Textron, Inc.

TEXTRON, INC. 131 Textron, Inc. (Talon Division) and International La- dies' Garment Workers' Union, AFL-CIO. Cases 11-CA-4481, 11-CA-4571, 11-CA-4607, and 11- RC-3274 September 19, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On April 5, 1972, Trial Examiner Sidney Sher- man issued the attached Decision in this proceeding. Thereafter, Respondent and General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions, as herein modified, and to adopt his recommended Or- der. We agree with the Trial Examiner that Respon- dent violated Section 8(a)(1) of the Act by Plant Man- ager Karle's statements that if the employees selected the Union as their bargaining representative, he would or could "bargain from scratch" and that the employees might well end up with fewer benefits than they currently enjoyed. These statements were made in April 20 speeches which, the Trial Examiner found, also contained other coercive remarks. When viewed in this context and in light of Respondent's other unfair labor practices, the "bargain from scratch" statements reasonably tended to threaten employees with loss of existing benefits if they selected the Un- ion.2 We also agree with the Trial Examiner, for the reasons stated by him, that Respondent violated Sec- tion 8(a)(3) of the Act by discharging Shillinglaw and Burgess because of their union activities. In so find- ing, it is unnecessary, however, to resolve the question of whether or not Shillinglaw and Burgess might actu- ally have interfered with production in violation of Respondent's no-solicitation rule,' since the record amply demonstrates, and the Trial Examiner found, that the rule was, in any event, disparately applied and enforced against the discriminatees to prohibit union activities. tions Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that Respondent, Textron, Inc. (Talon Division), York, South Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. IT IS FURTHER ORDERED that the election in Case I1-RC-3274 be, and it hereby is, set aside and that proceeding is hereby dismissed. I The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponder- ance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings. 2 Host International, Inc, 195 NLRB No 66, discussed by the Trial Exam- iner, is clearly distinguishable on its facts, as there stated. The Trial Examiner's reference (at fn 13 of his Decision) to that case as "a sport case" is, therefore, inaccurate 3In the absence of exceptions thereto, we adopt, pro forma, the Trial Examiner's finding that Respondent's no-solicitation rule is not invalid on its face TRIAL EXAMINER'S DECISION SIDNEY SHERMAN, Trial Examiner: The initial charge herein was served upon Respondent I on February 11,1971,2 the consolidated complaint issued on August 4, and on September 16 the Regional Director issued an order consol- idating the instant complaint cases with the representation case. The hearing was held on November 2 through 5, No- vember 30, and December 1. The issues litigated related to alleged violations of Section 8(a)(1), (3), and (5) of the Act. After the hearing briefs were filed by the General Counsel and the Union? Upon the entire record,4 including the demeanor of the witnesses, I make the following: FINDINGS AND RECOMMENDATIONS I RESPONDENTS BUSINESS Textron, Inc., hereinafter called Respondent, is a cor- poration with a principal office at Providence, Rhode Is- land. It owns and operates a number of plants throughout the United States, including the one at York, South Caroli- na, involved herein. It annually ships in interstate com- merce goods valued at more than $50,000. Respondent is engaged in commerce under the Act. II THE UNION International Ladies' Garment Workers' Union, AFL- CIO, hereinafter called the Union, is a labor organization under the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- 1 Respondent's name appears as amended at the hearing 2 All dates herein are in 1971, unless otherwise indicated 3 There was also received a postheanng stipulation which was admitted in evidence as TX Exh 1. See the order of February 3, 1972 4 For corrections of the transcript and various evidentiary rulings, see the orders of February 3 and March 6, 15, and 23, 1972 199 NLRB No. 17 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III THE MERITS The following issues were litigated herein: 1. Whether Respondent violated Section 8(a)(l) by in- terrogation, threats, surveillance, creating an impression of surveillance and of the futility of employee union activity, and admonishing an employee to have no traffic with the Union? 2. Whether Respondent violated Section 8(a)(3) by dis- charging employees for union activity?5 3. Whether Respondent violated Section 8(a)(5) by re- fusing to bargain with the Union on and after February 15? 4. Whether Respondent interfered with freedom of choice in the Board election held on April 22? 5. Whether the challenges to certain of the ballots cast in that election should be sustained? A. Sequence of Events Respondent employs about 120 employees at the in- stant plant. The Union's attempt to organize the employees began late in January with the circulation among the em- ployees of a petition on behalf of the Union. The signing of authorization cards for the Union began about the same time and continued during the next few months. On the morning of February 3, Plant Manager Karle received a report concerning the circulation of the foregoing petition and proceeded to address the employees on each of the next three shifts in captive audience speeches, in which he ex- pressed his views about unions and warned the employees against engaging in union activity to the neglect of their own work or so as to interfere with the work of others. On Feb- ruary 9, Respondent received a telegram from the Union advising that 29 named employees were members of the Union and of its organizing committee 6 On February 15, the Union sent Respondent another wire, claiming to have authorization cards from a majority of its production and maintenance employees and requesting recognition. In a letter of February 18, Respondent rejected that request, expressing doubt concerning the Union's majority status. Observing that the Union had already filed a petition with the Board for an election, Respondent suggested that the issue be settled in that proceeding. Between February 4 and March 15, eight of the alleged discriminatees ceased to work for Respondent under the circumstances described below. The Board election was held on April 22. On April 20, management representatives again addressed the employees on the subject of the Umon. The election resulted in 53 votes for the Umon, 59 against, and 14 challenged ballots, including the ballots of 8 of the alleged discriminatees. The Union filed timely objections to the election. On September 16, 1971, the Regional Director issued a report on the objections and challenges, in which he remit- ted all the objections and most of the challenges to the 5 The complaint alleged 14 discriminatory discharges. Of these, Durbin's case was dismissed at the hearing on Respondent 's motion, the cases of Lowry and P. Williams were withdrawn by the General Counsel at the hearing, and that of W. Miller was withdrawn after the hearing. 6 TX Exh 2 instant complaint case. B. Discussion 1. The 8(a)(1) issues a. Interrogation Burgess worked on the third shift from 11 p.m. to 7 a.m. He testified that he reported for work at 12:15 a.m. on February 4, 1-1/4 hours late, arriving in the middle of Plant Manager Karle's speech to the third shift; that about 12:30 a.m., immediately after the completion of the speech, he accompanied his supervisor, Ogden, to his office, where the latter asked Burgess what he thought of the speech; that, when the witness gave a noncommittal answer, Ogden de- clared he would fight the Union because it would not "help the company's production"; that about this time E. Bailey, K. Branham, and A. Wade amved in Ogden's office; that he asked all four what they thought about the Union; that he told the others that Burgess had said he was opposed to the Union; and that the witness denied that such was the case. E. Bailey testified about an occasion when Ogden asked him and Burgess what they thought about the Union, but was of the opinion that this happened on February 7. K. Branham testified that on an unspecified date Ogden asked the witness what he thought of Karle's speech. A. Wade was not examined on the point. Ogden denied that he had asked any of the foregoing employees what they thought about the Union. He ac- knowledged only that after Karle's speech he told K. Bran- ham that he did not think a union would help production but he insisted that this was in reply to a question from K. Branham about Ogden's views on the speech.? Although Burgess' version was not fully corroborated by the other employees, I was favorably impressed by his demeanor and the circumstantiality of his account, and find that Ogden did ask him early in February what he thought of the Umon. Moreover, on the basis of demeanor I credit K. Branham and find that Ogden asked him what he thought of Karle's speech anent the Union. Such inquiry was calculated to convey the impression that Respondent was seeking a clue to K. Branham's sentiments about the Union. Garvin testified that early in February Supervisor Cain came to his work station and asked what he thought of Karle's speech and how he felt about the Union coming into the plant, and that there ensued a discussion, in which Cain deprecated the employees' need for a union. Cain acknowl- edged that he asked several employees, including Garvin, what they thought of Karle's speech. While denying that he asked Garvin how he viewed the advent of the Union, Cain admitted that the two had a discussion of the Union along the lines related by Garvin. 7 Ogden, moreover, disputed Burgess' chronology, asserting that Karle's speech began at 11.10 p .m. on February 3, and that Burgess reported at 11:30 p in. However, he did not deny that Burgess amved in time to hear , and did hear, at least part of Karle's speech. While Karle's own chronology indicates that the speech was concluded well before 11.30 p.m ., I credit Burgess' testimony that he joined the meeting while it was still in progress, since he had no apparent ulterior motive for fabricating such testimony. TEXTRON, INC. 133 On the basis of demeanor, as well as various matters reflecting on Cain's credibility, which are discussed else- where in this Decision, Garvin is credited. Moreover, for reasons already noted, even Cain's admitted interrogation of Garvin and others about their views concerning Karle's speech would constitute an apparent probing into their un- ion sentiments. Simpson testified that in mid-March Supervisor Greene came to her work station, asked if she had heard about the union campaign and what she thought about it, and promptly repeated the same questions to Kemp, who worked next to Simpson. Although acknowledging that he did on that occasion approach Simpson while she was at work and ask her what she thought of Karle's speech, Greene disputed the balance of her testimony. I was more favorably impressed by the candor of Simpson's demeanor and credit her. In any event, for reasons already noted, even Greene's admitted query about the speech would, in itself, be construable as interrogation about Simpson's union sen- timents. Simpson added that the day before the election Person- nel Director Jones came to her work station and, after ref- erring to the union button she was wearing, asked her if she had "thought it over," and, when she answered that she had, a discussion ensued about insurance benefits and some oth- er matters mentioned in Karle's speech. Jones acknowl- edged that he made some reference to Simpson's union button but denied that he asked her if she had "thought it over." On the basis of her demeanor, as well as the circum- stantiality of her testimony, Simpson is credited. There was no substantial dispute, and it is found, that after Karle's speech early in February Supervisor William- son asked M. Branham what she thought about the speech. Brakefield testified that on April 20, after the preelec- tion speech delivered to the employees that day, Supervisor Cain asked her if she had any questions about the speech; that a discussion ensued, in which Cain cast aspersions on the Union's motives, warned her of the perils of associating with unions, and admonished her to think the matter over and let him know of her decision; that later that day the discussion was renewed along the same lines; and that the next morning Cain asked her if she had thought the matter over, whereupon she showed him the union pin she was wearing. Cain denied any interrogation of Brakefield, insist- ing that the only discussion of the Union between them was initiated by her, when she asked him why other employees had turned against her; and that he suggested that it might be due to their antagonism to the Union. Since I regard Brakefield as a more candid witness than Cain, I credit her and find that she was interrogated as related by her. A. Wade testified that on February 9, his supervisor, Ogden, asked him either whether he was for the Union or why he was for the Union,8 and warned that if the witness contacted the Union he would be discharged. However, he admitted that in his pretrial affidavit he attributed to Ogden the somewhat different threat that a few people would be discharged if they contacted the Union. Ogden denied that there was any such conversation. In view of A. Wade's apparent uncertainty and vacillation about the tenor of s The witness gave both versions Ogden's remarks, and as I was not favorably impressed by A. Wade's demeanor, I credit Ogden and find no interroga- tion here. C. Quinn testified that over a period of several weeks, beginning in February, his supervisor, Greene, would come to the witness' work station once or twice a week and ask him what he thought about the Union. Greene insisted that his interrogation of C. Quinn consisted only in asking him, after Karle's February speech, whether he had any ques- tions about it. While I credit Greene, even his admitted inquiry about Karle's speech constituted an apparent prob- ing into C. Quinn's union sentiments. Carpenter testified that on April 21, Cain asked her if she had any questions about the speech delivered by Karle the day before and that, when she answered in the negative, he launched into a discussion of the shortcomings of unions and the misfortunes that might befall her under a union, and gave a vivid account of the hardships his own family had suffered during the strike, in which he had been involved in previous employment. Cain acknowledged that he asked Carpenter whether she had any questions about Karle's speech, but denied that he made the antiunion remarks that she ascribed to him. On the basis of demeanor, as well as the circumstantiality of her testimony, Carpenter is cred- ited. In the context of the other violations found below, it is determined that the foregoing interrogation of Burgess, E. Bailey, Garvin, C. Quinn, Simpson, K. Branham, Brake- field, and Carpenter was coercive and, hence, unlawful. b. Creating impression of futility of union activities Although Karle made speeches to the employees on February 3, in which he expressed his views about the Un- ion, the General Counsel in his brief relies only on those made by Karle and another official, J. Williams, on April 20, 2 days before the election, and only the latter speeches will be here considered . According to K. Branham, Karle stated, inter alia, that the existing level of employee benefits at the instant plant was higher in certain respects than it was under a union contract at Respondent's Woodland plant; that the Union's only weapon was the strike ; and that in case of a strike the strikers would be permanently replaced and could not get their jobs back. As for J. Williams, K. Branham attributed to him the remark that , if the Union won the election, bargaining would start from scratch and not from the level of existing benefits . Brakefield testified that Karle stated, inter alia, that, in dealing with a union, Respondent's approach would be not what it could grant the employees but what it could "get by with." M. Branham testified that Karle said that the only way the Union could obtain anything for the employees was to strike ; that Re- spondent would not yeild to a strike but would fill the strikers' fobs with permanent replacements ; that any bar- gaining with the Union would not have to start from ex- isting benefit levels but would start from the level of the minimum wage law; that the Union could not get the em- ployees anything that Respondent was not willing or able to grant; and that a strike was the only means the Union had to pressure Respondent to give anything more. Karle testified that, while in the April 20 speech he 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stated that economic strikers could be replaced, he did not say they never could return, and