Associated Mills, Inc.

ASSOCIATED MILLS, INC. Associated Mills, Inc. and Local 713, International Brotherhood of Electrical Workers, AFL-CIO. Cases 13-CA-9840 and 13-RC-12095 April 27, 1971 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, BROWN, AND KENNEDY On November 24, 1970, Trial Examiner Sidney Sher- man issued his Decision in the above-entitled proceed- ing, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended that the complaint be dis- missed as to such alleged violations. Finally, the Trial Examiner found that certain conduct of the Respond- ent after the petition in Case 13-RC-12095 was filed interfered with the election which had been conducted pursuant to stipulation of the parties, and recom- mended that the election be set aside and that a second election be directed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision. The Gen- eral Counsel filed cross-exceptions and a brief in sup- port thereof and in answer to the Respondent. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified below. Except as hereafter noted, we agree that Respondent violated Section 8(a)(1) and (3) of the Act' as found by ' Member Kennedy does not find the delay in granting a wage increase to Davis to be a violation of Section 8(a)(1) of the Act. On the contrary, it appears from the facts found by the Trial Examiner that the Employer consulted an attorney and granted the raise when advised it was proper to do so. See Paradise Bowl-O-Mat, Inc., 180 NLRB No. 100. Members Fan- ning and Brown find that case inapposite since, there, the employees' re- quest for a raise and the company's approval thereof occurred after the petition was filed. In the instant case, on the other hand, Davis had been promised a raise long before the union activities began, and, in fact, her failure to receive it by January 1970 prompted her to initiate these activities. Accordingly, as Davis would otherwise have received the raise in the normal course sometime in February, the Respondent's withholding of it because of the pendency of the petition was unlawful despite the fact that Respond- 190 NLRB No. 8 113 the Trial Examiner,' and further agree that its unlawful conduct occurring after the petition in Case 13-RC- 12095 was filed requires that the election be set aside and a new election be directed. However, unlike the Trial Examiner, we find that Respondent also violated Section 8(a)(1) of the Act by President Stern's and Plant Manager Kee's questioning of employees Can- chola and Shrenko,' respectively, about their problems, how they felt about the Company and their jobs, and whether they had any complaints or grievances. In our opinion, this unjustified questioning of the employees, approximately 1 week before the scheduled election, constituted unlawful probing into the employees' rea- sons for supporting the Union which tended to interfere with, restrain, and coerce them in the free exercise of their Section 7 rights." Furthermore, we find that such questioning of employees in the circumstances herein was unlawful because it constituted a solicitation of grievances which carried with it an implied promise that the grievances would be remedied.' In addition, we find that Respondent further violated Section 8(a)(1) by Stern's remark to employee Shrenko on April 16 to the effect that he (Stern) had reliable reports indicating that Shrenko was one of the troublemakers and instiga- tors of the Union. We find, in agreement with the Gen- eral Counsel's contention, that this statement tended to create the impression that Respondent was keeping the employees' union activities under surveillance and con- tained the inherent threat of reprisal against those found to be union supporters. The fact that this state- ment was made to only one employee does not render it any less coercive or unlawful, nor is it isolated in light of the surrounding unfair labor practices. On the other hand, we do not agree with the Trial Examiner that Stern's remarks, made in speeches deliv- ered on February 20 and 25, tended to convey to em- ployees the impression that Respondent had decided in advance not to bargain with the Union, even if it won the election. In our view, Stern's remarks did not trans- gress the prohibitions of Section 8(a)(1) of the Act. ent granted the increase (in April) after being assured by its attorney that it was proper to do so. In agreeing with the Trial Examiner that President Stern's speech of February 25 did not unlawfully threaten plant closure, we note that the single sentence relied on by the General Counsel (and cited in the Trial Examiner's Decision) appears only once in that entire lengthy speech which dealt essentially with other preelection issues. In the context of that speech, therefore, and since no similar remarks were made during the extended preelection campaign , we find that Stern 's statement did not tend to threaten employees with the possibility of plant closure if the Union won the election. In the absence of exceptions thereto, we adopt pro forma the Trial Examiner's finding that Stern's interrogation of employee Jones on April 16 did not violate Section 8(a)(1) of the Act. See Essex Wire Corporation, 188 NLRB No. 59. Tom Wood Pontiac, Inc., 179 NLRB No. 98. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner as modified below and hereby or- ders that the Respondent, Associated Mills, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Ex- aminer's Recommended Order, as so modified: 1. Delete paragraph 1(e) of the Trial Examiner's Recommended Order and reletter paragraph 1(f) as 1(e). 2. Substitute the attached Appendix for the Trial Examiner's Appendix. IT IS FURTHER ORDERED that the election held on April 17, 1970, among Respondent's employees be, and it hereby is, set aside, and that Case 13-RC-12095 be, and it hereby is, remanded to the Regional Director for Region 13 for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative. IT IS FURTHER ORDERED that all allegations of the complaint not specifically found to be violations of the Act be, and they hereby are, dismissed. [Direction of Second Election' omitted from publica- tion.] ' In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their ad- dresses which may be used to communicate with them. Excelsior Underwear Inc., 156 NLRB 1236; N.LR.B. v. Wyman-Gordon Co., 394 U.S. 759. Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 13 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director. The Regional Director shall make the list available to all parties to the election. No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all em- ployees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a repre- sentative of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things. WE WILL NOT do anything that interferes with these rights. WE WILL NOT discharge employees, transfer them, reduce their pay, cause them to quit, or otherwise discriminate against them, because of their interest in Local 713, International Brother- hood of Electrical Workers, AFL-CIO, or any other union. WE WILL NOT hold back pay raises otherwise due you because of a union campaign. WE WILL NOT ask you how you feel about a union or what you know about the union activities of other employees. WE WILL NOT offer to take care of your griev- ances, to improve communications with em- ployees, or to confer any other benefits, in order to get you to give up a union. WE WILL offer to take back Jennifer Davis at her old job as a quality control leadgirl and pay her for all the wages she lost because of being forced to quit our employ. All our employees are free to belong, or not to be- long, to Local 713, International Brotherhood of Elec- trical Workers, AFL-CIO. ASSOCIATED MILLS, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named in- dividual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Everett McKinley Dirksen Building, Room 881, 219 South Dearborn Street, Chicago, Illinois 60604, Telephone 312-353-7572. TRIAL EXAMINER'S DECISION SIDNEY SHERMAN, Trial Examiner: The initial charge herein was served on Respondent on May 18, 1970,' the complaint issued on August 18, the complaint case was con- solidated with the representation case on the same date, and ' All dates hereinafter are in 1970, unless otherwise shown. ASSOCIATED MILLS, INC. 115 the matter was heard on October 5. The issues litigated related to alleged violations of Section 8(a)(1) and (3) of the Act. After the hearing briefs were filed by Respondent and the General Counsel. Upon the entire record,' including observation of the wit- nesses' demeanor, the following findings and recommenda- tions are made: I. RESPONDENT'S BUSINESS Allied Mills, Inc., herein called Respondent, is an Illinois corporation, with a principal office and plant in Chicago, Illinois, where it is engaged in the manufacture of humidifi- ers, vaporizers, massaging devices, and the like. During 1969, Respondent derived gross income in excess of $50,000 from shipments to out-of-state points. Respondent is engaged in commerce under the Act. II. THE UNION Local 713, International Brotherhood of Electrical Work- ers, AFL-CIO, is a labor organization under the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues The pleadings raise the following issues: 1. Whether Respondent violated Section 8(a)(1) of the Act by interrogation, by threats of coercive action if the Union won a Board election, by granting a wage increase, by prom- ises of benefit, by transferring the leading union adherent to an isolated job during the preelection period, and by assigning her to an undesirable job after the election. 2. Whether Respondent violated Section 8(a)(3) by dis- charging Shrenko and Staples on May 1, and by causing Davis to resign on August 17. 3. Whether the election held on April 17, which was lost by the Union, should be set aside because of certain alleged misconduct by Respondent. B. Sequence of Events Early in 1970, Respondent was engaged at the plant here involved in manufacturing humidifiers, vaporizers, massag- ing devices, etc., for sale to Sears & Roebuck, Montgomery Ward, Penney's, and various other retail outlets. It had about 12 production lines, operated by a total of about 100 em- ployees. There was an inspector on each line, who checked each item as it came off the line. In addition, the work of these line inspectors was reviewed on a random basis by a "lead- girl," Davis, who, also, had the duty of training new inspec- tors, answering questions from the line inspectors about their work problems, and maintaining records of rejected produc- tion items. Although Davis' job involved more responsibility than that of the other inspectors, and she had long been promised a raise for that reason, she had not yet received one in January and had become greatly disturbed on that account. She at that time decided to contact the Union, and, upon doing so, received a number of authorization cards, which she dis- tributed among the employees. During the ensuing months, she attended all the union meetings. On February 4, the Union filed a petition for a Board election, which was held on April 17, and resulted in a vote of 52 against, and 41 for, the Union. It filed timely objections. During the preelection period, Respondent's president, Stern, delivered a number of speeches relating to the election issues. About 2 weeks before the election, Davis finally received her long-promised wage increase of 15 cents per hour. On April 13, 4 days before the election, she was transferred from the fifth floor to the fourth floor, where she was assigned certain new duties. During the election, she served as the Union's observer. On May 8, she was included in a general layoff. When recalled on July 7, she was offered a job as line inspector at a wage rate 15 cents per hour below her former rate. After working a few days, she took an extended leave of absence and finally resigned on August 17. Shrenko3 and Staples were line inspectors, who signed un- ion cards in January at the instance of Davis. They were among six employees who were laid off on May 1, as a prelude to the plantwide layoff a week later. On August 14, Respond- ent sent Shrenko a letter recalling her to work. Due to various circumstances she did not offer to return until September 14. However, Respondent advised her that it no longer had any opening for her. Nevertheless, Staples was recalled on Sep- tember 24, to fill the same job as had originally been offered to Shrenko. C. Discussion 1. The 8(a)(1) issues a. The speeches The record contains a number of speeches delivered by Respondent's president, Stern, during the preelection period to the assembled employees, beginning on February 20, as well as two mimeographed statements distributed to the em- ployees on April 14. The General Counsel contends that these speeches and statements were unlawful in that they implied that (a) Respondent would not bargain with the Union, even if it was certified by the Board, (b) Respondent might be forced to close the plant, if it had to pay the excessive wages demanded by the Union, (c) the Union would tear down the Respondent, (d) employees who