Congdon Die Casting Co.

482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Congdon Die Casting Company; Sufco, Inc. and International Molders and Allied Workers Union, AFL-CIO, Petitioner. Cases 7-CA-6282 and 7-RC-8259 June 9, 1969 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On June 18, 1968, Trial Examiner Sidney J. Barban issued his Decision in the above-entitled proceeding. finding that Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices as alleged in the complaint and recommended dismissal of these allegations of the complaint . The Trial Examiner further found that Respondent 's conduct had interfered with the election held on January 4, 1968, and recommended that it be set aside. Thereafter, the General Counsel filed exceptions to the Trial Examiner' s Decision and a supporting brief. Respondent filed an answer in opposition to the General Counsel's exceptions and cross-exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings made by the Trial Examiner 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 this case , and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner , as modified below. The exceptions filed herein are limited , dealing principally with the Trial Examiner 's Section 8(aX3) findings involving two employees, and with his Section 8(aXl) findings concerning certain wage increases. Applying our established policy not to overrule a Trial Examiner's credibility findings unless a clear preponderance of all the relevant evidence convinces us that they were incorrect,' we find no basis for disturbing the Trial Examiner's findings relating to the Sec. 8(a)(3) allegations of the complaint, more specifically his findings that employee Graham was discriminatorily discharged in violation of Section 8(a)(3), but that employee Sharpe was not. 176 NLRB No. 60 Respondent takes exception to the Trial Examiner's finding that it violated Section 8(a)(1) of the Act by using the 10-cent-per-hour raise given at its Nine Mile Plant to impress upon the Twelve Mile Plant employees that their union activities had caused them to suffer an economic detriment, namely, deprivation of a comparable wage increase. We affirm the Trial Examiner 's findings concerning this matter, including his finding that the granting of the raise at the Nine Mile Plant was part of Respondent's plan to defeat the Union, and that each of said acts, viewed in context, constituted a piece in a pattern which interfered with , restrained, and coerced employees in the exercise of their Section 7 rights, in violation of Section 8(a)(1). We are satisfied that such findings are adequately supported by the evidence. However, in view of our agreement with the Trial Examiner's principal findings and conclusions, we find it unnecessary in the circumstances of this case to pass upon his alternate finding that even assuming the existence of sufficient business reasons for granting the wage raise at the Nine Mile Plant when it did, Respondent's conduct in refusing to extend the raise to the Twelve Mile Plant would nevertheless have been violative of the Act. And we likewise find it unnecessary in the circumstances, since it would not in any case -affect the remedy, to pass upon the Trial Examiner's finding that Respondent further violated the Act when it subsequently, during the pendency of the representation proceeding , granted a raise to the employees at the Twelve Mile Plant . Accordingly, we do not adopt the Trial Examiner's finding in this respect. The General Counsel requests that a remedial provision be added requiring Respondent to reimburse its Twelve Mile Plant employees for the 10-cent-per-hour increase withheld from them at the time the Nine Mile Plant employees received this increase. We find merit in the General Counsel's position. It is clear, as the Trial Examiner found, that Respondent first created a disparity in wage treatment as between its employees in these two plants and them used the disparity thus created to discourage the union activities of the employees in both these plants. The effect of Respondent's actions in this respect was to discriminate against the employees in its Twelve Mile Plant because of their activities which led to the filing of a representation petition , by depriving them of a wage increase which Respondent, by its own assertion, was otherwise willing to grant to them, and which, after a period of some 4 months, Respondent did in fact extend to them . In these circumstances we find, in agreement with the General Counsel, that such unlawful discrimination can best be remedied by requiring Respondent to reimburse the employees of its 'Standwd Dry Wall Products , Inc.. 91 NLRB 544, enfd . 188 F.2d 362 (C.A. 3). CONGDON DIE CASTING CO. Twelve Mile Plant for the amounts of increase then withheld from them , and our order shall contain such a provision. I ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that Respondent, Congdon Die Casting Company and Buffco, Inc., Sparta, Michigan, its officers, agents, successors , and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Delete paragraph 2(b) of the Recommended Order, insert the following as paragraphs 2(b), (c), and (d ), and reletter the succeeding paragraphs accordingly. "(b) Notify the above-named employee if presently serving in the Armed Forces of the United States, of her 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. "(c) Make employees whole for any losses they have sustained as a consequence of the unlawful discrimination as to wages by paying the wage increase retroactively to the employees from whom it was withheld , commencing at the date the increase was given to the Nine Mile Plant employees and continuing to the date it was subsequently granted to the Twelve Mile Plant employees. "(d) Preserve and make available to the Board or its agents, upon request, the records necessary to determine the adequacy of reinstatement of Jeanette Kathryn Graham, and the adequacy of backpay due her, and the amounts of retroactive wage increase due employees from whom it was withheld, in accordance with the section of the Trial Examiner's Decision entitled The Remedy,' as modified by this Decision and Order." 2. Immediately preceding the last indented paragraph of the notice insert the following. WE WILL notify the above-named employee if presently serving in the Armed Forces of the United States of her 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. WE WILL PAY retroactively to employees of our Twelve Mile Plant the wage increase which was unlawfully withheld from them when we granted 'Member Brown agrees with his colleagues that Respondent violated the Act by unlawfully raising wages at the Nine Mile Plant and by using that wage increase to influence the employees in their union activity at the Twelve Mile Plant. But as it does not further appear that Respondent unlawfully withheld a wage increase at the Twelve Mile Plant, he considers the reimbursement order inappropriate. 483 this wage increase to the employees of our Nine Mile Plant. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act not found herein. IT IS HEREBY FURTHER ORDERED that the election held on January 4, 1968, in Case 7-RC-8259, be, and it hereby is, set aside, and that said case be severed from Case 7-CA-6282 and remanded to the Regional Director for Region 7 of the Board for the purpose of conducting a new election at such time as he deems the circumstances permit the free choice of a bargaining representative. [Direction of Second Election' omitted from publication.] 'In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote. all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them . Excelsior Underwrw' Inc., 156 NLRB 1236; N.L. R.D. v. Wyman-Gordon Comply, 394 U .S. 759. Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters , must be filed by the Employer with the Regional Director for Region 7 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director . The Regional Director shall make the list available to all parties to the election. No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections arc filed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE SIDNEY J. BARBAN , Trial Examiner : These matters were heard before Trial Examiner Sidney J. Barban at Grand Rapids, Michigan, on April 23 and 24, 1968, upon allegations in the complaint in Case 7-CA-6282 issued on December 28, 1967, and amended on February 20, 1968 (based upon charges filed September 27, 1967, and amended December 15, 1967), and upon an order of the Regional Director for Region 7 of the Board, dated February 21, 1968, consolidating hearing upon the complaint with hearing upon the issues raised by the objections of the Charging Party (herein called the Union) to the election in Case 7-RC-8259. The amended complaint in this matter alleges that the above named Respondents constitute a single-integrated business enterprise, which engaged in unfair labor practices in violation of Section 8(a)(1) of the Act (1) by granting wage increases to some employees and advising other employees that they would not receive wage increases because of union organizing activities; (2) by coercively interrogating employees about union matters; (3) by creating the impression of surveillance of union matters; (4) by promulgating and enforcing work rules in retaliation for union activities ; (5) by threats; (6) by prohibiting talk about the Union during work hours to chill union activities; (7) by telliig employees that the Union would force Respondents to hire Negro employees; (8) by promising wage increases if the Union were not designated; (9) by granting wage increases after the election; and (10) by instructing employees, while the election was in progress, to vote against the Union; and also violated Section 8(a)(1) and (3) of the Act by terminating the employment of Jeanette Kathryn Graham 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on September 15, and Shirley Sharp on September 18 (all dates herein are in 1967, unless specified otherwise). Upon a petition filed by the Union on August 25, amended on September 8, the Regional Director directed an election among production and maintenance employees at Respondents' three plants, which election was held on January 4, 1968. A majority of the employees voting voted against the Union, and the Union duly filed objections to the election on grounds encompassed within the allegations of the complaint in this matter, which objections , as previously noted, have been consolidated with the complaint for hearing in this matter. Respondents' answer to the complaint denies the commission of the alleged unfair labor practices. Upon the entire record in this case,' from observation of witnesses, and after due consideration of the briefs filed by the General Counsel and the Respondents, the Trial Examiner makes the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENTS Respondent Congdon Die Casting Company, herein called Congdon, and Respondent Buffco, Inc., herein called Buffco, are Michigan corporations operating places of business in Sparta, Michigan, at which they are engaged in the manufacture and sale of zinc die castings. During 1967, Congdon sold and delivered from its plant, herein sometimes called the Twelve Mile Plant, to customers outside the State of Michigan products valued in excess of $50,000. During the same year , Buffco furnished products to Congdon from its plants, herein sometimes called the Nine Mile Plant and the State St. Plant, of a value in excess of $50,000. Careful study of the transcript of hearing in Case 7-RC-8259, (received as exhibits in this case ), and the record in this matter, supports the Regional Director's findings and conclusion that "upon the whole record and particularly in view of the common ownership and control of Congdon and Buffco, their geographical proximity, the similarity of their operations, their functional integration, especially with regard to their labor and personnel relations and other management functions . . . Congdon and Buffco constitute a single employer for collective bargaining . . .", and those findings and conclusions are hereby adopted for purposes of this decision. Upon the foregoing it is found that the Respondents constitute a single integrated employer engaged jointly and severally it) commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. Evidence relating to alleged violations of Section 8(a)(1) of the Act The union drive to organize Respondents ' employees, though started somewhat earlier , began to achieve some 'General Counsel's motion to correct the record m this matter has been dealt with in a separate order. momentum among Respondents' employees in late August, 1967. A petition for representation at Respondents' Twelve Mile Plant was filed on August 25. On September 8, this petition was amended to include Respondents' Nine Mile Plant, although Respondents did not receive notification from the Regional Director of this fact until September 14. Meanwhile, however, on September 12, Respondents announced a wage increase to the employees of the Nine Mile Plant, retroactive to September 4. Prior to this, on August 31, Max Congdon, the president of both Congdon and Buffco, had advised the employees at the Twelve Mile Plant that he intended to "oppose a union in this plant in every proper and legal way," that he believed a union would be "undesirable and harmful," which he would later explain, and said he would be pleased to talk to any of the employees who desired to talk to him "about unions and our Company." On September 6, the day before a scheduled union meeting, the Superintendent of the second shift at the Twelve Mile Plant, Joseph Lipchick, came over to Nancy Frein, and, according to her testimony, "said `I hear you have a union meeting tomorrow,' and I said `Yes, we do,' and then he said `Maybe I should go and take some of the names that are going there.' " Also, according to Frein, the day after the Union meeting, she had the following conversation with Lipchick: "He said `Did you attend the union meeting?,' and I answered `Yes." And he said `Did you have a good turn out?,' and I said `Fair,' and he said `Was there very many of my night shift there?,' and I said `Pretty good,' and that was all." Frein agreed, on cross examination , that the pros and cons of unionization were discussed generally in the plant, among the employees and with the supervisors, including Lipchick. She stated that she had been personally uncertain of her position on the issue, and that Lipchick, among others, suggested that she go to the Union meeting to hear what the Union had to say. Frein stated that Lipchick did not ask her for names of employees who went to the meetings, and acknowledged that Lipchick could have been kidding in the conversations set forth above, since he often kidded with her. Lipchick was not directed to Frein's testimony, and he did not deny it. He did testify that no employee told him that she had gone to a Union meeting. Frein's testimony is credited. Also, on September 6, President Congdon posted a notice to the employees advising them that the probationary period for new employees and rehired employees was 60 days. Subsequently, two other notices to employees were either posted, or distributed. One of these, relating to absenteeism, was promulgated in September, and provided that any employee losing more than 2 days in a 30-day period would be subject to disciplinary action. The rule was made retroactive to all employees who had lost more than 2 days in the preceding 30 days. The notice stated that the penalty for a second offense would be a 1-week layoff, for a third offense, discharge. In another, undated, notice to the employees, Max Congden asserted a union was "undesirable" -for the "Company" and for "all employees," because "A union cannot help any of us and could hurt all of us," "The major interests of a union are money - your money and power,"- "A union means dissension and unhappiness," "Strikes hurt everyone," and "A union could seriously damage our competitive position." Congdon concluded that "we can discuss and solve our own problems better CONGDON DIE CASTING CO. 485 and faster without outside interference ," and suggested that those employees who had questions , talk to members of the "management team." Another notice, dated September 21, apparently addressed only to the employees at the Twelve Mile Plant, signed by Max Congdon , advised the employees as follows: There has been some loud noises started by some loud noisemakers at this plant about the difference in pay scale for female operators between 9 mile, Buffco plant and our 12 mile road plant. Let me set all of you straight on this. There is a difference of 10 cents more for female press operators at 9 mile plant. The reason for this is - we gave an increase of 10 cents at Buffco shortly after we started up at that plant - before there was any union activities with the National Labor Relations Board. Since a raise was not instituted at this plant previous to Union activities with National Labor Relations Board, we cannot give out any increases at this point or until such time as it is cleared up. If we did give out increases this could be termed as unfair labor practice since union activities have been initiated into Labor Relations Board. Your best understanding on this matter will be appreciated. About this same time, on the day of a union meeting, Darlene Shively stated she recalled Lipchick making a statement to a group of employees in which he "asked about the union," but the details of which Shively did not otherwise recall . Lipchick did not mention this incident in his testimony. Employee Paul Kilts related two instances in which Max Congdon and Kilts spoke concerning