he denied saying that the Union could not get anything for the employees that they could not get without a union. Personnel Director Jones testified that Karle said that replaced strikers could not return so long as their jobs were filled, that in many cases employees ended up with "less money" than they had be- fore bargaining began, that no law required bargaining for more than the minimum wage of $1 .60 per hour, and that, if economic conditions so required , Respondent could cer- tainly bargain in that fashion. Jones professed to be unable to recall any reference to strikes other than that Respondent would not yield to strike pressure nor did he recall any statement by Karle that the employees could get as much without a union as with a union . However, Supervisor Shives did recall such a remark. According to Shives, Karle also said that Respondent was required only to bargain in good faith and that all the Union could do was call a strike, that the Union could not force Respondent to do anything, and that, if the strikers' fobs were filled by permanent re- placements, the strikers could not return to work so long as such replacements were still there. It is apparent from the foregoing that there was no substantial dispute that Karle told the employees that col- lective bargaining does not always result in higher wages but often has the opposite effect ; that both Karle and J. Wil- liams warned that, if the Union won the election , Respon- dent would not have to bargain from the level of existing benefits but would start from "scratch" or, with respect to wages, from the level prescribed by the minimum wage law; that Karle added that, in bargaining with the Union, Respondent's approach would be not what it could afford to pay but what was the least it had to give, that the only way the Union could force Respondent to grant more than it was willing to concede was to call a strike, that Respon- dent would not yield to strike pressure, and that the strikers' jobs would be filled by permanent replacements. There was dispute, however, as to whether (1) Karle said flatly that permanently replaced strikers could not get their jobs back or whether he merely said, as Jones and Shives claimed, that they could not return to work so long as their jobs were filled ; (2) Karle said that the employees could not get anything more with a union than they could get without a union ; and (3) as Jones claimed, Karle qual- ified his warning that Respondent would bargain from the level of the legal minimum wage by stating that it would do so if economic conditions dictated. As to all the foregoing areas of conflict , it may be noted that, although Jones expressed the belief that a tape rec- ording was made of the April 20 speeches, and Respondent's counsel acknowledged at the hearing that he had the written text of Karle's speech, Respondent did not produce such recording or text nor did it explain its failure to do so. That circumstance warrants the inference that such documentation would not have aided Respondent's case.9 Moreover, with respect to item (3), above , I deem it signifi- cant that Karle, himself, did not corroborate Jones' version, and that there was, in any event , no denial that J. Williams 9 See Auto Workers v N L R B, 459 F 2d 1329 (C.A D C.), for a collection of Board and court decisions on this point. made the reference to bargaining from scratch ascribed to him by K . Branham . 1° And, as to item (2), above, not only was Jones' corroboration of Karle's denial less than une- quivocal, but Shives' testimony directly contradicted Karle's. It is therefore found that both Karle and J. Wil- liams stated, without any qualification , that bargaining need not start from the level of existing benefits but would start from scratch. It is further found that Karle declared that collective bargaining often resulted in a reduction in existing benefits ; that, in bargaining with the Union, Re- spondent would be governed not by how much it could afford to give but by how little it could get by with ; that the Union could not get the employees anything that Respon- dent was not willing to grant ; that a strike was the Union's only means of bringing pressure on Respondent for bar- gaining concessions but Respondent would not yeild to such pressure ; and that the strikers' jobs would be filled by permanent replacements, thereby precluding the strikers from reclaiming their jobs. In Raytheon Company, 160 NLRB 1603, the Board af- firmed a Trial Examiner's finding of an 8(a)(1) violation based on remarks in an employer's speech, which were strik- ingly similar to those enumerated above, and which were summarized by the Board as follows: That ... negotiations would start from scratch and the employees could end up losing some of their present benefits; that a union could not guarantee [the employ- ees] anything but could gain for them only such bene- fits as the Company would grant ; that union's only weapon for enforcing bargaining was the strike and a strike would impose hardships .... In Astronautics Corporation of America, 164 NLRB 623, the Board found to be unlawful the following statement: Under the law an employer is not required even to continue in effect its existing benefits if a union wins. Bargaining is a two-way street and it starts from scratch. The Board characterized that statement as carrying with it "the coercive implication that the employees may wind up with less than . . . they already have, in the event they exercise their lawful right to bargain collectively ...." In Aerovox Corporation of Myrtle Beach, South Caroli- na, 172 NLRB No. 92, the Board found to be violative of Section 8(a)(1) an employer's letter, which stated: "Remem- ber, the Union cannot guarantee that present benefits will continue under a union contract . Bargaining starts from scratch! " The letter added that a strike was the union's only recourse against an "unwilling" employer. The Board said: The tone of the letter left little doubt but that Respon- dent would be such an "unwilling" employer. In the context of the other substantial unfair labor practices committed by Respondent, we find that the letter was calculated to imply a threat of reprisal should the em- ployees select the Union and was also intended to make the employees realize the futility of selecting a union; it was thus coercive. And, in Ohn Mathieson Chemical Corporation, 185 NLRB 467, the Board affirmed a Trial Examiner 's finding that Section 8(a)(1) was violated by an employer's statement that "all benefits would be negotiated from scratch if a 10J Williams did not testify TEXTRON, INC. 135 union represented you." The following rationale in the Trial Examiner's Decision I1 is particularly pertinent here: By its statement of position regarding existing benefits if the union came into the plant, Respondent ... in effect threatened its employees with the loss, or possi- ble loss, of existing benefits .... Implicit in the fore- going detriment attached to the advent of a union was the converse benefit of the continuation of existing benefits if the plant remained non-union .... Here, Respondent's threat that it would bargain from scratch did not stand alone, but was delivered in the context of warnings that collective bargaining often resulted in re- duced wages, that the Union could not get anything that Respondent was unwilling to give, that Respondent would be more niggardly in dealing with a union than would other- wise be the case, and that if the Union resorted to its only weapon-a strike-the employer would not yeild to such pressure and those employees who struck would be re- placed, thereby precluding their reinstatement. While an employer is entitled to tell his employees that he will bargain hard, Section 8(c) does not protect the ex- pression of an intention to make bargaining demands that will place in jeopardy the employees' existing benefits, where, as here, the clear implication is that he will make such demands merely because he is required to deal with a union so that the only way the employees can be certain of retaining their existing benefits will be to reject the union. As the Board stated in the Astronautics case, supra, such remarks constituted, in essence, a "threat of reprisal should the employees select the Union and [were] also intended to make the employees realize the futility of selecting a union ...." They were therefore violative of Section 8(a)(1), and all the more so when considered in the context of the other unfair labor practices found above.12 In Host International, Inc., supra, the Board found not to be coercive a statement by the employer's general manag- er that the employer would bargain from scratch, even though such statement appeared in the context of a refusal to guarantee that existing benefits would be retained. The- Board regarded the statement as designed merely to apprise the employees that "unionization does not mean automatic increases in benefits," the Board deeming to be distinguish- able those cases where "such remarks could reasonably be construed as a threat to discontinue existing benefits," and the Board pointed out that no witness testified to a threat that the employer would "actually lower wages prior to negotiations." This appears to be the first suggestion in any Board case that assertion of an intention to bargain from scratch is not coercive, unless it is construable as a threat that before beginning to bargain the employer would reduce or discontinue all existing benefits. Heretofore, it was deemed sufficient that the threat to bargain from scratch, read in context, implied that the employers would negotiate for a lower benefit level than the current one, and it was not thought necessary that he should also threaten to cut back any existing benefits even before beginning to bargain. In other words, it was thought sufficient that the employer's remark was calculated to convey the impression that the employees might end up with less than they already had after bargaining was over. Thus, the rationale of Host Inter- national seems contrary to that of all the precedents dis- cussed above, none of which is cited in Host Interna- tional 11 Under the circumstances, it is difficult to consider Host International as a considered reversal of the long line of Board precedents cited above. In any case, even apart from the threat to bargain from scratch, the following were, under Board precedent, unlaw- ful, in themselves: 1. The statement, in effect, that Respondent would con- cede as little as possible to the Union, whereas, without a union, it would grant the employees as much as it could afford. The clear implication of this is that the employees could expect more generous treatment, if they rejected the Union. 2. The statement that the Union could not get for the employees anything that Respondent would not grant them in any event.i4 3. The statement that in case of a strike the strikers' jobs would be filled by permanent replacements and the strikers would not be able to return. 15 The record,shows, also, that, as found above, the day after the foregoing speeches were delivered Cain ap- proached Carpenter at work and engaged her in a conversa- tion in which he stressed the disadvantages of unions. According to Carpenter's credited version of this incident, one of the points made by Cain was that any bargaining with the Union would start at the level of the statutory minimum wage. In view of what has been said above, it is found that, by this reiteration of the theme of the speeches delivered the day before, Respondent additionally violated Section 8(a)(1) of the Act. c. Creating the impression of surveillance; admonition against union activity Employee Simpson testified that late in March Super- visor Williamson, by whom she had been employed as a babysitter, came to her house and, after declaring that she "was messing with a bunch of crooks up there at the mill," explained that he was referring to the "union people," and added, "Everybody up there knows you've been setting up meetings for these union people to meet the people." At the same time, Williamson announced that he no longer wanted a person like her around his children. According to Simp- son, when later the same day she asked Williamson who had accused her of arranging the meetings between the Union and the employees, he answered only that the best thing she could do was "to leave those crooks alone." 13 Moreover, the finding in that case that the general manager's remarks were only "designed to let employees know that unionization does not mean automatic increases in benefits " is difficult to reconcile with the finding that the general manager repeatedly stressed that there was no guarantee that under a union the employees would retain their existing benefits It is not clear how such a statement can be equated with merely telling employees that collective bargaining would not necessarily result in higher benefits. Under all the circumstances, Host International must be regarded as a sport case 14 The Deutsch Company, 178 NLRB 616, Brandenburg Telephone Compa- 11 At p. 472 thereof ny, 164 NLRB 825, and Orkin Exterminating Company of Florida, Inc, 152 12 See Astronautics Corporation of America, supra Cf Wagner Industrial NLRB 83, 92-93 Products Company, Inc, 170 NLRB 1413, and Host International, Inc, 195 15 Bancroft Manufacturing Co, Inc, 189 NLRB No 90 (TXD) See The NLRB No. 66. Laidlaw Corporation, 171 NLRB 1366 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Williamson did not dispute Simpson's version, except to deny that he told her that "everybody" knew about her involvement with the Union. Simpson's demeanor made a particularly favorable impression and she is credited. It is found that, by telling Simpson, in effect, that management knew she was arranging meetings between the employees and the Union, Williamson created the impression that Re- spondent was maintaining surveillance of her contacts with union agents, as well as with fellow employees, for the pur- pose of arranging such meetings. Respondent thereby viola- ted Section 8(a)(1) of the Act.16 Further, by the admonition to Simpson, in effect, to desist from any further contacts with the Union, Respondent additionally violated Section 8(a)(I ). d. Threats of discharge The mutually corroborative testimony of K. Branham and E. W. Bailey was to the effect that on February 9 Supervisor Ogden told them that Burgess had just been discharged for engaging in union activities. Ogden denied telling either E. W. Bailey or K. Branham the reason for Burgess' discharge. However, on the basis of demeanor, as well as the circumstantiality of K. Branham's account, I credit the mutually corroborative employee testimony. Bur- gess had in fact been discharged for engaging in union activities and, as will appear below, Respondent's defense was that such activities interfered with the work of another employee and Burgess was discharged on that account. Had Ogden explained that the gravamen of Burgess' offense in the eyes of Respondent was not his union activity but his interference with another employee's work, a more difficult question would have been presented. It is clear that Ogden's actual, unqualified statement that Burgess had been dis- charged for union activity was reasonably calculated to con- vey the impression that Respondent regarded such activity alone as cause for discharge. It is found, therefore, that Respondent thereby violated Section 8(a)(1) of the Act.17 e. No-solicitation rule The complaint alleges that since August 1970 Respon- dent has maintained and enforced a no-solicitation rule, which states that Respondent will not "tolerate" the follow- mg: Solicitations, collections of funds, pledges, subscrip- tions, circulations of petitions, memberships or other similar activities during working hours without special permission from management. It is clear that this rule was adopted long before the incep- tion of the union campaign, and the General Counsel's reason for attacking the rule was not explicated at the hear- ing or in his brief. It might be urged that the foregoing rule was invalid because of the ambiguity of its reference to "working hours."18 However, Karle explained that the rule 16 Clermonr's, Inc, 154 NLRB 1397, 1412-1413 17 With respect to another alleged threat on February 9 by Ogden to A. Wade, see the discussion thereof, above, in connection with the matter of interrogation. Is See Campbell Soup Co., 159 NLRB 74 was intended to permit only solicitations during an employee's actual worktime and not during workbreaks. Moreover, it is undisputed that, while Karle, in his speech of February 3 to the employees, warned them of discharges if they engaged in any union activity on the job, he made it clear that this applied only to such activity as resulted in their neglect of their own work or interference with the work of others.19 Under these circumstances I do not find that the rule was invalid on its face. 0 f. Surveillance From early February until the election on April 22, union organizers maintained headquarters at the Colonial Motel in York, which was situated a few miles from Respondent's plant, next to the intersection of two high- ways-Route 5, which runs east and west, and Route 321 bypass,21 which runs north and south. The motel is south- west of the intersection and fronts on 321 bypass.22 At the motel the organizers interviewed employees in connection with the Union's campaign. Plant Manager Karle and vari- ous of his supervisors admittedly drove by the motel fre- quently during this period. The General Counsel contends that their purpose was to engage in surveillance of the union activity at the motel. Karle and the supervisors denied this, insisting that they were merely following the same route they had taken for many years for reasons of personal con- venience. Shillinglaw testified that on one occasion, about 10 days before the election, she saw Karl9^j' drive by the motel at noontime and he was coming from,/York along Route 5. R. Stewart confirmed that he had segfi Karle pass the motel during the preelection period, and McDaniel testified that he had seen Karle drive by the motel "on several different occasions" but gave no further details, except with regard to an occasion on March 15 when he observed Karle drive by about 4 p.m. in the same car with Supervisor A. Quinn going toward York. Subsequently, he testified that Karle drove by at least once a day during the preelection period but gave no specifics as to the time of day or other circum- stances. Karle denied that he altered his regular route of travel during the union campaign. While admitting that he reg- ularly drove by the Colonial Motel at noontime during that period, he explained that this was because it was his practice to go home for lunch with his 4-year old daughter who attended school in downtown York .23 Karle admitted also 190 1 ne of the plant rules specifically forbade such neglect or interference 20 Considerable evidence, discussed in more detail below, was adduced that this rule and the related plant rule against interference with work activi- ties were disparately enforced However, the General Counsel did not allege such disparate enforcement as a violation of Section 8(a)(1), and in his brief cites it only as bearing on the legality of the discharges of Burgess and Shillinglaw. The matter will therefore be considered only in that context. 