is completely inconsistent with his own ap- praisal of Kostielney's work habits. Thus, Van Dyke admitted that Kostielney was a good worker, worked with a minimum of instructions, would make boxes on his own if he had free time, and would of his own volition take the forklift truck whenever he saw that something had to be done. And significantly, Van Dyke admitted that he was not surprised when Kostielney quit-a state of mind which is consistent with a course of conduct of making things difficult for an employee to induce quitting. Moreover, Kostielney's testimony as to in- creasing work assignments after the inception of the Union's campaign is corroborated by the testimony of Larry Wintjen, who is no longer em- ployed by the Respondent and who had been assistant to Foreman Van Dyke. Wintjen testified that Kostielney was a good worker and that after the union campaign began, Van Dyke gave Kostiel- ney more job assignments and "before he could get one job done, he'd have him do another." This con- dition continued until Wintjen quit on the Friday before Kostielney's termination. It is well settled that "[a]n employee who is forced to leave his employment as the only alterna- tive to accepting discriminatory action relating to his conditions of employment is constructively discharged in violation of the Act" (American Auto- Felt Corporation, 158 NLRB 1628, 1631). Ac- cordingly, I find and conclude that the Respondent discharged Blaine Kostielney in violation of Section 8(a)(3) and (1) of the Act. D. Respondent's Refusal to Rehire Patricia Tadlock Patricia Tadlock was hired by the Respondent on June 13, and worked in the roller chain department under Foreman Van Dyke. As previously noted, Tadlock attended the union organizational meeting with Union Representative Pope on or about Au- gust 17, signed a union card at that meeting, and became an organizer. She then began soliciting fel- low employees to join the Union. A few days later, Foreman Van Dyke assigned her to work on the staker, a machine that processes chains. Tadlock was the first woman ever assigned to run the staker, 10 Blaine Kostielney was also known as Jim 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and she told Foreman Van Dyke that the staker was a hard job for a woman to do. On another occasion, she told Van Dyke that she thought that the staker was a man's job. Esther Greathouse, a fellow em- ployee in the roller chain department, testified that Tadlock was a good worker and complained about the staker only when she got tired.11 Tadlock continued to be active in the Union's campaign. As previously noted, early in September she was warned by Foreman Van Dyke not to pass out union cards on company time . Also, during Oc- tober, Tadlock passed out union literature outside of the Respondent's plant, and while so engaged was observed by Personnel Manager Hogue who was watching from his office window. Hogue also observed her wearing a union button in the plant during October. Tadlock quit the employment of the Respondent in October and went to work for General Electric. On February 10, 1967, Tadlock was laid off by General Electric. She thereupon telephoned Hogue and asked him if Respondent was hiring. Hogue replied in the negative. She then asked whether the Respondent would be hiring, and Hogue replied, "Probably," and added that as soon as they had a job that they felt that she could do, they would call her. At the time, Respondent was suffering from a large turnover of help, and since January 1, 1967, up to the date of the hearing, Respondent had been actively seeking male and female help by means of newspaper and radio advertisements and employ- ment offices. Thereafter, Tadlock telephoned Hogue about twice a week inquiring as to the availability of em- ployment, and received the same answer. On March 14, 1967, she came to Respondent's office, filled out an application for employment, and gave it to Hogue . Hogue told her that "he didn't know why I wanted to come back. I wasn't satisfied there when I was there before." Tadlock replied, "Who are you to judge." She was not rehired. Personnel Manager Hogue corroborated Tadlock's testimony regarding the telephone calls and the interview. He further testified that, although there are no complaints in Tadlock's per- sonnel file, he did recall an incident in August or September, when Foreman Van Dyke assigned her certain work and that "she made the statement that she didn't want to do that-job." Hogue further testified that, during the interview, Tadlock told him that Foremen Van Dyke and Poel had told her that they would like to have her back. He there- " Although the second amended complaint does not allege that Tadlock's assignment to the staker was discriminatory , the General Coun- sel in his brief suggests that the assignment was made in retaliation for Tadlock's union affiliation and activity However, although the