H. L. Meyer Co., Inc.

H. L. MEYER COMPANY, INC. 565 H. L. Meyer Company, Inc. and Teamsters Local 838, Warehouse and Mail Order Union, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 17-CA-3480 and 17-RC-5637 June 30, 1969 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On August 1, 1968, Trial Examiner William Seagle issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further recommended that the election conducted on March 1, 1968, in Case l7-RC-5637, be set aside. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and supporting brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent they are consistent with our Decision, Order, and Direction of Second Election. 1. We find, in agreement with the Trial Examiner, that Respondent violated Section 8(a)(1) by unlawfully interrogating and threatening its employees in the following manner and circum stances: As more fully set forth in the Trial Examiner's Decision, the record shows that on January 22, 1968, Plant Manager Pat Dwyer asked Charles Kennybrew, an employee active in the union campaign, what complaints he had against the Company. After Kennybrew enumerated several, Dwyer warned that Kennybrew could get into a "whole lot of trouble" by following the lead of Harry Taylor, an outspoken union advocate. Dwyer proceeded to tell Kennybrew that he should be working at the union hall if he was not satisfied, that a woman could handle Kennybrew's job, and that he could easily be replaced by someone willing to work at the minimum wage. During the same conversation Dwyer stated that if the employees got "that damn union there" he could make the work standards so high that Kennybrew and his fellow employees would have to "work like dogs to get it [production] out or be fired." In that same vein, he also warned that employees who took their vacations when they wished could be replaced, and supervisors would not be allowed to operate the machines if employees were on vacation thus perhaps necessitating the closing down of the plant. No testimony was offered to contradict these threats, although the Respondent tried to dilute the import of these remarks by styling them as "concessions" the employer would be willing to make. Contrary to the Respondent, Dwyer's remarks plainly constituted unlawful interrogation and threats violative of Section 8(a)(1). The Trial Examiner found a further violation of Section 8(a)(1) based on Dwyer's "hope" that the Union would get in so that he could "fire all them son-of-bitches and make the company some money." This remark, addressed to employee George Smith, was overheard by Jannie Rollins, another employee. At the hearing Dwyer submitted that all he said was that he hoped the matter was settled soon so that he could get the plant back to normal. The Trial Examiner credited the testimony of Rollins. As we find no reason for reversing the Trial Examiner's credibility finding in this regard, we hereby adopt his finding that Dwyer's remarks constituted a threat of loss of employment should the Union come in and, therefore, violative of Section 8(a)(1) of the Act. In addition to the foregoing, it appears that approximately 1 week before her discharge, while attending to some personal business, Jannie Rollins noticed a group of employees gathered around Pat Frazier and Frances Terranella, the latter being a forelady in the bagging department. Frazier, in the presence of Terranella, accosted Rollins and queried, "What are you going to do when they close the plant door and you'll be outside with signs, how much are they going to pay you?" Rollins replied, "I don't know." Frazier retorted, "Well, you seem to know everything else." Terranella did not dispute Frazier's statement about the plant closing but rather remained silent. Rollins credibly testified that Terranella overheard the remark and Terranella did not deny it, but instead claimed that she did not remember. While not alleged in the complaint as a violation of Section 8(a)(1), this matter was fully litigated during the course of the hearing. We believe that Frazier's remarks clearly constituted a blatant threat to Rollins' job security as well as an implied threat of a plant shutdown should the Union prevail in organizing Respondent's employees. Supervisor Terranella did not rebuke Frazier or correct her in any way. Instead, she remained silent, thus leaving the unmistakable impression that Frazier was speaking the truth and was, in fact, speaking for Terranella and the Respondent. Accordingly, we find that Terranella's silence and tacit approval of Frazier's clear threat of job 177 NLRB No. 75 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD security and possible plant closing constituted a violation of Section 8(a)(1). As alleged in the complaint, the record further shows that in mid-December, shortly after Jannie Rollins had signed a union authorization card, Foreman Bill Kelly approached her and asked if she had ever belonged to a union. She replied in the affirmative, whereupon Kelly asked her what the union had done for her. Thereafter, a discussion ensued as to the merits of union representation. We conclude that although Kelly spoke of unions in general, he was seeking to pry into Rollins' union sentiments . While the Respondent sought to make light of Kelly's inquiries, its arguments in this regard lose considerable force, because such conduct cannot be regarded as isolated or otherwise excusable in view of the Respondent's pronounced union animus and its clear disregard for the lawful organizational rights of its employees as otherwise found herein. Accordingly, we conclude, as alleged in the complaint, that Kelly's inquiries as to Rollins' union sympathies constituted unlawful interrogation in violation of Section 8(a)(1) of the Act. 2. We agree with the Trial Examiner, in light of Respondent's manifest hostility toward the Union and the commission of numerous other unfair labor practices, that the installation of a suggestion box was designed to and did interfere with the organizational activities of the employees and, as such, was a separate violation of Section 8(a)(1). It is true that the idea of the box originated with two employees who were anxious to have the Respondent's president, Waitman Meyer, clarify his position on certain remarks he made during a speech to the employees. However, in the context of this case, that fact alone could hardly excuse the subsequent use to which this device was put or neutralize the harmful, prejudicial effect it had on the election.' Where, as here, it appears that the suggestion box was used to solicit and settle employee grievances and to imply certain offers of benefits should the Union be defeated, it is apparent that the real purpose of the box was to interfere with the organizational activities of the employees in violation of Section 8(a)(l) of the Act. Replies to the questions and suggestions submitted were posted on February 14 and 26, 1968. The Trial Examiner found, and we agree, that some of these replies constituted separate violations of Section 8(a)(l) in that they created the impression that but for the pending union campaign certain employee benefits granted at the Respondent's other plants would have been initiated at the Kansas City plant. Thus, the Respondent sought to shift the onus for the delay to the Union and, at the same time, it impliedly conditioned these wage and vacation We have consistently held that it is no defense that the employer's statements were prompted by questions from his employees Viking of Minneapolis, Division of Telex Corporation, 171 NLRB No 7 See Heick Moving & Storage, Inc, 150 NLRB 1124, 1130, Radiator Specialty Co v N L R 8, 336 F 2d 495, 498-499 (C A 4) benefits upon defeat of the Union at the election. In this regard, the questions and answers are as follows: Q. I heard that the employees of the other plants that have been there 10 yrs. or over are getting 3 weeks paid vacation. Is this correct.? A. Yes. This year they will get 3 weeks pay, but only 2 weeks off. During a Union organization campaign the law prohibits us from changing employees benefits; such is the case at H. L. Meyer Co. Q. As I understand that the other plants such as Butler and Versailles get their raise prior to Feb. 1st. Is there a possible chance that we the employees of H. L. Meyer Co. would get back pay if by chance the Union would be ruled out come Mar. 1st. A. Butler and Versailles got raises Jan. 1st. Yes, back pay for H. L. Meyer employees is possible, however, we can make no promise or take any action until after the election. In answer to the first question the Respondent, in effect, stated that other plants received a broader vacation allowance and implied that the same benefit would normally apply at the establishment in question. Reading the second question and reply in context it appears that the Respondent conditioned the backpay award on the Union's defeat and clearly reserved its decision pending the outcome of the election. Thus, taken in context, the employer shifted the onus for the delay to the Union' while at the same time holding out the possibility of backpay if the Union lost the election. Further, from the answer to an earlier question` it is evident that the Respondent was reluctant to extend to the employees existing benefits if the Union were elected 'By shifting the onus to the Union for delay in the awaited employee benefits the Respondent violated the Act American Paper and Supply Company, 159 NLRB 1243 The employer violates Sec 8(a)(I), if, while an election is pending , he confers benefits for the purpose of inducing employees to vote against the union N L R B v Exchange Parts Company, 375 U S 405, 409 It is also an unfair labor practice if the employer withholds benefits for the purpose of creating the impression that the reason for the delay is the union' s organizational activity See American Paper and Supply Company, supra. See also McCormick Longmeadow Stone Co , Inc, 158 NLRB 1237 In summary , the only valid course the employer may follow in deciding whether or not to grant employee benefits during the critical period of a representational campaign is to proceed as if the union were not in the picture McCormick Longmeadow Stone Co, supra, 1242 In this case the Trial Examiner found, and we agree, that the Respondent placed the onus for the delay upon the Union Further we view as inapposite our decision in Uarco, Incorporated, 169 NLRB No 162, because in that case the employer in granting the wage increase followed the mandate of the above rule, that is, we found that he initiated the benefit pursuant to a well-established company policy and not for the purpose of undermining the union campaign In the present case , however, the Respondent' s effort to maintain the "laboratory condition" of the critical period preceding the election was exacted at a high cost, the employer in withholding the wage increase pinioned the reason for the delay in the union's