were unpopular with the Union would not get good jobs, and (e) Respondent would adjust all employee complaints and improve communications with employees. As to (a), the General Counsel relies on the following passages from the speeches delivered on February 20, and 25: (1) ... all a union can do is make promises, endless promises. But in the end ... it is your company that pays the bills. (2) The union can make promises ... all sorts of prom- ises ... The union is after dues. The union is after initia- tion fees and the union can make any promise ... like a political election ... because it does not cost anything for the union to make promises. But the company pays the checks ... The company cre- ates jobs. The General Counsel contends that the stress thus laid on the emptiness of the Union's promises and Respondent's ex- clusive control over the terms and conditions of employment were calculated to impress upon employees the futility of voting for the Union. It does, in fact, seem to be a fair con- struction of such remarks that Respondent was determined to retain undiminished its exclusive control over such terms and conditions, leaving the employees with nothing but the Union's unfulfilled promises. While it may be arguable that Respondent meant rather to convey some such innocuous thought as that the fulfillment of the Union's promises de- pended on Respondent's willingness to make concessions, which it might or might not make, it would have been a ' The General Counsel's brief gives her name as Chrenko . However, for the purpose of this Decision I have adopted the spelling shown in the For corrections of the transcript, see the order of November 3. transcript. 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD simple matter for Respondent to express that thought in plain and unmistakable terms. By choosing , despite the lack of sophistication of his audience, and in a speech carefully pre- pared in advance,' to deal in obscurities and equivocations, Stern should be held to have assumed the risk of misconstruc- tions Accordingly, it is found that by Stern 's employment in the foregoing speeches of language calculated to convey the impression that Respondent had decided in advance not to bargain in good faith with the Union, even if it won the election. Respondent violated Section 8(a)(1) of the Act.' As to the alleged threat to close , the,plant, if the union exacted excessive wage increases , the General Counsel relies on the following in the February 25 speech: (1) "And we ... have stayed in this area to keep the work- ing force together , even though space is available at far less money in other areas . No Union can do this . This is a Com- pany decision.... " (2) Various statements stressing that Respondent can sell its products only if they are competitively priced , and that without sales there can be no jobs. The foregoing remarks do not appear to add up to a threat to shut down, if the Union exacts exorbitant wage increases.' As to (c), above, there recur throughout the speeches of April 13 and 15 and the April 14 mimeographed material charges that certain unidentified, prounion employees wish to tear down what Respondent has built up, regardless of who might be hurt in the process. These charges are followed by allegations that such employees are motivated by a desire to take over Respondent's business and operate it for their own benefit and that they planned to depart from Respondent's policy of treating all employees alike , without discrimination because of race, color, or creed, which policy is essential to success in business . The only result of such a course of action, it is concluded, will be "to tear down what we have built up." The most that can be made out of this melange is that it represents a warning by Respondent that, if the Union pre- vailed in the election, the leading union adherents among the employees would seek to take over the operation of Respond- ent's business and run it into the ground , by adopting a policy of disparate treatment of employees . However, such warning may not be equated with a threat of reprisal, since it does not purport to state what Respondent will do but purports rather to speculate as to what will be done by persons over whom Respondent manifestly would have no control. Accordingly, no merit is found in the instant allegation.' It is apparent from Stern 's testimony that he was at the time acting with the advice of counsel. See Wausau Steel Corp., infra, where, in a similar context, the court said, "one who engages in 'brinksmanship ' may easily ... tumble into the brink." Moreover, the apparent redundancy of any allusion to such a self-evident fact as that the fulfillment of the Union's promises depended on Respond- ent's willingness to meet the Union's demands militates against any infer- ence that such an allusion was all that was intended or that the employees would so construe Stem's remarks. 6 Hicks-Ponder Company, 174 NLRB No. 12. At this point the General Counsel relies on certain language of the Board in Wausau Steel Corp., 160 NLRB 635, 640, enfd. 377 F.2d 369 (C.A. 7), in finding to be unlawful a preelection speech by the employer warning of the elimination of overtime and marginal operations, if the union achieved bargaining rights and labor costs rose. However, here there was not even any such conditional warning. Moreover , in Wausau the Board relied on the additional circumstance that in a letter to the employees the em- ployer, in effect, unconditionally threatened to reduce overtime and pay, if the Union won the election. Furnas Electric Co., 183 NLRB No. 1 (TXD). (While the foregoing charges by Respondent against the prounion group might be thought to constitute a devious attempt to raise a racial issue, the matter was not litigated on that basis. Accordingly, I do not pass thereon.) As to (d), above-that advancement would depend on cur- rying favor with the Union-the General Counsel relies on an excerpt from one of the April 14 mimeographs, which reads, in part, as follows: I have heard that the shop steward has already been selected ... and you had better watch out because if he doesn't like you, you're not going to get a good job. His friends are going to get good jobs. The sponsoring people seem to be interested in one thing ... to give favors to those they would like to give favors to. Here, again, Respondent was speculating about action that would be taken in the event of a union victory by persons over whom Respondent had no control. Moreover, to the extent that they implied that the