Snyder Tank Corp.

724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Snyder Tank Corporation and International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO. Cases 3-CA-3101-2, 3-CA-3199, 3-CA-3431, and 3-RC-4030 June 30, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On January 23, 1969, Trial Examiner Morton D. Friedman 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 also found that the Respondent had not engaged in certain other unfair labor practices. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings 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 brief, and the entire record in this case, and hereby adopts the findings,2 conclusions,3 and 'The Respondent excepts to the Trial Examiner's credibility findings It is the Board's established policy, however, not to overrule a Trial Examiners resolutions with respect to credibility unless, as it not the case here, the preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 , enfd 188 F 2d 362 (C A 3). As for the Respondent's contention of bias and prejudice on the part of the Trial Examiner, we have reviewed the record and find the contention to be without merit iln essential agreement with the Trial Examiner , we conclude that Respondent violated Sec 8(aX5) of the Act by rejecting the Union's recognition and bargaining demand as the majority representative of its employees in an appropriate unit, and embarking upon a campaign of flagrant unfair labor practices, commencing almost immediately after the organizational drive began and persisting up to and after the election, in its effort to thwart the Union Those violations which include interrogation of employees concerning their Union activities, warnings of loss of benefits and of more onerous working conditions , withholding wage increases, promises of benefits, threats of discharge and layoff, warnings of plant closure, assisting and encouraging employees in distributing an antiunion petition and the discharge of a leading union supporter, were clearly designed to and did undermine the Union's support , and destroyed the conditions necessary to the holding of a free election on the Union's petition . We find that such conduct made the holding of a fair election in the future unlikely . For these reasons, we conclude that, in orde to protect the statutory rights and interests of employees and to remedy the unfair labor practices committed , it is essential that the Respondent be ordered to recognize and bargain with the Union as the statutory representative of its employees for the purposes of collective bargaining N.L R B v Gissel Packing Company, 395 U S 575 In setting aside the election , we rely on the numerous unfair labor practices committed by Respondent Therefore, we deem it unnecessary to recommendations of the Trial Examiner as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and orders that the Respondent, Snyder Tank Corporation, Buffalo, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. Delete the following language from paragraph 1(a) of the Trial Examiner's Recommended Order: . . . bypassing the Union as bargaining representative for the employees.... IT IS FURTHER ORDERED that the petition in Case 3-RC-4030 be and it hereby is, dismissed, and all proceedings held in connection therewith be, and they hereby are, vacated. rely on the Trial Examiners further finding that Respondent's letter of January 19, 1967, to its employees, contained "a misstatement of material facts" which exceeded the bounds of legitimate campaign propaganda Chairman McCulloch and Member Brown affirm the Trial Examiner's finding that Respondent 's January 12, 1967, letter to its employees violated Sec 8(a)(1) of the Act See comments of the Supreme Court in Gissel Packing Company, supra Member Zagoria would find that said letter does not violate Sec. 8(a)(I) Chairman McCulloch and Member Zagoria find, contrary to the Trial Examiner, that Respondent 's conducting of a poll of its employees and publishing the results thereof together with the memorandum comments thereon did not violate Sec 8(a)(1) of the Act Member Brown would affirm the Trial Examiner on this issue but would ground his finding on interference with employees rights rather, than the "bypassing" rationale used by the Trial Examiner 'In the absence of exceptions, we adopt, pro forma, the Trial Examiner's dismissal of the allegation concerning President Gerald Snyder's interrogation of employee George Glore In section III,D,2 of his Decision, the Trial Examiner inadvertently referred to certain testimony as being that of Sebastian Ciacek whereas the record shows that this is the testimony of Anthony Cacic Similarly , in the same section, the Trial Examiner referred to testimony as being that of Harold E Ivon whereas the record shows that this is the testimony of Richard Lucas. Also, the Trial Examiner referred to Respondent's President Gerald Snyder's speech of January 18, 1967, as being on the day of the election whereas the record shows that the election was conducted on January 19, 1967 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Trial Examiner: Upon a charge filed in Case 3-CA-3101-2 on December 5, 1966, by International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, herein called the Union or the UAW, and a charge filed by the said Union in Case 3-CA-3199 on April 7, 1967, the Regional Director for Region 3 of the National Labor Relations Board, herein called the Board, issued an order of consolidation, a consolidated amended complaint, and notice of hearing on July 28, 1967, on behalf of the General Counsel of the Board against Snyder Tank Corporation, herein called the Respondent or the Company, alleging violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq.), herein called the Act. 177 NLRB No. 94 SNYDER TANK CORPORATION On April 28 , 1967, the said Regional Director issued an order directing hearing in Case 3-RC -4030 on objections timely filed by the Union to alleged conduct of Respondent allegedly affecting the election previously held in said proceeding . On the same day, April 28 , 1967, the said Regional Director, in his order of consolidation, heretofore mentioned, ordered Case 3-RC-4030 consolidated with the other cases heretofore set forth for purposes of hearing , ruling, and decision. Thereafter, and while the cases above mentioned were being heard , the Union filed a charge in Case 3 -CA-3431 on February 13, 1968 , upon which a complaint was issued by the said Regional Director on April 9 , 1968, alleging further violations of Section 8(a)(l) and (3) of the Act. By order dated May 9, 1968 , the Trial Examiner in this proceeding ordered Case 3-CA-3431 consolidated with the other cases herein and ordered that a hearing be held thereon. In its duly filed answers to the foregoing complaints, the Respondent, while admitting certain allegations of the complaints, denied the commission of any unfair labor practices. Pursuant to notice, the hearing of the consolidated cases was held before me at Buffalo, New York, on various dates between October 18 , 1967, and May 27, 1968. All parties were represented and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. Briefs were filed by the General Counsel, the Respondent, and the Charging Party . Upon consideration of the entire record, including the briefs of the parties, and upon my observation of each of the witnesses as they appeared before me, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a New York corporation , maintains its principal office and plant in the city of Buffalo, State of New York, where it is engaged in the manufacture, sale, and distribution of gasoline tanks and related products. During the 12 months immediately preceding the issuance of the complaints herein , a representative period, the Respondent purchased, transferred, and delivered to its plant involved herein, goods and materials of a value in excess of $50,000, which goods and materials were transported to said plant directly from the States of the United States other than the State of New York. During the same period , Respondent manufactured, sold, and distributed from its plant involved herein products valued in excess of $50,000, of which products of a value in excess of $50,000 were shipped from said plant directly to States of the United States other than the State of New York. It is admitted, and I find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. 725 111. THE UNFAIR LABOR PRACTICES A. Background and Issues Sometime during the month of September 1966, the Union began an organizing campaign among the Respondent's production and maintenance employees. During this period of time, it solicited union authorization cards from the employees at the plant and at meetings held for that purpose at the union hall. After the Union had secured what it deemed to be a majority of authorization cards, it sent, on October 7, 1966, a letter to the Respondent requesting recognition and bargaining. Shortly thereafter the Union filed a petition for representation with the Board and on October 12, 1966, the Respondent by letter rejected the Union's request for recognition on the ground that the Respondent did not believe the Union had been voluntarily designated as bargaining representative by a majority of the Respondent's employees. Pursuant to the Union's petition to the Board, a representation hearing was held and an election ordered by the Regional Director. The election was held on January 19, 1967. The results of that election showed that a majority of the employees did not vote for the Union. Thereafter the Union filed timely objections to conduct which, it claimed, affected the results of the election. During the period from the beginning of its organizational drive up to the election, the Union and the Respondent waged vigorous and aggressive campaigns marked by claims and counterclaims made in various written communications to the Respondent's employees and by speeches made by the Respondent's officials. The Union and the General Counsel allege generally that the conduct of the Respondent's officials and supervisory personnel during this campaign period constitutes, in the main, the basis for the charges and the objections filed herein. More specifically, the complaints herein allege, in substance, that the Respondent, through its officers and/or supervisors, unlawfully interrogated employees concerning their union activities, created the impression of surveillance of employees' union activities, threatened reprisals and removal of the plant in the event of union success, and made promises of benefit to induce employees to reject the Union. The complaints further allege that the Respondent discriminatorily discharged employees Douglas Gravelle and James Scott because of their union activity. Additionally, the complaints allege that the Respondent refused to bargain in good faith with the Union which, it is alleged, is the majority representative of the Respondent's production and maintenance employees. The Respondent' s answers admit the jurisdictional allegations of the complaints but deny each and every allegation concerning the alleged violative conduct of the Respondent. With regard to the allegations of refusal to bargain, the answers also allege that the Union did not enjoy majority status among the Respondent's employees at the time the Union made its demand for recognition. Thus, broadly, the issues framed by the pleadings are: 1. Did the Respondent interfere with, coerce, and threaten its employees, in the manner set forth above, in violation of Section 8(a)(1) of the Act. 2. Did the Respondent discriminatorily discharge employees Douglas Gravelle and James Scott because they engaged in activities on behalf of the Union in violation of Section 8(a)(3) and (1) of the Act. 3. Did the Respondent refuse to bargain because it had a good-faith doubt that the Union was majority 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative of the Respondent's employees in violation of Section 8(a)(5) and (1) of the Act. In connection with this issue, there is the further issue of whether the Union represented a majority of the Respondent's employees in an appropriate unit. 4. With regard to the objections to conduct affecting the elections filed by the Union, did the foregoing conduct, if found, constitute conduct which interfered with the exercise of free choice by the employees participating in the election so as to warrant setting aside the election. B. Interference, Coercion, and Restraint 1. Interrogation Heretofore, I have alluded to the vigorous manner in which the Union and the Respondent pressed their respective campaigns. Much that was said and much of the written material circulated by each was purely factual, but an equal quantity was accusatory and, at times, vituperative. Each party accused the other of lack of candidness and, indeed, of outright misrepresentation. To say that feelings ran high would be an understatement. Thus, in this atmosphere, marked by the hurling of verbal brickbats, the employees of the Respondent were made aware of the Respondent's and the Union's strong antipathy for one another. And it was in this atomsphere, permeated by mutual antagonism, that the events, below described, occurred. Dennis Gravelle worked under Night Foreman Raymond Pajak. During the early part of the union campaign he had several conversations with Pajak after union meetings. These conversations took place in the plant. During the first conversation, Pajak wanted to know what happened at the union hall, what was said, and what was done. There were several such conversations and each started with Pajak's asking Gravelle what happened at the meetings.' Also during the time at which the Union was beginning its campaign in the Respondent's shop, Harry Stark, a working foreman on the day shift, had a conversation with employee James Phillips. Stark greeted Phillips and then asked the latter what he thought about the Union. Phillips answered that he thought it was a good idea.' Several days after the incident with Stark, Plarr, a supervisor in the machine shop, had a conversation about the Union, also with Phillips. Plarr asked Phillips what the latter thought about the Union and Phillips told him. This conversation occurred at Phillips' work station.' Sometime shortly after the cards were circulated among the employees in the plant, Shipping Foreman Charles Maue engaged employee Delbert M. Hinderliter in a conversation regarding the Union. Maue came to 'From the credited testimony of Dennis Gravelle. Pajak admitted that he might have had a conversation with Dennis Gravelle but he denied that he asked Gravelle anything about the union meetings From my observation of the witnesses I do not credit Pajak 's denials 'From the credited testimony of James Phillips. Stark gave a different version of this conversation stating that it was Phillips who asked Stark what the latter thought about the Union I credit Phillips' version. 'As in the case of Stark , Plarr denied that he ever had a conversation. with Phillips about the Union However, after his denial he admitted that Phillips approached him on three or four different occasions, calling him by his nickname "Butch," and asking him what he thought about the Union . According to Plarr he said that what he would answer would be his personal opinion and as far as he was concerned they didn 't need one. I credit the Phillips version of the conversation. Hinderliter's work station and started the conversation. Hinderliter told Maue that it was nobody's business about the reason he wanted the Union, if he wanted it, and what he wanted to do. During this conversation Maue asked Hinderliter what the latter thought about the Union. Maue engaged in further interrogation of employees. Thus, around the middle of October 1966, employee Ronald Guest went into Maue's office to obtain a blueprint and Maue asked Guest, "How are you going to vote for the Union?" Guest answered that he did not know and that it was none of Matte's affair. About a month before the election, Maue engaged employees Louis J. Shattuck in a conversation near Shattuck's work station near the paint booth. Maue asked Shattuck what the latter thought about the Union and then asked him further how the latter was going to vote. Shattuck answered that he would not know until he got into the voting booth and that this was a matter for his own selection.' Foreman Harry Stark also engaged in further acts of interrogation of employees. For example, Stark had a conversation with employee Charles D. Smith about 2 weeks before the election. Stark asked Smith what the latter thought about "this union business." Stark said that it was a rough business and that it was not going to do anybody any good. In almost a like context, Stark, a couple of days before the election, stopped at employee Richard Reiber's work station and asked the latter how he felt about the Union. They discussed it for a while. Reiber told Stark what he liked about the Union and what he did not like.