campaign 'Q I If the Union goes in - do we pay our insurance) A You may or may not pay your own insurance, this is a subject for bargaining In any event the company would probably not pay on two insurance policies, and has the option to terminate the present group policy at any time H. L. MEYER COMPANY, INC. to represent the plant's employees. As a practical matter, the employees could have assumed reasonably that the vacation and backpay benefits would also be jettisoned if the Union won the election. Furthermore, as the Trial Examiner found, the Respondent did not cure the prejudicial effect of its answer to the backpay query by later answering to another question that it could not take any position on the backpay matter at that time.' Indeed, the first series of answers remained posted in the plant for 10 days and the later "clarification" was too little and too late to revive the appearance of neutrality. Finally, we agree with the Trial Examiner that the Respondent, by use of the suggestion box, also solicited its employees to submit their grievances to management, and used the question box as a device to adjust grievances as submitted.' We find that Respondent's solicitation and settlement of grievances during the pendency of the union campaign and forthcoming election, in the circumstances of this case, particularly in the light of numerous simultaneous unfair labor practices, interfered with the Section 7 rights of its employees and constituted a violation of Section 8(a)(1) of the Act." 3. In regard to the 8(a)(3) allegation of the complaint, the Trial Examiner concluded that Jannie Rollins was discharged because of her union activities and that the reason offered by the Respondent for her discharge on February 1, 1968, was pretextual. We agree. During the 2 months prior to her dismissal Rollins was extensively engaged in the union campaign. She attended the two union meetings on January 13 and 27, 1968, was one of the first to sign a union card, and personally distributed 10 additional cards to fellow female employees. Rollins' testimony on cross-examination was that in January 1968, the plant was in an "uproar"; that is, that the lines were drawn between the prounion employees and that faction antagonistic to the Union. As the plant's towel washer, she was in a particularly advantageous position to observe the mounting friction between the two groups because by the nature of her work she was permitted free movement throughout the plant. In fact, it was for this reason that in December 1967, she was requested to distribute and collect the union cards. She also credibly testified that as the election date neared it became increasingly more difficult for the 'Q If the Union does not get voted in will we get salary raises back to the date the others got theirs? A Too, [sic] clarify the Company 's position , we cannot take any position on any increases at this time 'Q When your supervisor brings your work back because of a small mistake, I suggest they hand it back and not throw it back , because someone might get hurt. A To all supervisors do not throw the work back to employees To all employees any conduct like this should be brought to the attention of Pat Dwyer or myself immediately 'See, e.g., BaNas Egg Products , Inc, 121 NLRB 873, 880, enfd 283 F 2d 871 (C.A 6) 567 prounion employees to congregate and discuss the campaign while at the same time the informal gatherings of antiunion workers were condoned. That the supervisory personnel, in particular Frances Terranella, participated in these antiunion discussions as noted above in connection with Frazier's coercive remarks to Rollins is uncontroverted. Suspecting a general company hostility toward the prounion employees including herself, Jannie Rollins began to keep a record of recently hired employees apparently in the belief that the Respondent was attempting to dissipate union strength by employing white girls instead of Negro girls. At the hearing Rollins credibly testified that the last Negro women were hired in early December 1967, and that in the following month of January seven white women were hired. Her testimony on this point was unchallenged. The Respondent's work force of about 126 was roughly one-third Negro. Apparently Rollins attributed a racially discriminatory hiring policy to the Respondent but at the same time surmised that union animus underlay the company change in employment practice. Whether or not there was in fact a policy of racial discrimination being practiced to undermine the union effort is impossible to deduce from the record in this case. However, the finding of an 8(a)(3) violation in this case does not rest on any conclusion that the Respondent engaged in racial discrimination with regard to its hiring policy; therefore, we deem it unnecessary to decide the merits of this allegation and, accordingly, disavow any inference drawn by the Trial Examiner that would tend to imply that the Respondent's hiring policy was discriminatory. On balance, however, we agree with and hereby adopt the Trial Examiner's finding that the discharge of Jannie Rollins was motivated by union animus and that the reason given for her discharge was pretextual. From the record we find, as did the Trial Examiner, that the Respondent was aware of Jannie Rollins' union activities well in advance of February 1, 1968, the date of her discharge. The Trial Examiner relied on three specific instances, and we agree. The first of these occurred in December 1967, shortly after Rollins signed her authorization card, when Foreman Bill Kelly unlawfully inquired as to her union sentiments, as found elsewhere herein. The second instance focused on the events of January 27, 1968, when Rollins, and about 30 or 40 other employees gathered at the Teamsters hall to confer with union representatives who had handbilled the plant earlier that day. Among those present were Mickey Dwyer, a nonsupervisory employee and the brother of Plant Manager Pat Dwyer, and a half dozen or so of Mickey's friends. Unalterably opposed to the union movement, Mickey Dwyer and his friends went to see for themselves what the Union had to offer. Rollins recalled the meeting and credibly testified that Mickey Dwyer and his friends 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sat about four rows directly behind her. On the next day, Mickey gave his brother Pat the names of 25 to 30 of those who had attended the union meeting. Thus, by subtracting the names of those opposed to the Union it is a reasonable conclusion that Pat Dwyer, through his brother, learned the identity of virtually all of the prounion employees, including Jannie Rollins, who were in attendance at the Teamsters hall. Whether or not there was indeed an authorization or ratification of Mickey Dwyer's activities is an issue we find unnecessary to resolve. However, for the limited purpose of establishing Respondent's knowledge of Rollins' interest in the Union we find substantial evidence to support the Trial Examiner's inference that Jannie Rollins' name was among those known to be union adherents. Finally, the confrontation between Rollins and Pat Frazier in the presence of Forelady Frances Terranella, noted above, provides additional support for finding that Respondent knew of Rollins' extensive union activities. The circumstances surrounding Rollins' discharge on February 1, 1968, may be stated simply. On the previous day Rollins was working at her machine located near the employment office when a Negro job applicant, Gladys Hall, emerged from the office and asked Rollins if the Company was hiring. Hall also said that she had just been informed by personnel that there were no openings at that time. Rollins, according to her testimony, already suspecting that the Respondent was deliberately refusing Negroes employment and hiring only whites in an effort to discourage the union effort, and having heard a rumor the day before that there was a job opening in another department replied, "Yes, quite a few white, no colored lately."' This remark was repeated in the presence of Nina Brown, a mutual friend of Hall and Rollins. That evening Forelady Frances Terranella heard a rumor of what had been said to Gladys Hall and the following morning she began to substantiate the story with the approval of Pat Dwyer. By the time Terranella heard the rumor it was evident that Rollins' remark had been communicated about the plant. Finally, Hall and Brown were called into Pat Dwyer's office and in the presence of Terranella and the plant manager signed a statement that on the previous day Rollins had told Gladys Hall that the Company was "not hiring any colored." Shortly thereafter, Rollins was summoned and told that she had been fired. In fact Terranella and Dwyer had decided to fire Rollins even before they called her to the office and had also decided to give Rollins' job to Hall. Indeed, they were not interested in Rollins' 'The Trial Examiner observed that in a preheating affidavit Rollins deposed that she said "quite a few white but no colored" and did not use the word "lately." Furthermore, Nina Brown and Gladys Hall signed a statement, in evidence in this case, that Rollins simply said "they are not hiring any colored girls." Whether or not Rollins actually used the word "lately" is, in our opinion, of little consequence because it is clear that in the context in which this remark was made she was obviously referring to a present policy of Respondent statement of what transpired, and Dwyer concluded the meeting by saying that the matter could not be allowed "to go to labor relations." The Respondent contended that Rollins' remark was inflammatory and, considerng the location of the plant in a predominantly Negro neighborhood, could cause community repercussions. Therefore, in substance, it argues, inter alia, that it was only taking precautions by discharging Rollins. Rollins' version is simply that the Company in fact had not hired a Negro worker in a month and a half and during the same period seven white girls had been employed and that by her remark she was only disclosing a recent hiring pattern and nothing more. Since she herself and about one-third of the other employees were Negroes, she could hardly have meant that job discrimination was an established company policy, but only that there had been a recent exclusion of Negro employees. In sum , it appears from the record in this case that the Respondent had indeed not hired any Negro female employees in approximately 2 months while during the same period seven white women were hired. It also appears that Rollins knew this and suspected an antiunion motivation underlying the purported change in hiring policy because of the intensified efforts of the Respondent to thwart the union effort as evidenced by its complete disregard of its employees' Section 7 rights as found elsewhere herein. The plant was in an "uproar" and Jannie Rollins, a known union advocate, was at the center of the controversy. Her union activity had extended over several months and she had been questioned and threatened about her union suasions by, or in the presence of, Respondent's supervisors. Moreover, it is clear that the Respondent was not interested in Rollins' defense, but had already decided to discharge her before summoning her to the office. Finally, any remaining plausibility in the Respondent's defense is removed by its position that in order to hush up the matter, the discharge should not go through "labor relations"; for if the Respondent was in fact concerned about correcting or halting a malicious story pertaining to its hiring policy, it seemingly would have explained to its employees the true nature of its hiring policy. Similarly, the discharge of Rollins, a longtime, well known Negro employee who had been instrumental in obtaining employment for others at the Respondent's plant, could hardly have been viewed as cementing cordial race relations in the Respondent's plant or in the community. In these circumstances, to seize suddenly upon the remark made to a job applicant as grounds for discharge in our view can only be a pretext concealing the real reason - namely, Rollins' union activity.' 