Union would reward its friends, such remarks could hardly be thought to tend to alienate employees from the Union. No violation is found here. As to the final allegation of promises of benefit, the General Counsel cites the following from the April 15 speech:' I have heard people say that the company is fine ... but there might be one small irritation, that irritation is not enough to vote for a union. It there is an irritation let us straighten that irritation out ....The company is willing and anxious to straighten all things out. Whatever they might be. On the line I have been told that we should have a closer communication. Of course, I agree. We are working con- stantly to try to improve relations and communications with our employees .... We will work the problem out. We can work the problem out. The General Counsel contends that, by the foregoing promises to adjust any employee grievance and to improve communications between management and the employees, Respondent violated Section 8(a)(1) of the Act. It is so found.'° b. Interrogation Johnson testified that early in February Stern asked him why the employees wanted the Union; that Johnson answered that he did not know; and that 3 days later Stem invited Johnson and another employee, Holman, to lunch, where a discussion ensued about the reasons for the employees' inter- est in the Union, in the course of which Holman attributed such interest to employee dissatisfaction with the most recent round of wage increases. Although Johnson's testimony was to the effect that Holman volunteered that information, Stern acknowledged at the hearing that his purpose in inviting the two men to lunch was to find out the reasons for the em- ployees' union activity, and that at the luncheon meeting he indicated surprise that there was such activity and asked "what it was all about and what the problems were." In view of this admission, it is found that Stern did in fact interrogate Johnson and Holman on that occasion about the reasons for the employees' union activity. It is also found that he had similarly interrogated Johnson about 3 days earlier. ' TX Exh. 1. ° In view of this finding, there is no need to consider whether, as alleged by the General Counsel, Respondent's questioning of employees about their problems was unlawful because there was implicit therein a promise to adjust their grievances . The remedial order recommended below will be broad enough to bar any such implied promises. ASSOCIATED MILLS, INC. 117 In support of other allegations of interrogation in the com- plaint, the General Counsel adduced the following: Jones testified that on April 16, she had a discussion with Stern, in the course of which she explained, in reply to a query by Stern, why the employees wanted the Union. However, she admitted that she was the one who first brought up the matter of the Union in this conversation. Davis testified that about February 15, at a meeting with about 15 employees, Stern asked, if they knew why the em- ployees wanted the Union, and who brought the Union into the plant. Davis added that about a week before the election Stern asked her personally why the employees wanted the union and sought to elicit her own sentiments regarding the Union. Stern did not deny the first incident nor did he specifi- cally deny the second one." Shrenko testified that on April 15, Plant Manager Kee asked her what she thought of the Union. There was no contradiction of her testimony." While the employee testimony with regard to all the foregoing incidents is credited, it is found that the fact that Jones initiated the discussion of the Union precludes a viola- tion finding as to her. However, the interrogation described by Johnson, Davis, and Shrenko, occuring as it did in the context of the other unfair labor practices found herein, is deemed to violate Section 8(a)(1) of the Act." c. The wage increase As already related, Davis was the instigator of the Union movement in Respondent's plant and Stern frankly admitted that he knew of her Union activity from its inception, and he did not dispute her testimony, which I credit, that about a week before the election he taxed her with having brought the Union into the plant. Early in April, Plant Manager Kee notified her that her hourly rate was being increased from $2.60 to $2.75. As already noted, this raise was long overdue, since it reflected a decision made in September 1969, to re- classify Davis' position in recognition of her duties and re- sponsibilities," and Respondent was admittedly aware that Davis had been agitating for the raise as far back as Novem- ber 1969 and that she was disturbed over the withholding " He testified only that, knowing of Davis' involvement with the Union, he took care not to get into any conversation with her other than to urge her to consider both sides of the union issue. Even if this be deemed a specific contradiction of Davis' testimony as to the second incident, I would not credit Stern here as I was more favorably impressed by her demeanor. " Kee did not testify. Respondent explained at the hearing that it had not called him because he was no longer employed by Respondent and had indicated he would not testify voluntarily, unless Respondent paid him $500 in settlement of a claim for vacation pay. " The General Counsel urges that additional finding of violations of Sec. 8(a)(1) be based on the following: a. Testimony by Shrenko that on April 16, Stem told her he had a reliable report that she was one of the troublemakers and instigators of the Union, which statement, it is contended, created the impression of surveillance. While I credit such testimony, on the basis of demeanor, notwithstanding Stern's denial , I do not regard such an isolated reference to a report about a single employee as sufficient to convey the impression of planned surveil- lance. b. Testimony by Shrenko that on May 1, when terminated by Stern, he mentioned that he might have to shut down or move, because of the diffi- culty of obtaining orders for a plant located in Chicago, plagued as that city was by so many strikes. While I credit such testimony, I do not find that such remark was calculated to discourage union activity. The remark was made during nationally publicized negotiations between the Teamsters' Union and Chicago employers, and Shrenko admitted that that was the only matter specifically referred to by Stern. Accordingly, no violation is found with respect to these incidents. 