21 Hereinafter referred to as "321 bypass" 22 See the diagram attached hereto as Appendix B 23 The route by the motel was the most direct one from downtown York to Karle's home The General Counsel contends that no witness at the motel saw Karle pass by with a child However, the only witness as to Karle's noontime tops was Shdlinglaw and her testimony is silent as to whether or not he was accompanied by a child. At any rate, a 4-year old girl, described by Karle as only 3 feet tall, would not have a high degree of visibility, particularly when, as was the case here, the driver is seated between her and the witness TEXTRON, INC. that he drove by the motel on his way home in the evening because that was the most direct route to his home from the post office in downtown York, to which he delivered mail every evening. He denied that dunng the period in question he drove by the motel with A. Quinn, except for one occa- sion, when Quinn drove him home from a meeting late at night, Obviously, this was not the occasion referred to by McDaniel. In any case, it is not clear whether there were any employees in front of the motel on that occasion. 24 As for Karle's denial that he changed his route of travel during the Union's campaign, the only contrary testimony was that of McDaniel that after the election the frequency of Karle's trips past the motel changed from at least once a day to once a week. However, such testimony is not neces- sarily in conflict with Karle's, since it indicates only the number of times that McDaniel saw Karle drive by after the election and would have more weight as evidence of an actual decline in the number of such trips, if it were shown that McDaniel's opportunity to observe Karle's driving habits were the same after, as before, the election. 21 Apart from this, it may be noted that, although Karle admittedly drove by the motel daily, earlier in his testimony McDaniel repeatedly stated that during the nearly 3 months of the union campaign he had seen Karle pass the motel only on "several" occasions. If that be so, one would have to con- clude that the number of Karle's trips observed by Mc- Daniel was no criterion of the number actually made either before or after the election. With respect to Cain, Shillinglaw claimed to have seen him drive by the motel after 3 p.m., about a week before the election. Garvin attested to having seen Cain drive by the motel two or three times, the last occasion being on April 22, after the counting of the ballots, and that he gave a "V" sign to the group of employees in front of the motel. W. Bailey related that during the union campaign he had seen Cain pass by the motel after the 3 p.m. shift change at least two or three times a week. R. Stewart stated that he saw Cain drive by the motel during that period, but gave no details. Cain admitted that he drove by the motel every workday on his way to and from work, explaining that this was the most direct route to his parents' home, with whom he left his child while he and his wife were at work. He insisted that he had been doing this for 4 years, denying that he had made any change in his route during the union campaign. Absent any refutation, such testimony is cred- ited. Garvin testified that on the Saturday before the elec- tion, while at the motel, he saw Supervisor A. Quinn come down 321 bypass from the direction of the plant and turn eastward on Route 5 toward downtown York. McDaniel 24 When asked about this, McDaniel answered only that "a lot of times" employees would stand in front of the motel and talk. Karle admitted that he also drove by the motel most mornings on the way to work, although there was a slightly shorter, alternative route that he could take. He explained that he tended to avoid that route because of a dangerous condition at an uncontrolled intersection . Moreover, there was no evidence that any employees were about the motel that early in the day Whatever evidence there is on that point in the record indicates that employ- ees gathered there only at shift change time in the afternoon. 25 Thus, one would have to know whether , after the election, McDaniel had the same occasion as before the election to be outside the motel during the afternoon shift change. There was no evidence on this score 137 testified that on March 15, he saw A. Quinn come down 321 bypass from the direction of the plant about 3:30 p.m. and turn westward on Route 5, and that there were several em- ployees in front of the motel at the time 26 R. Stewart also claimed to have seen A. Quinn drive by the motel during the preelection period. W. Bailey related that about March 15,2 while at the motel, he saw A. Quinn come down 321 bypass after 3 p.m. from the direction of the plant. A. Quinn explained that since 1963 he has used the same route in going to and from work and that, although there is an alternative route he could take, he prefers the one by the motel because it is no longer than the others and is less congested. In his brief the General Counsel points out that according to the map of York in evidence 28 the alternative route is in fact shorter than the one by the motel. The map does, indeed, show that the alternative route is slightly shorter.29 However, it is clear that the route by the motel bypasses a good deal of the downtown area of York, and there was, in any event, no contradiction of Quinn's testi- mony that he has used the same route for 8 years.30 Shillinglaw testified that late in the afternoon on a day in mid-Apnl she saw Supervisor Hall come down 321 by- pass from the direction of the plant, that he continued on that route, driving slowly past the front of the motel, and waved to her. R. Stewart also claimed to have seen Hall drive by the motel during the union campaign. Hall insisted that he had not altered his itinerary during the more than 3 years he had worked for Respondent and that during that period he usually took the route by the motel in traveling between the plant and his home. He added that on a Sat- urday morning he drove by the motel en route to a liquor store on 321 bypass where he had been trading for over 3 years and that, when employees standing in front of the motel whistled and shouted at him, he waved to them.31 The General Counsel cites as reflecting on Hall's credibility his admission that there are two other liquor stores in York 26 As related above, McDaniel also insisted that he saw Quinn return with Karle about half an hour later That incident has already been dealt with in connection with the discussion of the alleged surveillance by Karle 27 W Bailey gave the date as a few days before the discharge of P Wil- liams, who was alleged in the complaint, and admitted in the answer , to have been discharged on or about March 17 25GC Exh 4 29 A Quinn gave both distances as 2.3 miles. The map indicates that the motel route is 2 3 miles and the other route about a quarter of a mile shorter 30 McDaniel testified at first that he "very seldom" saw Quinn drive by the motel during a period of 2 or 3 weeks after the election, and finally asserted that he did not recall seeing him drive by at all during that period However, with respect to a period of about 3 months before the election, McDaniel cited only one occasion when he saw Quinn pass the motel. While there was no explanation as to why A. Quinn, as McDaniel testified, turned west on that occasion, rather than east, in the direction of his home, there is no reason to infer that he did so for purposes of surveil- lance He would be in no better position to engage in surveillance by making one turn rather than the other 31 He was not asked specifically about the incident described by Shillin- glaw, which, if she be credited, occurred at a different time from the one he alluded to If, on that occasion, as she related, he continued on 321 bypass past the motel, instead of turning eastward on Route 5, he would be deviating from the most direct route to his home. Moreover, in driving past the motel, which fronted on 321 bypass, he would be more likely to be observed by any employee standing there than if he had turned eastward However, according to Shillinglaw, the incident occurred about 2 hours after the 3 p.m. shift change, and there was no evidence that there was anyone in front of the motel at that time other than Shillinglaw , who had not worked for Respondent since February 8, and her husband, who, so far as the record shows, was not an employee of Respondent 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD closer to his home than the one on 321 bypass. However, there was no contradiction of Hall's testimony that he had always patronized the more distant one, which was operated by a friend. All things considered, the evidence does not appear to preponderate in favor of a finding that the reasons given by the foregoing management personnel for driving by the mo- tel were pretextual and that the real reason was to engage in surveillance of union activity.32 The General Counsel contends that, even if the reasons given by them for driving by the motel are credited, it would nevertheless, be found that once the supervisors arrived in the vicinity of the motel they took advantage of the opportu- nity to engage in surveillance. In support of this contention, the General Counsel cites employee testimony that the vari- ous supervisors slowed down as they passed the motel and looked in the direction of the employees standing about. With regard to the matter of slowing down, the record shows that at the intersection of Route 5 and 321 bypass there is a traffic light and it is not clear from the employee testimony on how many of the occasions described therein the supervisors were required to stop for the light as they approached the intersection. Moreover, in most instances such testimony was to the effect that the particular supervi- sor made a turn at the intersection, which in itself would require that he slow down. Whenever a specific rate of speed was ascribed by an employee to a'supervisor, it was usually estimated about 15 miles an hour, which does not seem unreasonably slow for one starting from a complete stop or making a turn without coming to a complete stop. It is true that McDaniel claimed that, in making the turn westward on Route 5, the supervisors had sufficient room to acceler- ate to a higher speed while they were still within view of the employees in front of the motel.33 However, based on my own observation of the scene during my stay in York, it is found that McDaniel's estimate that the distance between the highway and the front of the motel was 100 to 200 feet is an overstatement.34 I would estimate it to be not more than 50 feet and take official notice of that fact.35 Such a short distance would hardly afford sufficient room for ac- celeration to a rate above 15 miles an hour after coming to a full stop or slowing for a turn. There remains the employee testimony, which was not disputed by any of the supervi- sors, that, in passing the motel, they looked in the direction of the employees. However, one can conceive of any num- ber of innocent reasons for their looking in that direction, including the fact that, in approaching the intersection from the east or north, as was most frequently the case, the front of the motel would be within their range of vision, unless they deliberately averted their eyes. There is thus insuffi- cient basis in the record for finding that such glances as they cast at the employees were advertent or were prompted by 32 R. Stewart testified that he saw Personnel Director Jones drive by the motel during the preelection period, but gave no details Joneswas not questioned on the point The complaint contains no allegation of surveillance by him, and the General Counsel's brief is silent in that regard In view of the vagueness of R Stewart 's testimony, and as the issue was not, in any event, sufficiently litigated, I find no unlawful surveillance by Jones 33 The motel would be on the driver's left as he made a right turn 74 That is, a fortiori, true, also, of W Bailey's estimate that the distance was 50 to 60 yards. 35 See the order of March 6, 1972. a deliberate purpose to engage in surveillance rather than by idle curiosity.36 Dismissal of the allegation of surveillance will be rec- ommended. 