'Even assuming arguendo, that Rollins' remark might constitute lawful grounds for discharge this is not defense where the real reason for her discharge, as here, was union activity protected by the Act N L R.B v Ace Comb Co, 342 F.2d 841, 847 (C.A. 8). Accord, N.L R B. v. Symons Manufacturing Co. 328 F 2d 835, 837 (C.A. 7); Portable Electric Tools v H. L. MEYER COMPANY, INC. 569 4. In Case 17-RC-5637, six objections were filed to conduct affecting the results of the election held on March 1, 1968. The Regional Director, in his Report on Objections, Recommendations, and Order Directing Hearing, dated May 6, 1968, recommended that objections 1, 2, 4, and that contained in the second sentence of 5 be dismissed. He ordered a hearing on objections 3, 6, the first sentence of objection 5, and certain additional matters not specifically alleged in the objections but occurring within the critical period and contained in the allegations of the complaint issued in Case 17-CA-3480, and consolidated the representation proceeding with the unfair labor practice proceeding for hearing before a Trial Examiner. Thereafter the Union filed exceptions to the Regional Director's Report. In a notice dated May 29, 1968, the Board deferred ruling on certain issues raised in the representation case and decided that other matters raised should be consolidated for hearing with the complaint case. Through an inadvertence the Trial Examiner did not specifically rule on the issues herein raised with regard to the representation proceeding. Since we have already found that the conduct objected to in objections 3 and 6 and the additional matter referred to by the Regional Director, namely, the installation of a question box for the purpose of discouraging union membership or activity on the behalf of the Union, implied promises of benefits conditioned on the Union's defeat, shifting to the Union the onus for the postponement of benefits, threats of reprisal, and the discriminatory discharge of an employee, constituted conduct violative of Section 8(a)(1) and/or (3), we also conclude, that such conduct interfered with the election.' Accordingly, in view of the foregoing, we shall set aside the election of February 1, 1968, and we find it unnecessary to pass on the remaining objections and issues raised with respect to the conduct of the election. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and hereby orders that the Respondent, H. L. Meyer Company, Inc., Kansas City, Missouri, its officers , agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified. 1. Add the words "by discharging" to follow "or any other labor organization of its employees," as contained in paragraph 1(e) of the Trial Examiner's Recommended Order. 2. Substitute the words "by discharging or in any other manner discriminating" for the words "nor will we in any other manner discriminate" as contained in the fifth indented paragraph of the Trial Examiner' s notice. IT IS FURTHER ORDERED that the election conducted on March 1 , 1968, in Case 17-RC-5637, be, and it hereby is, set aside, and that Case 17-RC-5637, be, and it hereby is, remanded to the Regional Director for Region 17 for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative. [Direction of Second Election "' omitted from publication.] "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 Underwear, Inc, 156 NLRB 1236, N L R B. v Wyman-Gordon Company, 394 U S 754 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 17 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director. The Regional Director shall make the list available to all parties to the election. No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. TRIAL EXAMINER'S DECISION STATEMEN"I OF THE CASE WILLIAM SEAGLE, Trial Examiner: Upon a petition filed on December 26, 1967, by Teamsters Local 838, Warehouse and Mail Order Union, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereinafter referred to as the union), and a stipulation for certification upon consent election entered into by the union and the Respondent on January 23, 1968, an election by secret ballot was conducted on March 1, 1968, in a unit agreed to be appropriate by the parties' in order to determine whether the unit employees desired to be represented for the purposes of collective bargaining by the union. Of the approximately 117 voters who were deemed eligible to participate in the election, 45 cast valid ballots for and 64 cast valid ballots against the union.' On March 6, 1968, the Union filed with the Regional Director timely objections to the conduct of the election, N L R B, 309 F .2d 423, 426 (C A. 7). 'Dal-Tex Optical Company, Inc., 137 NLRB 1782. We have herein found that Kelly's remarks to Rollins constituted a violation of Sec. 8(a)(1) of the Act . However, as these remarks occurred outside the critical period, we have not considered them as grounds for setting aside the election . Goodyeer Tire and Rubber Company, 138 NLRB 453 .The unit comprises all production and maintenance employees of the respondent at its Kansas City, Missouri, plant, excluding office clerical employees, professional employees, supervisors and guards as defined in the National Labor Relations Act. 'One ballot was void and four ballots were challenged but the latter were insufficient in number to affect the result of the election. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the objections being numbered consecutively from I to 6,' and on April 23, 1968, the Regional Director issued a complaint against the Respondent, in which violations of Section 8(a)(I) and (3) of the Act were alleged, the complaint being based on charges filed by the union on February 6, 1968.' Under date of May 6, 1968, the Regional Director issued his report on the objections to the election, in which he dismissed as unmeritorious Objections 1. 2, and 4 and that part of Objection 5 contained in the second sentence thereof but set down for hearing Objections 3, 6, and that part of Objection 5 contained in the first sentence thereof. At the same time, the Regional Director consolidated for purposes of hearing the issues raised by the objections not dismissed by him with the issues in the complaint case The issues in the complaint case are whether the respondent interfered with, restrained or coerced its employees in the exercise of their rights to self-organization and discriminatorily discharged Janine Rollins, one of its employees. I held a hearing with respect to the issues in the consolidated proceeding at Kansas City, Missouri, on June 4, 1968. Upon the evidence adduced at the hearing, the posthearing briefs filed by counsel for the General Counsel and for the respondent,' and in view of my observation of the demeanor of the witnesses, I hereby make the following findings of fact: I. THE RESPONDENT The Respondent, H. L Meyer Company, Inc. (hereinafter sometimes referred to as Meyer), a corporation engaged in the manufacture of lenses for glasses and other optical equipment, maintains several plant and warehouses, including a plant in Kansas City, Missouri, which is the only installation of the respondent involved in the present proceeding. In the course and cot:ou, of its operations at its Kansas City, Missouri, plant, the Respondent annually purchases goods and materials valued in excess of $50,000 from suppliers located in States other than the State of Missouri. 'Objection I related to alleged misrepresentations by the Respondent with respect to the payment of union dues Objection 2 related to the distribution of literature by the Respondent alleged to be defamatory, in particular the legends on matchbooks, one of which was of a vulgar nature, consisting of an excrementitious exclamation Objection 3 related to the posting by the Respondent on its bulletin board of two series of questions and answers, allegedly based on questions obtained from suggestion boxes installed by the Respondent Objection 4 related to the posting by the Respondent of a letter dated February 29, 1968, from its counsel, attempting to explain the discharge of Floyd Clark, one of its employees Objection 5 consisted of two sentences, the first relating to an alleged suggestion by the Respondent that its employees resort to physical violence, and the second relating to the delivery by the Respondent to a captive audience of a speech during the 24-hour period prior to the election Objection 6 related to alleged promises of benefit made by the Respondent to its employees prior to the election 'An amendment to paragraph 5 of the complaint was issued by the Regional Director under date of May 3, 1968. 