` About a week before Christmas 1966, Foreman Louis Taylor had a conversation in the lunchroom with employee Bence. Taylor asked Bence how the latter felt about the Union. Bence told Taylor that he did not know, that he was not sure.7 About 3 weeks before the election Taylor engaged employee Louis Shattuck in a conversation. Taylor came up to Shattuck at the latter's work station and asked how Shattuck felt about the Union.' Taylor asked a like question of employee Karl Datzer about 1 day before the election.' A petition in the form of a letter to the Regional Director of the Board dated January 27, 1967, was circulated in the plant by employee James D. Lewis. This petition, which was circulated after the election in the representation proceeding, stated that the employees who had signed the petition desired the Regional Director not to process any further matters with regard to the UAW 'From the credited pretrial affidavit of Hinderliter, which was adopted by Hinderliter on the witness stand Hinderliter , who had been promoted to a supervisory position between the time of the incident and the time of his testimony, was an apparently reluctant witness for the General Counsel At first he was most reluctant to testify against the Respondent but after being confronted with his pretrial affidavit he reluctantly admitted the events set forth above. Under these circumstances I do not credit Maue's denial of the incident. 'From the credited testimony of Guest and Shattuck 'From the credited testimony of Smith and Reiber 'From the credited testimony of Bence . Taylor denied that he ever had a conversation concerning the Union with employee Bence I do not credit Taylor's denial. Taylor did not deny this conversation with Shattuck Accordingly, I credit Shattuck ' s uncontroverted testimony. 'Although Taylor denied that he ever had any conversation with any employees about the Union , I cannot credit this denial I do not believe that all three employees who claimed Taylor asked them questions regarding the Union were not truthful. SNYDER TANK CORPORATION 727 because they felt that the UAW had lost fairly and that the employees had voted against the Union without coercion or any pressures being placed upon them. While he was circulating this petition, Lewis was engaged in a conversation with Working Foreman Plarr. At that time a number of the employees had already signed. Plarr asked Lewis if the latter had let everybody read the petition including James Scott and Scott's helper. Lewis answered that he had and that he had let everybody in the shop read it. Then Plarr asked Lewis if Scott had signed the petition. Lewis answered that Scott had not.'° In a different vein, around January 1967, at the time that the General Counsel of the Board was investigating the charges filed in this proceeding, employee George Glore gave an affidavit to a Board investigator. A couple of days thereafter, Glore was summoned to the office of Gerald Snyder, the Respondcnt's president. There Snyder asked Glore whether the latter had talked to a man from the Board. Glore said that he had. In that same conversation Snyder asked Glore if the latter had asked the Board or the Board investigator for a copy of the statement Glore had given the investigator." Clearly, the incidents in which the various supervisors, as set forth above, inquired of the employees as to their union membership, activities, desires, and preferences constitute unlawful interrogation in violation of Section 8(a)(l) of the Act. I so find. Likewise, Plarr's inquiry of employee Lewis as to whether employee Scott and the latter's helper had signed the petition to the Regional Director was an unlawful inquiry into an employee's union or antiunion sympathies. For this reason it is violative of Section 8(a)(I) of the Act. However, the interrogation by Gerald Snyder of employee Glore as to whether the latter had given a statement to a Board agent and whether Glore had obtained a copy of such statement, although not necessary or material to the preparation of the Respondent's defense to this proceeding, were nevertheless nonviolative, I find, because the coercive element in this inquiry would seem to have been very slight, if, indeed, existent at all." 2. Warnings of loss of benefits and of more onerous working conditions Shipping Foreman Maue engaged in other incidents in which employees of the Respondent were involved. Thus, approximately the time that the cards were being signed, Maue engaged employee Stuhr in a conversation. Stuhr was talking to his brother who is also employed in the plant. Maue evidently overheard the conversation and came over to where the two were talking. They had been discussing the Union at the time and Maue said that he had been in places before where, after the union came in, there had been a slowdown in the amount of work available for the employees. He said that as a result, some of the employees had been laid off." "From the credited testimony of Lewis. Plarr did not deny this incident From the uncontroverted admissions of George Glore. Glore was a most reluctant witness for the General Counsel During his testimony his refusals to answer questions was so apparent that I declared him, upon motion by the General Counsel , as a hostile witness. Although Glore by the time he testified had left the Respondent' s employ, he admitted that he still owed a considerable sum of money to the Respondent on a loan he had made from the Respondent. "See Raytheon Company. 160 NLRB 1603 , 1609, In 4 "From the uncontroverted testimony of employee Stuhr Although Maue in testifying denied or gave different versions of the many incidents in which he was involved, he did not deny the Stuhr incident above related Also, in the organizing period, probably a day or so after Gerald Snyder made his first talk to the employees, as hereinafter set forth, Maue engaged employee Walter Baker in a conversation near Baker's work station at the test tank. During that conversation Maue stated that if the employees thought they had it tough at the present time they should wait until a union got in and they'd really have it rough. He said that the employees took too much time off and if the employees took too much time off the Union would get rid of them. Then he went on to say that the employees would not be able to have any more coffeebreaks or talk to anybody else while they were working. He said they would have to stay right on the job and do nothing but work.'° About a week or two after John S. Piechocki signed his card he had a conversation with Maue at the bullpen in the plant. Piechocki had just arrived on the afternoon shift and was about to change his clothes in the bullpen. Maue approached Piechocki, looked at him, and said that he had heard that Piechocki was pretty enthusiastic about the Union. Piechocki admitted that he was in one way and in another way he was not. Then Maue continued to talk about the Union. Among the things Maue stated about the Union was that the Union would not tolerate the time the employees took off on the days on which they did not call in . He also stated that if the Union came in the employees would not have as many coffeebreaks or as long coffeebreaks as they had at the present time in the plant. Maue ended the conversation by stating that the employees would have to "hustle" from the time they got in to the time they left.15 Also, during the union campaign, Maue had a number of conversations with employee Chad Troup, whom Maue supervised. These conversations were almost always of the same nature . Maue told Troup, in effect, that if the men voted the Union in they were stupid because the hours would be cut and there would be stricter work rules. He said there would not be as many coffeebreaks and that the men would not be able to talk "around" to each other.16 Maue had a number of conversations with employee Kenneth Broadbent. These usually occurred together with other employees in the shipping room which Maue supervised. At one time Maue said that anyone who supported the Union was stupid; that if they were a minute late, if the Union came in, they would be sent home. He also stated that there would be no talking to anybody while in the plant. Then on another occasion Accordingly, I credit Stuhr's testimony "Maue, in testifying, gave a different version of the conversation. He stated that Baker was the one who called him over and started the conversation by asking Maue what the latter thought about the Union After stating what he thought were the good things and the bad things about the Union, Maue told Baker that it was the men's responsibility to stay on the job and not to come in late and that he didn't think the Union would back a man if he was continuously absent or if he took five or six coffeebreaks a day. Inasmuch as I have heretofore not credited Maue when his versions of the incidents differed from the versions of the employees, I do not credit him here. "From the credited testimony of Piechock, Maue admitted that he had a conversation with Piechocki about the Union and actually referred in his testimony to the conversation about coffeebreaks although he did not admit that he said there would be less coffeebreaks after the Union came in. "From the credited testimony of Troup Although Troup admitted on cross-examination that he hated Maue, and I would ordinarily give little weight to his direct examination because of this admission , nevertheless, the incident with regard to Troup was so similar to the other incidents in which Maue was involved, that I credit Troup's version of the incidents and do not credit Maue's. 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Maue said that if anybody wanted to pay him $60 he'd represent them . On several occasions when a group of employees were talking Maue would come up to them and tell them to get back to work and then he would add that the men wouldn't do this if the Union was in and that if the Union was in people could not go for coffee as much!' As noted above, Maue had a conversation about a month before the election with employee Louis J. Shattuck in which he asked Shattuck how the latter was going to vote. After Shattuck said that he would not know until he went into the booth to vote Maue said that the Union would hurt the place and that,they would have to cut down to 40 hours a week . He also stated that the employees would have to ask if they wanted to use the bathroom and that they wouldn't get as many coffeebreaks as they had at the present time . It should be noted, in connection therewith , that at the time of the conversation the employees were working 60 hours a week and Maue's expression of cutting down time meant that the men would be cut down to 40 hours or a regular workweek. 1° Also, around the first of October, Maue had a conversation with employee Howard Stutz . Maue told Stutz, in talking about the Union , that if the Union got in things would be "worse" around there." According to the testimony of several witnesses, Foreman Harry Stark engaged in like conversations with various employees. Thus, according to employee Anthony Bordonaro, around Thanksgiving 1967 he had a conversation with Stark . This conversation took place near the coffee machine in the plant . Stark told Bordonaro that the latter would not have coffeebreaks like he had then if the Union were to come in. Anytime that he wanted to get coffee he could at the present time; this would stop according to Stark.2' About the middle of the union campaign , employee Fred Schmidt was standing around talking to two other employees just before the lunch whistle blew. Stark came up to them and told them that if the Union came in they'd have to work "a darn sight harder" and that they would have to work right up until the whistle blew." Stark also had a conversation prior to the election, perhaps 2 weeks before , with employee Charles D. Smith. In that conversation he told Smith that the Union was a "rough business" and it wasn't going to do anybody any good. Stark said that the men would be getting pushed around more or less if the Union instituted seniority in the place. For instance, he told Smith that his job on the cylinder line would not be guaranteed ; that if the Union came in and seniority were instituted certain men in the welding department, certain welders, would have their eye on Smith's -job; that they would be senior to Smith and would therefore have preference." Night Supervisor Pajak was also involved in a couple of "From the credited testimony of Broadbent. Broadbent admitted he was not on very good terms with Maue. However, because of the nature of the conversations and because of its similarity to other conversations with other employees I credit Broadbent's version. "From the credited testimony of Louis J Shattuck whom I have credited over Maue heretofore. "From the credited testimony of Stutz "From the uncontroverted testimony of Bordonaro. Stark did not testify as to the Bordonaro incident "From the credited testimony of Schmidt. Although Stark denied that he ever had a conversation about the Union at any time with Schmidt, I do not credit Stark's denial. "I credit the testimony of Charles Smith as against the bare denial of Stark that he ever had a conversation with Smith about the Union incidents. After the first meeting of the Union, Pajak told Dennis Gravelle that if the Union got in the employees would have to stay at their machines the full 10 hours of the work session with no walking around "or anything of that sort." 31 Pajak supervised employee Gary Scherff in the back shop at night. Scherff's work was performed on a punch. Pajak told Scherff that if the Union came in the punch would be humming all the time and there would be work there all the time. He further told Scherff that the latter would not be running to the coffee machine for coffee and that he would do nothing except work ; nor would there be any talking to anybody else and all the employees would work a lot harder. On another occasion, about a month or two before the election, Scherff had a further conversation with Pajak in which Scherff asked Pajak if the latter had heard anything about Scherff's being promoted to the position of tester. Pajak answered that if the Union got in Scherff s chances of being promoted to a tester would not be too good. As a matter of fact Pajak went so far as to say that if a union got in he did not think Scherff would be placed in the position of tester . This was so, according to Pajak, because Scherff was not employed by the Respondent long enough to overcome the seniority claims of employees who were there longer than Scherff . Pajak further said that if the Union did not make it Scherff s chances of becoming a tester would be much greater since the Respondent would be giving jobs to the employees whom management wanted to fill the jobs rather than those who merely had seniority, the way the Union would want the jobs to be assigned." At the beginning of the Union' s campaign, approximately at the time that Gerald Snyder gave his first speech to the employees , Foreman Hugh Salsbury had a conversation with employee Joseph Bach. This took place at Bach's work station on the terne plate line. During this conversation Salsbury mentioned several times that if the Union were to get into the plant the chances were that Bach would be bumped off the terne plate by men with more seniority. Also, around the same time Bach had a further conversation with Hugh Salsbury. This occurred when all of the men were standing around talking and Salsbury told them that if the Union were to get in there would not be as many coffeebreaks as the men were taking at the present time. Salsbury also told them that they would be working harder." Early in the campaign, Supervisor Donald Smith had a conversation with employee Robert Fries . They were talking about how permissive the Respondent had been with regard to allowing people to come in late and taking days off whenever they felt like it. Smith then said that once the Union would come in this freedom probably would no longer exist. He added that employees would not be able to come in late or take a day off whenever they felt like it without getting into trouble . This conversation occurred in the machine shop where both Smith and Fries worked. 26 "From credited testimony of Dennis Gravelle. Pajak admitted that he might have had a conversation with Gravelle but he did not remember having any concerning the Union. "From the credited testimony of Gary Scherff . Pajak admitted that he had a conversation about the Union with employee Scherff. However, he could not give the specifications of that conversation . The only thing that he denied was that he started the conversation with Scherff. "From the uncontroverted, credited testimony of Bach . Salsbury did not testify. "From the uncontroverted , credited testimony of Fries. Smith did not testify. 