1' Kus' testimony indicates that Davis had been doing essentially the same work for about a year before September 1969. thereof. The General Counsel would apparently have the inference drawn from the timing of the raise-a few weeks before the election-that the purpose thereof was to wean Davis away from the Union and leave the Union adherents without a leader as the election drew near. Stern, however, attempted to explain the timing of the raise as fortuitous, maintaining that, while Davis' job was reclassified in Septem- ber 1969, the necessary papers were not completed until late in February, at which time it was feared that any raise would be unlawful because of the pendency of the Union's petition. Stern added that the raise was finally granted only after he was assured by Respondent's counsel that it was proper to do so. While there was no contradiction of this explanation, it does not exonerate Respondent. If, as Stern claimed, Re- spondent did in fact withhold the raise for more than a month solely because of the pendency of the union petition, albeit as a result of a mistake as to the applicable law, such withhold- ing would violate Section 8(a)(1). Accordingly, on the basis of Stern's own testimony, Respondent must be found to have violated the Act," and there is no need to consider whether Respondent might have had some reason other than the ad- vice of counsel for its change of policy with regard to wage increases. 2. The 8(a)(3) issues a. The transfer of Davis On April 13, 4 days before the election, Davis was trans- ferred from her position on the fifth floor, where she was in constant contact with the bulk of the employees, to the fourth floor, where she was assigned to work by herself in the office of Kus, Respondent's quality control supervisor, inspecting incoming materials, and preparing summaries of her own daily records of rejected production line items. She remained there until May 8, when she was included in a general layoff. The complaint alleges that this was an undesirable and iso- lated job and that Davis was assigned thereto because of her union activity. Shrenko testified that Kus told her on April 14 or 15 that Davis had been transferred "to keep her out of trouble."" Kus, who assumed sole responsibility for the transfer, did not contradict Shrenko's foregoing testimony. Nevertheless, he insisted that the transfer was made necessary by the depar- ture about April 1 of an employee who had been inspecting incoming material . However, he soon thereafter attributed Davis' transfer to the importance of completing the summar- ies of her daily entries pertaining to rejected products on Respondent's assembly lines, for which work Kus' office was better suited than was Davis' former location, and he ex- plained that this was the primary reason for her transfer, and that the inspection of incoming materials was merely an inci- dental assignment. While agreeing with Kus that he made the decision to transfer Davis, Stern explained that early in April he called Kus' attention to the need for updating the summar- ies of Davis' daily reports of rejects, in anticipation of a projected visit by an inspection team from Sears and Roe- buck. However, at a later point in the hearing, Kus admitted that no records of defective production had been kept since Davis' layoff on May 8, acknowledging that such records had no significance because they did not "prevent the bad mer- chandise from going out." When asked whether he was not aware of this when he decided to transfer Davis to the fourth " Although the complaint alleged that the violation consisted in the granting of the increase, rather than the withholding thereof, the latter issue was adequately litigated and is related to the former. Tonn & Blank, Inc., 182 NLRB No. 39. 11 See item No. 24 of my order of November 3. 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD floor, Kus changed color and remained mute. Thus, after stressing the importance and urgency of Davis' paperwork in her new assignment, the representative of management who assumed sole responsibility, for the transfer admitted that the entire recordkeeping operation was so lightly regarded that it was discontinued as soon as Davis left." In view of (a) the foregoing implausibility of Respondent's explanation of the transfer, (b) Shrenko's undenied testimony that Kus admitted that the purpose of the transfer was to keep Davis out of "trouble," and (c) the timing of the trans- fer, it is found that the reasons assigned by Respondent for the transfer were pretextual, and that she was moved into Kus' office to isolate her from the other employees during a critical period in Respondent's preelection campaign." The manifest purpose of this was to neutralize her influence on behalf of the Union during that period, thereby enhancing the effectiveness of that campaign. A transfer for such a purpose is unlawful, whether or not the new job is intrinsically as desirable as the old one.19 Moreover, here it appears from Davis' testimony that she regarded the new job as less attrac- tive, because she was all alone in Kus' office with no one to talk to. It is concluded that the transfer violated Section 8(a)(3) and (1) of the Act. b. The constructive discharge of Davis Davis was included in the general layoff of May 8, the validity of which is not disputed by the General Counsel. On July 5, she was recalled, and, when, on July 7, she reported to Kline, Respondent's new plant manager, he stated that her old job as leadgirl was no longer available, and offered her only a job as inspector on the assembly line at a reduced rate of pay. After working at this job for 3 days, she took a 2-week vacation, at the end of which she obtained a leave of absence until August 17, when she tendered her resignation. She tes- tified that she quit, inter alia, because of the reduction in pay and because her new job was more confining than her former one. The General Counsel contends that she was assigned to a lower-paying and otherwise less desirable job because of her union activity, and that her resignation on that account con- stituted an unlawful, constructive discharge. 