'In addition to his brief, counsel for the General Counsel filed a motion to correct the transcript of the hearing in various respects The motion is granted in all respects except as to the spelling of the name of Frances Terranella. Counsel for the General Counsel would change the spelling of her last name to Tarranella wherever it occurs in the transcript but he has failed to show why this spelling would be correct In the brief of counsel for the respondent the name is spelled "Terranella " T'"e Respondent admits that at all material times it has bc„ i an employer engaged in commerce within the flied rung of Section 2(6) and (7) of the Act, and I so find. II. THE LABOR ORGANIZATION I\^OI'ED Teamsters Local 838, Warehouse and Mail Order Union, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization that has sought to organize the production and maintenance employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The Organizational Background In the latter part of October 1967, Harry Taylor, one of the Meyer employees, who had been employed at the plant for about 30 years, talked to some of his fellow employees about unionization, and on or about November 8, he went to the Teamsters' hall to get some information, literature and union authorization cards, which were afterwards distributed to the Meyer employees and signed by some of them. On January 13, 1968, Taylor held a meeting of Meyer employees at its home, and there was a second meeting of such employees on January 27, 1968 This second meeting, which was held at the Teamsters' hall, was attended by 30 to 40 of the Meyer employees. On January 24, apparently, in preparation for this meeting Harry G. Kress, the union's business agent, accompanied by Gayle Crawford, another union business agent, handbllled the Meyer plant from about 3:30 to 5 p.m., during which they had an encounter with Pat Dwyer, the Meyer plant manager, as hereinafter related. As soon as Waitman Meyer, the president of the respondent, became aware of the union campaign, he launched an aggressive campaign of his own against it. Some of the incidents of Meyer' s campaign are reflected in the union's objections to the election, and others are the basis of the charges of unfair labor practices. These incidents include speeches by Meyer to the employees at the plant before the election; the perpetration of various stunts, such as the distribution on the day of the election of two paychecks, one of which was for 2 months' union dues, and the distribution of the book matches, each of which contained an antiunion message; the interrogation by Pat Dwyer of one of the employees by the name of Charles Kennybrew, and a threatening remark he made to another employee after the union handbilling of the plant; the injection of a Trojan horse into the union meeting of January 27, in the form of Mickey Dwyer, the brother of Pat Dwyer, the plant manager; the installation of a suggestion box by the timeclock in the plant to encourage the antiunion employees, and the subsequent posting on February 14 and 26 of the series of questions and answers allegedly based on the material in the suggestion box. While the Regional Director found that much of the respondent's antiunion propaganda, although in questionable taste, did not furnish an adequate basis for setting aside the election, all of it furnishes the necessary background for the evaluation of the unfair labor practices, which the respondent did commit, and which culminated in the discharge of Jannie Rollins. B. The Violations of Section 8(a)(1) of the Act 1. The coercive interrogation of Charles Kennybrew Charles Kennybrew, who works for Meyer as a shiner-polisher, has been employed for about 9 years, and H. L. MEYER COMPANY, INC. the evidence shows that he was one of the employees who was active in obtaining union authorization cards. On I Monday, January 22, 1968, about 3 p.m., Kennybrew was approached at his work station by Pat Dwyer, the plant manager, who engaged him in conversation about the union . Dwyer asked Kennybrew to tell him what complaints he had against the company and the latter mentioned three , which were the arrangements on vacations, insurance, and seniority. Dwyer then tried to convince Kennybrew that he really had no complaints but was following Harry Taylor who could get him "in a whole lot of trouble ." Dwyer then went on to say that if they got "that damn union in there" he could make the work standards so high that Kennybrew would have to work like a dog to get the work out, and if he did not get it out, he could be fired. So far as insurance was concerned , Dwyer told Kennybrew that they had the best insurance in the country but the latter observed that one could not get a room in a hospital on $12 a day. Dwyer admitted this to be true but pointed out that Meyer, who was a very busy man, did not know it. Kennybrew then returned to the question of seniority, and mentioned that when Floyd Clark had been discharged, someone had been hired off the street to take his place . This reminded Dwyer to tell Kennybrew that if the union did come in and he had to hire someone to take the place of an employee who went on vacation , this employees would be retained after the vacationing employee returned if he worked out any better than the latter. Another disturbing possibility mentioned by Dwyer was that if the union came in, neither he nor Foreman Bill Kelly would be able to touch the machines, and if Kennybrew became sick , he would have to close the shop until he returned . Dwyer threw in for good measure that Kennybrew 's job was so easy that a woman could be hired to do it for $ 1.40 an hour, and he also remarked to Kennybrew that he ought to be working down at the union hall , and that if he did not like the way the shop was being run , he ought to "just get the hell out of here." At this point in the conversation, Dwyer was called to the telephone, and the interrogation which had lasted about three-quarters of an hour, came to an end. As a witness for the Respondent , Pat Dwyer's tenure of the witness stand was extremely brief . But while he was on the stand he was not even invited to deny any part of his conversation with Kennybrew , whose testimony thus stands admitted. It hardly needs to be demonstrated that this conversation which included threats to the job security of not only Kennybrew but also to the other employees, was coercive and violative of Section 8(a)(1) of the Act. 2. The encounter between Kress and Pat Dwyer on January 24 571 intention, Dwyer emerged from the plant again , and asked Kress whether he could attend the union meeting . Kress, although he evidently knew that Dwyer was the plant manager, replied "sure, the meeting was open to everybody" but then Dwyer also wanted to know whether the union business agents would give him a ride, or get him a ride. At this sally, Kress just laughed, and remarked that everybody was welcome to come to the meeting whether they had signed union authorization cards or not. Dwyer went back into the plant again, and reported to George Smith: "They didn't fall for that." Dwyer further remarked to George Smith, however, "I wish they would hurry up and get that union in so I can fire all of them son-of-a-bitches and make the company some money." This remark was overheard by Jannie Rollins who testified to the making of it. Dwyer himself, after testifying that he did not know whether he had had a conversation with George Smith at this time, denied nevertheless making this remark , and testified that all he merely said was that he wished the union would hurry up and come in "One way or the other so my factory could get back to normal ." I credit, however, Jannie Rollins' version of the remark , which is far more in harmony with Pat Dwyer's derisive conduct during the whole incident, and his conduct as a whole, much of which is still to be related. Indeed, I rate the credibility of Pat Dwyer so low that I only credit his testimony when it is consistent with that of the General Counsel' s witnesses. Counsel for the respondent strives to discredit Jannie Rollins' version of the remark but on grounds that are strained and implausible, and do so accurately reflect her testimony. She never testified that Dwyer told George Smith that the union representatives had told him that he could not attend the union meeting . She merely testified that Dwyer told George Smith "They didn't fall for that," which could refer to picking Dwyer up and driving him to the union meeting . I also fail to perceive the relevance of such circumstances as that Rollins did not make the remark but merely overheard it; or that she may or may not have been eavesdropping - actually there is nothing to show that she did not overhear the remark by chance, or that the remark may have been made near quitting time ; or that Jannie Rollins may have been near the timeclock when she overheard it. I am also unable to understand the force of the suggestion made by counsel for the respondent that counsel for the General Counsel should have called George Smith as a witness . The latter was quite evidently a crony of Pat Dwyer. If anybody should have called George Smith as a witness, it should have been counsel for the Respondent. In making the remark about firing all the union supporters, Pat Dwyer violated, of course Section 8(a)(1) of the Act. 3. The suggestion boxes and the posting of the questions and answers As already mentioned, Pat Dwyer had an encounter with Kress, the Union's business agent while the latter was handbilling the Respondent 's Kansas City plant on January 24. When he observed the handbilling, Dwyer remarked to George Smith , one of the Meyer employees, that he would go out and get one of the pamphlets . He did so, and took the pamphlet back into the plant - apparently, to read it. As he entered the plant he told George Smith that the union was going to have a meeting , and that he would go back outside , and ask the union business agents to pick him up and take him to the meeting. Carrying out this After Waitman Meyer had made one of his speeches to the employees in the plant towards the end of January 1968, it seems that two of the female employees, whose names are Berline Bruce and Sarah Scott, suggested to Frances Terranella, the forelady who supervised inspection in the bagging department, that a suggestion box be installed, so that they could put questions to Meyer that they had been unable to think of after he had made his speeches. The suggestion was duly adopted and a cardboard suggestion box was put on a table in the lunch 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD room . This rather makeshift box was replaced within a week by a more permanent wooden box which had a lock on it. There probably had been suggestion boxes in the plant before but at least a year had elapsed since the last one had been removed.' This time the suggestion box was not neglected by the employees . Actually, the term "suggestion box" in this connection was a misnomer . It was really a question box, and the employees bombarded the management with questions that were raised in their minds by the union campaign that was in progress, for the questions related to the securing of better pay and working conditions than were in effect in the Kansas City plant, and to the removal of grievances that obtained there . The questions were stimulated , moreover by the fact that in January 1968, the respondent had informed its employees that it had increased wages and other benefits at its other plants but that these benefits would be withheld at its Kansas City plant pending the outcome of the union election campaign.' The questions and answers posted on February 14 were as follows: Q. If the Union goes in - do we pay our insurance? A. You may or may not pay your own insurance, this is a subject for bargaining . In any event the company would probably not pay on two insurance policies, and has the option to terminate the present group policy any time. Q. I heard that the employees of the other plants that have been there 10 yrs . or over are getting