record in- dicates that eventually the Respondent had knowledge of Tadlock's union affiliation and activity, it does not appear from the record that at the time Tadlock was assigned as a staker , the Respondent was aware of her union affiliation Moreover, shortly after being assigned to the staker, Respon- dent gave Tadlock a pay raise of 15 cents an hour This would tend to upon talked to the two foremen. Foreman Poel told him that Tadlock had not worked for him and that he knew nothing about her work, and denied that he told her that he wanted her back. Foreman Van Dyke told Hogue that he did not care to have Tadlock back; that there were certain jobs that she did not like to do and made that fact known by voice and by the quantity and quality of her work.1 In determining whether Respondent's refusal to rehire Tadlock was due to her union activity and af- filiation, or to her previously indicated dissatisfac- tion, I find significant the fact that Hogue did check with the two foremen who, Tadlock claimed, had indicated a desire to have her back. This action of Hogue's is hardly that of an employer who refuses to rehire an employee because of union affiliation. Rather, it is consistent with the conclusion that Respondent did not want Tadlock because she had been a dissatisfied employee, but nevertheless was willing to consider rehiring her if the foremen wanted her back. I therefore find and conclude that the Respondent's refusal to rehire Patricia Tadlock was not based on her union affiliation or activity, but on her previously demonstrated dissatisfaction with her job, and was not discriminatory. Ac- cordingly, the complaint should be dismissed in this regard. E. The Denial of a Wage Increase to Leon Wynkoop Leon Wynkoop was employed by the Respondent on February 9, 1961, as a maintenance man in the maintenance department and has worked in that capacity since. It had long been Respondent's pol- icy to review the performance of the employees in the maintenance and tool departments every 6 months and, if recommended by the foreman, to grant such employees a wage increase. During all the time that Wynkoop had been employed by the Respondent, he had received semiannual raises which averaged about 10 cents per hour. In August, Wynkoop returned to work after an illness of about 9 weeks. He approached his foreman, Richard Dru- ry, and reminded him that his semiannual pay raise was due on August 9. Drury replied that he would investigate. Approximately 3 weeks later, Wynkoop again asked Foreman Drury about his pay raise and was told that his pay raise would be delayed 9 weeks to make up for the time that he had been away while he was ill. In October, at the expiration of the 9-week period, Wynkoop again asked Drury about his raise and was told that he would have to negate the General Counsel's suggestion that her assignment to the staker was retaliatory 1' Foreman Poel was not called to corroborate Hogue's testimony in this regard Although Foreman Van Dyke was called as a witness , he was not in- terrogated regarding the foregoing conversation between himself and Hogue, nor was he interrogated about Tadlock's work Nevertheless, I credit Hogue's testimony in this regard Hogue testified in a frank and straightforward manner DRIVES, INCORPORATED 985 wait until after the Respondent found out what the Union was going to do. Wynkoop was not the only employee who was denied a pay raise during this period. Claude Wild- man, superintendent of tooling and maintenance, admitted that he had been instructed to grant no wage increases during the Union's campaign and that employees were informed to that effect. After the election on November 7, Wynkoop again approached Foreman Drury about his raise. Drury replied, "They are not ready upstairs." Wyn- koop then indicated that he wanted to talk to Vice President Al Den Besten, and he and Drury proceeded to Den Besten's office. Wynkoop asked Den Besten, "Al, I want to hear from you why I am not getting my raise." Den Besten replied, "Your quality and quantity of work is terrible." Wynkoop then asked why he had not been informed, pointing out that he thought it was the duty of management or the foreman to tell a man when he wasn't doing what was right. He received no answer, and put the same question to Foreman Drury and Superinten- dent Wildman, who had joined the group, and received no answer from either of them. He then asked, "What do I have to do?" Den Besten replied, "Why don't you go get another job." Wyn- koop eventually received a pay raise in February 1967. At the hearing, Superintendent Wildman testified that it had been reported to him by the foremen that Wynkoop was "somewhat bullish in taking in- structions" and spent time wandering around talk- ing to other employees.13 It is well settled that the withholding of normal wage increases which would have been granted but for the presence of the union, and