The Seng Co.

GENERAL STEEL PRODUCTS 859 General Steel Products , a division of The Seng Compa- ny I and Upholsterers' International Union of North America, AFL-CIO. Cases 11-CA-2491, 11- CA-2613, and 11-RC-2022 October 19, 1972 SECOND SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF SECOND ELECTION On April 27, 1972, Administrative Law Judge 2 Harold X. Summers issued the attached Supplemental Decision on Remand in this proceeding. Thereafter, the General Counsel filed exceptions and a support- ing brief, and the Respondent filed cross-exceptions and a supporting brief. 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 attached Supplemental Decision in light of the excep- tions, cross-exceptions, and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his rec- ommendation, as modified herein. As recognized by the Administrative Law Judge, the law of this case is that established in the remand of the U.S. Court of Appeals for the Fourth Circuit,' which was accepted by the Board. While the court affirmed the Board's finding of 8(a)(1) violations and the cease-and-desist portions of the order utilized to remedy these unfair labor practices, it refused to en- force the bargaining order also entered by the Board and remanded the case to the Board for "proper find- ings" as to whether a bargaining order is an appropri- ate remedy for the Respondent's unfair labor practices, after giving full consideration to the changed circumstances in the Respondent's owner- ship, management, and supervisory and employee personnel that may have occurred since the unfair labor practices were committed. The court admon- ished that "the Board ought not to limit its inquiry to events occurring prior to the first unfair labor practice 1 The name of the Respondent in the original caption, General Steel Prod- ucts, Inc, and Crown Flex of North Carolina, Inc, has been changed to reflect the record evidence at the reopened hearing, as suggested by the Administrative Law Judge. On June 30, 1968, Crown Flex was dissolved as a corporation and General Steel took over its assets ; and on June 30, 1971, General Steel was dissolved as a corporation and became a division of The Seng Company As stipulated by the parties, the scope of the collective- bargaining unit found appropriate in the Board's initial Decision and Order, 157 NLRB 636, remains the same 2 The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 3445 F.2d 1350 (1971) hearing, but should receive proof of any material fact occurring up to the date of the new hearing bearing upon a determination whether or not a fair election could be held." Consistent with this remand, evidence was re- ceived at the reopened hearing of events which oc- curred before and subsequent to the original hearing of 1965. Upon consideration of the record supple- mented by this additional evidence, including the changes which have taken place in Respondent's own- ership, management, and employee complement, as directed by the court, we agree with the conclusion of the Administrative Law Judge that the effects of the unfair labor practices committed in 1964 can be dissi- pated by appropriate assurances to the employees of their freedom to exercise the self-organizational rights guaranteed them by the Act and that an untrammeled choice of a bargaining agent via a second election would thus be possible, thereby eliminating the ne- cessity for a bargaining order herein. We shall thus provide. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Gen- eral Steel Products, a division of The Seng Company, High Point, North Carolina, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees with respect to their union membership or activities in a manner violative of Section 8(a)(1) of the Act. (b) Threatening employees with reprisals if they designate the Union as their collective-bargaining representative. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at its High Point, North Carolina, plants, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Re- gional Director for Region 11, after being duly signed by Respondent's respresentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said 4 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 199 NLRB No. 121 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notices are not altered, defaced, or covered by any other material. (b) Notify said Regional Director, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith. It is further ordered that the complaint be, and it hereby is, dismissed, insofar as it alleges that the Respondent violated Section 8(a)(5) of the Act. It is further ordered that the petition in Case 11-RC-2022 be, and it hereby is, reinstated, and said case is hereby remanded to the Regional Director for Region 11 to conduct a new election. [Direction of Second Election and Excelsior foot- note omitted from publication.] APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT ask any employee whether he has been visited by a representative of Upholster- ers' International Union of lorth