1' Likewise, Stern failed to explain why an inspection team from Sears and Roebuck would be interested in records pertaining to items that had not passed inspection by Respondent. Such records alone would throw little light on the adequacy of Respondent's inspection procedures. The best test of their adequacy would seem to be the number of defective items that did pass inspection and were delivered to the customer, as to which the cus- tomer presumably already had all the necessary information. One may wonder why, in explaining the transfer of Davis, Kus placed the main reliance on the need for completing the summaries of her daily reports rather than on the need for inspecting incoming materials, which latter job, in itself, would seem to have required the presence of an employee in Kus' office on a full-time basis. Presumably, the answer lies in the fact that it would have been difficult to justify assigning a person of Davis' calibre, who reviewed the work of 10 or more production line inspectors, to what was essentially a routine inspection job, whereas assigning her to updating the summaries of her own reports could more readily be justified on the ground that she was the one most familiar therewith and already had responsibility for that work. " During the 4 days between Davis' transfer and the election, there was a marked quickening of the tempo of that campaign. Thus, Stern delivered captive audience speeches on April 13, and 15, distributed the mimeo- graphed material on the 14th, and continued to tour the plant throughout that period, attempting to bring home to individual employees Respondent's position with regard to the Union. " J. W. Mays, Inc., 147 NLRB 942, 962, enfd. on this point 365 F.2d 693 (C.A. 2) (transfer of clerk from warehouse to position in general office, which was "at least as desirable as" that in warehouse); South Bay Daily Breeze, 130 NLRB 61, enfd. as modified 299 F.2d 677 (C.A. 9) (offer of promotion). Stern contended that Davis was not put back in her old job as leadgirl on July 7 because (a) that job had been eliminated for operational reasons, and (b), in any event, not enough production lines had as yet started up at that time to warrant the full-time services of a leadgirl. While there was no contra- diction of (b), any inference therefrom that, had Davis not resigned when she did, Respondent would have restored her to her old job, when production returned to normal, is pre- cluded by the following: 1. Stern's aforenoted testimony, which was corroborated by Kline, that, when he took over as plant manager, he decided to abolish Davis' old job for operational reasons. 2. The fact that her old job as leadgirl was never filled by anyone who was so classified. 3. Davis' uncontradicted testimony, which I credit, that, when she returned, Kline told her that her old job was "no longer available." It seems unlikely that Kline would have spoken with such finality, had the assign- ment of Davis to line inspection been merely an interim arrangement, pending the resumption of full production. It is therefore found that on July 7 Respondent had no intention of restoring Davis at any time to her old post as leadgirl, and at that time had no plans for her other than to use her as a line inspector at a reduced wage, and that this intention was conveyed to her on July 7, causing her ulti- mately to quit Respondent's employ. The question remains whether the foregoing decision not to put Davis back in her old job was motivated by discriminatory considerations. As already noted, Stern and Kline agreed that the decision was based solely on operational considerations. The composite effect of their testimony was that the original creation of the leadgirl position by the former plant manager, Kee, was merely an experiment and that, when Kline arrived on the scene, he decided, on the basis of his own experience as a plant manager, that there was no need for such a position. Stern added, and Kus agreed, that no one is presently per- forming any of Davis' former functions. Kus, also, agreed with Kline that line inspectors no longer report to a leadgirl but only to their production foremen, who have sole responsi- bility for the finished product. However, the General Counsel adduced testimony by Jones, a line inspector, that, when she returned to work about August 1, she was required to submit samples of the output of her line to an unidentified, male employee, who inspected such samples, and counselled her, in the same manner as Davis had done, and that such in- dividual performed the same functions with respect to all the other 10 or 11 production lines. It is clear from her testimony, which was partly corroborated by Staples, that the individual in question was not a production foreman. However, Kus and Kline insisted that the only one doing any inspection of sam- ples of production items on a regular basis was Morrison, who was described as a quality control engineer, but they could not agree on what he was inspecting. While Kus averred that Morrison, unlike Davis, did not spot-check the final product but only the subassemblies which entered into such product, Kline testified that Morrison was inspecting samples of the finished product after it was packed. On the basis of demeanor, and in view of the foregoing material discrepancies between the testimony of Kus and Kline, I credit Jones and Staples and find that responsibility for the spot-checking of finished products on all production lines and for advising the line inspectors about their work is still vested in a single individual, as was true when Davis was leadgirl, and that such individual is still performing the bulk of her former work.20 11 While it has been found that Davis' former recordkeeping duties have been discontinued, Kus admitted that this was done because they had no ASSOCIATED MILLS, INC. Absent any other credible explanation therefor, and in view of Respondent's prior discrimination against Davis, the infer- ence is warranted that the true reason for Respondent's fail- ure to reinstate her in the leadgirl job was its resentment of her union activity." It follows that her assignment to the line inspection job at a reduced rate of pay violated Section 8(a)(3) and (1) of the Act and her resignation on that account con- stituted a constructive discharge, which was similarly viola- tive of the Act.22 c. The layoff and recall of Shrenko and Staples As already noted , on May 8, there was a general layoff of all Respondent's employees, the validity of which is not con- tested. However, the General Counsel does allege to be dis- criminatory the earlier layoff on May 1 of Shrenko and Sta- ples, both of whom had signed union cards and attended union meetings in the company of Davis. Respondent's de- fense is that it did not know of their union activity and that, in any event, they were laid off together with four others as a prelude to the general layoff of May 8 , and for the same reasons as motivated that layoff. There was no rebuttal of Stem's testimony that four other employees were laid off at the same