advising em- ployees that their wage increases which were other- wise due pursuant to respondent's policy are being withheld for this reason, violate Section 8(a)(1) of the Act, because such action necessarily tends to create employee dissatisfaction with the union and misrepresents to the employee the employer's duty under the law and the union's role in causing the loss or deferment of the wage increase. Dan Howard Mfg. Co., 158 NLRB 805; International Ladies Garment Workers' Union, AFL-CIO, 142 NLRB 82, 113, reconsideration denied 143 NLRB 1168, enforcement granted on this point sub nom. Federation of Union Representatives v. N.L.R.B., 339 F.2d 126, 128 (C.A. 2). Accordingly, I find and conclude that the denial of a wage increase to Wynkoop in October constituted a violation of Sec- tion 8(a)(1) of the Act. The denial of a wage increase to Wynkoop in November, after the election, constituted a viola- tion of Section 8(a)(3) of the Act. Wynkoop was a longtime employee of the Respondent and was a good worker as evidenced by the fact that since 1961 he had regularly received semiannual wage in- creases. His personnel file disclosed only one repri- mand issued some 4 or 5 years before, resulting from a trivial incident.'4 As noted above, Wynkoop openly supported the Union's campaign.'5 This fact was known to General Foreman Shaver who had interrogated Wynkoop concerning his attitude toward the Union and had indicated to Wynkoop that unionization of the plant would be detrimental. It was also known to Foreman Drury who, at a time when Wynkoop was expecting a semiannual wage increase, had told Wynkoop that he should watch himself or his news would not be so good. Considering Wynkoop's long record of satisfacto- ry service, it seems strange that if he had been guil- ty of a "bullish" attitude and of excess talking that he would not have been warned about these mat- ters by at least one of the foremen involved. It is likewise strange that none of the foremen placed a notation to that effect in his personnel file. Yet when he asked for his pay raise in November, he was suddenly confronted with these charges and the pay raise was denied. Under all the circumstances, I find and conclude that the reasons advanced by the Respondent for refusing to give him a wage in- crease in November were pretextual and that Wyn- koop was denied a raise in retaliation for being in favor of the Union. Accordingly, I find and con- clude that the denial of a wage increase to Wyn- koop in November was discriminatory, in violation of Section 8(a)(3) and (1) of the Act. F. The Advisory Board In 1961 or 1962, Respondent formed an Adviso- ry Board to take care of communications between the Company and its employees. The Advisory Board" consisted of representatives of each depart- ment elected by the employees in such depart- ments, and members of management. Occasionally, as occurred in the case of employee Wynkoop, when the term of an employee representative ex- pired, the foreman of the department would ask him to continue serving for another term. The Ad- visory Board meets on company time, and em- ployee members of the Advisory Board are not docked for the time spent at such meetings. In addi- tion, they are paid $50 a year by the Respondent for serving on the Board. Meetings of the Advisory Board are held at the call of management. Respon- dent makes and preserves minutes or memoranda " Neither of these foremen was called to testify " At that time , Wynkoop had built a bench When he returned to work the next day he found that the bench had been pulled out of shape to the point where it could not be straightened He made another bench and put a note on it telling the people on the next shift in obscene language to keep their hands off the bench As a result , a written reprimand was placed in Wynkoop 's personnel file and he was instructed not to leave such notes again He apologized IS Wynkoop was an employee-organizer He kept a supply of union cards in his toolbox, and when employees asked him for a card , he would send them to his toolbox where they could get one ie The Advisory Boarb is sometimes referred to in the record as Advisory Committee , Advisory Board and Safety Committee, and Grievance Com- mittee 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of these meetings, sends a copy to each member of the Advisory Board, and posts a copy on the com- pany bulletin board. Matters discussed by the Ad- visory Board consist of adequacy of drinking facili- ties, smoke in the plant, restroom and lighting facilities, eating facilities, a place to hang shears, hazards, and other working conditions. The matters brought up before the Advisory Board are then taken under advisement by management which may or may not act on them. The General Counsel contends that the Advisory Board is a labor organization within the meaning of Section 2(5) of the Act, in that it is assisted