the Union. In early October, on an occasion when Kilts happened to be passing Congdon's office, Congdon greeted him, and asked Kilts how the Union was coming along , to which Kilts replied, "Not too bad , but I [won't] know until about a month or so." On another occasion, about 3 weeks before the election, Kilts states, he went to see Office Manager Don Usher, in response to Respondents ' advice that any employee with questions about the Union might talk to members of management, and discussed with Usher "the reason the union was trying to get in there was because of wages, low wages there." Usher told Kilts that he couldn 't discuss anything concerning wages with him, but that Kilts might speak to Congdon . Later that day, Kilts spoke to Congdon , and said he would vote for the Union for higher wages and better working conditions , to which Congdon said "he couldn' t discuss any increase in wages at that time because he would be violating the [law]." January 2, 1968 , was a busy day in regard to these matters. At 3 p.m., Congdon met with the employees on the first shift, in the lunchroom, to discuss the Union. This meeting was repeated at 6:00 p . m. with the second shift. Congdon stated that he made approximately the same comments at both meetings , which were described as question-and-answer periods . After the first meeting, but ,before the evening meeting, two employees, Frein and Visger, who worked on the second shift, also visited Congdon in his office to question him about these matters. An employee witness for the Respondents , Basler, testified that she attended the afternoon meeting in the lunchroom . She states that she asked Congdon if the employees would get a wage raise and that he said the Respondents couldn't promise anything on account of the labor laws. She recalled that the subject of piece rates on the punch presses was raised, but asserts that it was not discussed for lack of time. She also testified that someone brought up the subject of hiring colored people, and states that Congdon said that if colored people came in and he needed help, they would be subject to being hired. For the remainder, she stated that the questions were raised so rapidly that this was all she could remember. Two witnesses for the General Counsel, Frein and Shively, and one employee witness, Visger, in addition to Max Congdon, for Respondents, testified concerning the evening meeting in the lunchroom, on January 2, 1968. Frein stated generally that there was discussion at that meeting with respect to "money, working conditions, hourly pay, vacation pay," and referred specifically to a question which was raised concerning Respondents' policy on holiday pay, and to Congdon' s statement, in answer to a question raised by an employee, to the effect that since the Union representative was a Negro, there would probably be a lot more Negroes working in the plant, a condition to which it was said the employees were opposed. Shively recalled that when the subject of hiring Negroes was brought up, she asked if Respondents were not obligated under law to hire a certain ratio of colored applicants, to which Congdon answered, "Yes, it is true, if they come in, but the Union would send colored to be hired." Visger recalled that on this subject, Congdon said that by law if Negroes made application, and he needed them, they would be hired. She also stated that a question was raised about Buffco employees getting 10 cents more an hour than the Twelve Mile Plant employees. Congdon recalled that after the question of employing Negroes was raised by another employee, Shively had asked if he were not required by law to hire them. Congdon states that he answered that Respondents had to hire colored people whether the Union was in the plant or not. Congdon also stated that the matter of the wage increase at Buffco was brought up by an employee, to which he replied that the female employees at the Nine Mile Plant were receiving 10 cents more, and that the reason he couldn't give the raise to the Twelve Mile Plant was due to the fact that Union activities had been initiated and he might be accused of an unfair labor practice.' Congdon further stated that he was asked if the employees were going to get an increase , but that he requested that the employees not ask for that since he would not be able to give them an answer on that subject. As noted above, prior to the evening meeting, employees Frein and Visger went to Congdon's office to question him about the Union, in response to his notice encouraging such action. Frein asserts that when the question of money was brought up, Congdon promised that he would give the employees a 10-cent raise.' Frein also stated that when she asked how the Union could get higher wages for the employees, Congdon stated that the Union couldn't get more than he was already giving. Visger, on the other hand, testified that "Mister Congdon said he could not make any promises about raises because 'Congdon stated that the Twelve Mile Plant employees "would have got the same increase had it not been for the fact that the union had initiated their activities at the N .L.R.B., and it would have been an unfair labor practice if I had." 'Frein testified that the employees received a 15-cent raise in their first paycheck after the election. 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the union." Congdon asserted that he told the two employees that he could do nothing about increases "until the union activities were settled one way or another." Frein also testified that the subject of layoffs was discussed during this conversation . On direct examination, she stated that it was said that "If the union would be in - We would be layed-off because of slack work or lack of work." On cross-examination, Frein agreed that it was she who brought up the subject, by asking if there would be a layoff if the union came in, and that all Congdon said was "That there could possibly be a layoff." During the conversation in the office , one of the girls, probably Frein, asked if more Negroes would be brought into the plant with the Union, since the Union representative was a Negro. According to Frein, Congdon said that more Negroes would probably be brought into the factory. Visger's version of the conversation on these subjects was somewhat different . She states that Congdon was asked if it were true , as rumor in the shop had it, that women over 44 or 45 would be laid off if the Union came in, and Congdon denied this. Visger states that Frein asked if colored people would be hired if the Union came into the plant, and Congdon "said, no, that they could be hired any time they put their application in, and if he needed help he could hire them." On his part, Congdon stated it was his recollection that the question as to whether there would be a layoff was raised , not in his office, but during the evening meeting in the lunchroom. He asserts that he told the employees that the matter of layoffs or employment was really determined by the Respondents' customers, who gave them business, rather than by Respondents. With respect to hiring colored people, Congdon testified that he told the girls that he was required by law to hire them. Aside from one incident which will be considered hereafter in connection with the termination of Jeanette Kathryn Graham, only one other supervisory action alleged to have violated Section 8(axl) of the Act requires consideration at this point.' In this instance , supervisor Lipchick, on the day of the election was overheard telling an employee, near the door of his office, that she should go vote and vote "no." The employee answered that she had already voted. This incident occurred in a part of the plant separate from the polling place. No other facts with respect to this matter appear. 