2. The 8(a)(3) issues a. Shillinglaw In the morning of February 3, it was reported to Karle that Shillinglaw was one of the sponsors of the petition being circulated among the employees on behalf of the Un- ion. She was discharged on February 8 under the circum- stances next discussed. Early in the morning of February 8, she admittedly engaged T. Ramsey 37 in conversation, ask- mg him if he would like to sign a union card. While she insisted that this occurred in the plant canteen during a workbreak, T. Ramsey and Supervisor Cain, who claimed to have observed the incident, testified that it happened at her work station during worktime, that the conversation lasted from 3 to 5 minutes, and that T. Ramsey complained to Cain that Shillinglaw had solicited him to sign a union card. Later that morning, Shillinglaw was notified by Head Foreman Hall of her discharge for engaging in union activi- ty while at work, and the reason assigned by Karle at the hearing for her discharge was that she had on the occasion described above neglected her work and interfered with that of T. Ramsey. It thus appears that the rule involved in her case was that of inveighing against neglect of, or interefer- ence with, work activities, rather than the no-solicitation rule described above. There was sharp conflict between Shillinglaw, on the one hand, and T. Ramsey and Cain, on the other, as to where and when the incident occurred, she insisting that it was in the plant canteen dunng a work break a few minutes after 3 a.m., and they contending that it was at her work station dunng worktime. However, Cain's testimony that he personally observed this incident and that T. Ramsey, moreover, made a report to him about it immediately after it happened does not jibe with T. Ramsey's chronology that the incident occurred about 5:30 a.m. and that he did not report it to Cain until about an hour later, when Cain came to work.38 In that case, Cain, of course, could not have seen 36 The fact that a supervisor chances to look in the direction of employees while engaged in union activity does not constitute unlawful surveillance R & J Underwear Co, Inc, 101 NLRB 299, In 2, Roxanna of Texas, Inc, 98 NLRB 1151, 1162, Boreva Sportswear, Inc, 73 NLRB 1048, 1057-1058 The General Counsel cites Shillinglaw's testimony that Hall waved to her as he passed by on the occasion in mid-Apnl discussed above and Garvin's testimony that, in driving by the motel a few hours after the election, Cain gave the employees a "V" sign The General Counsel would have the inference drawn from these gestures that the supervisors were engaging in surveillance at the time. Apart from other considerations already discussed with regard to Shillinglaw's status as an employee at that time, I can perceive nothing sinister in what appears to have been merely a gesture of recognition by Hall. As for the "V" sign, the fact that Cain took the opportunity to indicate his belief that Respondent had won the election is not persuasive that he was engaging in surveillance, absent sufficient proof that he altered his route or rate of speed on account of the presence of the employees at the motel 37 He was the source of the report to management about her connection with the union petition 38 T Ramsey reported to work at 3 that morning and Cain claimed to have TEXTRON, INC. what had happened at 5:30 a.m. If, on the other hand, Cain's version is credited, it would follow that T. Ramsey was mistaken in testifying that he reported the incident about an hour after it happened. Apart from this apparent conflict, I was not favorably impressed by the demeanor of either T. Ramsey or Cain. Moreover, it is clear that T. Ramsey was less than candid when testifying at the hearing about statements he had made at a pretrial interview to union representatives about the Shillinglaw incident and a similar one involving Burgess described below,39 and, absent any unequivocal contradiction thereof, I credit the testimony of one of those representatives 40 that at such interview T. Ramsey denied that he had made any report to management about either incident. This denial was in conflict with his own testimony at the hearing, as well as that of Cain 4i All things considered, I consider Shillinglaw a more credible witness 42 Accordingly, she is credited and it is found that the incident for which she was discharged oc- curred in the plant canteen during a workbreak and not at her work station. It follows that she was engaging at that time in protected, union activity and that her discharge on that account violated Section 8(a)(3) and (1) of the Act 43 Moreover, for reasons appearing in the discussion of the case of Burgess, I would find, in any event, in view of the abundant evidence of disparate enforcement thereof, that, even if she did violate the rule, the discipline imposed on her was not because of any interference with production but because of the union-related aspects of her conduct. b. Burgess He signed a union card on February 7 at a union meeting and reported for work later that evening for the midnight shift. After clocking out at 7 a.m. the next day, he encountered T. Ramsey, who, according to Burgess, was standing in an aisle leaning on a "buggy" used to transport zipper tape about the plant. Burgess admitted asking T. Ramsey what he thought about the Union. Burgess added that T. Ramsey indicated that he was not interested in the Union and that the conversation was "very brief." T. Ram- sey agreed that the incident occurred a few minutes after 7 a.m., but insisted that Burgess asked him to sign a union card, and, when he refused, made a disparaging, offensive remark. T. Ramsey added that he immediately reported to arrived at the same time However, T. Ramsey denied that he saw Cain until 3-1/2 hours later 39 His testimony at this point became highly evasive and was marked by selective lapses of memory 40 The Union's trial counsel. 41 While T Ramsey, unlike Shillinglaw, had no apparent, pecuniary stake in the outcome of this proceeding, it is clear from certain matters developed in the course of cross-examination that he had a strong antiunion bias. 42 In a pretrial statement she told a Board agent that she had "never tried to get authorization cards signed in the plant" She explained at the hearing that she meant by this that she had never asked anyone in the plant to perform the physical act of signing a card and , although T Ramsey testified that she told him on February 8 that she had a union card in her purse for him to sign, her version was that she told him the cards were in her car I do not regard this matter as sufficiently cogent to outweigh the various considerations cited above for rejecting the testimony of Ramsey and Cain 43 Even if Respondent in good faith believed, on the basis of reports received from T Ramsey or Cain or both, that Shillinglaw was violating its "no-interference" or "no-solicitation" rule, that would be no defense NLRB v Burnup & Sam, Inc, 379 U.S 21 139 Cain that Burgess had interfered with his work. He ex- plained at the hearing that the interference consisted in this fact that he was pushing a buggy at the time and he had to stop and listen to Burgess' remarks. Cam testified that he saw Burgess talking to Ramsey on that occasion, that the conversation lasted 1 or 2 minutes, that T. Ramsey was moving some "tape buggies" at the time and was stopped by Burgess, and that Ramsey reported to the witness that Burgess had solicited him to sign a union card and called him some names. Later that morning Burgess was notified of his dis- charge and Karle testified that the discharge was at least in part for interfering with T. Ramsey's work.44 It appears from the foregoing that there was no substantial dispute that, after punching out, Burgess spoke to T. Ramsey in the plant during his work shift, that the conversation lasted at the most for only 1 or 2 minutes and pertained to T. Ramsey's attitude to the Union, and that T. Ramsey promptly reported to Cain that Burgess had been soliciting him to sign a union card and had thereby interfered with his work. On the issue of interference with work, the only mate- rial conflict was whether T. Ramsey was pushing the buggy or standing still when Burgess encountered him. On the basis of demeanor, as well as the other matters cited above reflecting on the credibility of T. Ramsey and Cain with respect to the similar incident involving Shillinglaw, Burgess is credited .41 It is accordingly found that Burgess did not stop T. Ramsey as he was pushing the buggy but that their conversation occurred after T. Ramsey had paused in his operation of the vehicle. It follows that there is insufficient evidence of a violation by Burgess of the injunction in the printed rule or in Karle's warning of February 3 against interference with the work of others. Moreover, even if Respondent's version be credited, the record warrants a finding that with regard to matters not involving union activity Respondent has tolerated unauthorized, employee conduct that involved violations of the rule against interfer- ence with work where the interference was consider- ably more serious than any interruption of work that may have resulted from a conversation which, by Cain's own estimate, lasted only 1 or 2 minutes 46 Thus, Alexander testified that in November 1970, 44 Another reason cited by Karle was that Burgess had used abusive lan- guage toward T Ramsey on the same occasion However, in a compilation submitted by Respondent of all discharges effected by it (G.C. Exh 11) the only reason assigned for the discharge of Burgess is "Interfering with the work of others " At any rate, Burgess' denial that he used such language is credited for reasons discussed below As Karle did not claim that he discharged Burgess for violating the no-solicitation rule, there is no need to determine whether, as T Ramsey averred, he was solicited to sign a union card or whether , as Burgess insisted, he merely asked T. Ramsey what he thought about the Union However, it may be observed that there is no more reason to prefer T Ramsey's version on this point than on the other aspects of the incident 45 T Ramsey's credibility at this point was not enhanced by the fact that in a pretrial interview he denied to the Union's counsel that he reported the Burgess incident to management, although testifying at the hearing that he did make such a report In resolving the credibility issue in favor of Burgess, I have given due weight to an apparent conflict between his testimony at the hearing concern- ing the extent of his solicitation activity at the plant and testimony he gave at a hearing on his claim for unemployment compensation , but, under all the circumstances, do not regard that matter as warranting rejection of his testi- mony. 46 Even this would seem to be an overestimate, if the content of the conver- sation, as reported by both participants, is any criterion. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD without clearing with management, she sold candy at her loom during work, soliciting, among others, her supervisor, Perry. She denied that she had been reprimanded therefor. As her testimony was uncontradicted, it is credited. D. Huffstetler testified that during a period of 2 to 3 weeks in November 1970, she sold over 27 or 28 aprons while at work, including 1 to Cain himself; that she would stop employees as they passed her work station and solicit them for that purpose, and in some cases obtain payment from them on the spot; and that she had no permission to do this and was not reprimanded therefor. While admitting that he bought an apron from her, Cain denied seeing her sell any to others. W. Bailey testified that each year since 1967 he and his brother, E. Bailey, have operated a betting pool in the plant throughout the football season, taking bets from employees and supervisors and collecting the amount of the wagers in the plant; that this activity has been carried on during work- time ; that in the course thereof he has taken to employees at their work stations the cards from which they make their selections ; that he does this every week during the football season; that during worktime he has taken wagers from various supervisors, naming three who placed bets during the 1971 season; that he has not obtained permission to engage in this activity; and that his operation at the football pool interferes with his servicing of other employees, since they have to wait for him while he is "off somewhere" arranging a wager. Absent any contradiction, the foregoing testimony is credited. Although the foregoing activity clear- ly violated not only the rule against neglecting, or interfer- mg with, work, but also the rules against solicitation, collection of moneys, and one which specifically forbade engaging "in gambling or games of chance on Company property," there was no evidence that W. Bailey or his brother was ever disciplined therefor, and it is clear, in any event, that they were never discharged on that account 47 In fact, the record shows that during the 8 years that the instant plant has been in operation the only employees discharged for violating the rule invoked against them were Burgess and Shillinglaw. Respondent conceded that it knew that employees en- gaged in the sale of merchandise during worktime without the prior approval of management and without being sub- jected to any disciplinary action therefor, and that supervi- sors knew of W. Bailey's football pool operation; and, while denying any personal knowledge of the matter, Karle ac- knowledged that his supervisors had admitted to him that such activities as are described above have been going on. Supervisor Shives also admitted that he knew of W. Bailey's football pool but professed to be unaware of any interfer- ence with work as a result thereof. However, none of the other supervisors named by W. Bailey as participating in the betting testified on the point, although they were examined about other matters. The inference is therefor warranted that their testimony on the subject of their awareness of the interference with work resulting from the Bailey's wagering activities would not aid Respondent. Moreover, it is found on the basis of W. Bailey's uncontradicted description of the scope and nature of his activities that the aggregate, adverse 47 See G.C Exh 1 l impact thereof on production would have to exceed by far any disruption that might conceivably have resulted from the single, brief encounter between Burgess and T. Ramsey; and, it is inherently incredible that, while regarding Burgess' exchange of a few remarks with T. Ramsey as such a serious interference with work as to warrant discharge, Respondent's management would perceive no interference with production in the extensive, season-long, annual bet- ting operation. As for Alexander and D. Huffstetler, it is difficult to see how they could consummate in less than 1 or 2 minutes transactions such as they described and, even if they were able to make their sales without neglecting their own work,48 it is clear that they had to stop other employees as they passed by, causing them to interrupt whatever they were doing until the sale was completed. It cannot be doub- ted, in any event, that in the aggregate such interference with the work of other employees as a result of all the transactions conducted by either of these ladies was far greater than the interference ascribed by Respondent's wit- nesses to Burgess on February 8. While Cain denied that he was aware of any merchandising activity by D. Huffstetler other than the one involving him, that transaction, in itself, should have sufficed to alert him to the fact that she was stopping employees as they passed by in order to sell them aprons. His indifference to that circumstance contrasts strangely with his alertness to detect and report the Burgess incident, as well as with his zeal in Shillinglaw's case.49 The only conclusion to be drawn from the foregoing is that the rule against interference with the work of other employees was not invoked even against a known union adherent like W. Bailey so long as no union activity was involved, and that Respondent's various other rules against carrying on during worktime activities unrelated to work were flouted with impunity by employees. In case strikingly similar to the one at bar, involving a 48 Alexander testified that she did not think her sales activity interfered with her work, and Cain claimed that D Huffstetler kept an eye on her loom even while she was making the sale to him. 49 The General Counsel adduced extensive, uncontradicted testimony that "flower fund" collections were frequently made by employees during work- time with the knowledge of supervisors, albeit without their prior approval, for the benefit of bereaved or sick employees. Respondent's rules expressly forbid "collections of funds," and Karle testified that the rule applied to flower fund collections and that they required prior approval by manage- ment However, since the Board has recently indicated that it is not disposed to treat such collections, even though not properly authorized, as evidence of selective enforcement of a no-solicitation rule (Sequoyah Spinning Mills, Inc., 194 NLRB No 179), 1 do not rely thereon here The General Counsel cites, also, the extensive testimony in the record, which has been credited above, concerning on-the-job discussions with em- ployees initiated by supervisors, in which the merits of the Union were debated, particularly the testimony of J. Carpenter that Cain engaged her in such a conversation that lasted about 30 minutes, causing her to lose produc- tion, and the like testimony of Hill. It may be urged that under the rule of Nutone, Inc, 112 NLRB 1153, affd 357 U S 357, such supervisory conduct may not be treated as evidence of disparate enforcement of a no-solicitation rule However, common sense would seem to dictate that, in determining whether Respondent was genuinely concerned about the possible loss of a few minutes' production time as a result of the Burgess and Shillinglaw incidents, the Board would be entitled to consider the fact that supervisors were at the same time engaging dunng worktime in expositions of their antiunion views to employees, which lasted as long as 30 minutes. This aspect of the matter does not seem to have received any attention from the Board or the Court in Nutone However, in view of the doubtful state of the law, and as there is sufficient other evidence of disparate enforcement here, I do not rely on the antiunion campaign by the supervisors. TEXTRON, INC. 141 plant of Talon, Inc., which was the former owner of the instant plant,50 as well as the instant Union, and apparently the same set of plant rules as those here under considera- tion, the Board affirmed a finding that the respondent in that case had violated Section 8(a)(3) and (1) of the Act by discharging an employee for soliciting on behalf of the Un- ion. The Board there stated: Mrs. Ferrick's solicitation of Susan Smith and Jan- et Delnero only took 2 to 3 minutes and in no way interfered with their production efficiency or the cleanup of their machines. Yet, Respondent summarily fired Fernck on the basis of hearsay without giving her an opportunity to defend herself or without first giving her a warning. Further, no one else had ever been discharged for soliciting and employees were permitted by management to solicit freely for organizations known as the Sunshine Club, Stanley Home Products, Avon Products, Christmas collections for the purpose