and dominated by the Respondent and should therefore be disestablished. That the Advisory Board is a labor organization within the meaning of Section 2(5) of the Act is not opened to doubt. It is well settled that the mere presentation to management by an employee committee of employee views, without specific recommendations as to what action is needed to accommodate those views, constitutes dealing with management under Section 2(5). See, e.g., Thompson Ramo Wooldridge, Inc., 132 NLRB 993, 994-995, enfd. as modified 305 F.2d 807 (C.A. 7); Ferguson-Lander Box Co., 151 NLRB 1615, 1620. It is also clear that the Respondent has given assistance to the Advisory Board by holding meetings of the Advisory Board on company time and not docking the employee representatives for time spent at such meetings, and by paying them $50 a year for serving on the Board. See, e.g., Robert W. Johnson, et al. d/b/a Johnson Metal Products Co., 161 NLRB 844; Walker Process Equipment, Inc., 163 NLRB 615. These elements and others present in this case, particularly the fact that tenure of office of com- mittee members is terminable by discharge or transfer to another department, both matters within Respondent's control, and the further fact that a foreman could, and on occasion did, extend the term of an employee member, have been held to constitute domination. See, e.g., Ferguson-Lander Box Co., supra; Koehler's Wholesale Restaurant Supply, 139 NLRB 945, 953, enfd. as modified 328 F.2d 777 (C.A. 7); Pacemaker Corporation, 120 NLRB 987, 989-990, enfd. 260 F.2d 880 (C.A. 7). However, it is unnecessary in the instant case to determine whether Respondent's activities vis-a-vis the Advisory Board constituted domination as well as assistance. "The difference between 'domina- tion' and mere `support' is one of degree" (Koehler's Wholesale Restaurant Supply, supra at 953), and the result is that where the employer is guilty of illegal assistance to, or interference with, an employee committee, the remedy is to order the employer to discontinue such practices, whereas where the employer dominates the employees' labor organization, it is ordered to disestablish such labor organization. Higgins Industries, Inc., 150 NLRB 106, 119. In the instant case, this distinction need not be made because, as found infra. the Union represented a majority of the employees in the appropriate unit at the time when the Respon- dent refused to recognize and bargain with it and the Respondent did not have a good-faith doubt as to such majority, and I have therefore recom- mended that the Respondent be ordered to bargain with the Union as the exclusive bargaining representative for such employees. It therefore fol- lows that the Respondent must disestablish any other organization purporting to represent its em- ployees. I therefore find and conclude that Respondent il- legally assisted the Advisory Board in violation of Section 8(a)(2) and (1) of the Act. G. Respondent's Refusal To Recognize and Bargain With the Union 1. The appropriate unit Respondent's answer admits and I find that the following is an appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed by the Respondent at its Fulton , Illinois, plant; but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. The Union's majority On September 23, when the Respondent received the Union's demand for recognition and bargaining, there were 155 employees in the appropriate unit. 17 By that date, 84 employees in the appropriate unit had signed cards which clearly and unequivocally designated the Union as its collective-bargaining representative.18 Of the 84 cards which constitute the Union's majority, 79 were introduced into evidence without 'r A list of employees approved by Respondent shows that Respondent had 174 employees on that date From this list should be deducted 18 em- ployees who were either supervisors or office employees , as agreed to by Treasurer Kummerer There should also be stricken from the list the name of Gary Glazier who, as admitted by Respondent 's answer, was a supervisor within the meaning of the Act B The card read as follows YES, I WANT THE LAM I, the undersigned , an employee of fCOmpany)_ _ hereby authorize the International Association of Machinists and Aerospace Workers ( IAN) to act as my collective bargaining agent with the company for wages , hours and working conditions. It is my understanding that I will be invited to join the LAM. NAME (print ) DATE ADDRESS (print ) _ CITY_____ DEPT Classification SHIFT_ PHONE SIGN HERE X NOTE: This authorization to be SIGNED and DATED in EMPLOYEE'S OWN HANDWRITING . YOUR RIGHT TO SIGN THIS CARD IS PROTECTED BY FFDERAL LAW. DRIVES, INCORPORATED 987 objection as to authenticity. All are dated Sep- tember 22 or earlier . In addition, date stamps on the reverse side of these cards indicate that they had been received on September 23 by the Union's regional office to