2. Evidence relating to alleged violations of Section 8(a)(3) of the Act a. Jeanette Kathryn Graham Graham was first employed by Respondents in mid-October, 1966. In the last part of June, 1967, she asked Usher for a leave of absence in order to attend her child who required eye surgery, and Usher stated that would be all right, that she should let him know when she was ready to return. About the last of August, Graham main activity of group leader Jack Denton is also alleged in the complaint as violating the Act. However, since Denton was found by the Regional Director, after a hearing on the issue and without objection by the Union, not to be a supervisor , and thus eligible to vote in the election, and in the absence of any evidence that Respondents encouraged, authorized or ratified the conduct complained of, Respondents cannot be held responsible for Denton's conduct during the preelection period with respect to the election . Delta Sportswear. Inc.. 160 NLRB 300, and cases cited at 305. See also M & A Electric Power Cooperative. Inc., 154 NLRB 540, 544. called Usher and advised that she was ready to return; Usher asked whether she would prefer working at the Twelve Mile or the Nine Mile Plant; Graham stated a preference for the Twelve Mile Plant and she was taken back to work at that plant about the 30th of August. After her return to work, Graham signed a Union authorization card, talked openly about the Union, and appears to have been quite active and vocal on its behalf.' On one occasion , according to Graham 's undenied testimony, which is credited, the following occurred: A. Well, I was caught up in my line and I went back to the rest room, and on the way back I stopped, and I was caught up on my machine, so I was going to stand and talk to this one girl there; she was asking me questions about the union and everything and how I felt, and I told her and asked her if she was for it, and she said yes, and then Russ Koeman saw me talking and he come up and told me to get back to my machine. ' Q. Now, up to that time had there been any rule with respect to talking to other employees during the free time? A. Not as long as we weren't behind. Q. Did you have any other conversation with Mister Koeman then? A. That evening, about closing time, just before I guess, and I asked him how come he told me to get back to my machine when I was caught up, and I never did goof around, and he said you was talking union, wasn't you, and I said yes, and he said, "That's the reason." The following evening Graham and Koeman had another conversation in a local bar, which these two, as well as other employees, frequented. Graham's undenied and credited testimony is that during a discussion about the Union, Koeman told Graham that he was against the Union and would do anything he could to keep it out of the plant, to which Graham replied that she was for it and would do what she could to assist the Union to get in the plant. About September 13, Graham was transferred to the Nine Mile Plant. On Friday, September 15, her supervisor at that plant, Fred Kline, told her that she was fired. Kline said that he did not know the reason, that she would have to ask Usher or Max Congdon. Graham went to see Usher, and although she indicated that she did not find out from him the reason for her termination (she says he told her to go see Max Congdon), it is clear that he informed her, either during that conversation or sometime that day that she had missed too many days from work. Max Congdon testified that he made the decision to terminate Graham. He stated that Graham had quit in June, but had been imprudently rehired by Usher when she asked to return. Congdon asserted that 2 weeks 'Respondents made some point at the hearing that the affidavit of William Wertz stated that Graham 's Union activities were secretive. However, the context of the affidavit makes plain, as the General Counsel contends, that the word "not" was inadvertently dropped before the word "secret" in the statement . In any event, the record as a whole shows that Graham's activities on behalf of the Union were open and she appears to have been quite outspoken on the subject. 'On cross-examination, Graham admitted that when Koeman came up to her on this occasion, he asked if she had any work to do , and when she replied in the affirmative , told her to get back to her machine. The general tenor of Graham's testimony, which is not controverted, is that in stopping to talk she was following an accepted practice in the plant, while waiting for parts to reach her place of work . She admits that there were "about two piles of work" to do when she returned to her place. CONGDON DIE CASTING CO. 487 elapsed before he found out that Graham was back at work, after which, in his words, " I examined her record to make sure I was not wrong, found it to be a very, very poor record, and decided to let her go."' Congdon stated that at the time he did not know Graham was interested in the Union, but "I knew that she was a probationary employee and I wasn't about to let her get sixty days in and continue to have as bad a record as she had previously." So far as Congdon knew, Graham had not been warned or disciplined previously with regard to her attendance record; and it does not appear that any supervisor had complained to him about Graham. Although Congdon was not sure whether the September notice with respect to absenteeism had been posted prior to the discharge of Graham, he asserted that policy was not applied to Graham because she was a probationary, rather than a regular employee. Congdon also testified that several named employees had previously been discharged by Respondents because of poor attendance records, but this testimony was considerably weakened by details brought out on cross-examination. In any event, the circumstancs of those cases differ so much from those here involved that it is not considered necessary to further lengthen this decision by examining those situations in detail herein. Similarly, evidence adduced by the General Counsel to the effect that, in the past, Respondents have been tolerant of absenteeism, will not be considered in detail. The record leaves the firm impression, confirmed by Max Congdon's testimony, that Respondents' attitude toward absenteeism in the past has not been consistent,' and discipline in these cases, undoubtedly, was influenced by individual factors in each instance. b. Shirley Sharp Sharp was first employed by Respondents in May 1966. In September of that year she quit her employment, but in November of that year Respondents reemployed her as a new employee, though at the same rate of pay she had previously received (this apparently being higher than the starting rate given employees during the probationary period). Sharp had a rather poor attendance record, and in June 1967, and, after a number of warnings, she was given a 1-week disciplinary layoff by supervisor Lipchick for that reason. When she did not return at the end of the layoff, Office Manager Usher, who admittedly has authority to hire employees on his own judgment, called her home to ask her to return . Sharp advised Usher that she would not be able to return until the following Monday because she had to tend to infant pigs that the sow was too sick to nurse. She returned to work and was reinstated the following week. Her attendance thereafter improved. 'Congdon gave no reason that his attention had been d irected to Graham's return. He indicated that he was barely aware of her, stating that he had probably only seen her once during her employment with Respondents. Employee records came to his attention on an irregular basis. 'Congdon testified, Inter a/la, as follows: Q. Nevertheless, it was your practice to warn employees who missed quite a few days wasn't it? A. Some we have and some we haven't. Q. And on occasion if the employee's attendance record didn't improve, the employee was discharged is that correct? A. In some cases whether it improved or not. In August, Sharp signed a Union authorization card, and apparently attended the union meeting held on September 7, as well as other union meetings. She attempted to secure authorization cards from other employees and spoke in favor of the Union. It was testified that Sharp attempted to secure an authorization card from a relative of group leader Denton, in the lunchroom, at a time when Denton was present. Denton testified that he was unaware of this, and his testimony is credited. Sharp also testified that she had a conversation with Denton on September 7, while she was at work, about the Union. Upon consideration of Sharp's testimony, both on direct and cross-examination, it appears that in this conversation Denton asked Sharp and another employee who was with her whether they had gone to the union meeting . When Sharp stated that they had, Denton, in effect, said that the Union would not benefit them and might cause harm. Sharp replied that she thought that the Union would benefit the employees. Denton, who was called as a witness by the Respondents, was not asked about this conversation and did not deny it. The next day, September 8, was the last day Sharp worked for Respondents. On Saturday, September 9, Sharp's mother died. The following Monday, she called Respondents' office and Office Manager Usher and advised that her mother had died and she therefore had no one to babysit with her child. Sharp testified that she asked for 2 weeks off, "and he said yes, I could." Sharp denied that Usher told her that she should call back at the end of the 2 weeks and that he would see what he could do then. Usher testified that, upon Sharp's request for time off, he consulted with Max Congdon, and they decided that "we couldn't actually guarantee that we could put her back to work, but definitely if we had work available we would consider it when she was able to return to work." Although Usher did not specifically state that this