of buying Christmas gifts for supervisors, and, the au- thorization, just about 2 weeks before the discharge of solicitations in connection with the operation of a num- bers pool, although gambling was prohibited, even dur- ing nonworking time. In many cases such solicitation was engaged in without employees first having ob- tained permission as the no-solicitation rule required; nevertheless, Respondent neither put a stop to the ac- tivities, nor reprimanded employees for failing to ob- tain permission. On the basis of the foregoing and the record in its entirety, we find the purpose of the Respondent in discharging Ferrick was not to maintain the efficiency of production or discipline, but to use Mrs. Ferrick's asserted violation of its no-solicitation rule as a pretext to mask its real purpose to discourage and stop union activity in its plant. ' To sum up, it is found that Respondent discharged Burgess because he initiated a discussion with T. Ramsey pertaining to the Union, and Respondent's defense that Burgess had thereby violated a plant rule against interfer- ence with the work of others is rejected because there was in fact no such interference and, even if there were, enforce- ment of that rule in Burgess' case would constitute disparate treatment of him because of his union activity. It follows that, by discharging Burgess, Respondent violated Section 8(a)(3) and (1) of the Act. c. Nichols At the time of her discharge on February 4 -she had been in Respondent's employ for nearly 6 years. She signed a union card on January 27. She testified that 2 days later, during a workbreak, she solicited Durbin to sign one in the plant canteen; that Durbin did sign the card in a plant corridor as they were returning to their work stations; and that Supervisor Cain chanced to stop near the girls at the time and was standing only about 3 feet from Durbin and looking at her as she signed the card. This was confirmed by Durbin but denied by Cain. Early on the morning of February 1, Nichols was ex- cused from work by Cain because of an emergency involv- ing her sister. According to Cain, he instructed her to return as soon as possible. Although Nichols denied this, it would seem implicit in any event in a situation of that sort that she would be expected to return to work without undue delay, particularly as the record shows that her absence was cre- ating problems for other employees 52 About 2 hours later, upon returning to the plant, Nichols found a friend of hers, Baker, waiting for her in a car near the plant, and stopped to talk to her before entering the plant. While Nichols and Baker insisted at the hearing that their conversation lasted only a few minutes, Cain testified that he observed Nichols talking to Baker outside the plant that morning and that about 30 minutes later saw the two still so engaged. Fields, an employee, corroborated Cain as to the length of the conversation between Nichols and Baker. As Fields seemed to be a disinterested witness,53 and gave a circumstantial account of the incident, I credit her, as well as Cain, and find that Nichols did spend about 30 minutes outside the plant, conversing with Baker. When Nichols finally re- turned to work that morning, Cain dismissed her for the day as a disciplinary measure, and Nichols acknowledged that, in so doing, he reprimanded her for being gone too long, as well as for her low production and for having been late for work on various occasions in the past. Nichols admitted also that she was frequently late for work but insisted that she had never before been reprimanded therefor. The rec- ord shows, in fact, that she was late for work 14 times between December 20, 1970, and February 4 (when she was discharged), and Respondent introduced documentary rec- ords of oral warnings given her by Cain on December 22, 1970, and January 10 for excessive tardiness. Accordingly, her denial of prior reprimands for tardiness is not credited. There was no contradiction of Cain's testimony that the next day, February 2, despite the foregoing reprimands, Nichols was again tardy, and that this was repeated on the 3d and the 4th, when she was 25 minutes late, arriving at the plant at 7:25 in the morning. Cain testified that that morn- ing another supervisor, Greene, reported to Cain that Dur- bin had called in that she would be late but had said nothing about Nichols;54 and that, when Nichols arrived at the 52 I credit the mutually corroborative testimony of Cain and Fields to that effect Nichols did not deny that her absence affected the work of others, but denied only that she had been specifically told by Cam , before she was excused, that her services would be needed. 53 Although still in Respondent's employ, she testified under subpena, stating at the hearing that she had not wished to appear (The fact that she signed a union card on February 13 may well have explained her reluctance to testify ) 54 An employee, Sexton, disputed this testimony, claiming to have over- heard Greene tell Cain that morning that Durbin had reported that both she and Nichols would be late However, Greene corroborated Cain 's version, and both supervisors denied that Sexton was in a position to overhear Greene's remarks to Cain on that occasion Sexton was a union adherent and admittedly on friendly terms with Nichols Durbin testified that she called Greene that morning to notify him that, due to bad weather, both she and Nichols would be late Durbin was not only a union adherent but also, herself, an alleged discnminatee, she having quit work on February 4 because of certain events related to Nichols' discharge I do not deem it necessary to 50 Talon, Inc , was recently acquired by the instant Respondent and the resolve the foregoing conflict, since Cain was aware, in any event, that former's plants are now known as the "Talon Division of Textron, Inc " Nichols rode with Durbin that day, so that her lateness would necessarily Si Talon, Inc, 170 NLRB 355. Accord Universal Cigar Corp, 173 NLRB have been due to the same conditions as Durbin's. It is true that Cain did 865. Continued 142; DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant, she explained that Durbin, on whom she depended for a ride, had not been able to pick her up in time and that Durbin had reported this to the plant. It was agreed that at this point Durbin entered the office where Cain and Nichols were closeted, but was ordered by Cain to return to work, with the advice that if she had anything to discuss with him, he would see her later. Cain added that he then reminded Nichols of the reprimand and disciplinary layoff of Feb- ruary 1, sent her home, and reported the matter to his supe- nor, Hall. She was notified of her discharge later that morning. Karle testified that it was he who made the dis- charge decision; that on the morning of February 4 he received a report concerning the events of that day, and for the first time learned of the February 1 incident related above; that he reviewed Nichols' tardiness record, as well as her production record; and that he discharged her for "low production, excessive tardiness, and failing to call in [on February 4] when she was 20-25 minutes late." The reasons assigned on Respondent's records for her discharge are "Low production and Poor attendance-tardiness."55 Karle added that if he had been told on February 1 of Nichols' delay in returning to work that morning he would have discharged her at that time for that reason alone. The General Counsel contends that the foregoing rea- sons are pretextual, the true reason being Nichols' interest in the Union, as disclosed to Cain by the January 29 inci- dent. It accordingly becomes necessary at this point to re- solve the conflicting testimony as to whether Cain observed Durbin's signing of the union card on January 29. While Cain's testimony as to other matters has been rejected, Ni- chols has also not been credited in certain respects noted above, and Durbin was clearly not a disinterested wit- ness,56 nor was her testimony a model of consistency.57 Moreover, even if the girls' testimony be credited, it still would not establish any knowledge by Cain of union activi- ty on the part of Nichols. All that such testimony would prove is that Cain saw Durbin sign a union card while standing near Nichols. While the girls agreed that Nichols solicited Durbin to sign the card, the latter admitted that such solicitation had occurred some time before the actual signing of the card, while the two were still in the canteen, and there was no evidence that Cain was present then. Thus, to find company knowledge of Nichols' union activity on the basis of the above card-signing incident, it would be necessary to infer that Cain (1) recognized the card to be a union card58 and (2) suspected, from her proximity to Dur- report to his superiors that Nichols had not called in. This report was, literally speaking accurate, since she admittedly had not called in herself While, in explaining Nichols' discharge , Karle mentioned her failure to call in on the 4th, the impression conveyed by his entire testimony on the point was that he was more concerned about her excessive tardiness and her 30 -minute conversation outside the plant on February 1, asserting that he regarded the latter alone as sufficient reason for discharge . Accordingly, I do not construe Respondent's position to be that the fact that she, herself, failed to call in was a material factor in her discharge. 55 G C. Exh 11. 56 See In. 54, above 57 She admitted various conflicts between her testimony and her pretrial affidavit 58 There was no evidence that before the incident under consideration any cards were signed in the presence of supervisors or that management knew at that time of the Union campaign A review of all the Union cards submit- ted in evidence to establish the Union 's majority status shows that only one card had been signed before January 29-the one signed by Nichols bin at the time, that Nichols had some special interest in the matter. Moreover, even if one were to draw both those inferences, that would not suffice to establish that the rea- son assigned for Nichols' discharge was merely a pretext to conceal antiunion motivation. If it were seeking such a pre- text, Respondent could have utilized for that purpose the February 1 incident and discharged her then instead of merely giving her a disciplinary layoff for the balance of the day, or Respondent could have discharged her either on February 2 or 3, on both of which days she reported late, without, so far as the record shows, alleging any mitigating circumstances. However, so far as appears from the record, Cain did not even report any of the foregoing three inci- dents to higher management until February 4. The fact that Respondent thus tolerated her derelictions even after Janu- ary 29, when under the General Counsel's theory, it first learned of her interest in the Union, militates against his contention that she was discharged on account of such in- terest. Apart from this, while Nichols was the only employee for whom tardiness is cited in Respondent's records as a reason for discharge, there was no effective contradiction of Karle's testimony that Nichols was late nearly every other day during the last 6 or 7 weeks of her employment and that this was the worst record of tardiness in Respondent's histo- ry. There is thus no basis for finding disparate treatment of Nichols vis-a-vis other employees, insofar as her discharge was predicated on excessive tardiness. While it may be urged that Nichols' tardiness was regarded more lightly be- fore the alleged incident of January 29, than was the case thereafter, the fact remains that Respondent did, as found above, reprimand her twice before January 29 on account of her tardiness, and that, despite these reprimands, she not only loitered outside the plant on February 1 but reported late for work on the next 3 days. Those circumstances would seem adequate to explain Respondent's loss of patience with her. Accordingly, I credit Karle's explanation that he dis- charged Nichols for reasons unrelated to her union activity, and no violation is found here. d. A. Wade 59 He had worked for Respondent since July 1967. On February 8 he signed a union card. His name was on the Union's telegram of February 9, advising the Respondent of its organizing campaign and of the names of the employ- ees on the organizing committee.60 It is undisputed that Respondent had a longstanding policy against permitting employees to work while under the influence of liquor and that it had discharged employees for reporting to work in that condition or The dunking on the fob 61 Wade had admittedly received a reprimand in June 1970 for, inter aka, reporting to work "in unfit condition," and the warning notice in evidence shows that he was ad- monished that a recurrence of this offense would result in discharge. His immediate supervisor, Ogden, testified that when Wade reported for work on February 14, he appeared to be intoxicated and the witness sent him home. Ogden's supen- 59 Hereinafter referred to in this section as Wade. 60 TX Exh 2 61 G C Exh I I shows four such discharges, in addition to that of Wade TEXTRON , INC. 143 or, Shives, related that Ogden reported to him that morning that Wade had come to work under the influence of liquor and had been sent home with instructions to return the next day for an interview with Shives ; that he discussed the matter with Karle , who decided, in view of Wade's previous offense of the same nature , to discharge him; that, when Wade came in for his interview on February 15, Karle, however, called Shives into his office and instructed him not to discharge Wade because he had just seen Wade and a union organizer together at the Colonial Motel ; and that the witness merely gave Wade a written warning and instructed Ogden to keep a close watch over Wade . Karle corroborat- ed Shives' testimony, explaining that, after instructing Shives to discharge Wade, he happened to observe Wade and the union organizer together in front of the motel, whereupon it occurred to him that the Union might try to exploit any disciplinary action against Wade by falsely charging discrimination for union activity; that for this rea- son, upon returning to the plant , he instructed Shives not to discharge Wade but to give him a "stiff warning" instead; and that, but for his apprehension that the Union might take advantage of the situation, Wade would have been dis- charged on February 15. Wade admitted that he was sent home on the 14th for appearing to be under the influence of liquor and that he was warned that any recurrence would result in discharge. The next incident involving Wade occurred on Feb- ruary 25, when, according to Ogden , Wade again showed signs of inebriation upon arriving at the plant . Ogden added that he reported the situation to Karle, who instructed him to verify his diagnosis of Wade's condition by keeping him under observation ; that further observation merely con- firmed Ogden's opinion, and he so advised higher manage- ment. Shives and Karle were in substantial agreement that, after reviewing the information from Ogden as to Wade's condition, it was decided to discharge him, and he was in fact discharged on February 28. Wade admitted that he was under the influence when he reported on the 25th . The General Counsel, nevertheless, contends that Respondent would have condoned his condi- tion but for his union activity . The General Counsel cites (1) testimony by Wade that it was a common occurrence for him to come to work under the influence of liquor and that before February 14 he had not been disciplined therefor, except for the one warning given him in June 1970 , and (2) the corroborative testimony of E. Bailey that Wade had come to work many times in an inebriated condition. The General Counsel relies also on the testimony of S. Williams that he has reported for work under the influence of liquor, his condition being such that, in his opinion, his supervisor, Ogden, could not have failed to detect it. Ogden denied that he had ever seen Wade under the influence on any occasion other than the two in February, discussed above , and one occasion about a year earlier, which was presumably the one for which Wade was disciplined in June 1970, and Ogden denied also that he had ever noticed anything unusu- al about S. Williams' behavior on the job . S. Williams' testi- mony was not specific as to the frequency of his derelictions and, although he insisted at first that he was never disci- plined therefor, he admitted under cross-examination that in May 1968 he had been given a disciplinary layoff by Supervisor O. Brown for reporting for work under the influ- nflu- ence62 As Wade's testimony has been rejected as to other ence. matters, he is not deemed a reliable witness, and E. Bailey's testimony proves too much . He contended that during the last 2 weeks of his employment Wade reported for work under the influence three to five times . If so, it would appear that Ogden overlooked some of Wade's lapses from sobriety