a 3 week paid vacation . Is this correct? A. Yes. This year they will get 3 weeks pay, but only two weeks off. During a Union organization campaign the law prohibits us from changing employees benefits; such in the case at H. L. Meyer Co. Q. Should the Union go through and this plant should strike, do we get paid? A. 1. The company does not pay employees on strike. A. 2. Employees on strike cannot draw unemployment compensation. A. 3. You probably will not receive any strike benefits the first two weeks - you may or may not receive any strike benefits from the Teamsters at all. In one case the Teamsters promised $25.00 per week strike benefits to the people; the Teamsters won the election and after that there was a strike and the Teamsters did not pay off. The employees had to sue the Teamsters for 2 million dollars in damage they claimed to have occured [sic] because of Teamsters not meeting their promise. The court held the Union's promise that if the employees went Teamster they would receive strike benefits was not an enforceable contract under federal law. `Harry Taylor testified that during the 30 years of his employment he had never seen a suggestion box Frances Terranella, whose tenure at the plant was almost as long, being 25 years, testified that there had been many years ago a suggestion box that was unmarked It is no wonder that Taylor was unaware of its exitence! Terranella also testified however, that there had been a suggestion box, which was marked as such, during the regime of the previous plant manager, whose name was Jerry DeSchepper and who had left before April 1967. DeSchepper had removed the suggestion box after it began to be used for love notes. 'This is manifest from references in the questions themselves , as well as from the testimony of Terranella who, when asked when she became aware of the union campaign, replied that it was "when I was informed that we had to stop, when we had discussed that we were going ahead with some raises and that I was told that we had to forget it " Q. When your supervisor brings your work back because or a small mistake, I suggest they hand it back and not throw it back, because someone might get hurt. A. To all supervisors - do not throw the work back to employees. To the employees - any conduct like this should be brought to the attention of Pat Dwyer or myself immediately. Q. As I understand that the other plants such as Butler and Versailles got their raise prior to Feb 1st. Is there a possible chance that we the employees of H. L. Meyer Co. would get back pay if by chance the Union would be ruled out come Mar. 1st. A. Butler and Versailles got raises Jan. 1st. Yes, back pay for H. L. Meyer employees is possible, however, we can make no promises or take any action until after the election. Q. Some of the girls are under the impression that by voting for the Union they are getting back at the supervisors, can you explain to them that the Union will not affect our supervisors attitude. A. Management and Supervisors still retain the right to hire and Fire. Supervisors are not subject to negotiation or bargaining with the Unions. The second series of questions were in the form of a letter from a group of employees who subscribed the letter as "Concerned Employees Form 12th Street," and the letter read as follows: Please read our mere suggestions as to how we feel the administration of Meyer's might better be handled. 1. Male supervision such as we had in 1950 is needed upstairs. One capable man could replace 35% of the women upstairs. 2. Seniority would also be a helpful tool in considering your employee's wages. One feels cheated after working for 20 years for the same salary as a new worker. Is this really fair? We should be treated as individuals for our own human dignity. Give us something to work for. 3. Unfair Treatment and Poor supervision has made us feel insecure. Where can we find security if not with our job? Unions and leaving our jobs would not be necessary if we were treated fairly. We believe that you would rather treat us fairly than to be involved with a union have to waste time training new employees. Keep us! We want to stay! Consider our worth to you and your obligation to us. These are mere suggestions. In no way are they threats. Help The Respondent's answers to the question contained in the letter were as follows: A. 1. The Company is always looking for good supervisors both male and female but good supervisors are hard to find. We know of no union who can change this or help this problem. As far as replacing 25% of the women upstairs, the Company has always tried to provide continuous job security for all employees. We do not intend to change this policy. We do not intend to replace employees with either new supervision or new equipment. A. 2. The Company very often gives no credit to seniority in wage increases but we know NO Teamster contract that does so. Teamster contract simply provide for classifications and rates of pay without regard to wage increases due only to seniority. We know of no exception to this. Many times in union contracts the older employees are lower paid than new employees. We agree that you "Should be treated as individuals for your own human dignity" but this is directly contrary H. L. MEYER COMPANY, INC. to the way unions operate, where often employees are simply a dues paying classification in a contract and the majority rules without regard to the individual. A. 3. If there has been unfair treatment I do not know; about it. The only way 1 can correct it is if I know the facts. We do not tolerate unfair treatment of our employees by anybody. Your security is only with the company. No union can make your jobs more secure. Only the continued operation of this company can do that. Q. 4. Why don't you let somebody beat Harry Taylor up or down? Let me please. A. 4. Our employees have a federally protected right to engage in union activity or to refuse to engage in activity. We intend to protect both of these rights. Q. 5. If the Union gets in here they are going to let the older help go. Does the Union have the right to hire and fire? A. 5. No. Only the Company has the right to hire and fire. Q. 6. If the Union would go in and I was out on strike can I be replaced? A. 6. Yes, even if the Company continued to operate. Q. 7. If the Union does not get voted in - will we get salary raises back to the date the others got theirs? A. 7. Too [sic] clarify the Company's position, we cannot take any position on any increases at this time. The installation of the "suggestion box," as well as the posting of the questions and answers, are charged as unfair labor practices in the complaint. The Board has held that an employer violates Section 8(a)(1) of the Act when during the pendency of a union election campaign he solicits his employees to submit their grievances. This solicitation may take various forms, such as the suggestion that the employees form a shop or plant grievance committee to deal with management,' or that they deal individually or directly with management.' Such suggestions are interferences with the Section 7 rights of the employees even when there is no union with majority status on the scene, especially when the suggestions are accompanied by the commission of other unfair labor practices."' In principle, the installation of a suggestion box for the purpose of ascertaining the grievances of the employees while the union election campaign was in progress would seem to be no different from any other form of suggestion, and it is no defense, moreover, that the box may have been installed at the suggestion of two of the employees." Since the Respondent did not confine itself, moreover, to the installation of the suggestion box but proceeded to post answers to the suggestions or questions received from employees, it compounded its unfair labor practice. Some of the Respondent' s answers were, to be sure, mere antiunion propaganda, and the record contains no evidence from which it can be judged whether it was true or false. But most of the questions related to benefits or working conditions in the Meyer plant, especially as compared to those in the other Meyer plants, and in answering these questions, the Respondent made promises 'See, for instance, Gallas Egg Products, Inc., 121 NLRB 873, 880, enfd 283 F.2d 871 (C.A. 6); Walton Manufacturing Company, 126 NLRB 697, 699-700; Alberto Culver Co., 136 NLRB 1432, 1433. Delight Bakery. Inc., 145 NLRB 893, 902-903, enfd. 353 F.2d 344 (C.A. 6). 'See, for instance, Cactus Petroleum , Inc. 134 NLRB 1254, 1256, 1261. "See Cactus Petroleum , Inc , supra, 1261; Engineered Building Products, 162 NLRB No. 54. "See Viking of Minneapolis, Division of the Telex Corporation, 171 NLRB No 7, in. 8, and other cases there cited. 573 of benefits, although in veiled terms, by implying that better wages, vacations and working conditions in general would follow once the union campaign was over, and the union had been defeated. It raised these implications by stating what the vacations and wages were in its other plants and by informing the employees that no action could be taken while the union election was pending. Furthermore, in handling at least one of the questions, the one relating to the possibility of the Meyer employees in Kansas City securing backpay "if by chance the union would be ruled out come Mar. 1st," the Respondent plainly stated that such backpay was possible, although it could make no promises or take no action "until after the election." The Respondent itself apparently realized that this came close to an explicit promise of benefit, for in the second series of questions and answers it undertook to "clarify the Company's position" by stating that "we cannot take any position on any increases at this time" (emphasis supplied). When this "clarification" took place, however, the previous question and answer had remained posted for at least 10 days, and the damage had been done. By seeking to shift to the union the onus for the postponement of wage increases and other benefits for the employees at the Kansas City plant, and by attempting to create the impression that the union was responsible for their failure to obtain the benefits, which had been granted by the Respondent at its other plants, the respondent violated Section 8(a)(1) of the Act.12 It should be noted, moreover, that this violation was aggravated in other ways. In answering the question whether it would not be a good idea to beat up Harry Taylor, the leader of the union drive among the employees, the respondent expressed no indignation and did not deal very firmly or forthrightly with the question. It contended itself rather with the rather equivocal legal formula that its employees had the right to engage in or to refuse to engage in union activity. It is also worth noting that in at least one respect the Respondent actually removed one of the grievances of the employees which concerned the practice of some supervisors to throw work back at the employees, and that in discussing the status of the supervisors in answer to another question, it incorrectly informed its employees that the powers of the supervisors were not subject to collective bargaining. C. The Discharge of Jannie Rollins 1. The circumstances of the discharge Jannie Rollins is a member of the Negro race who had been employed by the respondent in October 1966 as a towel washer. As the term implies, it was her job to wash and launder the dirty towels of the plant, and to distribute them. Her work station was in the hallway just off the 12th Street entrance of the plant where the timeclock was also located, and her hours were from 7 a.m. to 3:30 p.m., every day of the week, except Saturdays and Sundays. Her immediate supervisor was Pat Dwyer, and from her work station Rollins could see anyone who went into or came out of his office. Because of her strategic location near the 12th Street entrance and near the timeclock, "See McCormick Longmeadow Stone Co, Inc.. 158 NLRB 1237, 1238; American Paper and Supply Company, 159 NLRB 1234, 1243. Counsel for the Respondent relies on Uarco Incorporated. 