was related to Sharp, he apparently agreed with General Counsel's position that Sharp was refused a leave of absence at this time. Congdon testified that it was not Respondents' policy to grant leaves of absence for reasons such as that given by Sharp, and his testimony was consistent with that of Usher with respect to Sharp's request for time off. In the circumstances, it is found that it was not Respondent's intent to promise Sharp that her job would be available upon return in 2 weeks' time, but that this would depend upon the situation when she sought to return. This conclusion is substantiated to some extent by the fact that Sharp did call Usher before coming in to work (which she stated she did, not because Usher had requested it, but because her son suggested she do so). Usher informed Sharp that he wanted to talk first to her supervisor, Lipchick, about her returning to work, and would call her back. Usher did not call her again. Usher testified that when he asked if Lipchick wanted Sharp back, Lipchick said that he didn't want her because he felt her absenteeism was excessive; however, Usher stated that he had no recollection of relaying this information to Sharp. Lipchick, in his testimony, confirmed this conversation with Usher. Both denied that they knew that Sharp was active in the Union at the time. Usher admitted that about the time Sharp took 2 weeks off Respondents were extensively engaged in hiring employees, and, in fact, was experiencing some difficulty in obtaining employees. 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Conclusions 1. The alleged interference, restFamt, and coercion of employees It is asserted, in paragraphs 13(a) and (b) of the complaint, that the Respondents violated the Act by first granting a wage raise to the employees at the Nine Mile Plant, on September 12, and then advising the employees at the Twelve Mile Plant that the raise could not be extended to them because of their union activities resulting in a petition for certification by the Board. The Respondents claim that the raise at the Nine Mile Plant was given at a time when they were not aware that the Union intended to raise a question concerning representation there. The reason for the decision to grant the raise to the Nine Mile employees in the circumstances was not explained.' It is admitted that the raise would have been given to the employees at the Twelve Mile Plant, also, if the matter of union representation had not been raised at that plant, as the employees there were advised. Considering the closeness of the two plants, both in the same community, the integration of functions and interchange of employees between them, and the identity of management, one would have to be naive, indeed, to believe that Max Congdon was not aware of the real possibility that, having secured a substantial foothold at the Twelve Mile Plant, the Union's attention would soon be directed to the Nine Mile Plant. Given the timing of this increase, the lack of any evidence of a legitimate reason for the raise, Max Congdon's avowed opposition to the Union, and his use of this raise as a part of his campaign in opposition to the Union at the Twelve Mile Plant, there seems to be no reasonable alternative, indeed, to the inference that the raise was given in these circumstances as part of Respondents' plan to defeat the Union, and it is so found. Having found that the wage raise was initiated as part of Respondents' antiunion campaign, it follows that Respondents' further use of that raise - to show the Twelve Mile Plant employees what they had lost by their union activities - becomes a piece of that pattern, and like the granting of the wage raise, interfered with, restrained, and coerced the employees in the exercise of their rights under Section 7 of the Act, and thus violated Section 8(a)(1) of the Act. Indeed, even if it were assumed that Respondents had good and sufficient business reason for granting the wage raise at the Nine Mile Plant when they did, it is clear that their conduct in refusing to extend the raise to the employees at the Twelve Mile Plant, and advising them that they would not receive the raise, solely because of their union activities, would, nevertheless, still be in violation of the Act. It has long been established that not only may an employer grant benefits to employees during the course of union activities giving rise to a question of representation, where such benefits are justifiable on normal business or other legal grounds, but, in fact, an employer violates the Act by refusing to grant such benefits and advising its employees that they were not given because of such union activities. The Food Mart, 158 NLRB 1294. enfd. 386 F.2d 192 (C.A. 1). 'The nearest thing to an explanation which appears is a statement in the notice to the Twelve Mile employees (G.C Exh 4) that the raise was given at the Nine Mile Plant "shortly after we started up at that plant." The evidence submitted in support of the allegation of coercive interrogation of employees set forth in paragraph 13(c) of the complaint is not persuasive. For the most part, the interrogation appears to have been casually made by supervision and taken casually by the employees. Lipchick's statement to Frein that perhaps he should take the names of those who might attend the Union meeting seems to have been made in a jocular fashion (notwithstanding that many serious sentiments are so clothed) and apparently was not taken seriously. Similarly, Lipchick's queries of Frein after the meeting were related by Frein in her testimony in terms of idle curiosity, made and answered without restraint. If there was an ulterior motive here concealed, it was not apparent from Frein's testimony, or from the context of the record as a whole. The other instances of interrogation of employees concerning Union matters set forth (excluding that attributed to Denton) are even less impressive. The claim that Respondents illegally created an impression of surveillance of Union activities of the employees alleged in paragraph 13(d), is based upon the interchanges between Frein and Lipchick noted above, and are subject to the analysis already noted. It will be recommended that those parts of the complaint alleging interrogation of employees and the creation of an impression of surveillance of Union activities in violation of the Act be dismissed. The General Counsel claims that the notices posted by Respondents setting forth rules governing absenteeism and a probationary period were promulgated and enforced in retaliation for the employees' Union activities (par. 13(e) of the complaint). Respondents contend that these were rules previously posted and in effect, which had been misplaced when the plant bulletin board had been moved. However, it is clear that the bulletin board had been moved about 2 years previously. Since no explanation was offered as to why Respondents, having experienced no prior compulsion to do so, felt it necessary to repost the notices just at this time, in the context of this record, it would be logical to assume that the posting of these notices, like the granting of the wage increase, was not merely coincidental, but was consciously motivated to defeat the Union organizing effort This conclusion is further confirmed by the fact that, at least as to the absentee rules, the record as a whole, as well as the internal evidence of the notice, itself, is convincing that these were new and more stringent rules than those which had existed in the past. Thus, the notice, itself, provides for retroactive application, a provision that does not comport with the notion of a rule that has been continuously in effect. In addition, while Max Congdon testified, during Respondents' presentation of its defense, that the rules on absenteeism posted in September, 1967, were the same as those Respondents had before, in his previous testimony, when called by the General Counsel, Congdon agreed that, in the past, Respondents did not have a rule specifying the number of days which would constitute excessive absenteeism, which forms the essential basis for the system of penalties set forth in the 1967 notice.' "It appears that Respondents previously had a probationary program, geared to paying employees a probationary rate of pay for the initial period of their employment , and perhaps governing the amount of their vacation and some other benefits. Shirley Sharp testified that when she was rehired, in 1966, after quitting, she did not consider that she was put on a new probationary period since she was rehired at her old regular rate of pay The terms of the 1967 notice would indicate a change in this practice. CONGDON DIE CASTING CO. In the context of this record, from the timing of the notices, the absence of any reason for the posting of these notices at just this time, and because of the more restrictive impact of