even after Respondent was aware of his involvement with the Union . Nor can I perceive sufficient basis in the record for rejecting the testimony of Karle , as corroborated by Shives, that, after Karle saw Wade in the company of the union organizer, he decided to rescind the decision he had already made to discharge Wade, and to give him another chance in order to forestall any charge by the Union of discrimination against Wade . That is hardly the conduct of an employer who is seeking a pretext for discharging a union adherent . It is concluded, therefore, that the ultimate discharge of Wade for a repetition on February 25 of an offense which had already provoked two warnings of dis- charge, for which other employees had been discharged in the past, and for which Wade would have been discharged on February 14 but for his apparent involvement with the Union, was not because of such involvement . No violation is found here. e. Johnson He had worked as a dryer operator in Respondent's dyehouse for 3 years, and was listed on the Union 's wire of February 9 as a member of its organizing committee. On March 1 , a Monday, he notified Supervisor Shives of his intention to quit because of a disagreement with one of his fellow workers, Easter, but he consented to finish out the week. The same day Respondent presented him with a writ- ten resignation notice which he signed. However, the next day, having had a change of heart , he attempted to with- draw his resignation but, for reasons discussed below, was told that he would be laid off, in any event , on March 5, and his employment did in fact end on that date . He has not been recalled. Karle explained that for some time before March 1 there had been a dearth of work for the hand tub operators in the dyehouse and that early in January he began to consider reducing the number of such operators. There was received in evidence (1) a memo dated January 5, from him to a higher management official, in which Karle proposed that certain hand tub operators be laid off or transferred, and (2) a note from Karle to Shives dated Janu- ary 6 referring to an attached copy of the foregoing memo and stating, "If you have any turnover in this area, let's consider this move automatically." Karle testified that when, on March 1 , he learned of Johnson's resignation, he decided to put into effect the foregoing plan by eliminating the jobs of two hand tub operators , transferring them to the dryers, which were then being operated by Johnson and Easter, and laying off Easter. Shives corroborated Karle fully. It was not disputed at the hearing that for seniority purposes the hand tub and dryerjobs were considered inter- changeable, and that Easter, as well as Johnson, had less 62 Karle and Shives professed to have no knowledge of any inebriety on the job on the part of S Williams other than on the occasion for which he was disciplined 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seniority than the hand tub operators, Johnson having the least seniority. Moreover, there was no effective contra- diction of Karle's testimony that it was Respondent's policy to honor seniority in case of layoffs, as well as in other respects.63 Shives testified that, when Johnson came to him on March 2, and attempted to withdraw his resignation, Shives told him he had already made arrangements to proceed with the plan outlined above; and, although Johnson asserted that Shives told him he could not change his mind because he had already signed the resignation notice, it was conced- ed at the hearing that in a pretrial affidavit Johnson ac- knowledged that Shives had told him that Respondent planned to eliminate two hand tub jobs. It is clear at any rate that both Easter and Johnson were laid off on the 5th and were replaced by the hand tub men, and there was no evidence that Respondent was aware of any union activity on the part of Easter. Respondent has not since hired any new employees to operate the hand tubs or the dryers. Karle admitted that it was his policy to recall laid-off employees, and that pursuant thereto he has recalled Easter for work as a janitor. He explained that he has not recalled Johnson because he has not been able to find any suitable openings for him; and that he did not recall him to replace Easter when the latter quit his janitorial job because Karle thought the work too strenuous for Johnson, but he would now employ Johnson as a janitor if a doctor would certify him as able to do the work. Although Johnson insisted at the hearing that only a week before his foregoing "resignation" he had been offered a job in the weaving room by Supervisor Williamson, the latter denied this,64 and Karle testified that, although cer- tain jobs did become available in the weaving room after March 5, he could not use Johnson thereon because he did not have a sufficient degree of literacy.65 There seems to be no good reason to doubt that, when, on March 1, he learned of Johnson's intention to resign and decided to lay Easter off and not hire any replacement for Johnson, Karle was merely implementing the retrenchment program outlined in the January 5 memo. However, since Johnson's resignation was the event that admittedly trig- gered that decision, the question arises why Respondent did not reconsider its action when Johnson changed his mind about resigning. When asked about the matter of Johnson's change of heart, Karle testified: Well, when after he had resigned and come back the next day and said he didn't want to resign [we] said that under the circumstances we had taken action to do this, we were going to terminate this operation, and he would be terminated for lack of work anyway at the end of that week .... The implication of this seems to be that Respondent did not regard Johnson's change of heart as sufficient rea- 63 I do not regard as persuasive Johnson's contrary, vague, and confused testimony about what he thought to be Respondent's seniority policy 64 At any rate, if Williamson did make such an offer in late February, that circumstances would tend to negate any inference that Respondent was seeking a pretext to get nd of Johnson because of his identification with the Union. 65 Johnson conceded that he could not read or write anything but his name. son for abandoning its retrenchment program. The General Counsel would have the inference drawn that it was not the economic benefits of that program, but Johnson's union activity, which caused Respondent to ignore Johnson's change of heart. However, as against this, it may be pointed out that the retrenchment program also involved elimina- tion of Easter, whose union sentiments were not known to Respondent, so that the advantage of that program from the standpoint of reducing the proportion of union adherents was problematical. Under all the circumstances, particularly the unchal- lenged evidence that the foregoing retrenchment program had been planned before the advent of the Union, and that it resulted in the elimination of the two hand tub jobs, which the record shows were no longer economically justifiable, one would be hard put to say that, but for Johnson's union activity, Respondent would have foregone the benefits of such a program. Accordingly, the evidence is not deemed to preponderate in favor of a violation finding here. f. C. Quinn 66 He worked for Respondent from August 1970 to March 10. His name did not appear on the Union's Feb- ruary 9 wire, and in his case General Counsel relies on an incident occurring on February 27 as establishing Respondent's knowledge of his union activity. He testified that on that date he had a conversation with R. Stewart, in which Quinn indicated that he might attend a union meet- ing that night, and that his foreman, Greene, was only a few feet away at the time. As this was corroborated by R. Stew- art, I credit such testimony, notwithstanding Greene's dem- al that he overheard any such conversation. Quinn added that after the foregoing incident there was a marked change in Greene's attitude toward him, in that Greene for the first time became critical of Quinn's work. While acknowledging such criticism, Greene insisted it was based solely on Quinn's failure to conform to established job procedures. The record shows that Quinn was absent from work on March 10, and that under Respondent's absenteeism policy he was subject to discharge therefor, as this was his 10th period of absence or "occurrence"67 within a 12-month peri- od. He was in fact discharged on March 10 for such ab- sence. Although conceding that, insofar as here relevant, his examination of Respondent's personnel records has failed to reveal any deviation from Respondent's rules respecting disciplinary action based on the number of "occurrences" within a 12-month period'68 the General Counsel contends, 66 Hereinafter referred to as Quinn. 67 Under Respondent's rule, an "occurrence" consisted of absence for not more than 10 consecutive working days. 68 See TX Exh. 1. Although it was stipulated that the foregoing concession did not apply to the "absence record" of Quinn (and M. Stewart, whose case is next discussed), this reservation in the case of Quinn apparently had reference to the fact that, although Respondent's rule prescribed a written warning notice for Quinn's fifth occurrence, in October 1970, he received at most only an oral warning. In his brief, the General Counsel makes no reference to this circumstance and no significance is perceived therein, par- ticularly in view of the evidence that at that time responsibility for the administration of the absenteeism policy was temporarily entrusted on a makeshift basis to a secretary-receptionist. (There was, also, at first some confusion on the part of Respondent 's witnesses as to whether Quinn was given a disciplinary layoff on his seventh or his eighth occurrence. However, this was finally cleared up by Hall.) TEXTRON, INC. 145 nevertheless, that Quinn was in fact discharged for his aforenoted manifestation in Greene's presence of an inter- est in attending a union meeting. The General Counsel cites as evidence of discriminatory motivation certain alleged conversations between Quinn and Greene relative to his last two occurrences. Quinn's version was to the effect that, when he called Greene to notify him of the reasons for his absence on those occasions, Greene told him it would be "okay." Greene admitted at the hearing that he received the first of these calls, but denied that he implied to Quinn that his absence would be overlooked. It is clear, in any event, that Greene had no authority under Respondent's rule to excuse Quinn's absence and that any such action on his part would therefore not affect the applicability of the rule's sanctions. A more serious question is raised by Quinn's further testimony that during his exit interview Greene asked if Quinn was for the Union and, when he answered in the affirmative, remarked that it was necessary to discharge him "anyway." Greene's denial of this interrogation was corro- borated by Hall, who was present. At any rate, even if Quinn be credited, it would not suffice to establish discrim- inatory motivation for Quinn's discharge, when weighed against the cogent evidence in the record that Quinn's dis- charge was mandatory under Respondent's absenteeism policy, and that, except as already noted, such policy has been uniformly and consistently enforced 69 Nor would it change the result if one credited Quinn's testimony, disputed by Greene and Hall, that at the exit interview Greene rather equivocally denied that Quinn had called in to explain his absences. Such testimony, coupled with the alleged interrogation and the alleged change in Greene's attitude to Quinn, would prove at most that Greene was ill-disposed to Quinn because of his union ac- tivity, but would not suffice to establish that, absent such activity, Respondent would have waived its rule. Dismissal of this allegation will be recommended. g. Roy Stewart Roy had worked in Respondent's dyehouse since Octo- ber 1969. His name was on the Union's February 9 wire to Respondent and his foreman, O. Brown, admittedly knew that he was active in soliciting for the Union outside the plant. On March 8 he was involved in an incident with a fellow employee, Leemaster, who, so far as the record shows, was not regarded by Respondent as a union adher- ent.70 There was substantial agreement between Roy and Leemaster that on March 8 there was an exchange of re- marks which provoked Leemaster to attack Roy; that the affray consisted of pushing against each other and a certain amount of wrestling; and that, in the course of the struggle, 69 Moreover, Greene's alleged remark, after Quinn had admitted his prounion sentiments, that it was necessary to discharge Quinn "anyway," would seem to imply that his union activity was a factor weighing against his discharge. If Greene did say this, it would tend to negate union animus rather than the contrary 70 He had, however, signed a union card on February 10, 1971 (G C. Exh 15ww). Leemaster fell to the ground. Leemaster denied that he suffered any visible damage. However, since Roy was highly evasive about the extent of such damage suffered either by Leemaster or himself, and I do not regard Leemaster as a wholly disinterested witness," I credit the testimony of Foreman O. Brown and Personnel Director Jones that when they interviewed the men they observed skinned knuckles and arms and Leemaster was bleeding. It is clear, moreover, that each man insisted to management that he was to blame for the affray and sought to exonerate the other. Karle testified that, after receiving reports of the incident, includ- ing the physical damage suffered by both men, he conclud- ed that they had been involved in a fist fight in violation of Respondent's rule against "fighting or horseplay on Com- pany property," and decided to discharge them for that reason. They were in fact discharged on March 9. Karle insisted that the foregoing rule has always been strictly enforced, citing the discharge of an employee for horseplay, which caused injury to another employee. While Respondent's records show no other discharges for fighting or horseplay, there was no persuasive evidence that Respon- dent had ever knowingly condoned any violation of the rule that was as serious as the one under consideration. Leemas- ters testified that on a prior occasion he had had some words with S. Wade on the job and been slapped on the face by him, and that, although Foreman Wilkins interviewed and ordered the men to desist, no disciplinary action was taken. Roy claimed to have witnessed that incident and corrobo- rated Leemaster's version. While admitting that he had overheard an argument between Leemaster and S. Wade and had ordered them to "break it up," Wilkins denied that he saw any physical aggression. As it is not clear either from Leemaster's version or Roy's where Wilkins was at the time the alleged slap was delivered, there is no necessary conflict between their testimony and Wilkins' foregoing denial. Moreover, I deem it significant that, although the rec- ord shows that he was a union adherent 72 and might there- fore be expected to be favorably disposed to the General Counsel, S. Wade was not called by the General Counsel and no explanation was given for that omission. It is there- fore inferred that his testimony would not have aided the General Counsel. In any case, even if it were found that Respondent knowingly condoned the amount of physical contact allegedly involved in the foregoing "slapping" inci- dent, I do not believe that the disciplinary action taken against Leemaster and Roy for engaging in a pushing and wrestling match, which resulted in visible damage to both, would constitute such disparate treatment as to warrant the inference that such action was prompted by antiunion con- siderations.73 7i Not only may it be inferred that his prounion sentiments (see preceding footnote) would predispose him to favor Roy, but the impression he con- veyed at the hearing was that he felt personally responsible for Roy's dis- charge and was anxious to undo the damage he had done him 72 See G.C Exh 15(uuu), which is the union card signed by S Wade on February 23. 