11 SNYDER TANK CORPORATION 729 Early in the campaign Plant Superintendent Herman Zimmel had a conversation with employee James W. Phillips. In that conversation , Zimmel told Phillips that if the Union got in the employees would not be able to talk to him, they would have to go through the Union, and that this would cut out all friendship." About a week to a week and a half after Maue spoke to him, as set forth above, Louis J. Shattuck had a conversation with Night Foreman Louis Taylor. This took place near Shattuck's place of work in the paint booth. Taylor came up to Shattuck and asked the latter how he felt about the Union. Then Taylor told Shattuck that if the Union got in the plant would go on 40 hours and he said that although the men might think that the pay rate would be higher it would not be, it would be the same or perhaps even lower." I find that all of the foregoing incidents constitute warnings to employees that they would lose existing employment benefits and privileges and that working conditions would worsen if the Union came into the plant. Such warnings constitute interference, coercion, and restraint. Accordingly, I find that thereby the Respondent has violated Section 8(a)(1) of the Act. 3. Threats of discharge and layoff I have, above, referred to the incident in which Maue told employee Stuhr and the latter 's brother that he had been in places before where the union had come in and that there had been a slowdown in the amount of work. He stated that as a result some of the men were laid off. In addition, Maue was engaged in other incidents of like import. Thus, a week or two after employee John Piechocki had signed his card he had a conversation with Maue at the bullpen in the plant . I have already set forth part of this conversation, above, in which Maue started the conversation by telling Piechocki that he had heard that the latter was pretty enthusiastic about the Union. After Piechocki admitted that he was in one way enthused about the Union, Maue told him that if the Union got in men with 6 months' or less seniority would be the first ones out the door. He also told Piechocki there were some employees in the plant who could not pass the physical. They would be the first ones out." I have also referred above to a conversation which Maue had with employee Guest which occurred when Guest came to Matte's office for a blueprint . In that conversation, after asking Guest how the latter was going to vote for the Union, Maue told Guest that if the Union would come into the plant there would be strikes and layoffs and other actions of this nature that could affect the employee's family." Shortly after the beginning of the union campaign employee James Phillips had a conversation with Maue. This took place at Phillips' work station. Maue told Phillips that Maue could go to Herman Zimmel and have the employees fired if they were for the Union." Heretofore I have referred to the incident in which Foreman Hugh Salsbury spoke to employee Bach at the terne plate in which Salsbury stated that if the Union got in there would be a chance that personnel with more seniority would "bump" the people situated, such as Bach, out of their jobs. Bach testified that this type of conversation occurred several times before the election. Salsbury also spoke to employee Richard Bishop. This was about October 31, 1966. At that time, Bishop had completed testifying for the Union in the representation case. Salsbury said that Bishop had lied about him and had jeopardized Salsbury's family. Salsbury said that he was going to get even with Bishop . He told Bishop that this was not a threat, it was a promise. 3l During the Union's organizational campaign employee Joseph Bach had a conversation with Superintendent Herman Zimmel. Zimmel told Bach that if the Union came in Bach's chances of working there would be damaged and that his job would be claimed because of his condition. Zimmel was referring to a physical condition from which Bach suffered.33 Bach had a similar conversation with Vice President James Snyder. This conversation took place around Thanksgiving 1966 at the seam welder, a machine which is used at the terne plate. During this conversation, which concerned the Union, James Snyder said that if the shop had been a union shop Bach would not have been able to get work there because of his physical condition.10 Earlier in this Decision I have set forth the incident in which Foreman Harry Stark told employee Charles Smith that the coming of the Union was a rough business and it was not going to do anybody any good. Stark also stated that employees would be "getting pushed around" if the Union instituted seniority in the plant . Stark went on to say that certain people had their eyes on Smith's job and that certain welders would have preference to Smith's job as far as seniority was concerned ; that Smith's job would not be guaranteed. I find and conclude that the foregoing incidents constituted threats of discharge and layoffs which threats constitute interference, coercion, and restraint within the meaning of, and are violative of, Section 8(a)(1) of the Act. 4. Promises of benefits I have referred above to the occasion approximately a month before the election in which Night Foreman Pajak had a conversation with employee Scherff. This conversation pertained to Scherff's chances of being promoted to a tester . Pajak said that if the Union got in Scherff's chances of being promoted to such a position "From the credited testimony of Phillips . Zimmel admitted that during the union campaign he might have had a conversation with Phillips but denied that he spoke to him about the Union. I do not credit Zimmel's denial. "From credited testimony of Louis J. Shattuck . I have heretofore credited Shattuck on other matters . Taylor's denial that he ever had a conversation with any employee concerning the Union is not credible in view of the number of employees who testified that Taylor did have conversations with them concerning the Union. "From the credited testimony of Piechocki I have already credited Piechocki's testimony over Maue's denials. "From the credited testimony of Guest. "From the credited testimony of Phillips I credit this testimony over Maue's denial despite the fact that Phillips had a nervous breakdown. Other aspects of Phillips' testimony are perfectly reliable and credible and there is no reason to believe, from the record , that Phillips' testimony in this regard is not reliable. "From uncontroverted , credited testimony of Bishop. Salsbury did not testify. "From the credited testimony of Bach . Zimmel could not remember any specific conversation he had with Joseph Bach but he testified that he could have talked to him . He did not specifically deny what Bach had testified to. "From credited testimony of Bach . James Snyder did not deny this incident. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would not be too good. Pajak stated that if the Union were selected he did not think Scherff would become a tester. This was because Scherff s seniority was not sufficient; that there were employees there who were older than he was in point of time of service to the Company who were already testing and that his seniority would not be sufficient. Pajak further stated, however, that if the Union did not make it Scherff s chances of becoming a tester would be better because the Respondent was going to start giving jobs to employees whom they wanted in the jobs rather than those who were merely senior. Pajak said that this was so because if the Company did not give these jobs to their better employees, the next time the Union made an attempt to get in the Union would make it easily." On January 13, 1967, Gerald J. Snyder, president of the Respondent, sent a letter to the employees. In this letter Snyder attempted to answer some of the questions that had been asked him by employees at an earlier meeting . Among the items covered in the letter about which questions had been asked were "How does our other benefits compare with other companies in the area?" The letter stated that the Company had recently sent out questionnaires to determine this and to date, out of 43 questionnaires sent out, 20 were returned. This survey proved that in the matter of wages, insurance, and hospitalization the Company was far superior. However, at the end of the paragraph which contains this information, the letter went on to say, "We have realized that we were a little low on this [paid holidays] but had planned on correcting it, and in the normal course of events it will be corrected." Because of the tenor of the letter and the circumstances surrounding the campaign conducted by the Respondent, the only meaning that can be given, "due course of events" could mean, "if the Union were to be defeated." One further incident promising benefits occurred. This was in a speech given by Gerald Snyder on January 18, 1967. This was on the day of the election, just before the election was held. Snyder told the employees assembled that the election would be overwhelmingly in favor of the Respondent. He then proceeded to tell the employees that they would get two additional paid holidays, a 15-cent-an-hour raise, and he would see about forming a grievance procedure or a grievance committee. Snyder further mentioned that an annual review of wages had been conducted by the Respondent and that the Respondent usually gave out wages as a result of this review. However, at the time in question, as a result of the review they found they could give the workers a raise but were afraid to do so because if they did so they would be faced with unfair labor practice charges by the Union. He then told the employees that how they voted that day could determine their future." The foregoing incidents are clearly examples of promises of benefits to the employees made in order to persuade them to drop their union affiliation and to vote against the Union in the forthcoming election. Under these circumstances they constitute interference, coercion, "From credited testimony of Scherff which I have heretofore credited over the denials of Pajak. "From the testimony of employees Bence , Bishop, and James Scott Although Snyder testified that he did not deviate from the written speech on that day, which speech was introduced into evidence , I find that from the testimony of these employees, some deviations must have been made. Accordingly, I do not credit Snyder's statement that the speech as written was delivered in toto. and restraint in violation of Section 8(a)(1) of the Act. I so find. 5. Impression of surveillance I have heretofore alluded to the instance during which Shipping Foreman Maue told employee John Piechocki that he, Maue, had heard that Piechocki was pretty enthusiastic about the Union. The General Counsel cites this incident as an instance of impression of surveillance. However, inasmuch as Maue could very well have heard that Piechocki was a strong union adherent from other employees, I find that the incident did not clearly constitute impression of surveillance and I will dismiss that portion of the complaint relating thereto. However, on October 13, 1966, the Respondent, through President Gerald J. Snyder, sent a letter to the employees in which it stated that the campaign of the Union was started by a few disgruntled employees. After stating that they were the type that were never satisfied and citing two instances of employees who did not get management jobs as they had hoped, the letter went on to say that, "They didn't get the job, and now, as we understand it, they are really working hard to try to get a union in here. It seems strange that no union was interested in us until this happened." Again by letter dated October 19, 1966, Snyder again asked the employees not to support the Union. In that letter he stated that, "We understand that the Union has said that an election would take place this week." The General Counsel cites these two examples as creating the impression of surveillance evidently relying on the fact that Snyder at least purported to have knowledge of matters which it could not have knowledge of without having at least made some inquiries as to the union activities of its employees. However, again, I conclude that this knowledge could have come to the employer through voluntary statements of some of the employees. I cannot find that they necessarily created the impression of surveillance. I will therefore dismiss entirely that paragraph of the complaint which alleges that the Respondent created the impression of surveillance of its employees' union activities. 6. Warnings to close plant Early in the union campaign, on approximately October 10, 1966, Gerald Snyder held a meeting of the employees. At that meeting there was discussion of the fact that the Union had been organizing the plant and Gerald Snyder said that he was sorry to see this happen. He then went on to ask for questions from the employees stating that he would write them down and answer them at a later date. The first question that was asked was asked by an employee, James J. Scott. Scott asked what had happened to the Respondent's Birmingham, Alabama, plant. Before Gerald Snyder was able to answer the question James Snyder interrupted. He said that the Alabama plant was forced to close because of the unreasonable demands of the Union, that the rates that they asked were so high that the operation ceased to be profitable. Then he went on to state that he did not want to see happen at the Buffalo plant what had happened at the Birmingham plant." The General Counsel insists that this statement by Gerald Snyder constituted a threat of loss of jobs and "From the credited testimony of a number of employees, among them James J Scott, Dubke, Burke, and others Neither James nor Gerald Snyder denied this occurrence SNYDER TANK CORPORATION 731 created an impression that the inevitable effect of unionization would be a closing down of the Buffalo plant. However, I do not find this to be so. The mere expression of James Snyder to the effect that he did not wish to see the same thing happen at the Buffalo plant as happened at the Birmingham plant falls far short of the creation of an impression that the inevitable effect of unionization would be plant closure.]" However, just before the election, on January 12, 1967, Gerald Snyder, as president of the Respondent, sent a letter to the employees of Snyder Tank. This letter concerned the Union's campaign promise of job security for the employees if the Union were to be selected as their bargaining representative. The letter termed this promise by the Union a "cruel hoax." In the next paragraph the letter went on to say: One of the outstanding examples of how false this claim is appeared in the Toledo, Ohio newspapers sometime ago, when 6000 union members of the United Auto Workers, at Electric Autolite lost their jobs. Why? Simply because the company could not continue to operate under the union contract thus forcing the company to close down. In another paragraph the letter stated: Another good example is the York-Hoover Body Corporation, in York, Pennsylvania, which was under contract with the United Auto Workers. This Company had been in business for over 100 years, and at one time had over 600 employees. After many strikes, the last one lasting 25 weeks, and with their work force down to approximately 250 employees, they were unable to operate profitably under the union contract and sold out. The Company that is now operating the plant has an average of 150 employees. Another good example is where the "job security" of 350 union members at one of the Wilson Packing Plants vanished in thin air when the union rejected a company proposal to keep the plant operating. Again, not too long ago, a union through preaching "job security", won an election at Peerless Woolen Mills. After the election, the union president stated: "Job security and the uncertainty of seniority rights was the chief reason for the union victory." This certainly should sound familiar to you here, since it seems to be the theme song of the union that wants your vote at the election. But what happened to the "job security" of the Peerless employees? The union won the election in August and the plant was out of business in October, and 1700 employees lost their jobs. Another example is the famed Darlington case, where the union won an election and the Company closed down causing over 1000 employees the loss of their jobs. The union filed charges against the Company, but the Supreme Court of the United States held the Company could close down for any reason whatsoever so long as it was not done to "chill" union organizing at other plants of the Company. It was later determined by the National Labor Relations Board that it was not done for this reason so the employees lost out. But we don't have to look outside Buffalo to see how phoney the sales pitch of "job security" is. You all know what happened practically next door to us at Penn-Dixie, and no doubt you have read recently where the Clarence Plant of National Gypsum after being on strike for over six months informed the union of their plans to discontinue manufacturing operations. In addition to these there was the close down of the Wickwire-Spencer plant with a loss of 1500 jobs; American Locomotive in Dunkirk with a loss of 600 jobs; Spring Perch which sold out to another company which now operates at a limited capacity. I am also sure that you are all aware of what happened to the Herald-Tribune which was forced to close because of unreasonable union demands. (Herald-Tribune, New York City newspaper) WHAT HAPPENED TO THE JOB SECURITY OF ALL THESE PEOPLE? Instead of protecting them the unions were instrumental in their being out of work - with no jobs to go back to. We are not saying we will go out of business. We won't so long as we can make a reasonable profit. What we are saying is that much bigger companies than we have been forced out of business through excessive union