which they had been sent by Dis- trict No. 102 on September 22. See Winn-Dixie Stores, Inc., 153 NLRB 273, footnote 1. Additional cards signed by employees Allan Root, Sandi Rose, Barbara Barsema ( Hager), Clayton R. Hubbard, and David Greathouse should also be counted as part of the Union's majority. These cards are dated September 22 or earlier, and the signers (except Hubbard) testified credibly that they signed them on the dates they bear and gave them immediately to a union organizer . Accordingly, they should be counted towards the Union's majority. Hubbard testified credibly that he took the card home on September 21, signed it that evening but dated it September 22, and on the morning of September 22 mailed it in a preaddressed envelope to the Union. Since it was mailed prior to the critical date, it may be counted. Indiana Rayon Corporation, 151 NLRB 130, 136. Respondent attempted to attack only one card, that of John Matuszewich, who was called by the Respondent and testified that the person who sol- icited his signature had kept after him for about a week and told him that his signature was needed to get an election. The card was not invalidated by the representation, since Matuszewich was not told that the only purpose of the card was to get an election. Hamburg Shirt Corporation, 156 NLRB 511, 535, enfd. sub nom. Amalgamated Clothing Workers of America v. N.L.R.B., 371 F.2d 740 (C.A.D.C.); N.L.R.B. v. Cumberland Shoe Corp., 351 F.2d 917, 919 (C.A. 6), enfg. 144 NLRB 1268, as amended by an unreported Order. On the critical date, there- fore, the Union represented a clear majority of the employees in the appropriate unit, and I so find. 3. Respondent's alleged good-faith doubt as to the Union's majority The only alleged doubt claimed by the Respon- dent as to the Union's majority was set forth in its letter of September 26, in which it rejected the Union 's request for recognition and bargaining. In that letter, the Respondent based its doubt upon an election result 4 years earlier , when it had approxi- mately 56 production and maintenance employees as contrasted to 155 in September 1966. Aside from the staleness of the occurrence relied upon by the Respondent , Respondent's subsequent conduct as hereinabove detailed consisting of numerous threats, interrogation , giving employees the impres- sion of surveillance , implied promises of improved working conditions , announcement of an incentive wage system , a campaign of fear of strikes and loss of jobs, the constructive discharge of Kostielney, and the refusal to grant periodic wage increases pending the election, indicates that the Respondent did not have a good-faith doubt as to the Union's majority, but refused to recognize and bargain with the Union in order to utilize the time intervening between the Union's request for recognition and the election to dissipate the Union's majority by un- fair labor practices which were patently calculated to accomplish that purpose. Joy Silk Mills, Inc. v. N.L.R.B., 185 F.2d 732, 741-742 (C.A.D.C.); Hamburg Shirt Corporation, supra, 538-539, Furr's, Inc. v. N.L.R.B., 381 F.2d 562 (C.A. 10), and cases cited therein; Madison Brass Works, Inc., et al. v. N.L.R.B., 381 F.2d 854 (C.A. 7), enfg. 161 NLRB 1206. Accordingly, I find and conclude that the Respondent did not entertain a good-faith doubt as to the Union's majority when it refused to recog- nize the Union, and by its refusal to recognize the Union violated Section 8 (a)(5) and (1) of the Act. V. REPORT ON OBJECTIONS TO THE ELECTION As indicated above, the Regional Director for Region 13 has referred to me objections filed by the Union to conduct of the employer which af- fected the results of the election for "a report con- taining resolutions of the credibility of witnesses, findings of fact, and recommendations to the Re- gional Director as to the disposition of said issues." The objections referred to are as follows: FIRST, the Employer held a captive au- dience meeting on November 2, 1966, during which it stressed the idea that if the Petitioner became the bargaining representative, the Em- ployer would be forced to go out of business. SECOND, the Employer distributed printed material to its employees which was designed to intimidate, coerce and threaten its em- ployees by stating that the Petitioner forced two other area Employers out of business and would do the same to it. These letters also were designed to cause the employees to fear a loss of jobs and wages and cause them to be- lieve that only strikes would result from a union victory on election day. THIRD, the Employer posted printed anti- union material immediately next to the official Election Notices, along with a letter designed to appear as if the National Labor Relations Board sanctioned such articles and their con- tents. The Employer acted unlawful in posting such material next to the National Labor Rela- tions Board Official Notice and by the contents of the material and its accompanying letter. FOURTH, the Employer unlawfully changed the employees' wage system and granted wage increases prior to the election for the purpose of influencing their vote. FIFTH, the Employer unlawfully permitted its Quality Control Manager to attend all union organizing meetings. 