73 Evidence was adduced about an incident involving Johnson and Powell, which, according to Johnson, himself, merely consisted of his brushing against Powell in walking by him, and in his brief the General Counsel quite correctly concedes that it is not clear from the record that any blow was struck Accordingly, there is no need to dwell on that matter 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD h. C. Ramsey 74 He had been in Respondent's employ since August 1968, working as a fixer in the weaveroom. His name was on the Union's February 9 telegram. He was admitted to a hospital on February 26, was released on March 8, and remained at home until March 15, when he returned to work. Under Respondent's posted rules governing absen- teeism,7i if an employee is absent for more than 10 days, his name is "automatically removed from the payroll." The rule provides further, as follows: Should an employee realize his period of absence is going to exceed the ten (10) day maximum, he may apply for a leave of absence in order to retain his sen- iority, providing the applicant is eligible for a leave of absence. It is undisputed that Ramsey was absent from work more than 10 days and that he failed to apply for a leave of absence. When he returned to work on March 15, he was notified by Head Foreman Hall that he was being laid off under the foregoing rule because he had not applied for a leave of absence. Although he was notified that he retained his seniority and was eligible for recall to the first available vacancy, Ramsey has not been rehired. Hall testified that several days before Ramsey's return to work, it having been determined that he had been absent for 11 days, Hall notified Garvin, who, like Ramsey, was a known union adherent, that he was to replace Ramsey, and it is not disputed that Garvin promptly began to train for that assignment. While it is evident that, when Ramsey returned on the 15th, Garvin was not yet fully trained as a fixer and that from the standpoint of efficiency of opera- tions it would have been to Respondent's advantage to re- hire Ramsey and return Garvin to his former, lower grade job, Hall insisted that it was Respondent's policy that, once it has made a commitment to an employee to promote him as a replacement for an absent employee, it will not renege on such commitment merely because the absent employee returns. While one may debate the wisdom of such a policy, I credit Hall, there being nothing in the record to contradict his assertion that such was in fact Respondent's policy. Moreover, absent any competent evidence to the contrary, I credit the testimony of Karle that since March 15, Respon- dent has had no openings in Ramsey's line of work, 16 and the testimony of Hall that Ramsey refused on March 15, to be considered for any other line of work. Karle testified that the foregoing 10-day absence rule is strictly enforced.77 Ramsey contended at the hearing that Respondent had condoned violations of the rule by White and Yost, and that, when he pointed this out to Hall on March 15, Hall answered only that he knew that White 74 Hereinafter referred to as Ramsey. 75 G C Exh. 3 76 Although Ramsey testified his job has been taken was by Charles Cain, that testimony was patently based on hearsay and an objection thereto on that ground was sustained. 77 G.G. Exh 11, which is a list of all employees discharged by Respondent for cause, does not contain the names of any employees terminated for violating the 10-day rule. However, it also, does not contain Ramsey's name Karle explained that Respondent does not consider the "clearance" of an employee from the payroll under the foregoing rule as a discharge for cause, except under certain circumstances See next footnote would be out a long time. However, Karle denied that there was any violation of the 10-day rule by White, and there was placed in evidence a leave-of-absence form, purporting to be signed by White, which signature was authenticated by Karle. In the case of Yost, Karle admitted that she did not sign a leave-of-ab- sence form and is still in Respondent's employ. However, he explained that Yost was in the hospital at the time because of a difficult pregnancy and that there was danger of a miscarriage; that, knowing she would be absent from work for more than 10 days, Yost called the plant and asked for a leave of absence; that, in view of her condition, Respon- dent did not require that she actually sign a leave-of-ab- sence form, but instead filled one out and placed it in her file without her signature. The implication of this is that Respondent treated Yost as if she had executed a leave-of- absence application. However, it is not clear in what respect Yost was treat- ed more favorably than Ramsey from the standpoint of job tenure. While she was in Respondent's employ at the time of the hearing, and Ramsey was not, it was not explained how she came to be reemployed; that is, whether she was taken back upon the expiration of her leave of absence, even though her job had been filled, or whether, like Ramsey, she had been required to wait for the first available opening. Under the literal language of the rule, even when an em- ployee makes a timely application for leave, all he is entitled to is retention of seniority, and Ramsey was allowed to retain his seniority, even though he had not complied with the rule. However, since it seems implicit, although not expressed, in Karle's testimony that Yost was treated more favorably than Ramsey, it is inferred that the 10-day rule has been applied as follows: (1) In the case of employees, like Yost, who com- plied (or were treated as having complied) with the rule, Respondent construed the provision for retention of seniority as meaning that they were entitled, upon the - expiration of their leave, to "bump" any replacement who had less seniority. (2) In the case of an employee, like Ramsey, who had not complied with the rule, but whose absence was due to ill health, he was allowed to retain his seniority, except that he would not be allowed to bump any re- placement, even though junior to him, but would have to wait for the first available opening.78 The General Counsel contends that there were unusual circumstances in Ramsey's case, which entitled him to the same consideration as Yost. Those circumstances allegedly consisted in the fact that Ramsey was highly regarded as an employee, being considered for promotion, and that both his supervisors, Cain and Hall, knew he was in the hospital, having visited him there. However, there was no evidence that either Ramsey or his supervisors expected him to be confined in the hospital for more than 10 days, and he was 78 There remains the situation of the employee who has not complied with the rule and whose absence was not due to ill health. Karle testified that in such a case removal from the payroll was equivalent to a discharge for cause Thus, compliance with the 10-day rule meant retention of full seniority rights, including bumping of junior replacements, and noncompliance meant either retention of seniority, but without bumping rights, or discharge for cause, depending on the reason for absence TEXTRON, INC. in fact released before the 10-day period expired 79 Accord- ingly, there was not here, as in Yost's case, a foreknowledge that the employee would not be able to come to the plant during the 10-day period and sign the proper form. NOT was there here, as in Yost's case, a timely, oral request by the employee for leave, which was all that the rule, literally read, required. As for Ramsey's competence or eligibility for pro- motion, there was no evidence on that point except for an offer of proof by the General Counsel. 80 In any event, there is no evidence that, in enforcing its absenteeism policy, Respondent made exceptions based on competence or eligi- bility for promotion. The record is clear that Respondent had long had an absenteeism problem, as witness the relatively large number of discharges for various types of absenteeism,8 and that Karle was sufficiently concerned about the matter to devel- op an elaborate set of rules governing that matter. Since Ramsey, unlike Yost, had made no application for leave, oral or written, there was no logical basis for treating him as in substantial compliance. Thus, in his case Respondent was confronted with a clear choice between enforcement or waiver of the 10-day rule. Given the seriousness of Respondent's overall absenteeism problem, it cannot be said that the choice made in Ramsey's case was so far de- void of any apparent justification as to compel the inference that it was motivated by discriminatory considerations. Accordingly, it will be recommended that the instant allegation be dismissed. i. M. Stewart 82 He had worked for Respondent since 1966. His name was on the Union's February 9 wire. He had attendance problems, which he ascribed to the invalidism of his parents. From March 1, 1970, when Respondent's current absentee- ism rules were adopted, to May 10, when he ceased to work for Respondent, he accumulated a total of 15 occurrences, 5 of which were canceled, pursuant to the rule, because he had 5 months of perfect attendance during that period.83 On March 15, he was given a written warning notice on account of his absence on March 10, which was his 7th occurrence, and the notice stated that he would receive a 3-day layoff 79 That period expired either on March 9 or 11, depending, according to Hall, on whether the intervening Saturdays were workdays Ramsey was released from the hospital on the 8th to Since Respondent disclaimed any contention that Ramsey's perfor- mance on the job was a factor in his discharge, I ruled that evidence of his competence was not properly part of the General Counsel's prima facie case but might be offered in rebuttal, if it appeared to be relevant after Respon- dent had presented its defense The General Counsel then elected to make an offer of proof on the point, and did not present any rebuttal with respect to Ramsey si See G C Exh 11 82 Also referred to in the record as Lacy Stewart 83 Thus, although M Stewart had accumulated five occurrences as of May 13, 1970, all five were subsequently canceled because he later had 5 months of perfect attendance, and the final count of his occurrences begins with his absence on May 18, 1970 147 if he was absent again and would be discharged "if he had a 10th occurrence within a 12-month period." When it gave the foregoing warning notice, Respondent knew that he had already accumulated another absence on March 12, he hav- mg attended on that date a Board hearing on the Union's representation petition, pursuant to a subpena from the Union. However, Respondent decided that it would not be fair to give the warning notice of March 15 retroactive effect, so to speak, and discipline M. Stewart for the March 12 occurrence, and he was notified that that occurrence would not be counted against him. His next absence, on April 28, resulted in the imposition of a 3-day layoff. He was absent again on May 10, which represented the ninth occur- rence charged against his record up to that point.84 He testified that he did not bother to report to work thereafter because he believed that his May 10 absence represented his 10th chargeable occurrence. He did, however, visit the plant on May 13 to pick up his last paycheck and had a conversa- tion with Personnel Director Jones. According to M. Stew- art, he told Jones that he assumed that he had been terminated under the absenteeism rule, whereupon Jones remarked, "Oh, yes." Jones, however, insisted that M. Stew- art on that occasion stated, in effect, that, while he knew he had only accumulated nine occurrences, he saw no way of avoiding a 10th occurrence, in view of the state of his par- ents' health, and had decided to quit rather than keep "drag- ging it on." In view of the circumstantiality thereof, I credit Jones' testimony and find that M. Stewart quit because of his expectation that he would eventually exceed the number of absences perimtted by Respondent's policy and would be discharged on that account. In view of this finding that M. Stewart was not dis- charged but quit, it becomes incumbent upon the General Counsel to establish that such quitting was induced by dis- criminatory treatment of M. Stewart. In this regard, the General Counsel contends that the record shows a marked change in Respondent's attitude toward M. Stewart's absen- teeism after February 9, when it first learned of his union activity. Thus, the General Counsel points to the fact that he was not given a written warning after his initial,85 fifth occurrence on May 13, 1970. However, the foregoing chro- nology indicates that even after February 9 the full force of the rule's sanctions was not applied to him; for, under the rule he should have been laid off on March 10 when he again accumulated seven occurrences. Instead Respondent merely gave him a written warning on March 15 that he would be laid off, if absent "again," and decided to overlook entirely the fact that he had already been absent "again" on March 12, and he was not, in fact, laid off until the next occurrence on April 28. Thus, while the pattern of discipli- nary action taken against M. Stewart seems, to say the least, erratic, the fact remains that, as, in effect, conceded by the General Counsel, M. Stewart was treated with unusual leni- ency even after the disclosure of his union activity.86 Wheth- 84 As already noted, 6 of his prior 14 occurrences, including that of March 12 had been canceled under the circumstances described above is See fn 83, above, for an explanation of how occurrences were counted 86 See TX Exh I 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD er Respondent would have been even more lenient to him but for his union activity is open to conjecture.87 While it is true that before the absence of March 10, none of the various disciplinary actions prescribed by the rule was ap- plied to M. Stewart, the decision to begin to do so on March 15, albeit on a modified basis, may have been prompted by the steadily mounting number of his absences and the desire to preserve some-semblance of uniformity in the administra- tion of the absenteeism policy. At any rate, the fact that Respondent, for whatever reason, decided in March to ap- ply to M. Stewart the same rule that it was concededly uniformly applying to its other employees,88 would not seem to constitute such an onerous change in his working condi- tions as would warrant converting his resignation into a constructive, discriminatory discharge. Accordingly, no vio- lation is found here. j. Ruth Huffstetler She worked nearly 8 years for Respondent as an in- spector. Her name was on the Union's February 9 wire. She concededly was well regarded as an inspector until the early part of 1971. Some time in 1970, Respondent placed its inspectors under a new incentive system . Thereunder, in- spectors were required after a 6 -week grace period to reduce to at least 2.5 the percentage of defective tape approved by them, as determined by a random sampling of their tape. At the time the incentive system was installed , the inspectors were warned of discharge , if over a specified 2-week period their average margin of error was more than 2.5 percent.89 It is clear that Ruth failed to meet the 2.5 percent standard during 7 of the last 8 weeks of her employment , beginning with the week ending May 9;90 that on May 31, she was given a written warning to the effect that, if she did not maintain a 2.5 percent average during the next 2 weeks, she would be subject to discharge ; that, although she failed to maintain such an average dunng the next 2 weeks, she was given another 2-week trial; that during the next 2 weeks her percentage of defects was 10 .3 and 3.9, respectively; and that she was terminated on June 25 . While the record shows no other discharge of inspectors for unsatisfactory work, it is clear from the evidence that Ruth's overall performance during her last 4 months was inferior to that of any of the other inspectors,91 and there is nothing in the record to 87 In support of his contention that there was a change in Respondent's attitude to M Stewart after February 9, the General Counsel adduced testi- mony by M Stewart that about February 9, Respondent made some unfavor- able changes in his working conditions However, under cross-examination, he professed to be unable to recall whether this happened before or after February 9, and Jones testified that the changes were made before that date Under these circumstances, Jones is credited M. Stewart testified, also, that, when he was given the 3-day layoff (on April 28), Supervisor Jackson told him he would have to "start abiding" by the rules like everyone else. Jackson disputed this The fact is that Respon- dent had even before that date taken disciplinary action against him in the form of the warning issued on March 15 In view of this, as well as the fact that M Stewart gave a somewhat different version of Jackson's remark in a pretrial affidavit, he is not credited here. "See TX Exh I. 89 See Resp . Exh. 26 90 See Resp Exh. 27. 