time as Shrenko and Staples, that all six were selected on the basis of seniority, and that such layoffs were due to the regular, seasonal decline in Respondent's business and the imminence of a shutdown of all trucking operations as a result of a labor dispute, which were the very conditions that necessitated the closing of the plant a week later . Absent any contradiction thereof, such testimony is created.21 As for the recall issue, although the complaint alleged only the discriminatory "discharge" of Shrenko and Staples on May 1, and did not specifically allege that the failure to recall either or both of them was unlawful , evidence was adduced by the General Counsel concerning the circumstances under which they were offered reemployment . Presumably, the pur- pose of such evidence was either to show animus toward these employees or to negate any contention , at least as to Shrenko, that such offer was adequate to toll the right to backpay flowing from her alleged discriminatory discharge . However, as it has been found that there was no such discharge, but only a layoff for valid economic reasons , the foregoing evi- dence may be considered, if at all, only as tending to show that there was discrimination against Shrenko with regard to the matter of her recall from layoff. Whether or not that issue may be deemed to have been sufficiently alleged , it is clear that it was sufficiently litigated , and it will be next considered. Although Shrenko had less seniority than Staples as a line inspector,24 and Stern testified, without contradiction, and I find, that Respondent in general followed seniority in recall, the record shows that Shrenko was the first of the two to be offered rehire. Such offer was made to her in a letter of August practical value. In any event, such a merely clerical function could not have been regarded as of critical importance in deciding whether to retain or abolish the leadgirl position " While Respondent had won the election , the discrimination against Davis served to discourage any resurgence of union activity , which was no academic matter, in view of the pendency of the Union's objections to the election, which , if sustained, would have entailed a new election. Capital Electric Power Association, 171 NLRB No. 42 As such testimony, in itself, adequately negates any discrimination in the layoffs of Shrenko and Staples, there is no need to consider at this point the adequacy of the evidence that Respondent knew of their union senti- ments That matter, however , will be considered in connection with the allegation next discussed " Staples had been a line inspector since June 1969, and Shrenko had been so employed since the following September 119 14, but due to her temporary absence from the city, she did not see this letter until September 11 and delayed contacting Respondent until September 14. When she then indicated her availability, she was told that she would receive an answer later that day. However, she heard nothing until September 24, when she was advised that no inspection jobs were then open. Nevertheless, on the same day Staples was instructed to return to work as an inspector, and she did so return. The General Counsel contends that the foregoing circumstances establish discrimination against Shrenko . However, it might as well be contended that they show discrimination against Staples in not recalling her sooner, since on the basis of seniority, she was entitled to be recalled before Shrenko. It is true that Respondent failed to explain why it decided to honor Staples' seniority only after Shrenko made her belated offer to return and such silence would normally be a suspi- cious circumstance; However, here it is not clear what infer- ence is to be drawn from that circumstance . Is one to infer that Respondent initially preferred Shrenko to Staples for discriminatory reasons, notwithstanding that the record shows that Shrenko was deemed by Stern to be an instigator of the Union." Or is one to infer that, even though Respond- ent was recalling all its other employees on the basis of seni- ority and Staples had seniority over Shrenko , the final deci- sion to reinstate Staples rather than Shrenko was prompted by considerations other than seniority. A more likely explanation under all the circumstances would seem to be that the preference initially shown Shrenko was the result of a clerical or administrative error , which was rectified by ultimately recalling Staples instead or Shrenko.26 Upon consideration of all the foregoing matters, it is found that there is no preponderant evidence of discrimination with regard to the layoff or recall of Staples and Shrenko. 3. The objections to the election As already related, the election, held on April 17, pursuant to a petition filed on February 4, was lost by the Union. In its objections to the election, the Union alleged (1) threats of reprisal for union activity, (2) promises and grants of benefits to induce employees to reject the Union, (3) interrogation of employees, and (4) campaigning by Respondent on company time, without affording the Union equal access to the em- ployees. The Regional Director's report of August 18, or- dered that the representation case be consolidated with the instant complaint case, and that all the foregoing objections be litigated in such consolidated proceeding. The Regional Director noted that in the course of investigating objection (4), above, conflicting evidence was developed as to whether Respondent violated the Boards Peerless Plywood rule,27 which interdicts captive audiences speeches by an employer within 24 hours before the polls open. While the matter is not entirely clear, it is inferred from this that the Regional Direc- tor construed objection (4) as raising that issue and that he meant to refer it to the Trial Examiner conducting the instant hearing. That issue was in fact litigated before me , and it is " With regard to the matter of Respondent's knowledge of their union activity, the record shows that both ladies signed union cards in January, and that both consorted regularly with Davis about the plant and attended union meetings with her In addition, it has been found (see fn 13, above) that on April 16, Stem apprised Shrenko that he had a reliable report that she was an instigator of the Union Thus, if involvement with the Union had been considered by Respondent a bar to recall , it would have been less likely to give initial preference to Shrenko than to Staples. 