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD SIXTH, the Employer made a material misrepresentation of fact in its printed material to its employees when it accused the Petitioner of forcing the closing of specific companies in the area. It made this same misrepresentation in its captive audience meeting held on com- pany time November 2, 1966. The first, third, fifth, and sixth objections are not supported by evidence and should therefore be overruled. The second objection should be sustained in accordance with my findings under the heading "Respondent's predictions of strikes, loss of jobs, and effect upon its competitive position, in the event the Union is certified." The fourth objec- tion should be sustained to the extent that it charges that the Employer unlawfully changed the employees' wage system, in that as found under the heading "Respondent's institution of a wage incen- tive system," the Respondent did institute a wage incentive system for the pressroom on October 17, and utilized its action as an argument to the em- ployees to vote against the Union, promising to ex- tend the wage incentive plan to the rest of its plant. Based upon my findings in the unfair labor case, I find and conclude that during the critical preelec- tion period, Respondent engaged in a course of conduct which interfered with the employees' exer- cise of a free and untrammeled choice in the elec- tion. The election should therefore be set aside. However, it would be inappropriate in this case merely to set aside the election and provide for a new one. Since some of the objections to conduct affecting the election are meritorious and the Union represented a majority of the employees in the appropriate unit when Respondent received the Union's demand for bargaining, I shall recommend that the Respondent be ordered to bargain with the Union. Irving Air Chute Company, Inc., 149 NLRB 627, 629-630, enfd. 350 F.2d 176 (C.A. 2); Bernel Foam Products Co., Inc., 146 NLRB 1277. VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE election, that the Union represented a majority of employees in the appropriate unit, and that the election should be set aside, I recommend that the Respondent be ordered to bargain with the Union. Since I have found that the Respondent has en- gaged in unfair labor practices within the meaning of Section 8(a)(1), (2), (3), and (5) of the Act, I shall recommend that it cease and desist therefrom19 and that it take certain other affirma- tive action designed to effectuate the policies of the Act. Having found that the Respondent constructively discharged Blaine Kostielney because of his mem- bership in and/or activity on behalf of the Union, I shall recommend that, if it has not already done so, the Respondent be required to offer him immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights, dismissing if necessary any employees hired after his discharge. Respondent should also be required to make him whole for any loss of earnings he may have suffered because of the discrimination against him, with backpay com- puted in the customary manner.20 I shall further recommend that the Board order the Respondent to preserve and, upon request, make available to the Board or its agents payroll and other records to facilitate the computation of the backpay due and the right of employment. Having found that the Respondent because of the Union's organizational campaign failed and refused to give semiannual pay raises to employees entitled thereto, I shall recommend that the Respondent be required to make such employees whole for any such loss of earnings, with interest thereon at the rate of 6 percent per annum. As the unfair labor practices committed by the Respondent are of a character striking at the root of employee rights safeguarded by the Act, I shall recommend that it cease and desist from infringing in any manner upon the rights guaranteed in Sec- tion 7 of the Act. The activities of Drives, Incorporated, set forth in section IV, above, occurring in connection with the operations of the Respondent set forth in section I, above, have a close, intimate, and substantial rela- tion to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. VII. THE REMEDY Having found that there is merit to some of the objections to conduct affecting the result of the RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law and upon the entire record in the case, I recommend that the Respondent , its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: ( a) Discouraging membership in District No. 