91 See Resp. Exh. 27. contradict Hall's testimony that no other inspector has been treated more leniently than Ruth. It is also clear that em- ployees (other than inspectors) have been discharged for failure to meet production standards 92 Ruth testified that during her discharge interview with Supervisor Hall, when she asked him what he thought caused her rate of defects, he answered, "I think it was because your nerves were bad, and you have been involved in that other stuff." Hall's version was that he told her that he thought her high defect rate was related to her nerv- ousness and to a fixation she had about Respondent dis- charging all union adherents.93 On the basis of demeanor, I credit Hall. Here, as in the case of some of the other alleged discri- minatees discussed above, the General Counsel's theory seems to be that, although it had good cause for discharge, Respondent would not have availed itself thereof but for the employee's union activity, and would instead have tolerated the employee's shortcomings because of various compensat- ing factors. In Ruth's case the compensating factor would seem to be the fact that she had been an inspector for nearly 8 years, and it might well be thought that she received rather cavalier treatment for an employee of such longstanding. However, there was no evidence that, in enforcing plant rules or job performance standards, Respondent treated other longtime employees with more consideration that Ruth; and, for the Board to pass on how much weight an employer should give to an employee's length of service before discharging him for justifiable cause would involve intruding into an area of judgment reserved to management. In Ruth's case, it is clear that even after she failed to meet the standard set in the June 2 discharge warning, she was given another 2-week trial period. It would seem beyond the Board's province to say that, because of her long service, the Act required more than this to negate an inference of dis- crimination. Dismissal of the instant allegation will be recom- mended. k. The statistical argument The General Counsel contends that it is a suspicious circumstance that, there was a sharp rise in the number of employees discharged in 1971 after the advent of the Union as compared with the number discharged during the preced- ing calendar year. While it is true that during 1970 there was a total of only five discharges, whereas in 1971 there were, according to General Counsel's Exhibit 11, nine dis- charges 9 dunng February and March alone, the signifi- 92 See G.C. Exh 11. 93 Ruth admittedly had accused Respondent early in June of seeking a pretext to discharge her for union activity. She acknowledged, also, that on June 6, her physician told her she was suffering from a nervous condition. In any case, even if Hall be deemed to have ascribed her substandard perfor- mance as an inspector, at least in part, to her involvement with the Union, that would not constitute an admission that such involvement was a factor in her discharge, except insofar as it affected her work. 94 This exhibit omits R Stewart, who was admittedly discharged on March 8, and should therefore be counted as a 10th discharge . C. Ramsey and R. Johnson are not listed in the exhibit presumably because they were consid- ered as having been laid off, and M Stewart was treated as a quit, as was Durbin, whose case was struck at the hearing. TEXTRON, INC. cance of the comparison is diminished by the fact that 1970 was not a representative year in this respect. This is evident from the fact that General Counsel's Exhibit 11 lists a total of 151 discharges over an 8-year period, of which 19 oc- curred in 1971 5 and 5 in 1970, leaving a balance of 127 over the preceding 6-year period. This averages out to 21 per year for that period. Accordingly, it cannot be said that there was a disproportionate number of discharges after the advent of the Union. Moreover, of the 16 employees admittedly discharged after February 3, when Respondent first learned of the Union's advent, only 7 were shown to have been union adherents, which is not a disproportionate number when one considers that union cards were signed by a clear major- ity of the employees. 3. The 8(a)(5) issues a. Appropriate unit It is found that the unit appropriate for bargaining is as follows: All production and maintenance employees at Respondent's York, South Carolina, plant, including laboratory technicians and plant clericals , but exclud- ing all office clerical employees , professional employ- ees, guards and supervisors as defined in the Act 96 b. The Union's majority status (1) The election result The election held on April 22 resulted in,a vote of 59 to 53 against the Union, with 14 ballots being challenged. The Regional Director sustained 1 of these challenges, over- ruled another,97 and referred to the instant proceeding the remaining 12 challenged ballots, of which 10 were cast by employees alleged to have been discriminatorily dis- charged.98 Of these 10, only 2, Burgess and Shillinglaw, have been found herein to have been unlawfully discharged, and the challenges to their ballots are therefore overruled. How- ever, as the maximum number of overruled challenges would not be sufficient to affect the outcome of the elec- tion, 99 it will not be recommended that any of the chal- lenged ballots be opened and counted. It follows that the Union did not receive a majority of the votes cast in the election. 95 This number is arrived at by adding Roy Stewart to those listed in G.C. Exh. l1 for 1971. See preceding footnote. 96 This was admittedly the unit found appropriate by the Board in the election held herein 97 The challenge to Easter's ballot. 98 Of the remaining two challenged voters, only one, Henson, testified at the hearing. 99 The Union needs at least seven more votes . Even if one adds to the ballots of Burgess and Shilhnglaw those of Easter and Henson, they would not suffice to overcome that deficit. Accordingly, there is no need to consider Henson's eligibility. (2) The interference with the election 149 The Union filed timely objections to the election, citing inter alia, many of the instances of interrogation found above, Williamson's remark to Simpson that, as found above, created an impression of surveillance and his admo- nition to her to stay away from the Union, and the speeches of April 20, which have been found coercive. In view of these findings, it will be recommended that the election be set aside.100 The General Counsel urges that, if the election is set aside, Respondent be ordered to bargain "under established principles as a result of the unfair labor practices having deprived the Charging Party of its majority," citing N.L.R.B. v. Gissel Packing Co., 395 U.S. 575. It is current Board law that, even though a union has lost an election, it may secure a bargaining order by showing that (1) the election was invalid, (2) it requested bargaining at a time that it had valid authorization cards from a majori- ty of the unit, and (3) such an order is appropriate under Gissel. On February 15, when the Union requested recogni- tion, there were 116 unit employees on Respondent's pay- roll, of whom 66 had already signed concededly valid union authorization cards. The union thus had a clear card majon- ty on February 15. As already related, on February 18, Respondent rejected the Union's request for recognition, expressing doubt that it represented a majority of the em- ployees, and suggesting that the matter be resolved by an election upon the petition already filed by the Union. The issue is thus posed whether under Gissel it would be appropriate to issue a bargaining order or whether the Board should merely direct a new election. It has been found that Respondent engaged, inter alia, in extensive in- terrogation, that it discharged for union activity Burgess and Shillinglaw, who was generally regarded as one of the two instigators of the union movement among the employ- ees, that Respondent told employees that Burgess was dis- charged for union activity, and that Karle's speech of April 20 was calculated to impress upon the employees the futility of collective bargaining and, if it had to deal with a union, Respondent would engage in bargaining tactics that might well result in reduction of existing benefits. It is found that such unfair labor practices are so serious as to render it unlikely that traditional remedies will insure the holding of a fair election and reliance on the Union's cards and is- suance of a bargaining order is therefore appropriate. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes 100 The discharges of Burgess and Shillinglaw were not included in the Union's objections to the election , presumably because they occurred before the filing of the representation petition, and were therefore time-barred for that purpose. 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD burdening and obstructing commerce and the free flow of commerce. V THE REMEDY It having been found that Respondent engaged in cer- tain unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, it will be recommended that it be directed to cease and desist therefrom and, upon request, bargain collectively with the Union as the exclusive repre- sentative of all employees in the unit set forth above and, if an understanding is reached, embody it in a signed agree- ment. It having been further 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 Burgess and Shillinglaw and their reimbursement for any loss of earnings suffered by reason of the discrimination against them. Backpay shall be computed in accordance with the formula stated in F. W. Woolworth Company, 90 NLRB 289; interest shall be added to backpay at the rate of 6 percent per annum. (Isis Plumb- ing & Heating Co., 138 NLRB 716.) In view of the nature of the violations found herein, particularly the acts of discrimination, a threat of future violations exists, which warrants a broad cease-and-desist order. from scratch in the context of remarks that Respondent would deal less liberally with the employees through a union than it would without a union, that employees had nothing to gain by collective bargaining, and that such bargaining often resulted in a reduction of existing benefits, Respon- dent created an impression of the futility of collective bar- gaining and employee union activities and implied that because of such activities and bargaining the employees might well suffer impairment of existing benefits, thereby violating Section 8(a)(1) of the Act. 7. By coercively interrogating employees about their union sentiments or activities, by warning employees that they would forfeit all rights to employment if they struck and were permanently replaced, by creating the impression of surveillance of employee union activity, by directing an employee to shun union representatives, and by stating that employees had been discharged for union activity, Respon- dent has violated Section 8(a)(1) of the Act. 8. By discharging Burgess and Shillinglaw because of their protected, union activities, Respondent has violated Section 8(a)(3) and (1) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, there is issued the following recommended:101 ORDER CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees constitute a unit appropri- ate for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. All production and maintenance employees at Respondent's York, South Carolina, plant including laboratory technicians and plant clericals, but exclud- ing office clerical employees, professional employees, guards and supervisors as defined in the Act. 4. At all times since February 15, the Union has been the exclusive representative of the employees in the afore- said unit for the purpose of collective bargaining with re- spect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 5. By refusing on and after February 15 to bargain with the Union as the exclusive representative of the employees in the said appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By stating that collective bargaining would start Textron, Inc., Providence, Rhode Island, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating its employees about their union activities, and warning of discharge for union activi- ty. (b) Conveying to employees the impression that collec- tive bargaining would be futile and that such bargaining might well result in loss of existing benefits. - (c) Ordering employees to avoid any contact with un- ion representatives. (d) Warning employees of forfeiture of all reemploy- ment rights if they struck and were permanently replaced. (e) Creating the impression of surveillance of employee union activities. (f) Refusing to recognize and bargain with said Union as the exclusive representative of its employees in the fol- lowing unit: 101 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, recommendations , and recommended Order herein shall, as provided in Section 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 TEXTRON, INC. 151 All production and maintenance employees of Respon- dent at its York, South Carolina, location, including laboratory technicians and plant clericals, but exclud- Ing professional employees, office clerical employees, guards and supervisors as defined in the Act. (g) Discouraging membership in International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization, by discharging employees or otherwise dis- criminating in regard to their hire, or any term or condition of employment. (h) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) Upon request, bargain with the above-named Un- ion as the exclusive representative of the employees in the unit defined above with respect to wages, hours, and other terms and conditions of employment and, if an agreement is reached, embody it in a signed contract. (b) Offer Grace Shillinglaw and Arthur Burgess rein- statement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. (c) In the manner prescribed in the "Remedy" section of the Trial Examiner's Decision, make whole the foregoing employees for any loss of earnings suffered as a result of the discrimination against them. (d) Immediately notify any of the foregoing employees, who is presently serving in the Armed Forces of the United States, of his right to reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after dis- charge from the Armed Forces. (e) 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. (f) Post at Respondent's York, South Carolina, plant, copies of the attached notice hereto marked "Appen- dix A."102 Copies of said notice, on forms to be provided by the Regional Director for Region 11, shall, after being duly signed by Respondent's representative, be posted by it im- mediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that such notices are not altered, de- faced, or covered by any other material. 102 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 " (g) Notify the Regional Director for Region 11, in writ- ing, within 20 days from the date of receipt of this Order, what steps Respondent has taken to comply herewith.103 IT IS ORDERED that all allegations of the complaint which have not been sustained be dismissed. IT IS FURTHER ORDERED that the election in Case I I- RC-3274 is set aside and that proceeding is hereby vacated. 103 In the event that this recommended Order is adopted by the Board, after exceptions are filed , this provision shall be modified to read . "Notify the Regional Director for Region 11, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX A 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 employees these rights: To engage in self organization To form, loin or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other aid or protection; and To refrain from any or all these things. WE WILL NOT do anything that interferes with these rights. WE WILL NOT discharge employees or otherwise dis- criminate against them because of their interest in or protected activities on behalf of International Ladies' Garment Workers' Union, AFL-CIO, or any other un- ion. WE WILL NOT try to impress upon you the futility of bargaining with us through a union or threaten that if we have to bargain with a union, we will engage in bargaining tactics that may result in your losing some of your present benefits or that you will lose your reem- ployment rights if you strike and yourjobs are filled by permanent replacements. WE WILL NOT threaten to discharge employees for union activity. WE WILL NOT ask you how you feel about a union or warn you to stay away from union representatives or give the impression that we are keeping a watch on employee union activities. WE WILL bargain, upon request, with International Ladies' Garment Workers' Union, AFL-CIO, as the exclusive representative of the employees in the unit 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD described below with respect of wages, hours, and all other terms and conditions of employment, and, if an agreement is reached, embody it in a signed contract. The unit is: All production and maintenance employees at our York, South Carolina, plant, including laboratory technicians and plant clericals, but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. WE WILL offer to reinstate Grace Shillinglaw and Arthur Burgess to their old jobs or, if such jobs no long.- Or exist, to substantially equivalent jobs, and WE WILL make them whole for any earnings lost by them as a result of their discharge on February 8, 1971. All our employees are free to belong or not to belong to International Ladies' Garment Workers' Union, AFL- CIO. TEXTRON, INC (Employer) Dated By (Representative) (Title) Route 5 APPENDIX B to Textron plant A 321 bypass 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, 1624 Wachovia Building, 301 North Main Street, Winston- Salem, North Carolina 27101, Telephone 919-723-9211, Extension 360. W D, to downtown York