demands. When they did the employees lost their jobs. You judge from this just how the unions can guarantee you job security. Then the letter states that the Respondent, not the Union, gives job security and a successful future for Snyder Tank and security for the employees would be accomplished by the Company being able to continue selling quality tanks to their customers as cheaply as the competitors can. While it is true that the Respondent, in the foregoing letter, after citing all of the instances in which plants closed down after unionization, stated that they were not saying that they would go out of business, nevertheless the letter created the impression of the inevitability of such if the employee selected the Union as their bargaining agent. These warnings of dire consequences of unionization are not overcome by the mere statement that the Respondent had no intention of going out of business. The inevitable result and the inevitable effect of the letter was definitely to create the impression that the Company might go out of business if the Union were to come in the plant. Accordingly, I find and conclude that the letter was a coercive prediction that the Respondent would possibly go out of business if the Union were to be successful in their campaign. Such a prediction is coercive and violative of Section 8(a)(1) of the Act. I so find. In August 1967, employee John Bence went to Gerald Snyder's office to find out why he did not get a merit raise as did many of his fellow employees. Snyder told Bence that his work was average which would normally entitle him to a merit raise, but that he was making too much per hour for the job he was performing. During the conversation Bence told Snyder that he was not rebelling against him that he only wanted to bargain with him and Snyder replied, "well, if I have to sell this place out I will to fight this Union." Then Bence replied in the affirmative and said that he knew that Snyder would do that even if the Union did get in, Snyder would still fight it. Snyder answered "you're damn right."39 Although the foregoing conversation occurred a number of months after the Union was defeated in the election, the Union's battle to gain recognition was still being pursued by the Union. Charges were pending before the Board in the instant proceeding as were the objections to the election. It is clear that Snyder's remarks to Bence constituted a threat to go out of business if the fight "See Trent Tube Company. Subsidiary of Crucible Steel Company, 147 NLRB 538, 541; Jacob Brenner Company, Inc. 160 NLRB 131, 136-137 "From the credited testimony of John Bence Snyder did not, in his testimony, deny this conversation with John Bence 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD against the Union made this necessary . Accordingly, I find and conclude that this is a coercive statement in violation of Section 8(a)(1) of the Act. Around the first of October 1966, employee Howard Stutz had a conversation with Shipping Foreman Maue about the Union. During this conversation Maue told Stutz "they'd probably shut the place down rather than have a union."" Sometime around the end of October, or perhaps the beginning of November, employee John Pates had a conversation with Maue. Maue told Pates that the Snyders would close the doors as they did in Alabama if the Union were to be successful in its drive." It is clear that the conversations between Maue and Stutz and Maue and Pates as above outlined constituted clear predictions that the Respondent would close its doors if the Union were to be successful. That such a prediction is violative of the Act requires no citation. I find, accordingly, that by these statements, Maue engaged in interference, coercion, and restraint violative of Section 8(a)(1) of the Act. Employees Richard R. Bishop and James J. Scott testified that they saw on the bulletin board before the election a newspaper clipping to the effect that the Clarence Plant of the National Gypsum Company was going to end production . This article stated that the plant was closing down after a strike over terms of a new contract. The strike lasted 6 months and resulted in an impasse after which the plant was closing down. This newspaper article was from the Buffalo Evening News of January 4, 1966. Although the General Counsel contends that this constituted a threat to close down the Respondent's Buffalo plant, the facility here in question, I cannot find it to be such a threat. In the first place, the news article was taken out of the daily paper which was circulated in the Buffalo area in which all of the employees of the plant both lived and worked . Therefore, there was nothing new in this posting by the Respondent that the employees did not already know from their reading of the local paper. With nothing more being added , I cannot perceive that the article, in and of itself, is a prediction that the Respondent would close its plant. I therefore find that the posting of this article did not violate Section 8(a)(1) of the Act. 7. Attempt to bypass the Union In October 1966, the Respondent conducted an opinion poll among its employees concerning wages, hours, and other working conditions . This poll was conducted among both the employees on the day shift and on the night shift. It was similar to a poll taken by the Company in 1963 at which time the United Steelworkers were attempting to organize the Respondent's plant." The poll was taken by Gerald Snyder, calling the employees to the lunchroom where the poll was conducted by an outside firm. The poll itself consisted of 36 multiple choice questions concerning such items of working conditions as work station temperature, ventilation , lighting, work space, tool "From the credited testimony of Stutz . Inasmuch as I have not credited Maue's other testimony, I do not credit Maue's version of the conversation between Stutz and himself. "From the credited testimony of Pates. "From the credited, uncontroverted testimony of employees Bishop and Scott. and equipment, toilets and washrooms, lockers, lunch area, safety program, work requirements, receipt of orders from superiors, overtime, work planning, interruptions, rush jobs, relations with supervisors, employee complaint handling, profit sharing, pay and pay raises, comparison with other companies, job security, employee welfare, and suggestions. The multiple choices, though fitted to each individual question , ran the gamut from the equivalent of excellent to bad. The results of the poll were published and compared with the 1963 poll. With the publication to the employees, Respondent had a comment to make as to each question showing what the Respondent had done or planned to do with regard to each matter in question . In addition, the results were accompanied by a memorandum to the employees which read as follows: After studying the results of this poll I think you will have to agree that contrary to what the Union is trying to make you believe, the majority of the employees here feel that Snyder Tank is a pretty good company to work for. We urge you to study the results because if you do we know you will agree with us . It also shows there has been an improvement here since the last poll was taken. The above memorandum was signed by Gerald Snyder. It should be noted in connection with this poll that nowhere in any of the 36 questions or in the results was the Union mentioned . Nowhere in the poll was there any request to the employees to express their union sympathies or desires. Nowhere in the poll was any employee asked to identify himself or sign his name . The General Counsel contends that the taking of the poll and the publishing of the results thereof constitute a bypassing of the Union and, therefore, further constitutes a violation of the Act. However, as in so many instances in his brief, the General Counsel fails to point out or even offer to show the respect in which this poll constituted a bypassing and therefore a violation of the Act. Nevertheless, I tend to agree with the General Counsel's contention. The poll did not mention the Union except that Respondent stated that despite the claims of the Union the majority of employees thought the Respondent 's plant was a good place to work . This would indicate that the purpose of the poll was not so much to inquire into the working conditions of the employees with the thought to improve them, but rather to show the employees that without the Union they could express their thoughts and their desires with regard to wages, hours, and other working conditions and have some of their wishes granted voluntarily by the Company without the intervention of the Union. This is amply demonstrated by the comments the Respondent made with regard to each of the 36 questions, in which comments it stated what it was going to do or what it had done with regard to each of the items. All of this had the effect and was ostensibly for the purpose of discouraging the employees in their adherence to the union cause. But, additionally, it constituted a bypassing of the Union because it demonstrated to the employees that they could get the benefits they wanted without the assistance of the Union. At this time, the Union was already well in the picture . It had not only demanded recognition and bargaining but had filed a petition for representation . The effect of the poll, therefore, was no different than the often-experienced situations in which an employer deals directly with his employees once the union is in the picture. Accordingly, and by reason of all the foregoing, I find that by conducting the poll and publishing the results SNYDER TANK CORPORATION 733 thereof, together with the memorandum to the employees, the Respondent attempted to bypass the Union in derogation of the Union's rights, and therefore violated Section 8(a)(l) of the Act. 8. Withholding of wage increases In the poll, taken as set forth in the section above, item 30 of the questions asked was, in effect , "Company policy with regard to raises is - a. very good; b. okay; c. not too good; d. pretty bad." The results of this question show the majority of the employees polled felt that the wage policy was not too good or pretty bad. In its comments on this particular question , the Respondent posted the following: As we have told you in the past, we make financial reviews between November and January each year and have granted annual wage increases . We did the same this year and we felt that as a result we could have satisfied everybody, however, as you all know, when a union is trying to organize a plant, we could be charged with an unfair labor practice if we had put the increases and benefits into effect during this period. In much the same manner, in his speech to the employees on the day before the election , Gerald Snyder stated that they had reviewed the wages of the employees and had found that many of them had wage increases forthcoming but that the Respondent could not give the wage increases at that time because of the Union being in the picture and the possibility that if the wage increase was given the employer would be charged with an unfair labor practice. The test of whether conduct violates Section 8(a)(1) of the Act is whether a reasonable tendency of an action is to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights . Here the Respondent's action must be judged by the manner in which it would normally be interpreted by the employees. At the time the poll results were published and Gerald Snyder made his announcement in the speech to his employees the day before the election, the employees were well informed that the Company was hostile to the Union . In this atmosphere, the announcement that the employees did not get wage increases even though wage increases were due them because the Union was in the picture and the Respondent did not want to be charged with unfair labor practices, had the affect upon the employees of inducing them to believe that the wage raises were withheld because the Union was in the picture and would not be granted until the Union was defeated in the election . Accordingly, the Respondent's actions constitute interference, coercion, and restraint within the meaning of Section 8(a)(1) of the Act. 9. The antiunion petition On January 27, 1967, employee James D. Lewis drafted and thereafter circulated a petition addressed to the Regional Director of the Board which read as follows: We the employees of Snyder Tank Corporation, feel that we had a democratic election on January 19, 1967 and now we have been told that the U.A.W. union has asked to represent us even though they lost the election. We want you to know that we have been told of all the objections and they are not the truth . None of us were promised or forced by the company in any way. We do not feel that the election should be thrown out. They lost and lost fair. Some of us who have signed this may have voted for the company; some of us may have voted for the union; and some of us may have signed union cards for one reason or another. We want you to know that those of us who have signed union cards and who have signed this letter, want to have our cards returned to us. Sincerely, The foregoing petition was signed by many of the employees. Not a few of the employees who signed were among the employees who signed union authorization cards. According to Lewis, he approached James Snyder; vice president of the Respondent, and asked if it would be all right for Lewis to write up a petition and send it around. Snyder answered that it wasn't up to him, it was up to Lewis. After speaking to Snyder, Lewis went home and wrote up the petition which was typed by Lewis' wife's cousin . She was not employed by the Respondent. Lewis stated on the witness stand that Snyder gave him some advice as to what to do. Lewis further testified, without contradiction, that since there was not enough room on the first page of the petition a second petition was made up in the Company's office. Lewis asked Snyder about it and asked him if he could use the machine to make a photostat of the original so that the second copy would be an exact duplicate of the first. This was not during working hours. It was after working hours and one of the girls in the office evidently operated the machine. After the petition was signed by the various employees, Snyder told Lewis where to send the petition. Lewis further testified that Snyder told Lewis that the latter could not circulate the petition around the plant on company time. While Lewis was circulating the petition to the employees on the terne plate he told the employees to read the petition, asked them to sign if they wanted to and explained that they did not have to sign if they did not want to. At that time Foreman Hugh Salsbury stated to the employees present to "make sure you know what you are reading before you sign it.""' James Scott, a former employee, testified that he was working at his machine when he first saw the petition. It was in the possession of James Lewis who was circulating the petition during working hours. When Scott first noticed Lewis he saw the latter coming up the aisle and stopping with a sheet at each person working along the aisle of the back shop. Finally Lewis arrived at Scott's station and asked Scott if the latter wanted to see it. Scott read it and told Lewis that he did not want to sign it. At the same time Scott saw both Foreman Plarr and Superintendent Zimmel. Plarr was at his desk in the shop and Zimmel was following Lewis up the aisle. He stayed behind Lewis during the entire time that Lewis was circulating the petition, watching Lewis circulate the petition, and asking the employees to sign. Scott estimated that Zimmel was between approximately 25 to 30 feet from Lewis all the time the latter was circulating the petition. Plarr sat at his desk and did nothing although he watched Lewis." Apparently employee Glore was also involved in the petition movement. At that time, Glore asked Zimmel about the petition that he, Glore, and his fellow worker (evidently Lewis) were thinking about getting up. Zimmel said that if the employees signed the petition and there "All of the foregoing from the uncontroverted testimony of Lewis. "From the uncontroverted testimony of James J. Scott. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were enough signatures on it, it might help kill the charges of an unfair labor election and make the election legal." A couple of days after Lewis prepared the petition and after a number of employees had signed it Foreman Plarr engaged Lewis in a conversation. Plarr asked Lewis if the latter had let everyone read the petition including Scott and Scott's helper. Lewis answered yes that he had let everybody read it. Then Plarr asked if Scott had signed the petition. Lewis answered that he had not." While he was circulating the petition to the employees on the terne plate Lewis was approached by Foreman Hugh Salsbury. Salsbury stated to the employees that they should make sure what they were reading before they signed the petition. At another time when Lewis was circulating the petition, employee Joseph Bach was approached by Lewis. Foreman Salsbury told Bach that he would not sign it if he were Bach because he did not know what he was reading. Then Salsbury read the petition. All of this was during working time." While it cannot be concluded from the foregoing that the Respondent actually sponsored the petition, nevertheless, it did, to a degree, assist in the preparation in the advice given by James Snyder and in his giving permission to use the office machine of Respondent to prepare the copy for the additional signatures. Additionally, it is apparent that though Snyder did tell Lewis not to circulate the petition on company time, condonation of circulation of the petition was given by permitting circulation during working hours in the presence of various foremen and Superintendent Zimmel who followed Lewis as the latter solicited employees at their work stations. Moreover, Zimmel's statement to the effect that the petition might overcome the effect of the union-filed objections, constituted encouragement to proceed with the drafting and circulation of the petition. I conclude that by these actions and by this demonstrated permissiveness the Respondent gave the impression that the petition was being circulated with its approval. This constituted interference in violation of Section 8(a)(1) of the Act." 10. Interference with Board's investigative processes Shortly after the Board began investigating the charges filed in the present proceeding, letters were sent by the Board's investigator to the employees in the plant. A number of them evidently told Gerald Snyder about the receipt of these letters and, at a meeting, Snyder told the men assembled that the letter they received from the Board was not a subpena and that they could go if they wanted to and that they did not have to go in response to the letter if they did not want to." About the same time, Gerald Snyder called a meeting of the employees. He said that he had received a letter from the National Labor Relations Board to the effect that there was objections to election hearing being held and that there were charges filed on the election. He mentioned that he had talked to his counsel by phone and he said that many of the employees would be called upon to give testimony. He said that in response to the letters the employees didn't have to go, that nobody could force them to go, but if they did go to tell the truth.'° "From the uncontroverted testimony of Glore. "From the credited testimony of Lewis "From the credited testimony of Lewis and Bach "See River Togs, 160 NLRB 58, 60-61 "From the testimony of Dennis Gravelle and employee Lewis About the same time employee Marjan Petrinec received a subpena to appear before the Board investigator. This subpena was dated June 13, 1967. Petrinec, without showing the subpena to Maintenance Foreman Otto Klug, asked Klug what he should do about it. Klug told Petrinec that it was up to Petrinec and that he should do as he thought best and if he wanted any more advice to see James Snyder." From all the foregoing, I find and conclude that although both the Snyders and Klug told the employees, in effect, that it was up to them to go or not to go to the Board in response to the letters they received or the subpena which Petrinec received, nevertheless, they at no time were told not to appear as requested. Accordingly, I do not find that the Respondent in any way interfered with the processes of the Board. I shall therefore recommend dismissal of that paragraph of the complaint which alleges such interference." C. The Discharges 1. Douglas Gravelle Gravelle was hired by the Respondent in May 1966 and was assigned to the back shop as a machine operator on the night shift. At the time of the events herein, Gravelle operated a machine called the "shear." His immediate foreman was Raymond Pajak, his superintendent was Herman Zimmel. Before the advent of the Union, Gravelle had never been reprimanded for his work or his conduct as an employee. In fact, in the short space of time of his employment, Gravelle had received two 10-cent-per-hour wage increases and had been complimented on several occasions by Pajak for the manner in which he had performed his work. Also, when Gravelle's brother was being released from military service, Gravelle asked Pajak for a job for the brother and Pajak told Gravelle that if his brother was as good a worker as Gravelle the brother would have no trouble at all." About the middle of September 1966, Gravelle called the union hall and told a union representative that some of the employees at Respondent's plant were interested in having the Union represent them. As a result, a business representative was dispatched to meet with Gravelle. From this meeting began the union organizing campaign of the Respondent's employees. On September 19, Gravelle signed a union authorization card at his home where he met the union representative and also received many additional cards. These cards Gravelle either distributed to "From portions of the credited testimony of employees Bishop and Scott This testimony was not denied by Gerald Snyder in his testimony "From the credited testimony of Klug After considering the testimony of Petrinec which states that he showed the subpena to Klug, I find and conclude that Petrinec was mistaken and did not show the subpena to Klug and that Klug's testimony to the effect that Petrinec merely showed him the envelope was the more correct version of the incident. "There was an additional incident upon which the General Counsel would rely which involved employee George Glore This incident was one which involved Gerald Snyder. However, Glore maintains that he was never told by Gerald Snyder that he should get a copy of his pretrial affidavit from the Board and show it to the Respondent's labor counsel Although Glore's pretrial affidavit, which was his second, stated this, in view of Glore's denial that Snyder ever told him anything beyond the fact that Glore could obtain a copy of his affidavit, I do not find that the incident occurred as the General Counsel would have wanted it to Therefore, I do not include this incident in my consideration of whether the Respondent interfered with the Board's investigative processes "From the uncontroverted testimony of Gravelle. SNYDER TANK CORPORATION other employees personally or gave to other employees to distribute. Thus, Gravelle was directly responsible for the Union's coming into the picture at the Respondent's plant. In addition to the foregoing activity on behalf of the Union, Gravelle attended the Board hearing in the representation proceeding and testified on behalf of the Union. Also, some time in the organizing period, Gravelle was accused by Gerald Snyder, basically on the complaint of employee George Glore, of threatening plant personnel. This Gravelle denied stating that he had merely told employees the purpose of the cards when he made distribution. It should be noted, in connection with Glore's complaint, that Glore told Snyder that he thought the Union had planted Gravelle in the plant.5° Additionally, during the union campaign, employee Edward Waz had occasion to discuss Gravelle with Foreman Raymond Pajak. Pajak told Waz, in substance, that now that Gravelle was trying to get the Union into Respondent's plant he was getting "too big for his britches." Another time, Pajak told Waz that since Gravelle had been trying to get the Union in, Gravelle was going to try to tell how to run the plant.55 On the night of November 30, 1966, Gravelle was working on the shear with Kenneth Hinderliter, a fellow employee. The machine area where Gravelle was working was cluttered with wooden blocks which were used in the stacking of steel plates which in turn were used in the manufacture of tanks. (The blocks are approximately 2- to 3-feet long and are made from 2 by 4 or 3 by 3 lumber, and some smaller sizes, cut up into the necessary lengths.) When Gravelle and Hinderliter were working that night the blocks were getting in their way. Gravelle took some of the blocks and kicked others into the aisle alongside the shear to get them out of the way. Because the aisles are used to move material and as walkways, Gravelle was planning to pick up the blocks so that they could be moved out of the plant by means of the overhead crane to the outside where they could be disposed of by burning. Gravelle was about to go up the aisle to get the crane when Pajak came over to Gravelle and asked the latter, "What did you throw the blocks in the aisle for."" When Pajak asked what Gravelle had "thrown" the blocks into the aisle for, Gravelle answered that he had not thrown them. Upon that answer, Pajak turned to Hinderliter and asked the latter if he had thrown the blocks in the aisle. Hinderliter denied he had thrown the blocks. After some further discussion, Pajak said something to the effect that he was sick of the whole business and that Gravelle and Hinderliter were going to have to see Superintendent Herman Zimmel the following morning. Later that evening Gravelle again spoke to Pajak and asked why Gravelle had to see Zimmel. Pajak answered that it was because Gravelle had thrown blocks. Upon Gravelle's asking Pajak if the latter saw Gravelle throw blocks, Pajak answered in the negative. Thereupon Gravelle, who claimed the incident had made him nervous, asked to go home. Pajak consented and signed Gravelle's punched out card. Some time during that same evening , Kenneth Hinderliter and Pajak conversed about the alleged block "Accordingly, I do not credit Gerald Snyder's claim that he did not know that the alleged threats were made in connection with union activity of Gravelle "From the uncontroverted testimony of Waz which I credit "this version of the block piling in the aisle from credited testimony of Gravelle. The only eye witness was Kenneth Hinderliter whose version did not differ materially from Gravelle's. 735 throwing. Again Pajak asked Hinderliter, "Who threw the blocks in the aisle." When Hinderliter demurred, Pajak told Hinderliter that the latter had his job to think about. This persuaded Hinderliter who then told Pajak that Gravelle threw the blocks. The next evening about 4 o'clock Gravelle went to see Zimmel. Zimmel asked Gravelle why the latter threw blocks in the aisle. Gravelle denied he threw the blocks and reminded Zimmel that Pajak had admitted to Gravelle that Pajak did not see Gravelle throw blocks. Then Gravelle asked Zimmel what was going on and why Gravelle was being blamed for everything that was happening . Zimmel answered that he had some evidence that Gravelle had thrown the blocks in the aisle. Upon that, Zimmel told Gravelle that the latter was to be suspended for 2 or 3 days pending investigation of the matter and that Zimmel would contact Gravelle by phone or mail and tell the latter the outcome and the decision.57 The same evening that Gravelle was suspended, Kenneth Hinderliter spoke to Superintendent Zimmel who told Hinderliter that President Gerald Snyder wanted to see him.58 Upon arrival at Snyder's office, they found Snyder, John Sullivan, labor relations advisor to the Snyders, and Hinderliter's father, a tow-motor operator in the plant. Hinderliter related to those present his version of what had occurred the night before. Among other things, he told Snyder and Sullivan at that meeting that there had been blocks thrown by other people in the plant, but that there were never as many blocks thrown before at any one time. With regard to the amount of blocks placed in the aisle on the night of the incident, James Stuhr, a former employee of the Respondent, testified that on that night he was wheeling material through the aisle in question. Three different times during that evening he fell over the aisle blocks and was forced to remove the blocks each time in order to continue with his two-wheel buggy. Stuhr, however, did not see who placed the blocks in the aisle. In any event, on the morning of December 5 Gravelle called Zimmel by phone and asked the latter whether Gravelle was to return to work. Zimmel answered that the investigation had not yet been completed but that Respondent would let Gravelle know in 2 or 3 days. The very next morning, however, December 6, Gravelle received a letter in the mail which informed him that he was terminated. That there were other incidents involving the placing of obstructions in the path of material movers is shown in the record. Thus, some time after the union organizing campaign started, employee Galbo was moving some material up the aisle on a two-wheel dolly when someone threw a block under the wheel. Forman Pajak observed the incident, and just smiled saying nothing and taking no action. 59 On another occasion, during the week of November 23, 1966, employee Waz placed some shelving out in the aisle. Some employees were wheeling material up the aisle and could not get by. Pajak asked employee Dubke why the latter was blocking the aisle. When Dubke denied that he "From the credited testimony of Gravelle which testimony did not differ materially from that of Zimmel as to the meeting "According to Zimmei's testimony , Hinderliter told Zimmel that Gravelle not only threw the blocks in the aisle but was laughing about it as he did so However, Hmderluer did not so testify. "From uncontroverted testimony of Douglas Gravelle 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was blocking the aisle and pointed to Waz, telling Pajak that Waz was the culprit, Pajak left taking no action. In another incident which occurred in September 1966, employees Dennis Gravelle and Gary Scherff were working together on a press when Pajak came alongside their machine with a tow-motor. Pajak left the tow-motor there and when he was gone Scherff placed blocks under the wheel of the motor. When Pajak returned he said that if there were any blocks under the wheel Scherff could go home. Then Pajak mounted the two-motor but he could not move it because the blocks were under the wheel. He turned to Scherff and told the latter to go home. Pajak then went away with the tow-motor and when he came back Gravelle told him that he'd have to have somebody to work with. About 10 minutes later Scherff returned and Gravelle told him that he had thought that Scherff had gone home. Scherff stated that he went to get coffee and thereafter Scherff stayed and worked with Gravelle. Pajak saw him there and went away and that was the end of the incident. According to Scherff the whole incident was taken in a joking manner.`° Still another incident occurred. Two or three weeks after Gravelle was discharged Waz was fitting tanks. In order to do the job properly a section of the tank had to be burned out. In order to get the job done, while he was waiting for someone to burn the tanks out, Waz placed the tanks out in the middle of the aisle. Pajak wanted to know what he was doing. Pajak said to Waz something to the effect that Waz was trying to lose his job like Gravelle did by putting tanks in the aisle . Then Pajak had moved them out of the aisle and that was the end of the incident. No action was taken." It should be noted in connection with the alleged block-throwing incident that although Gerald Snyder gave the final order to discharge Gravelle, Gravelle was never asked to give his version of the incident. Moreover, although Snyder stated that there were others who had been discharged for cause within the period of time near the time that Gravelle was discharged, only in two incidents were there discharges without prior warning. In one of these incidents, the employee involved used certain four-letter words in defying his foreman . In the other incident, the employee involved punched another employee's timecard at a time when the other employee was not present in the plant for work . In all other cases, the Respondent admitted that it had given warnings and had not discharged employees on their very first infraction. It cannot be denied that placing obstructions in the rather narrow aisles of the plant was a dangerous practice. Employees using dollies and tow-motors could readily be injured upon impact with the obstructions . Thus, under ordinary circumstances, the placing of obstructions in the aisles would constitute an offense calling for some disciplinary action on the part of Respondent's officials. However, as can be readily deduced from the record, Foreman Pajak treated other infractions involving the placing of obstructions in the aisles and walkways in a rather cavalier fashion. It may be argued that the reason for this was that the other offenses were minor and that the offense of Gravelle was major in impact and involved more than a mere temporary blocking of the aisle at one "From the credited testimony of Dennis Gravelle and Gary Scherff. Pajak testified that there was nothing to the incident because the tow-motor was not moving at the time . However Pajak did admit that he did not report this incident to the front office "From credited, uncontroverted testimony of Waz. time. Thus, as former employee Stuhr testified, at three different times during the evening he was forced to stop moving material in order to clear the aisles to make passage possible. Thus, if Gravelle placed the blocks in the aisle for the purpose of obstructing passage of material carriers, disciplinary action of some sort might have been warranted. But, here we have an employee whose record up to the time of the incident was exemplary. He had received wage increases and several compliments on