169 NLRB No. 162, but this case is inapposite, for the employer in that case was obviously neutral between the union and his employees. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rollins became an important cog in steering applicants for employment to the right place to get their application blanks, and she had herself been instrumental in getting jobs for a number of Negro girls. Because of the location of her job and her unofficial activity as a recruiter of personnel, she knew quite accurately who was being hired at any particular time. Rollins was one of the early union supporters. She signed her union authorization card on December 7, 1967. She was one of four employees who had received union authorization cards that day from another employee whose name was Louis Mobley. At lunch time Rollins took the three other employees who had received the union authorization cards to her home where all of them signed the cards, and gave them to Rollins to transmit to Louis Mobley. For some undisclosed reason , however, Rollins' authorization card did not immediately reach the union and on December 9 Charles Kennybrew came by her house and had her sign another union authorization card." At the request of Harry Taylor, Rollins also passed out union authorization cards to five other employees whose names were Eleanor Brooks, Frances Vowell, Katherine Long, Mary Lovingood, and Dorothy Breashears, who, in turn also passed out union authorization cards to other employees. All of the cards so signed were given to Rollins who turned them over to Harry Taylor. Shortly after she had signed her union authorization cards Rollins had a conversation with one of the foremen whose name was Bill Kelly. The latter approached Rollins and asked her if she had ever belonged to a union." When Rollins replied to this question in the affirmative, Kelly asked her what the union had done for her, and she explained to him that her boy friend worked at a place where there was a union, and where the employees received "five weeks with pay and a retirment." This led Kelly to remark to Rollins: "Well, my dad-in-law worked at Butler, and when he retired they only gave him $3,000 and nothing after that and he belonged to a union." Needless to say Rollins, as one of the earliest and staunchest union adherents attended the meeting at Harry Taylor's house on January 13. She also attended the union meeting held at the Teamsters' hall on January 27. The importance of her attendance at this meeting is that it was also attended by Michael (Mickey) Dwyer, who is the brother. of Pat Dwyer, the plant manager, and who seems to have practiced industrial nepotism on a generous scale, for he not only had his brother Michael working at the plant but also his mother and his son . Michael Dwyer was not a supervisory employee but he was employed at the plant in a twofold capacity, both as a polisher and a maintenance man, working at these two jobs about 10 hours a day. His job as a maintenance man in particular afforded him frequent opportunity to move about the plant and the evidence suggests that Pat Dwyer made use of his brother Michael, as well as another antiunion employee, Pat Frazier, in countering the activities of the union . Pat Dwyer had already made use of both of them in distributing to the employees a few days before the election the antiunion book matches conceived by Waitman Meyer, the president of the company. Unable, himself, to attend the union meeting of January 27, much as he desired to, he was not in the end left without "Both the card signed by Rollins on December 7 and the card signed by her on December 9 are in evidence as G C Exhs. 5-A and 5-B "Kelly was not referring , apparently, to Local 838 of the reainsters but to unions in general information concerning the attendance at the meeting. Michael Dwyer went to the meeting, accompanied by half a dozen other antiunion employees, and he considered that notwithstanding his close relationship with the plant manager" he had a right to attend the meeting, since everybody had been invited to attend. While Michael Dwyer was not exactly a stickler for the truth, any more than his brother was," he was somewhat more candid than the latter, and he readily confessed that after the meeting he had given his brother Pat the names of the employees who had attended the union meeting of January 27 to the extent that he could remember them. He did in fact a pretty effective job of remembrance, for he testified that he named to his brother 20 to 25 of the approximately 30 to 40 employees who were pfesent at the meeting. Deducting the antiunion cohort headed by himself, this would mean that he supplied to Pat Dwyer the names of virtually all the prounion employees who were present at the meeting. There can hardly be any doubt that among these was the name of Janine Rollins, who was sitting only a few rows in front of him. Michael Dwyer made quite a point of testifying that he supplied his brother with the names of the employees who had attended the union meeting of January 27 although his brother did not ask for them. If this were indeed true, it could only have been because his brother had no need to ask for them. If there can be the slightest doubt, however, that the Meyer management not only knew that Jannie Rollins had attended the union meeting of January 27, but also that she was one of the more active prounion employees, that doubt must be regarded as entirely dispelled by an incident that occurred about a week before she was discharged. On this occasion, Frances Terranella, the forelady in the bagging department, and Pat Frazier were talking about the union to a number of the female employees, who included Annette Hill, Bonnie Hayes, and Katherine Long. Rollins was passing by on her way to her work station after returning from an errand, and Pat Frazier remarked to Rollins "What are you going to do when they close the plant doors and you'll be outside walking with signs, how much are they going to pay you?" Rollins just looked at Pat Frazier and replied: "Well, I don't know, you seem to know everything else." It is not recorded that Terranella rebuked Pat Frazier in any way, although she was right there, and overheard Pat Frazier's remarks. Terranella, when cross-examined about the incident, did not deny it. She took refuge rather in a complete lack of memory. The significance of this incident arises from the fact that Terranella appears to have been extremely active in influencing the female employees against the union. Her office was located right outside the lunchroom, and she often ate with the girls and undoubtedly talked to them about the union. There can also be little doubt that they on occasion would report to her on the prounion "The evidence of Janine Lollms shows that Michael was constantly in and out of his brother's office, and that the two of them lunched together v'rtually every day I do not credit Pat Dwyer' s testimony that he lunched with his brother "Maybe once a week if that much," or Michael Dwyer's testimony that he lunched with his brother "twice in a month, at the most." Both brothers grossly understated the number of times a day that Michael was in Pat's office "This is apparent alone from the attempts to minimize the degree of their intimacy There is also a significant discrepancy in their testimony concerning the distribution of the book matches . Pat Dwyer testified that he did not see his brother pick up the book matches in his office but Michael Dwyer testified that his brother was present in his office when he took some of the book matches in order to distribute them H. L. MEYER COMPANY, INC. employees . Although she denied any antiunion animus or activity, iI do not credit her denials. In the end it was Terranella who took the lead in getting Jannie Rollins fired, and in the very beginning of her story concerning the discharge she betrayed her true relationship with the female employees, so far as the union was concerned, for ,he begat} her testimony about the event as follows: Well, on the evening before Jannie was fired Mrs. Annette Hill (one of the employees who worked in her department) was riding home with me and she said, "Do you know what Jannie Rollins is up to nowP" [Emphasis supplied.] The evening before Rollins was fired was January 31, 1968, 4 days after the union meeting had been held. Riding home with Annette Hill that evening Terranella had heard a truly interesting piece of gossip. It was that Jannie Rollins had told a colored applicant for employm nt that Terranella did not hire colored help. Annette Hill had had this piece of gossip from Kay Loria, who had had it from Bernice Neice, who had had it from Shirley I-ilton, who had had it from Nina Brown, who had had it from Gladys Hall, all except the last being female employees of Meyers, and the last being the colored applicant for employment, who was from out of town - from California About 7 a.m. the next morning Terranella picked up Kay Loria, Annette Hill's informant, and asked her- "Kay, do you have something to tell me?" Kay did, and told Terranella that she had heard that Jannie Rollins had told a colored applicant for employment that she "didn't hire colored." Although it is apparent that Terranella was still far from the ultimate source of the rumor, she hastened to Pat Dwyer to tell him what she had heard about Rollins and that she intended "to check it out further" He agreed, and as soon as Bernice Neice had reported for work, she went to the latter and ascertained that the ultimate source of the rumor was Nina Brown, who was a friend of Gladys Hall, the applicant for employment. After receiving confirmation of the rumor from Nina Brown, and after obtaining Gladys Hall's application for employment, which she had not theretofore