the rules, I am convinced that the content and timing of these rules were designed to interfere with, restrain and coerce the employees in their union activities, which were attaining some momentum at the time, and find and conclude that Respondents thereby violated Section 8(a)(I) of the Act. Although the complaint alleges, in paragraph 13(f) that employees were threatened with loss of employment if the Union were successful, this conduct is attributed solely to Jack Denton. For the reasons stated previously, Respondents may not be held responsible for Denton's statements to employees with respect to the Union prior to the election, and it will be recommended that this allegation of the complaint be dismissed. The General Counsel contends, in accordance with the allegations of paragraph 13(g) of the complaint, that Respondents violated the Act by supervisor Koeman's conduct in sending Graham back to work on an occasion in which she was talking to another girl about the Union during working hours, and later advising her that the reason he did so was because the subject of the conversation was the Union. Insofar as this contention attacks Koeman's specific action in sending Graham back to work, in the circumstances, I do not agree. This was clearly working time, Graham admitted there was work awaiting her when she returned, and Koeman would have been justified in sending Graham back to her station no matter what she was talking about. However, Graham's testimony to the effect that what she was doing accorded with normal practice was not denied, and Koeman's stated explanation to Graham for his action sought to restrict Graham, not from talking in accordance with her normal practice, but from talking about the Union only. This constitutes an improper restriction upon employee rights under the Act, and was violative of Section 8(a)(1) of the Act. The amended complaint alleges, in paragraph 13(h), that Respondents, on January 2, 1968, violated the Act, inter alia, by stating that the Union would force Respondents to hire Negro employees to displace its present white employees, thus exacerbating racial feelings. On the basis of all of the testimony, and with particular reliance upon the testimony of Darlene Shively, which is credited, it is found that on that date, Max Congdon, in response to employee questions, in addition to advising that the Respondents by law had an obligation to hire among applicants for available jobs without discrimination based on color, also told the employees, for the purpose of influencing them to vote against the Union, that if the Union were chosen as their representative, the Union would send more colored applicants for jobs, and therefore that more Negroes would have to be employed, a course which the employees clearly wished to avoid. The attitudes expressed furnish a deplorable, perhaps tragic, commentary on the gulf that separates the ideals of industrial democracy, so often expressed, and the practices by which it is too often shaped." But not all such appeals to racial prejudice, either by employer or union , no matter how much we may decry their use, necessarily offends the Act. Cf. The Archer Laundry Company, 150 NLRB 1427. Indeed, the statements with which we are here concerned do not partake of that pervasive, threatening appeal to racial divisiveness which the Board found to be violative of the Act in Bush Hog, Inc., 161 NLRB 1575, and Atkins Saw Division, Borg-Warner Corp., 148 NLRB 489 949, but were rather a more temperate and factual (though purposefully elaborated and pointed) response to employee queries not shown here to have been initiated by Respondents. It will, therefore, be recommended that this allegation be dismissed. Cf Allen Morrison Sign Co., 138 NLRB 73. The General Counsel alleged in paragraph 13(h) that Max Congdon, on January 2, 1968, also threatened Respondents' employees with loss of employment if the Union were selected by the employees as their representative. He relies, for support of this allegation, upon the testimony of Frein referring to Congdon's comments on the possibility of layoffs in the event the Union came in. Frein's testimony, taken as a whole, is not sufficient to sustain the burden. The General Counsel also argues that some of the statements in Respondents' undated notice to the employees - stating "a union cannot help any of us and could hurt all of us"; "a union means dissension and unhappiness"; "strikes hurt everyone"; and "a union could seriously damage our competitive position - violated the Act. In the opinion of the Trial Examiner, only the first of the statements referred to deserves discussion; the others appear to be fair comment in the circumstances of this case, whatever might be their significance in another context. The theme that the selection of the Union could not help the employees and could be a source of harm, however, was more than a passing comment in Respondents' campaign to defeat the Union. In Max Congdon's first notice to the employees opposing the Union, it was stated that he considered the selection of a union "undesirable and harmful." Congdon asserted that he would explain his reasons shortly. Thereafter, Congdon advised the employees at Twelve Mile that they were not receiving the same increase as given at Nine Mile because they had engaged it) Union activities (and, conversely, the Nine Mile employees had received the increase because they had not been involved in union activities when the money was to be distributed); and took occasion to pointedly advise the employees that the advent of the Union would increase the probability that colored employees would be hired, which the employees did not desire; advised employees on January 2, 1968, that the union couldn't get any more than he was already giving; and, in the notice here considered, again reminded the employees that "a union cannot help any of us and could hurt all of us." It seems rather plain that this latter statement in the context of Respondents' other actions would most likely be understood by the employees to mean that because of Respondents' opposition, the selection of the Union as a bargaining representative would be a futile act, as well as threatening harm to them by reason of action on the part of Respondents, if the Union came into the plant, and therefore tended to interfere with, restrain, and coerce the employees in the exercise of their rights under the Act, and violated Section 8(a)(1) of the Act. _ The allegation in paragraph 13(i) of the amended complaint that Max Congdon, on January 2, 1968, promised a wage increase if the Union lost the election, "In a similar context , John W. Gardner, former HEW Secretary, had occasion recently to write, "Such attitudes on the part of whites must come to an end if this nation is to survive as a free society . Each one who adds his bit to the storm of hatred does his share to move us toward a final reckoning that no free American will like." Plain Talk About Hatred and Violence (Reader's Digest, June 1968, p. 52) 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rests upon the testimony of Nancy Frein with respect to the conversation in Max Congdon's office on that date. Inasmuch as Congdon, himself, admits that he told the employees that he could do nothing about the increases at Twelve Mile "until the union activities had been settled there," it is understandable that Frein should have interpreted his comments to mean that a raise would be forthcoming if the Union were defeated, particularly since it was stated that the raises at Nine Mile had been given because that plant had not been involved with the Union. However, Frein is the only witness who asserts that Congdon made so clear and unequivocal a promise. All of the other evidence indicates that Congdon carefully avoided such a commitment. In the circumstances, I cannot credit Frein's recollection on the point, and it will be recommended that this allegation in the complaint be dismissed. Paragraph 13(j) of the complaint asserts that Respondents violated the Act by granting a wage increase at the Twelve Mile Plant shortly after the election. Respondents' action in granting this wage increase manifestly did violate the Act. It was given in complete disregard of the fact that the question of representation which had been raised had not been resolved, and, in fact, still remains current. By this action Respondents interfered with the Board's processes and interfered with, restrained, and coerced the employees in their right to make a free choice in a second election, if one should be ordered, and by such conduct violated Section 8(axl) of the Act. It will be recommended, finally, that the allegations in paragraph 13(k) of the complaint, that an agent of Respondents, during the election, instructed an employee to vote against the Union, be dismissed. The incident involved a rather innocuous campaign statement, made while the polls were open, but at a place not shown to have been in the vicinity of the polls. Cf. Mi chem, Inc., 170 NLRB No. 46; Star Expansion Industries Corporation, 170 NLRB No. 47. 