job performance during the short span of time of his employment with the Respondent. Suddenly, for an infraction involving horseplay, which theretofore had been lightly treated, this employee was suddenly not warned, not disciplined by reprimand as was the Respondent's admitted normal procedure, but was discharged without being given an opportunity to explain his action. And, this occurred at a time when the heat of the election campaign was at its highest and after Respondent had full knowledge of Gravelle' s activities on behalf of the Union. The disparity of the treatment given Gravelle as compared to similar, although perhaps more minor offenders, is emphasized by the fact that only two other employees had been discharged without warning. Of these two, one had cursed out a supervisor in defying the latter's authority and the other had dishonestly punched in a fellow employee's timecard at a time when the other employee was not even in the plant. Therefore, in view of the Respondent's vehemently expressed opposition to the unionization of its employees, the other unfair labor practices found to have been committed herein, Gravelle's excellent record as an employee and his open support of the Union, and the disparity of treatment received by Gravelle compared to other employees convinced me that Gravelle's misbehavior, if, indeed, it was that, was seized upon by the Respondent as an opportunity to rid itself of a strong union adherent and that the reason given for Gravelle's discharge was pretextual, the true reason being his union activity. Accordingly, I find and conclude that the Respondent discriminatorily discharged Douglas Gravelle in violation of Section 8(a)(3) and (1) of the Act. 2. James Scott Scott had worked for Respondent for a period of approximately 6 years when he was discharged on February 2, 1968. Like Gravelle, Scott was active in organizing for the Union at the Respondent's plant. He helped distribute cards and discussed with various employees the advantages of unionization to the point of getting involved in arguments with employees with regard to this matter. Scott testified for the Union at the representation hearing and acted as a union observer at the election. Additionally, Scott testified, as heretofore noted, as a witness for the General Counsel in the early part of the instant proceeding in the fall of 1967. In August 1967 the Respondent established and published new rules regarding tardiness and absenteeism. On December 15, 1967, Scott received a 1-day suspension for being absent without calling in . He had several conversations with management regarding this suspension and also had been warned prior to this time with regard to his lateness and absenteeism . Several days before he received the letter of suspension, Scott was having coffee in the locker room when Superintendent Zimmel called Scott into Zimmel's office. Zimmel told Scott that the SNYDER TANK CORPORATION latter had been off the day before and had failed to call in and that therefore Scott was to receive a 1-day suspension , starting the next working day. Then Zimmel told Scott that Vice President James Snyder wanted to see Scott as soon as possible. Five minutes later Scott went to James Snyder ' s office and spoke to the latter . No one else was present . Snyder asked Scott if Zimmel had already spoken to him regarding the suspension and Scott answered in the affirmative. Whereupon Snyder told Scott the Respondent was going to start "cracking down" on absenteeism and tardiness . Scott answered that this was all right with him provided "you carry this through with the other ones." However, Scott admitted he had the suspension coming to him but that the rule should be applied to everyone not just the prounion men. Snyder answered that Scott was the only one that was brought to Snyder's attention but that he would investigate further to see if there were any others. "_ Scott admitted in testifying that he requested the letter notifying him of the 1-day suspension although normally the Respondent did not notify employees in writing of this type of action . Scott also admitted that he was aware of the rules against tardiness and unexcused absenteeism. On January 24, 1968, Scott was again sent to James Snyder's office by Superintendent Zimmel . Only Scott and Snyder were present in Snyder's office. Snyder told Scott that the latter had been late for work that day and the day before; that Scott gave him no other choice but to give Scott a week 's suspension . Snyder further informed Scott that the suspension would start the following day, Thursday, and that Scott was to report for work the following Thursday. According to Scott then Scott asked "Why just me?" Snyder replied that Scott was the only one brought to his attention. Also Snyder told Scott , at Scott's request, that a letter regarding Scott's suspension would be sent to Scott. According to Scott, he asked Snyder whether the suspension could not start on Friday with Scott reporting back the following Friday. Snyder assented, but said he would have to check with Herman Zimmel . Snyder then left the office but shortly returned, said he could not get a hold of Zimmel , but that he would call Zimmel that night at home. He told Scott to come to work the next day, Thursday. Scott did work the next day. Scott reported for work on the following Friday, February 2. As Scott was walking out of the locker room into the plant Zimmel approached and asked Scott to come to his office . When they arrived at the office, Zimmel said "You're done. You were supposed to be here yesterday . You failed to report or call . You're done." Scott then explained to Zimmel the arrangement Scott had made with James Snyder the week before about taking his suspension from Friday to Friday rather than Thursday to Thursday . He told Zimmel he was supposed to get a letter to that effect from the Respondent but did not receive any letter . Then Zimmel showed Scott a copy of a letter which read, in part, that Scott was to receive a suspension of I week , 5 workdays, and to report back to work on February 1 (Thursday ) inasmuch as Saturday was a scheduled workday. Thus, the letter actually gave Scott a suspension extending from Friday , January 26, to Thursday, February 1. Scott and Zimmel had some more words and finally Scott went to see James Snyder where much the same "From uncontroverted testimony of Scott Zimmel did not testify as to this matter and Snyder did not refute this portion of Scott 's testimony. 737 argument was made by Scott who reminded Snyder of the Friday-to-Friday arrangement. Snyder denied that such arrangement was made . Then Scott stated that he had never received a letter of suspension as promised . Snyder showed Scott a copy of a letter dated January 25, above described . Scott claimed this was the first time he had seen the letter. According to Snyder, the letter was sent by regular post . The letter admittedly carried Scott' s correct address. Then Scott argued some more, with Scott reminding Snyder how the latter went out of the room to contact Zimmel on the previous Wednesday and how Snyder had come back and said he could not contact Zimmel and then told Scott that he would contact Zimmel at home that night. According to Scott, Snyder thereupon denied that he had ever left the room . Then Scott argued some more stating that Snyder had told him that he was to have a week's suspension and had said nothing about Saturday work . Nor had Snyder said anything about a 5-day suspension. In testifying, Scott stated that Saturday is not a regular working day but that the employees are notified by a notice on the bulletin board if they were to work on Saturday. Scott, however, admitted that perhaps the three or four Saturdays before his suspension they had worked. It should be noted in connection with this issue that during his week's suspension, on Thursday, the day the Respondent allegedly told Scott to report , Scott came to the plant to pick up his check . He did not speak to either Zimmel or Snyder on that day although he picked up his check in Zimmel' s office from the company timekeeper who is an uncle to the Snyders. No one spoke to him about why he had not returned on that morning. 63 In connection with the issue of whether Scott was discharged for cause or for discriminatory reasons, in addition to the copy of the letter of suspension which the Respondent claims was sent Scott and which Scott claims he never received , the Respondent offered into evidence records of the Company which showed that , indeed, Scott had been frequently absent without excuse or tardy during the year immediately preceding Scott's discharge. The record also shows, by other company records , that 31 employees were discharged by the Respondent for absenteeism or habitual tardiness during the period from January 8 , 1966, to February 2, 1968.6' Additionally, the record shows that two other employees, Lewis and Cicac, were also suspended, about the same time that Scott received his suspension, for similar offenses. As in the case of Gravelle, the Respondent had ample opportunity to gain knowledge of Scott 's activities on behalf of and sympathies for the Union . Moreover, Scott was a rather bold and outspoken individual who openly "All of the foregoing from the uncontroverted testimony of Scott. Snyder did not testify in a contradictory manner to Scott, and indeed, in his testimony, did not touch upon many of the subjects which Scott covered in his testimony `The record contains considerable testimony with regard to several conversations between Scott and Snyder and Sullivan in Gerald Snyder's office the day before the election . Although this testimony may have some bearing on company knowledge it is not recited here for the reason that there is other ample testimony in the record to indicate that the Respondent had ample notice of Scott's union activities and sympathies Additionally, this testimony by Scott was directly controverted by both Jerry Snyder and John Sullivan, the Respondent's labor relations advisor Because of my disposition of this matter, I do not find it necessary to dispose of the credibility resolutions involved in this particular line of testimony. 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD expressed his thoughts regarding working conditions and union adherence. Thus, as related earlier in this Decision, it was Scott who asked Gerald Snyder, at a meeting soon after the Union's drive started, what had happened at the Birmingham plant. On another occasion, Scott, after a meeting called by Gerald Snyder, went to Snyder's office to protest working conditions. At another occasion, at the company Christmas party in 1966 Gerald Snyder asked Scott why he was anticompany and Scott answered that he was not anticompany but was opposed to those who were anti-Scott. Thus, I find and conclude that despite James Snyder's protestations to the contrary, he possessed ample knowledge of Scott's activities on behalf of the Union at the time he decided to suspend and then discharge Scott. The General Counsel contends that inasmuch as Scott testified he never received the letter informing him of his suspension, the letter was purposely never mailed and, therefore, James Snyder had "set up" Scott for dismissal because Scott's verbal understanding with Snyder was that Scott should report back on Friday, whereas the letter stated Thursday, and thereby Snyder trapped Scott into giving Snyder an excuse to discharge a most active union adherent. Snyder testified that he considered Saturday a workday and that since a workweek was 5 days, Scott's reporting date after suspension should have been Thursday. In connection therewith, Scott admitted that for a number of Saturdays immediately preceding the suspension period the plant had worked. Therefore, I do not find it unreasonable that Snyder considered Saturday a workday in computing the suspension period. As to the contention that the letter was never mailed, Snyder testified that he wrote the letter in longhand, gave it to a secretary to type, signed the letter, gave it back to the secretary, and saw her place it in a basket of outgoing mail. Snyder did not testify that he actually saw the letter mailed. However, I do not consider this to be a fatal defect. Snyder testified to a normal business routine. All letters were placed in the outgoing-mail basket. The fact that Snyder did not testify he saw the letter mailed makes his testimony more credible. If he was going to fabricate, he could have easily testified that he saw the letter mailed or mailed it himself. In any event, the most that can be said about the conflict in reporting days is that there was a misunderstanding and I cannot conclude that Scott was "set up" for discharge. My conclusion is bolstered by the fact, as proven by Respondent's records, to which General Counsel stipulated, that 31 other employees, in addition to Scott, had been discharged for tardiness and unexcused absences during the year immediately preceding Scott's discharge Moreover, two other employees were suspended, about the same time Scott was suspended, for similar offenses. Thus, unlike the instance of Gravelle, a case is not made out that Scott received disparate treatment compared to others similarly situated. It cannot be denied that in the light of all the circumstances contained in the record of this proceeding and in the light of Respondent's knowledge of Scott's union activities and sympathies and of the Respondent's expressed antipathy for the Union, there arises substantial suspicion that Scott was discriminatorily discharged. However, in view of Scott's long record of absenteeism and tardiness, the numerous warnings he received therefore and the fact that he did not receive disparate treatment, I find and conclude that the General Counsel has not proved by a preponderance of the credible evidence that Scott was discharged for his union activities. Accordingly, I shall order the complaint alleging that Scott was discharged in violation of Section 8(a)(3) and (1) of the Act, be dismissed in its entirety. D. The Refusal To Bargain 1. The appropriate unit In accordance with the Regional Director's Decision and Direction of Election, dated December 20, 1966, I find and conclude that all production and maintenance employees, including warehouse employees, employed at the Respondent's Buffalo, New York, plant, excluding all office clerical employees, professional employees, truckdrivers, truck mechanics, and supervisors as defined in the Act constitutes a unit appropriate for the purposes of collective bargaining. The General Counsel would exclude, and the Respondent include, in the unit herein found appropriate, Donna and Margaret Bellanca, maids or cleaning women whose main duties are to straighten out and clean up the offices of the Respondent. These two women are employed part time, working only Sunday and Wednesday evenings, they do not punch timeclocks nor do they have any contact or relationship with other employees in the production or maintenance unit. Moreover, they are related to the Snyders who are the top management of the Respondent corporation. I find and conclude that the employment interests of these two cleaning women differ from those of the rest of the employees in the unit and that they are, therefore, excluded from the unit. Moreover, the Respondent did not include either of these two individuals on the eligibility list for the election." I further find and conclude, in accordance with the Regional Director's decision, that all of the working foremen are supervisors as defined in the Act and are therefore excluded from the unit. Additionally, the parties stipulated the names of truckdrivers as they appear on the Respondent's payroll lists for the period of October 9, 1966. These drivers, seven in number, are also excluded from the unit herein found appropriate. 