1° The fact that Shrenko, herself, was laid off for a few days in March, apparently as a result of such an error, suggests that Respondent 's personnel records of personnel administration left something to be desired. " Peerless Plywood Company, 107 NLRB 427. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found from the evidence presented that no captive audience speech was made after April 15. Accordingly, no violation of Peerless Plywood is found here. Nor was any evidence ad- duced of threats of reprisal as such. However, there was necessarily implicit in the discriminatory transfer on April 13 of Davis, the leading union adherent, to a position where she enjoyed less responsibility than before, and was relatively isolated from the other employees a threat of downgrading of union adherents generally. Moreover, it has been found that in the speeches of February 20 and 25, Respondent warned, in effect, that any effort by the Union to fulfill its promises to the employees was foredoomed to failure. Finally, it having been found above that in the speech of April 15 Respondent promised certain benefits to the em- ployees, that a group of about 15 employees was interrogated on February 15, about the Union and that individual em- ployees were similarly interrogated on various dates in Febru- ary and April, merit is found in the Union's allegations of promises, and interrogation. It will accordingly be recom- mended that the election of April 17, be set aside and a new election directed. IV. THE REMEDY It having been found that Respondent violated Section 8(a)(1) and (3) of the Act, it will be recommended that it be required to cease and desist therefrom and take appropriate, affirmative action. Such action shall include a proper offer of reinstatement to Davis, and her reimbursement for any loss of earnings suffered by reason of the discrimination against her. Backpay shall be computed in accordance with the for- mula stated in F W. Woolworth Company, 90 NLRB 289; interest shall be added to backpay at the rate of 6 percent per annum. (Isis Plumbing & Heating Co., 138 NLRB 716.) It will also be recommended that the election of April 17 be set aside and a new election directed. In view of the nature of the violation found herein, particu- larly the discrimination against Davis, a threat of future vio- lations exists, which warrants a broad cease-and-desist provi- sion. CONCLUSIONS OF LAW 1. Associated Mills, Inc., is an Employer within the mean- ing of Section 2(2) of the Act, and is engaged in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 713, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By coercively interrogating employees about their union sentiments or activities and those of other employees, by promising improvements in working conditions to induce rejection of the Union, by indicating to employees that any attempt by the Union to improve their lot through collective bargaining would be unavailing, and by withholding a pay increase because of the Union's organizational campaign, Re- spondent has violated Section 8(a)(1) of the Act. 4. By transferring Davis to less desirable work on April 13, because of her union activities and by refusing for that reason to restore her to her former position as leadgirl after her recall from layoff, thereby effecting her constructive discharge, Re- spondent has violated Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER28 Upon the entire record in the proceeding and the foregoing findings of fact and conclusions of law, it is recommended that Associated Mills, Inc., its officers, agents, successors, and assigns, shall be required to: 1. Cease and desist from: (a) Discouraging membership in, and concerted activities on behalf of, Local 713, International Brotherhood of Electri- cal Workers, AFL-CIO, or any other labor organization, by transferring employees, reducing their pay, or otherwise dis- criminating in regard to their hire or tenure of employment of any term or condition of employment. (b) Coercively interrogating employees about their union sentiments or those of other employees. (c) Promising adjustment of grievances or other improve- ments in working conditions to induce employees to reject the afore-named union or any other union. (d) Withholding a wage increase because of the pendency of a union organizational campaign. (e)Impressing upon employees the futility of any efforts by a union to improve their terms or conditions of employment through collective bargaining. (f) In any other manner, interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist the above-named Union, or any other labor organization to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) Make whole Jennifer Davis, in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy," for any loss of pay she may have suffered by reason of the Respondent's discrimination against her and offer her immediate reinstatement to her former position as a quality control leadgirl, without prejudice to her seniority or other rights and privileges. (b) Notify Jennifer Davis, if presently serving in the Armed Forces of the United States, of her right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Selective 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, timecards, person- nel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of, this Order. (d) Post at Respondent's plant in Chicago, Illinois, copies of the attached notice marked "Appendix."29 Copies of said notice, on forms to be provided by the Regional Director for Region 13, shall, after being duly signed by Respondent's representatives, be posted by it immediately upon receipt thereof, and maintained by it for 60 consecutive days there- "In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. 39 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." ASSOCIATED MILLS, INC. 121 after, in conspicuous places, including all places where no- IT IS FURTHER RECOMMENDED (a) that all allegations of tices to employees are customarily posted . Reasonable steps the complaint which have not been sustained be dismissed, shall be taken by Respondent to insure that such notices are and (b) that the election of April 17, be set aside and a new not altered, defaced, or covered by any other material. election directed. (e) Notify the Regional Director for Region 13, in writing, within 20 days from the receipt of this Decision , what steps Respondent has taken to comply herewith." this provision shall be modified to read "Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps 30 In the event that this Recommended Order is adopted by the Board, Respondent has taken to comply herewith "