seen, she, took Nina Brown to Pat Dwyer, so that she could repeat the story to the latter. Terranella then asked vin., Brown to bring her friend to the plant , and in a couple of hours Gladys Hall appeared. Nina Brown was then called into Pat Dwyer's office again, and in her presence, Terranella asked Gladys Hall: "You were looking for a job yesterday and I want you to tell me just what went on." According to Terranella, Gladys Hall replied: "Well, I met a colored woman out in the hall there and she told me 'Honey, they aren't hiring any colored.' " Pat Dwyer and Terranella then had Nina Brown and Gladys Hall sign a statement reading as follows: Gladys Hall came in on January 31, 1968, to fill an application, as she was waiting for her friend, whom is employed here, Jannie Rollins said to her, honey they are not hiring any colored girls. Before interviewing Nina Brown and Gladys Hall, and obtaining their statement, Pat Dwyer and Terranella had decided that if Gladys Hall confirmed the remark attributed to Jannie Rollins they would give Gladys Hall the job of Jannie Rollins, who would be discharged. In fact Pat Dwyer ordered the bookkeeper to prepare Rollins' final check before she was called in to be told of her discharge, or given any opportunity to give her version of the remark she had made to Gladys Hall, or to attempt to explain it. 575 After Nina Brown and Gladys Hall had left Pat Dwyer's office, the latter and Terranella congratulated each other, according to the latter, on "how fortunate we were to have caught this before it got out any further." Their joy was, however, shortlived, for Reno Lewis, the plant porter, walked in just then, and having overheard, apparently, what Pat Dwyer and Terranella had been saying, remarked to them: "Are you talking about Jannie Rollins telling colored applicants that you don't hire colored?" Terranella replied in the affirmative, whereupon Reno Lewis told them: "Well, you didn't stop it. It is all over 12th street," and offered to go across the street and to get more evidence. But Pat Dwyer and Terranella declined this offer, the former remarking to Lewis: "I don't believe we need any more witnesses from 12th Street." The final paycheck of Jannie Rollins having been prepared, the culprit was summoned to Pat Dwyer's office about 3 p.m. that day. There are two main accounts of the discharge interview, one, that of Terranella, and the other, that of Rollins. Terranella testified as follows: Jannie, I just don't know how to tell you this, and she looked astonished . I said , "but I have been investigating all day and I find that you have told a colored applicant that we didn't hire colored." She said, "I didn't say anything, I don't talk to the applicants." And then in her next breath she said, all I said was you hadn't hired colored lately." Asked to explain the circumstances leading to her discharge, Rollins testified that when Gladys Hall, who was a friend of Nina Brown's, whom she had helped to get a job at Meyers, asked her if "they were hiring," she remarked to her "Yes, quite a few white, no colored lately," and that she based this remark on the fact that no colored help had been hired to work in the plant since two colored girls, Nina Brown and Mabel Hensley, had been hired early in December 1967. As for what happened and what was said during her discharge interview itself, Rollins testified as follows: Well, Frances Terranella was standing near Pat's desk, he was sitting at the desk, and she told me that a source had told her that they heard me say they didn't hire colored, and I say, "Don't hire colored" What am I, standing here colored as I want to be. She said "that's what I can't understand." I said, "You go get your source and bring them to me." She said, "Well, I can't do that." So then I said, "Well, so you all believe them other than me." So they didn't say anything, so I looked over at Pat Dwyer and I said, "So you believe them other than me. You do what you know to do." So then he replied to me "I am going to have to let you go because I can't let this get to labor relations," and he handed me my check and I came out the door. 2. Concluding findings Both Pat Dwyer and Frances Terranella made quite a point of emphasizing in their testimony relating to the discharge of Jannie Rollins the circumstances which seemed to them to make her discharge absolutely unavoidable. They pointed out that the Kansas City plant of the respondent was located in a predominately Negro neighborhood; that the plant was also located only 9 blocks from the local office of CORE; and that a considerable percentage of the plant's employees - from30 to 40 percent -were Negroes. The impression that they sought to create was that the failure to discharge Rollins 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after her malicious remark to Glady's Hall, a Negro applicant, would have had the most serious consequences for the respondent. It is true that the Meyer plant in Kansas City is in a Negro neighborhood , in which CORE is also located, and that it has a sizeable complement of Negro employees. But I am neither convinced that the discharge of Jannie Rollins involved a situation which left the respondent with no option, nor that the remark made by her to Gladys Hall was false or malicious, and I am forced to conclude that whatever justification for the discharge of Rollins there may have existed, it was only a pretext for getting rid of her because of her union activities and the union situation. The pronounced antiunion animus of the respondent is clearly established by the record, whether one looks at its antiunion propaganda or at its actual unfair labor practices. In addition to the unfair labor practices directed at its other employees, there are, moreover, unfair labor practices involving Jannie Rollins herself . Counsel for the respondent seeks to make light of her interrogation by Foreman Bill Kelly, who was not called as a witness either to deny or explain his conduct, and if this were the only unfair labor practice charged against the respondent, there might be some force in counsel's argument. This would be, however, because the conduct could be regarded as isolated rather than as excusable . Despite the fact that Kelly spoke of unions in general without specifically referring to Local 838 of the Teamsters , he was seeking to pry into a matter that did not concern him. It is true that the incident cannot be regarded as a basis for setting aside the election," since it occurred before the filing of the union's petition, but it is all the more significant in relation to the discharge of Rollins, since it shows how early the Respondent knew or suspected that she was a union supporter . It is even more significant that Terranella was the forelady who was present when Pat Frazier interrogated and threatened Rollins' job security, since Terranella was the one who went out of her way to secure the discharge of Rollins. By failing to rebuke Pat Frazier, Terranella clearly ratified the latter's conduct," and the Respondent must be charged with still another unfair labor practice, which, although not alleged in the complaint, was fully litigated at the hearing. There can be equally no doubt that the Respondent had full knowledge of the union activities of Jannie Rollins at least a week before her discharge. The contention to the contrary made by counsel for the respondent is specious, if not frivolous, in view of the Bill Kelly and Pat Frazier incidents, the presence of Pat Dwyer's brother at the union meeting of January 27, and the encyclopedic nature of the information concerning the attendance at the meeting transmitted by the latter to Pat Dwyer." It is also clear that the union activities of Jannie Rollins were very substantial if not extensive , and that counsel for the Respondent is again engaged in specious argument when he characterizes her activity as "minimal." "Objectionable conduct occurring prior to the filing of'the petition may not be considered under the Ideal Electric and Manufacturing Company. 134 NLRB 1275. "See Viking of Minneapolis, Division of the Telex Corporation. supra, and other cases cited in fn . 5 to the decision. "In desperation counsel for the respondent is driven to argue that Mickey Dwyer must have attended a meeting early in December prior to the filing of the union's representation petition , although this is contrary to the clear and definite testimony of Harry Taylor and Jannie Rollins. The basis for the argument of counsel for the Respondent is not only Mickey Dwyer's alleged superior credibility but also his nearly perfect memory. To be sure, if despite the Respondent's demonstrated union animus, and its knowledge of the nature and extent of Jannie Rollins' union activities, it were shown that she had given expression to a false and malicious slander of the Respondent's employment policies, there would be considerable force in the argument that the Respondent's decision to get rid of her was not motivated in any way by her prominence in the union movement. The testimony as to what Rollins said to Gladys Hall is conflicting, and a good deal of time was spent at the hearing exploring the question whether Jannie told Gladys that the Respondent did not hire colored help, or was not then hiring colored help. Although Rollins testified that when Gladys Hall asked her, after filling out an application, whether "they were hiring." She replied, "Yes quite a few white, no colored lately," this was only an exegesis of what she had said, for in her prehearing affidavit she had deposed that her remark to Gladys Hall was "quite a few white but no colored." She did not use the word "lately" but it is evident from the context of her remark that what she meant was that Meyer was not then hiring colored help. This is apparent indeed from the testimony of Terranella herself, as well as from the text of the statement that she obtained from Gladys Hall and Nina Brown. It is apparent also, of course, from the obvious fact that Meyer did have colored help, including Jannie Rollins and Nina Brown , the friend of Gladys Hall. What Rollins told Gladys Hall therefore, in answer to the latter's direct inquiry, was that Meyer was not then hiring colored help . She did not volunteer this statement and it was not made in malice. Indeed, Rollins made the statement because she sincerely believed, as she testified, that the Respondent had deliberately adopted the policy, after the union had appeared on the scene, of not hiring colored help, in order not to augment the union forces. The Respondent could easily have shown that it was hiring colored help, notwithstanding the union, by producing its employment records but it did not do so, and offered no other convincing evidence on the subject. There is no basis, therefore, for questioning the testimony of Rollins that the Respondent did not hire any more Negro girls, although some applied, after two such girls, Nina Brown and