2. The majority With the exclusion of the above individuals from the payroll list, it would appear that there remains on the list 151 names. Therefore, 76 authorization cards are required to support the Union's majority claim . The General Counsel introduced at the hearing 81 authorization cards which were duly identified. However, the Respondent contends that a sufficient number of cards were obtained by fraud or were otherwise defective so as to eliminate the Union's majority. I shall treat with these contested cards individually. James Stuhr. Stuhr testified that he had signed the card after having been told by other employees who were soliciting the cards that Stuhr's brother had signed and because pressure had been put on him by reason of his brother's relationship through marriage to the Respondent's management However, Stuhr did not detail what this pressure was other than the foregoing and he further related that the pressure had been put on him in a joking manner. Stuhr further stated, in his testimony, that he had read the card before he signed it. In addition, "See J Heber Lewis Oil Company, Inc, 123 NLRB 1115, 1116, Helms Motor Express, Inc, 107 NLRB 132, 135. SNYDER TANK CORPORATION 739 Stuhr admitted that he had not told the Board agent who had investigated the case that he had been pressured into signing the card. I find nothing in the foregoing which would demonstrate that Stuhr signed the card through misrepresentation of the type which the Board has before held to be defective or fatal . Nor was there any coercion of the type which would render the card defective. Accordingly, I shall count Stuhr' s card in assessing whether the Union did possess a majority on the date of its demand. Charles Hartman: When asked what was said to him when he received his card, Hartman testified, "Well, they were talking about getting an election for that it was, the card it was for, to get an election to try to get a Union down there." However, Hartman also testified that he read the card before signing it. I do not find that even crediting Hartman fully, that it was expressed to him , either explicitly or indirectly , that the card would be used only for an election . The testimony is very meager and, in view of this and the fact that Hartman read the card before he signed it, I find that under all the circumstances there was no assurance to Hartman that the card would be used for no purpose other than to get an election." Chad Troup: Troup testified that he received his card at a meeting at the union hall, that he filled it out and signed it there and gave it back to the union representative. He further testified that before he signed the card , the union representative said to Troup "to fill this card out was for getting a vote, so you could vote for the Union to come in.,, However, upon redirect examination , Troup stated that he could not remember exactly what was said to him at the union hall before he signed the card . Then, because he said his recollection was exhausted, General Counsel presented him with his pretrial affidavit for the purpose of refreshment of recollection . After his recollection was thus refreshed , Troup testified that he was told at the union meeting that the Union could get recognition for the plant with the cards and if he wanted to sign one he could and if he didn' t want to sign one he didn ' t have to . Troup also stated that he read the card fully before he signed it. In the light of all of the foregoing , I do not find that the import of Troup's testimony is that it was represented to him in substance , that the card would be used only for an election . Accordingly, I accept Troup' s card as a valid union designation. John Szmalec: Szmalec spoke only broken English, and, at best, his testimony is difficult to understand. In any event, there was nothing in his testimony concerning the subject of' election. He testified, in substance, that a man bothered him to sign the card that he knew nothing about it Respondent contends that Szmalec signed only to bring an end to being bothered. But, I find no precedent which would render a designation invalid merely because the signer was "bothered" into signing . There is no testimony here that Szmalec was coerced or threatened into signing . Moreover, at best SLmalec's testimony was limited in effect since he admitted that he did not remember just what was said to him by the solicitor Accordingly, I conclude that Szmalec's card is a proper, valid designation. Bernard Carney: Carney testified that the card was solicited by a fellow employee whose first name was Dennis. Asked what this fellow employee told him before he signed the card, Carney testified that the solicitor stated the card was " . . to get enough votes in or get enough signatures so we could get a vote at the plant." 'See Levi Strauss & Co , 172 NLRB No 57 However, Carney prefaced this testimony with a declaration "I think it was, I'm not positive " Additionally, Carney testified he read the card before he signed it. On the basis of the totality of the record before me, I cannot conclude that Carney signed because he was given assurance that his card was to be used only for an election . Under these circumstances, I will count his card as a valid designation in my computation regarding the issue of majority. Frederick Schmidt: Schmidt testified that he received the card from fellow employee Sam Bellavia who told Schmidt that the card was for ". . . seeing about getting representation or a vote from the UAW " I find nothing in this statement which suggests that Schmidt was told that the card was only for an election. Accordingly, I accept Schmidt's card as a valid designation. Sebastian Ciacek: Ciacek received his card from employee Pates who told Ciacek, "sign the card . and bring the Union in . ." Upon cross-examination and upon a leading question put to him by counsel for the Respondent to the effect that Pates told Ciacek about a vote, Ciacek answered "he said something about bringing the Union in for having a vote " Upon consideration of all Ciacek's testimony, I cannot conclude that Ciacek was assured that the card was only for an election . Accordingly, I shall count his card as a valid union designation Terrance Crook- Crook testified that he received his card at a meeting at the union hall and that he was told that the cards were, "so they could come in and take a vote." Crook further testified that he did not read the card but only filled in his name and address because, "He [referring to the solicitor] said it was just for an election and I wasn't against no election." Crook then identified the card solicitor as William Smigelski, International representative of the Union. However, Smigelski testified that at the meeting he explained the procedures in obtaining recognition and he also explained that it is normal for a company to send a letter of doubt once the union sent a letter requesting recognition . He said in that instance the union would then proceed to the Board and file a petition. Smigelski specifically denied that during his talk he spoke to employees in mentioning the cards that the cards were only for an election. Upon my observation of both Crook and Smigelski, I find and conclude that Smigelski ' s testimony was the more reliable of the two . This conclusion is bolstered by the fact that Smigelski further testified that union representatives were instructed by union counsel to stay away from talking about an election as far as the cards were concerned . I finally conclude that what was told the employees at the meeting that Smigelski presided over was that the Union would seek, through the cards, to gain recognition from the employer voluntarily and that if this was not accomplished then a petition for an election would be filed. Accordingly, I find and conclude that Crook's card may be counted as one in support of the Union' s majority claim. Ronald Guest. Guest received two cards, one from Douglas Gravelle, who merely handed a card to Guest without saying anything, and another from a union man outside the plant who gave Guest a card and a leaflet explaining the Union's claimed benefits. Guest testified that he did hear talk around the plant to the effect that there would be an election However, Guest did not testify that he was told by anyone representing the Union that the cards were only for an election 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, I shall count Guest's card as a valid designation in computing majority. Donald Bellanca: Bellanca received his card at the union meeting presided over by Smigelski who, according to Bellanca told the employees that the card would be sent to the Company and the Company will turn around and it will come to the N.L R.B. and it will come up for a vote and whichever way the vote went is the way it would be." I do not find this testimony to be inconsistent with Smigelski' s testimony to the effect that he told the assembled employees that the cards be used to support a demand for recognition and, failing recognition, they would be used to obtain an election. Under all circumstances, I find and conclude that Bellanca was not told, in effect, that the cards were only to obtain an election . I shall, therefore, consider Bellanca's card as one in support of the Union's claimed majority. Harold E. Ivon: Ivon testified that it was his understanding at the time he signed his card that the card was for "getting up enough cards signed to get an election." He did not testify that anyone made this representation to him. The Board and the courts have long held that an employee's purely subjective reaction as to the meaning of a card, or as to his motivation in signing it, does not negate the overt effect of his designation." In the instant case, Non 's card is an unambiguous designation of the Union as bargaining representative. Accordingly, I find and conclude that Non's card is a valid designation. Samuel C. Bellavia: Bellavia's card, dated September 20, 1966, is postmarked October 15, 1966. Therefore, I can only conclude that the Union did not receive the card until some time after the later date Although the Union's request for recognition was made on October 7, about a week before the Union could have received Bellavia's card, I find that the Union's demand was a continuous one as evidenced by the Union's participation in the representation case heretofore mentioned. Accordingly, even though Bellavia's card was not received by the Union until after October 15, it may be counted as a card upon which the Union's majority may be based." Delbert Max Hinderliter: Hinderliter received a card from a union representative outside the plant . This was accompanied by a leaflet explaining the claimed advantages of unionization . Hinderliter signed this card and returned it. He received a second card at a union meeting and signed and returned the latter card also. However, Hinderliter testified that he was asked to sign the second card to verify his attendance at the meeting. Respondent contends that this testimony renders the designation invalid and that Hinderliter did not request the Union to represent him. I find no merit in this contention. Assuming, arguendo, that the representation was made to Hinderliter before he signed the second card as he testified , and assuming that this invalidated the second card, nevertheless, Hinderliter's other card still remains an unsullied designation . Accordingly, I find that Hinderliter did designate the Union as his representative and I shall count his card as one in support of the Union's majority claim. Joseph Matteucci: Matteucci testified that he received his card at a union meeting where he was told to sign the card by Smigelski "so we could find out who worked there and how many employees showed up for the meeting and the names and addresses." However, Matteucci further testified that Smigelski also talked about getting the Union in and "stuff like that." The meeting lasted about an hour . Matteucci filled out all the blank spaces in the card himself and signed it. But, employee James Smith testified that at the union meeting the employees were told that the purpose of the card was to find out how many people wanted the Union. I do not find that Matteucci's testimony is completely in conflict with the testimony of Smigelski or Smith heretofore related . Smigelski testified that he told the Respondent's employees about union designation as the primary purpose of the cards and that if the Respondent refused recognition on the basis of the cards , the cards would be used to support a petition for an election. Certainly, in the hour-long talk, as related by Matteucci, the subject matter could not have been confined to merely asking those assembled to sign for the purpose of taking attendance. Accordingly, on the basis of the totality of the record, I find and conclude that Matteucci was not induced to sign his card on the representation that it was solely for attendance purposes. Therefore , I shall rely on this card as valid for the purposes of the disposition of the majority issue. Donald Cooper and Larry Rollins: The cards of these individuals were identified by a handwriting expert, Joel S Lisker, a special agent of the Federal Bureau of Investigation, who testified that the handwriting and signatures on the cards and the handwriting and signatures on these individuals' withholding exemption certificates and payroll deduction authorizations were made by the individuals named. I find and conclude that the cards were sufficiently identified and are genuine. However, Respondent contends that cards should not be counted as designations because the signers were not present at the hearing to identify the respective cards. Therefore, the Respondent was not given the opportunity to examine the individuals on the representations made to them to induce them to sign. I find no merit in the foregoing contention. The General Counsel made out a prima facie case of execution and regularity when he had sufficiently identified the cards, since there is a presumption that the card was voluntarily signed and that the signatories were aware of what the import of the cards was. In the absence of evidence elsewhere in the record that there was fraud or coercion in the inducement of the signers to sign the cards, I find and conclude the cards are authentic and that they designate the Union as the bargaining representative of the signers, Cooper and Rollins." Richard Schultz: Schultz testified that he signed his card because other employees were bothering him, especially fellow employee Dick Bishop who told Schultz to sign because the latter would have a guaranteed job if the Union were to get in. Schultz replied that he would be fired if he signed a card . Thereafter, Bishop went to Schultz' brother-in-law's house and persuaded Schultz' sister-in-law to call Schultz' wife about signing. Then Bishop himself called Schultz' wife several times. It "Joy Silk Mills v N L .R B, 185 F.2d 732, 743 (C A.D.C.), cert. denied 341 U.S. 914; Gorbea, et al., 300 F .2d 886 (C.A. 1), Winn-Dixie Stores, Inc. 341 F 2d 750 (C A 6); Gary Steel Products Corp, 144 NLRB 1160; Economy Food Center, 142 NLRB 901, fn 2; Aero Corp, 149 NLRB 1283, 1291 "Ed's Foodland of Springfield, Inc, 159 NLRB 1256, 1261 "I have considered the obvious erasures in the date of the card of Larry Rollins and find that the writing over the erasure is in the handwriting appearing on the rest of the card . I, therefore, find no evidence that the card was not meant by the signer to bear any date other than that appearing on the card Accordingly, I do not find the erasure to constitute a defect warranting the rejection of the card SNYDER TANK CORPORATION 741 became so bad Schultz asked Herman Zimmel to transfer Schultz to the night shift so he could be home days. Schultz was shifted but the calls continued and finally Schultz capitulated and signed. Although the Board has held valid an unambiguous card signed by an employee in order to get his fellow employees "off his back," when the employee had been subject to numerous requests to sign by fellow employees," I do not find such a situation presented here. The calls by Bishop to Schultz' wife which continued until Schultz, to protect his wife from the pressure, was forced to ask for a shift change, did not constitute mere requests. These calls were, rather, a form of direct and harrowing coercion. Additionally, the calls did not cease when Schultz did change shifts and he ultimately was forced to capitulate to put a stop to the calls. This becomes a matter of degree. When the calls were extended to Schultz' wife, the degree of pressure changed from that which can ordinarily be expected in organizational drive and industrial life, to unbearable coercive pressure, relief from which could only be obtained by signing a card . Such a signing cannot be deemed voluntary and the card cannot be considered as a valid designation of the Union. I shall, therefore, reject Schultz' card and will not count it toward the Union's alleged majority. William Reeves: Reeves was told by the person soliciting his signature that signing a card did not mean that it was a vote for the Union. A union designation card of the type involved here is not a vote for the Union. Accordingly, the representation was truthful I shall, therefore, count Reeves' card in determining whether the Union enjoys majority status. James Phillips: Phillips testified that his wife read the card to him and then he signed it. Although Phillips admitted that he cannot read and his testimony as a whole showed Phillips had a poor memory insofar as dates and persons are concerned, nevertheless, I find his card to be a valid designation. There is nothing in Phillips' testimony to indicate that Phillips did not clearly intend to designate the Union as his representative 71 In addition to all of the foregoing, it is well to note that at the beginning of the Union's organizational campaign, Gerald Snyder distributed a letter to the employees of the Respondent's plant which, among other things, contained an implication that many of the employees had been coerced into signing authorization cards. In answer to this allegation by the Respondent, Smigelski, on October 18, 1966, addressed a letter to all of the employees in the plant. He mentioned in his letter the matter that Snyder had gone into in Snyder's letter. Smigelski, in his letter, stated all of the employees knew that no one had been coerced or threatened into signing a card nor had any union organizer threatened or coerced anyone or encouraged anyone else to get cards signed by threat or coercion. Smigelski further stated that to keep the record straight, if any employee who had signed a card felt that he was threatened or coerced, he could send a letter so indicating to the UAW regional office, attention Mr. Smigelski, and that the card of the individual who so requested would be returned. Pursuant to his letter not a single employee among Respondent's employees requested a return of his card. In the light of all of the foregoing, with the exception of the card of employee Richard Schultz, I find that each of the cards submitted by the Union evidenced designation "See Triangle Plastics, Inc., 166 NLRB No 86 "See Lincoln Mfg. Co., 160 NLRB 1866, 1876 by the employees of the Union as their bargaining representative. Each card is a good and valid designation. Accordingly, I find and conclude that the Union had in its possession at all times material herein 80 duly authorized designation cards. Since the Union needed only 76 such cards, the Union had a clear majority at all times material. Accordingly, I find, that the Union represented a majority of Respondent's employees in the unit hereinabove found to be appropriate at all times on and after the date the Union made its demand upon the Respondent for recognition and bargaining, and that, therefore, the Respondent was such majority representative at all times material to this proceeding. 