2. The alleged unlawful termination of employees Jeanette Kathryn Graham: The evidence is convincing that Graham was discharged because of her union activities. Although her attendance prior to June when she took about 8 weeks off, was, for a number of weeks, less than that scheduled, her supervisors apparently found this to be tolerable for she was not warned or disciplined for these matters. When she advised Respondents of her availability to return to work, about the last of August, Office Manager Usher not only made no objection, but offered her a choice of places to work and acceded to her request in this respect.' "Usher stated that he did not "think" he was aware of Graham's attendance record at the time, and indicated that he did not check her record on the occasion because help was so difficult to get and he was so busy hiring employees. I do not find Usher's rather qualified denial that he was aware of Graham 's record persuasive. It was, in the first place, uncertain. Usher, further, was in a position to have access to, and regular contact with, the personnel records of the approximately 60 Congdon employees, and would likely have general . if not specific, knowledge of an employee such as Graham , who had been employed for 8 months. This was even more likely if her record was particularly bad, as Respondents claim. Indeed, it is noted , as discussed hereinafter, even Max Congdon, who saw the records only infrequently, asserted that he was aware of Graham's record. In addition, it would appear from Usher's testimony, that he did not casually accept Graham's return to work, but interviewed her at the plant before she came back. On the whole, it would appear that Usher's Prior to the time of Graham's return, she had not been identified with the Union. After her return, however, she did become active and identified as an advocate of the Union, which was certainly well known to Respondents' supervision." At the same time, after her return to the plant in September, her attendance markedly improved. Nor was there, so far as the record shows, any other criticism of her work or conduct, other than the single instance involving supervisor Koeman noted above, which is not alleged to have played a part in her discharge. On this record, Max Congdon's summary decision to discharge Graham is difficult to understand, except on the basis of Graham's Union activities. According to Congdon he barely knew Graham as an individual, being able to recall only one occasion on which he may have seen her while she was employed in the plant. There is no evidence that any supervisor had ever complained to him about Graham, either before or after her return to work. Nevertheless, Congdon's testimony is that he knew of Graham's prior bad attendance record, and when he became aware that Graham was back in the plant (through means not revealed in the record), he went to her records to make sure that he was "not wrong," and thereupon made up his mind to let her go. Congdon, admittedly aware of the "considerable improvement" in Graham's attendance record since her return, states that he nevertheless decided not to warn her merely, in accordance with his asserted absentee policy, but discharged Graham, instead, because he considered her a probationary employee, "and I wasn't about to let her get sixty days in and continue to have as bad a record as she had previously." However, it is nowhere explained how a change from probationary status (assuming, without deciding, that this was Graham's status at the time) to regular employee status would have in any way affected Respondents' right to discharge Graham, if her attendance again deteriorated. Respondents' absentee policy, providing for penalties for absenteeism , appears to apply to all employees without distinction. It may be that in his testimony Congdon was suggesting an analogy to some collective-bargaining contracts which grant regular employees greater security than probationary employees, but there is no showing here that Respondents had any such commitment to their employees, and the analogy is thus both superficial and inaccurate. Indeed, the pretextual nature of the reason assigned for the termination of Graham is further shown by the fact that, while Congdon asserted that shortage of help was the reason Graham had not previously been discharged for her poor record, Usher's testimony establishes that when Graham came back to work that shortage of help still persisted, and, therefore, that she was actually needed by the Respondents in their operations. Nor was there any credible evidence that this situation had changed 2 or 3 weeks later, when the decision was made to terminate Graham. On the basis of the whole record, including observation of the witnesses, it is found that Respondents were aware uncertain recollection of whether he was aware of Graham's record when she returned to work was prompted more by his knowledge of Respondents' defense to her discharge than by any positive recall of the fact, and his testimony in this regard is not credited. "Respondents' brief refers to the fact that after Graham 's discharge, Supervisor Koeman asserted his surprise when advised of the fact, and said he would do what he could to help her get her job back. This is not inconsistent with Koeman's having advised management of his knowledge of Graham's activities, however. CONGDON DIE CASTING CO. 491 of Graham 's Union activities and that she was discharged because of such activities and not for cause, in violation of Section 8(a)(3) and ( 1) of the Act. Shirley Sharp: Although the matter is not free from doubt, I have come to the conclusion that the General Counsel has not sustained his burden of proving that Respondents refused to reinstate Sharp because of her Union activities. Favoring the General Counsel's position, it has been noted that this refusal occurred approximately at the time Respondents were discriminatorily terminating Graham, and were apparently in need of employees . Further, it has been considered that the same supervisor who decided not to have Sharp return , on a prior occasion had merely suspended her, and did not discharge her for her poor attendance; and that Office Manager Usher, apparently because of the shortage of help at the time , went to unusual lengths to get Sharp to come back to work when she did not promptly return from her suspension. All of this occurred before the advent of the Union. Sharp, after her return, apparently improved her attendance , and does not seem , thereafter, to have been a source of trouble on this score. She then became involved in the union campaign in the plant. When she thereafter sought to come back to work, after a short absence occasioned by the death of her mother and the necessity of obtaining another babysitter for her child, Office Manager Usher, in contradistinction to the practice he had followed with Graham, consulted with Sharp's supervisor, Lipchick, who decided that Sharp should not be recalled. Also peculiar is Usher's failure to ever notify Sharp directly that she was not to be returned to work or the reason for that decision. Nevertheless, Sharp's union activity does not impress me as being outstanding or particularly noteworthy. Nor is there persuasive evidence, on this record, that her sentiments in this regard came to the attention of anyone in Respondents' management other than Denton" unless this can be inferred from the fact that this was not a large plant and Sharp 's activities do not appear to have been concealed. I am not convinced that Denton advised Respondents of his knowledge of Sharp's union activities. At least one employee, called as a witness by General Counsel , testified that she considered Denton neutral in the union campaign. He continued to eat and associate with the employees during this period, the Union raised no objection to his voting in the election , and, as has been noted, he was found to be an eligible employee by the Regional Director. Neither side questioned Denton on this matter while he was a witness . Under the circumstances, I do not think that Denton 's information should be attributed to the Respondents. Moreover, in the circumstances of this case, considering the lack of evidence of a pattern of interrogation, or of surveillance, or of persistent communication between employees and management on these matters , the lack of widespread activity on the part of Sharp, and on the record as a whole, I do not believe that knowledge of Sharp's individual interest in the Union should be inferred to Respondents. In coming to this conclusion, I have considered the fact that Frein had advised Lipchick that "The General Counsel misreads the record when, in his brief, he asserts that Lipchick admitted knowledge of Sharp's union activities when he decided that he did not want her back. Lipchick specifically denied such knowledge, although he admitted general knowledge of union activities in the plant. It is this admission to which the General Counsel refers in his brief. there had been a large turnout of his shift at the first Union meeting, and, therefore, that Lipchick may have been activated in respect to Sharp by suspicion, rather than knowledge of her activities. However, it has also been noted that Sharp had been warned a number of times and had been once penalized for her poor attendance, and Lipchick may well have decided that her final absence - albeit for good cause - was the last straw. For the reasons stated, it will be recommended that the allegations of the complaint with respect to Sharp be dismissed. 