Mabel Hensley, had been hired early in December 1967, and that in January 1968, it had hired seven white girls. From the vantage point of her work station, and in view of her role in steering applicants around, Rollins was in a peculiarly good position to know whereof she spoke. Of course, the failure to hire any colored help for a period of approximately 2 1/2 months could have been mere coincidence but in a plant where 30 to 40 percent of the help was colored the coincidence may be doubted. If Rollins was fired for telling the truth about the respondent's current labor policy, it would be a per se violation of Section 8(a)(3) of the Act, since this policy had an antiunion motivation. The circumstances of Rollins' discharge strongly suggest, moreover, that the respondent knew that she was speaking the truth but for that very reason was eager to seize the pretext of getting rid of her. Shortly before her discharge Pat Dwyer had taken her to task for allegedly tampering with the timecards but when she was able to show that she was only looking for the address of an Yet when he was asked to fix the date of the union meeting attended by him the best that Mickey Dwyer could do was to testify: "Oh, "I'm not quite sure, February somewhere - no,not February . It would be December or January. I'm not quite sure what date it was." H. L. MEYER COMPANY, INC. employee to whom she had sold children's panties Dwyer had been forced to stay his hand. He could not restrain himself, however, when Terranella rushed to him with the story of Rollins' remark to Gladys Hall. They now proceeded with obvious relish and enthusiasm, and betrayed their true motive with every step that they took. It is evident that they were not embarking on an effort to ascertain the truth but to convict Rollins of malicious conduct before they had even heard her side of the story, for the 'testimony of both Pat Dwyer and Terranella is in agreement that they had decided to discharge her before they had even talked to her. Indeed, Pat Dwyer admitted that he had at once ordered Rollins' final paycheck to be prepared not only before talking to her but also before talking to Nina Brown and Gladys Hall. It was only after these two had signed their statement that they decided to give Gladys Hall Rollins' job,"' and this obviously was a reward for her cooperation, since Gladys Hall had been denied a job before, and Terranella had not even bothered to review her application. When Rollins was finally told of her discharge, everything was obviously a foregone conclusion, and nothing that she could have said in her own defense would have mattered. When in the course of the discharge interview, Rollins asked Terranella that she be confronted with the source of their information, the latter refused her request. It is particularly significant that when Pat Dwyer and Terranella learned from their porter while they were still in the midst of their machinations, that Rollins' remark was all over 12th Street that this knowledge did not give them pause. Despite the obvious advantage of trying to hush up the fact that they would not hire a Negro girl from distant California, who, for all that appears to the contrary was not complaining to anyone, except to her most intimate friend, of the refusal to hire her, they decided to embrace the risk of spreading the scandal by going through with their discharge of Jannie Rollins. If indeed she were being fired for launching a malicious story concerning the employment policy of Meyer, one would expect that the respondent would either have called the employees together to explain to them why Jannie Rollins had been fired, or that it would have at least posted an explanation . It is a reasonable inference that it did not do so because such a frank explanation would have had no value in helping to intimidate the union supporters, and would have deprived it of the benefit of the discharge. In the last analysis the most damaging element in the case against the respondent is, of course, the fact that Jannie Rollins herself is, of course, a Negress. To discharge a Negro girl to better relations with the Negro community seems an odd way to establish cordial race relations. Although Waitman Meyer did not testify or even appear at the hearing in this case, I should judge from the evidence concerning his activities, which include the excrementttious match books, that he would be the last person in the world to be attuned to the delicate nuances of race relations. IV. THE REMEDY Since the discriminatory discharge of an employee tends to undermine one of the basic guarantees afforded to employees by Section 7 of the Act, and since the "Actually they did not carry out this intention According to Terranella, a job had become vacant in the meantime in Bill Kelly's department, and they decided to give her that job. 577 Respondent has also committed other serious unfair labor practices, I shall recommend a broad form of cease and desist order designed to effectuate all of the guarantees of Section 7 of the Act. To remedy the discriminatory discharge of Jannie Rollins, I shall also recommend, by way of affirmative relief, that the Respondent offer to her immediate and full reinstatement to her former or a substantially equivalent position , without prejudice to her seniority or other rights and privileges previously enjoyed by her, discharging, if necessary any new employee hired subsequent to the date of her discharge in order to replace her. I shall also recommend that the Respondent make Jannie Rollins whole for any loss of pay she may have suffered by reason of her discriminatory discharge by payment to her of a sum of money equal to the amount which she would normally have earned as wages from the date of her discharge to the date of the Respondent's offer of reinstatement, less her net earnings during the said period. The amount of backpay is to be determined in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, and interest is to be computed on the amount so determined in accordance with Isis Plumbing & Heating Co, Inc., 138 NLRB 716. Conclusions of Law 1. The Respondent, H. L. Meyer Company, Inc., is an employer engaged in commerce, or in an industry affecting commerce, within the meaning of Section 2(6) and (7) of the Act. 2. By coercively interrogating employees concerning their union activities; by threatening the job security of employees; by inviting the suggestions of employees concerning the removal of grievances after the launching of the union election campaign; by seeking to shift to the union the onus for the postponement of wage increases and other benefits for its employees; and by promising benefits to its employees contingent upon the defeat of the union , the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby committed unfair labor practices affecting commerce within the meaning of Section 8(a)(1) of the Act. 3. By discharging Jannie Rollins for the reason that she had engaged in union activities, and by refusing to reinstate her thereafter, the Respondent discriminated with respect to her hire and tenure of employment, and thereby committed an unfair labor practice affecting commerce within the meaning of Section 8(a)(3) of the Act. RECOMMENDED ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that the Respondent, H. L. Meyer Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating its employees concerning their union activities. (b) Threatening the job security of its employees. (c) Inviting the suggestions of its employees concerning the removal of grievances while any union election campaign is in progress. (d) Seeking to shift to the union the onus for the postponement of wage increases and other benefits for its employees at its Kansas City, Missouri, plant and 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD promising benefits to its employees contingent upon the defeat of the union. (e) Discouraging membership in Teamsters Local 838, Warehouse and Mail Order Union, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization of its employees, or in any other manner discriminating against them with respect to their hire or tenure of employment or any term or condition of their employment. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action in order to effectuate the policies of the Act: (a) Offer to Jannie Rollins 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 pay she may have suffered by reason of her discriminatory discharge, in the manner and to the extent set forth in section IV of this Decision entitled "The Remedy." (b) Preserve and upon request make available to the Board, or its agents, for examination and copying all payroll records and other data necessary to give effect to the back pay requirement. (c) Post at its plant in Kansas City, Missouri, copies of the attached notice marked "Appendix."2' Copies of said notice, on forms to be provided by the Regional Director for Region 17, of the Board, shall, after having been duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to assure that said notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within 20 days from the receipt of this Decision, steps Respondent has taken to comply herewith." IT IS ALSO RECOMMENDED that the result of the election held on March 1, 1968, be set aside, and that the Regional Director be directed to arrange for a new election to be held as soon as, in his judgment, the effects of the Respondent's unfair labor practices have been dissipated. "in the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to The 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 coercively interrogate our employees concerning their union activities. WE WILL NOT threaten the job security of our employees. WE WILL NOT invite the suggestions of our employees concerning the removal of grievances while any union campaign is in progress. WE WILL NOT seek to shift to Teamsters Local 838, or any other labor organization of our employees, the onus for the postponement of wage increases and other benefits for the employees at our Kansas City, Missouri, plant, nor will we promise benefits to our employees contingent upon the defeat of the union. WE WILL NOT discourage membership in Teamsters Local 838, Warehouse and Mail Order Union, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization of our employees, nor will we in any other manner discriminate against them with respect to their hire or tenure of employment, or any term or condition of their employment. WE WILL NOT in any other manner interfere with restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer to Jannie Rollins 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 pay she may have suffered by reason of our discrimination against her. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. Dated By H. L. MEYER COMPANY, 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, 610 Federal Building 601 East 12th Street, Kansas City, Missouri 64106, Telephone 374-5282.