3. Concluding findings as to the refusal to bargain The Board has held that an employer violates Section 8(a)(5) of the Act when it insists on a Board election as proof of a claiming union's majority and where such insistence is motivated not by any bona fide doubt as to the union's majority, but rather by a rejection of the collective-bargaining principle or by a desire to gain time within which to undermine the union. Whether an employer who refuses to recognize the claiming union and insists upon an election is motivated by good-faith doubt as to the union's majority or by an intention to destroy such majority can be determined only in the light of all of the relevant facts of a case including other unlawful conduct of the employer and the sequence of the events.72 I find that in the light of all of the foregoing findings in this case that the Respondent's refusal to bargain with the Union and its insistence upon an election was motivated not by good-faith desire to determine the majority status of its employees but rather by a desire to gain time in which to dissipate the Union's majority. In reaching this conclusion, I consider the many acts of interference, coercion, and restraint, heretofore found, which occurred at or about the time that the Union was organizing, at or about the time the Union made its demand for recognition and the refusal of the Respondent to recognize the Union, and the continued threats and coercive acts of the Respondent made during the period between the filing of the petition for recognition and the election. I further note the discharge of Douglas Gravelle, one of the most active union adherents in the plant and the employee who, in fact, brought the Union into the plant. I conclude that this conduct was designed for the purpose of inducing the employees in the unit to repudiate the Union. Accordingly, I find that Respondent's refusal to recognize the Union was motivated by a desire to gain time in which to undermine the Union's majority status and constituted a complete rejection of collective-bargaining principles. I further find and conclude that such conduct is violative of Section 8(a)(5) of the Act. " IV. THE OBJECTIONS TO THE ELECTION As heretofore related , on January 24, 1967, objections to the conduct of elections were filed by the Union which is the petitioner in the representation case . The objections were based on the conduct of the employer which I have heretofore found constituted violations of Section 8(a)(1) "Joy Silk Mills, 85 NLRB 1263, enfd. 185 F 2d 732 (C A D C ), cert denied 341 U.S. 914 "Joy Silk Mills, supra. 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Act and other objectional conduct of the employer which involved a letter or a handbill of the Respondent distributed to the employees on the morning of the election which was held on January 19, 1967. As I have found heretofore, between the time of the filing of the petition by the Union and the election of January 19, 1967, the Respondent engaged in numerous acts in violation of Section 8(a)(1) of the Act. It would unduly burden this Decision to restate all of those violations at this time. However, it is sufficient to state that the Board has held that such conduct as is heretofore found to be violative of Section 8(a)(1) and (3) is, a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election." On this basis alone, there is sufficient reason to set aside the results of the election. However, in addition to the conduct alleged as violative of Section 8(a)(1), the Union filed an objection relating to the letter of January 19, 1967, heretofore referred to, signed by Gerald Snyder, and distributed to the employees in the plant on the morning of the election. The letter reads in pertinent part: We were informed this morning that last night a number of you were visited at your homes by people from the union who told you that if the union didn't win the election you would lose your job. I said it many times before and I say it again, your job is safe here. You will not lose your job if the union loses the election. If they will try to scare you now - what will they do if they get in here? As stated, the foregoing was contained in the letter which was distributed on the morning of the election which was held in the afternoon of January 19, 1967. Thus, the letter was distributed at a time when the Union was unable to answer any of the allegations of that letter. In refutation of the allegations as set forth above which were contained in the Respondent' s letter, William Smigelski, Howard Smith, and Francis X. O'Melia, all International representatives of the Union, testified that no one on the part of the Union had ever made any such statements to any employee to the effect that if he did not vote for the Union he would lose his job. The only visit made by Smigelski to any of the employees were to the in-plant committee, which visits were made in the early part of the Union' s organizational drive. However, on the night before the election, O'Melia and Smith did visit the home of employee Kerr. During that visit they asked Kerr if he had any questions concerning the election. There was some discussion and O'Melia did ask how Kerr was going to vote in the election. But both O'Melia and Smith stated in their testimony that they never made any statement to Kerr to the effect that he would lose his job if the Union did not win the election. This testimony of Smigelski, O'Melia, and Smith stands unrefuted and I credit it. Thus, I find, that the statement by the Respondent to the effect that the Union threatened the employees that they would lose their jobs if the Union was not chosen by them as their bargaining representative was a misstatement of material facts. Moreover, I find that the misstatement of material facts was made at a time when the Union could not learn about it in time to answer and to point out the misstatement of facts. The Board has "4Playskool Manufacturing Company, 140 NLRB 1417, 1419 long held that where one of the parties to an election deliberately misstates material facts in circumstances such as recited hereabove, the Board will find that the bounds of legitimate campaign propaganda have been exceeded and will set the election aside." Accordingly, I shall recommend that the representation election heretofore held in Case 3-RC-4030 be set aside. V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IV, above, occurring in connection with the operation of the Respondent as set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found, as set forth above, that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action, set forth below, designed to effectuate the policies of the Act. One of the more basic rights conferred upon employees by Section 7 of the Act is the right to freely, without coercion or restraint from the employer, express their choice in a Board-conducted election designed to determine the wishes of the employees with respect to collective-bargaining representative. Since it has been found that Respondent interfered with this right, an order commensurate with the violations found and designed to assure Respondent's employees the opportunity to fully express the rights guaranteed them by Section 7 of the Act is appropriate. It having been found that the Respondent by threats, interrogation, and promises of benefits interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act, I shall recommend that the Respondent cease and desist therefrom. It having been found that the Respondent has discriminatorily discharged employee Douglas Gravelle, I shall recommend that Respondent offer Gravelle immediate and full reinstatement to his former or substantially equivalent position, without further prejudice to his seniority or other rights and privileges. Since I have further found that Gravelle's suspension prior to his discharge was also discriminatorily motivated, I shall recommend that backpay be computed from the date of the suspension, December 1, 1966. In addition, I recommend that the Respondent make Gravelle whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he would normally have earned from the date of his suspension, less net earnings during said period. Backpay shall be computed with interest on a quarterly basis in a manner described by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294, and Isis Plumbing & Heating Co., 138 NLRB 716. In view of the nature of the unfair labor practices herein found, including discrimination, which goes to the very heart of the Act," there exists the danger of commission by the Respondent of other unfair labor practices proscribed by the Act. Accordingly, I "See United States Gypsum Company, 130 NLRB 901, 904 "N L.R.B v. Entwistle Mfg Co. 120 F.2d 532, 536 (C A. 4) SNYDER TANK CORPORATION 743 recommend that Respondent be directed to cease and desist from in any other manner infringing upon the rights guaranteed employees in Section 7 of the Act." Having found that Respondent has unlawfully refused to bargain with the Union in good faith and has thereby violated Section 8(a)(5) of the Act, I shall recommend that the Respondent cease and desist from refusing to so bargain, and shall further recommend that the Respondent bargain, upon request, with the Union and, if an understanding is reached, embody such understanding in a signed agreement. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: Conclusions of Law 1. The Respondent, Snyder Tank Corporation, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminatorily discharging employee Douglas Gravelle the Respondent has violated Section 8(a)(3) and (1) of the Act. 5. All production and maintenance employees including warehouse employees employed by the Respondent's Buffalo, New York, plant, excluding all office clerical employees, professional employees, truckdrivers, truck mechanics, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 6. At all times since October 7, 1966, International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, has been the exclusive representative of all the employees in the aforesaid unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, or other terms and conditions of employment. 7. By refusing in October 12, 1966, and thereafter, to bargain collectively with the aforesaid labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is ordered that Respondent Snyder Tank Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their union activities and their attitude toward the Union, threatening employees with reprisals including threats to close the plant if the Union is selected by the employees to become their bargaining representative, promising the employees benefits if they abandon their adherence to the Union, bypassing the Union as bargaining representative of the employees, and assisting and encouraging employees in distributing antiunion petitions. (b) Discouraging membership in International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, or any other labor organization, by discharging any employee for engaging in protected union or concerted activity, by discriminating against employees in any other manner in regard to their hire and tenure of employment or any term or condition of employment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to form, join, assist, or be represented by International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activity for the purpose of collective bargaining, or other mutual aid or protection, or to refrain from any and all such activity. (d) Refusing to bargain collectively with International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, as the exclusive representative of its employees in the following appropriate unit: All production and maintenance employees including warehouse employees employed at the Respondent's Buffalo, New York, plant, excluding all office clerical employees, professional employees, truckdrivers, truck mechanics, guards, and supervisors as defined in the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Douglas Gravelle immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges enjoyed, and make Douglas Gravelle whole for any loss of earnings he may have suffered by reason of the discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify Douglas Gravelle if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records and reports, and all other reports necessary to analyze the amount of backpay due under this Order. (d) Upon request, bargain collectively with International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, as the exclusive bargaining representative of the Respondent's employees in the unit found appropriate with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (e) Post at its plant in Buffalo, New York, copies of the attached notice marked "Appendix."" Copies of said "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 "N L R B. v. Express Publishing Company . 312 U S. 426, 433 event that the Board's Order is enforced by a decree of a United States 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice, on forms provided by the Regional Director for Region 3 , after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material . No other material relative to this matter should be posted during this period. (t) Notify the Regional Director for Region 3, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith" IT IS FURTHER RECOMMENDED that paragraph 6(e) of the complaint in Cases 3CA-3101-2 and 3-CA-3199 be dismissed and that the entire complaint in Case 3-CA-3431 be dismissed. IT IS ALSO FURTHER RECOMMENDED that the election of January 19, 1967, be set aside. 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 the Regional Director for Region 3, 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 question any employees about their union activities or their attitude toward the Union. WE WILL NOT make threats, including threats to close the plant in the event that any union is successful in organizing our employees or wins any election held for the purpose of determining the bargaining representative of our employees. WE WILL NOT make promises to our employees of better working conditions, wages, and so forth in order to get them to disaffiliate or disassociate themselves from any labor organization. WE WILL NOT assist and encourage employees who distribute or circulate petitions against the Union or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to form, join, or assist or be represented by the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, or engage in other concerted activity for the purpose of collective bargaining or other mutual aid or protection or to refrain from any and all such activity. WE WILL offer to Douglas Gravelle immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges, and WE WILL make Douglas Gravelle whole for any loss of earnings that he may have suffered as a result of our discrimination against him. WE WILL, upon request, bargain collectively with International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, as the exclusive bargaining representative of Respondent's employees in the unit found appropriate herein with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement: All production and maintenance employees including warehouse employees employed at our Buffalo, New York, plant, excluding all office clerical employees, professional employees, truckdrivers, truck mechanics, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. WE WILL notify Douglas Gravelle if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. All our employees are free to become or remain, or refrain from becoming or remaining, members of International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, or any other labor organization , except to the extent that this right may be affected by an agreement in conformity with Section 8(a)(3) of the amended Act. Dated By SNYDER TANK CORPORATION (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, 4th Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York 14202, Telephone 716-842-3100.