3. Conduct affecting results of the election I find and conclude that the Respondents' conduct occurring prior to the election held on January 4, 1968, which has previously been found in violation of the Act, interfered with the employees' exercise of a free choice in the election, and that the postelection grant of a wage increase was made as a further inducement to vote against the Union if another election were ordered. Accordingly, it will be recommended that the election of January 4, 1968, be set aside, and a new election be conducted at a time to be determined by the Regional Director. CONCLUSIONS OF LAW 1. The Respondents constitute a single-integrated employer engaged jointly and severally in commerce within the meaning of Sections 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondents have engaged in and are engaging in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, and in conduct interfering with, restraining and coercing employees in their exercise of a free choice in an election conducted by the Board, which unfair labor practices and conduct affect commerce within the meaning of Sections 2(6) and (7) of the Act. THE REMEDY It having been found that the Respondents engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. It will be recommended that the Respondents offer Jeanette Kathryn Graham immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority and other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of the discrimination against her to the date of offer of reinstatement, less interim earnings, and in a manner consistent with Board policy set out in F. W. Woolworth Company, 90 NLRB 289, and Crossett Lumber Company, 8 NLRB 440, to which shall be added interest at the rate of 6 percent per annum as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that Respondents preserve and make available to the Board or its agents, upon request, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records and reports 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD necessary to analyze the amount of backpay due and the right to reinstatement under the terms of these recommendations. It will be recommended that Respondents' posted rules with respect to absenteeism and probationary status, which have been found to have been instituted in reprisal for the employees' Union activities , be rescinded. This shall not be interpreted as preventing the Respondents from publishing and putting into effect rules , which, in all the circumstances, do not interfere with , restrain or coerce the employees in the free exercise of their rights under the Act, and are not in reprisal for the exercise of such rights. In order to make effective for the employees of the Respondents the guarantee of rights contained in Section 7 of the Act, it will be recommended that the Respondents cease and desist from, in any manner, infringing upon the rights guaranteed in that Section. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that Respondents, Congdon Die Casting Company, and Buffco, Inc., Sparta, Michigan, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees in order to discourage membership in and support of International Molders and Allied Workers Union, AFL-CIO, or any other labor organization. (b) Granting or promising benefits to or withholding benefits from employees to discourage membership in or assistance to a labor organization, or otherwise to interfere with the rights of employees to select or reject representation for collective bargaining. (c) Advising employees of Respondents' action or intention to act in a manner set forth above. (d) Publishing, continuing in effect, or enforcing rules with respect to working conditions which are in reprisal for, or which interfere with, restrain or coerce employees in the exercise of rights under the Act. (e) Threatening or warning employees with harm or reprisals if they join or assist a labor organization, or select a representative for collective bargaining. (f) Threatening or warning employees that the selection of a collective bargaining representative will be a vain and futile act. (g) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the purposes of the Act: (a) Offer to Jeanette Kathryn Graham immediate and full reinstatement to her former or substantially equivalent position without prejudice to her seniority, or other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of Respondents' discrimination against her as set forth in the "Remedy" section of this Decision. (b) Preserve and make available to the Board or its agents, upon request, the records necessary to determine the adequacy of reinstatement of Jeanette Kathryn Graham and the adequacy of backpay due her, as set forth in the "Remedy" section of this Decision. (c) Rescind the written rules with respect to absenteeism and probationary status posted in September 1967, in accordance with the "Remedy" section of this Decision. (d) Post at Respondents' plants at Sparta, Michigan, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director, for Region 7 shall, after being duly signed by an authorized representative of Respondents, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 7 in writing, within 20 days from the date of this Decision, what steps Respondents have taken to comply herewith.16 IT IS FURTHER RECOMMENDED that the complaint be dismissed as to any alleged violations not found herein; and that the election held on January 4, 1968, in Case 7-RC-8259 be set aside, and said case be remanded to the Regional Director for Region Seven to conduct a new election when he deems that circumstances permit the free choice of a bargaining representative. "In the event that the Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board 's Order is enforced by a decree of the United States Court of Appeals the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." "In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondents have taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discharge you, or in any other manner cause you harm , because you join or help International Molders and Allied Workers Union, AFL-CIO, or any other labor union. WE WILL NOT attempt to discourage you from joining or helping a labor union , or selecting a labor union as your representative - By promising or granting employee benefits for that reason, or By keeping benefits from you to defeat the union, or By telling you that we have done or will do such things, or By making working rules or regulations that interfere with your right to engage in union activities, or By threatening you with any sort of harm, or By warning or threatening you in any way that the Company will see to it that you get no benefit from union representation. WE WILL NOT in any other way interfere with your right to - Organize yourselves, or form, join or help unions CONGDON DIE CASTING CO. Bargain for your working conditions through a representative freely chosen by a majority of workers in the plant Act together for mutual aid or protection of your working conditions Refuse to do any or all of these things. WE WILL see to it that the rules about absenteeism and probationary employees that were posted in September 1967, are canceled , and that any future rules and regulations on those matters are not made or carried out because of your union activities, or to interfere with your union activities. WE WILL offer Jeanette Kathryn Graham immediate and full reinstatement to her former or substantially equivalent position without loss of seniority or other rights and privileges, WE WILL make her whole for any pay she lost because we discharged her, with interest. All of our employees are free to become or remain, or 493 refrain from becoming or remaining , members of International Molders and Allied Workers Union, AFL-CIO, or any other labor organization. Dated By CONGDON DIE CASTING COMPANY; BUFFCO, INC. (Employer) (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 226-3200.