102, International Association of Machinists and Aerospace Workers, AFL-CIO, or in any other labor organization of its employees , by discharging or in any other manner discriminating against em- '° In the ensuing Recommended Order, I have not, as is customary , set mended Order sets aside the election and requires the Respondent to bar- forth specific cease -and-desist provisions keyed to each type of violation gain with the Union, it would be anachronistic to order the Respondent to found above Thus, I have omuted cease-and -desist provisions relating to cease and desist from engaging in such practices threats to withhold the Christmas bonus, etc , "if a majority of the em- 20 F W Woolworth Company, 90 NLRB 289, Isis Plumbing & Heating ployces selected the Union to represent them " Inasmuch as the Recom- Co, 138 NLRB 716 DRIVES, INCORPORATED 989 ployees in regard to hire and tenure of employment or any term or condition of employment. (b) Promising improvement of working condi- tions and/or wages in violation of Section 8(a)(1) of the Act. (c) Withholding semiannual wage increases in violation of Section 8(a)(1) and (3) of the Act. (d) Interrogating employees concerning their membership in, or activities on behalf of, District No. 102, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization of its employees, in a manner constituting interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. (e) Giving its employees the impression of en- gaging in surveillance of the union activities of its employees. (f) In any other manner interfering with, restraining, or coercing its employees in the exer- cise of their right to self-organization, to form, join, or assist any labor organization, to bargain collec- tively through representatives of their own choos- ing, and to engage in other concerted activities for the purpose of collective bargaining or other mu- tual aid or protection, or to refrain from any and all such activities. (g) Refusing, upon request, to bargain collec- tively with District No. 102, International Associa- tion of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of all em- ployees in the following appropriate unit: All production and maintenance employees em- ployed by the Respondent at its Fulton, Illinois, plant ; but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Blaine Kostielney immediate and full reinstatement to his former or substantially equivalent position (if Respondent has not already done so), without prejudice to his seniority or other rights and privileges, dismissing if necessary any employees hired subsequent to his discharge, and make him whole for any loss he may have suffered as a result of the Respondent's discrimination against him in a manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records necessary for the determination of the amount of backpay due. (c) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Ser- vice Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Make whole those employees who are enti- tled to, but failed to receive, a semiannual pay raise during the Union's organizational campaign, with interest thereon at the rate of 6 percent per annum. (e) Upon request, bargain collectively with Dis- trict No. 102, International Association of Machin- ists and Aerospace Workers, AFL-CIO, as the ex- clusive representative of the employees in the ap- propriate unit with respect to rates of pay, wages, hours of employment, and other conditions of em- ployment and, if an understanding is reached, em- body such understanding in a signed agreement. (f) Disestablish the Advisory Board. (g) Post at its Fulton, Illinois, plant copies of the attached notice marked "Appendix. "21 Copies of said notice, on forms provided by the Officer-In- Charge of Subregion 38, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (h) Notify the Officer-In-Charge, in writing, within 20 days from the date of the receipt of this Decision , what steps Respondent has taken to comply herewith.22 I FURTHER RECOMMEND that the election held November 4, 1966, in Case 38-RC-289, be set aside. I FURTHER RECOMMEND that Case 38-RC-289 be severed and transferred to the Regional Director for Region 13 for further processing. " In the event that this Recommended Order is adopted by the Board , and Order " the words "a Decision and Order" shall be substituted for the words "the 22 In the event that this Recommended Order is adopted by the Board, Recommended Order of a Trial Examiner" in the notice In the further this provision shall be modified to read "Notify the Officer-In-Charge of event that the Board 's Order is enforced by a decree of a United States Subregion 38, in writing, within 10 days from the date of this Order, what Court of Appeals , the words "a Decree of the United States Court of Ap- steps Respondent has taken to comply herewith peals Enforcing an Order " shall be substituted for the words "a Decision