America, AFL- CIO, or any other union, and will not ask him whether he has signed a union card. WE WILL NOT threaten any employee with discharge because he is or may be in favor of a union. WE WILL NOT build up or cater to racial preju- dice among employees to discourage union sym- pathy, assistance, or membership. WE WILL NOT, in a coercive context, tell em- ployees that representation by a union, rather than benefiting them, would work to their serious harm. WE WILL NOT, to discourage employees from selecting a union as their bargaining agent, tell them, expressly or by implication, that we would stretch out any negotiations; or that, if their bar- gaining agent should go on strike, the move would be a futile one. WE WILL NOT, in any future representation election, ask employees how they intend to vote or threaten discharge of any employee voting for union representation. WE WILL NOT tell any employee that, if our employees are represented by a union, he might have less work to do at this plant or that, if he left this plant, his opportunitites for employment elsewhere would be more limited. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their right to organize; to form, join, or assist a labor organization; to bargain collectively through a bargaining agent chosen by them; to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any such activities. WE hereby disavow the actions of agents of General Steel Products, a division of The Seng Company, which have been found to constitute unlawful interference with, and restraint and coercion of, employees in the exercise of their self-organizational rights. GENERAL STEEL PRODUCTS, A DIVI- SION OF THE SENG COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance 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. TRIAL EXAMINER'S SUPPLEMENTAL DECISION ON REMAND HAROLD X. SUMMERS, Trial Examiner: Pursuant to an order reopening record and remanding proceeding for fur- ther hearing issued by the National Labor Relations Board (hereinafter called the Board) on August 27, 1971, and in accordance with a notice of hearing issued thereunder by the Regional Director of Region 11 of the Board, a hearing was held before me at High Point, North Carolina, on No- vember 18 and 19, 1971; all parties were afforded full op- portunity to call and examine and to cross-examine witnesses, to argue orally, and thereafter to submit briefs. The case on remand involved issues of whether there was evidence, not introduced at the original hearing herein, of circumstances either existing at the time of that hearing or arising thereafter, bearing upon a determination of whether an election or a bargaining order is now appropri- ate. The chain of events leading up to the hearing on re- mand is described in detail hereinbelow. Upon the entire record t in the case, based upon ad- 1 On December 15, 1971, counsel for Respondents filed a motion to correct the transcript herein. On April 12, 1972, I issued an order to show cause why the transcript should not be corrected in certain respects and only in such GENERAL STEEL PRODUCTS 861 ministrative notice taken of prior proceedings herein as well as upon that which unfolded at the instant hearing on remand, and upon due consideration of briefs filed, I make the following: FINDINGS OF FACT 1. CHRONOLOGY LEADING TO THE REMAND On August 14, 1964, an organizing campaign by Up- holsterers' International Union of North America, AFL- CIO (hereinafter called the Upholsterers), among certain employees of General Steel Products, Inc. (herein, GSP), culminated in the filing of a Petition for Certification (Case 11-RC-2022). The Regional Director, after a hearing, found, among other things, that GSP and Crown Flex of North Carolina, Inc. (herein, Crown Flex), constituted a single employer 2 for purposes of the National Labor Rela- tions Act (the Act), and he directed that a representation election be held among employees in a unit which he found to be appropriate for bargaining purposes-all production and maintenance employees employed by GSP and Crown Flex at High Point, North Carolina, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. (The Board denied GSP's request for review of the Direction of Election, which request had been grounded on the argument that the Regional Director "had no authority to enter an order affecting its employees or grouping them with those of any other employer not [previ- ously made] a party to the proceeding.") On November 6 the election was held; 83 votes were cast for representation by the Upholsterers, 94 were cast against, and 13 voters were challenged. In apt time, the Upholsterers filed objec- tions to the election based on certain alleged conduct by agents of the Joint Respondent, which conduct, it was claimed, affected the results of the election. Meanwhile, on October 21, the Board's General Coun- sel had issued a complaint (in Case 11-CA-2491), alleging that the Joint Respondent had engaged in certain unfair labor practices; the complaint, as amended on December 15, alleged that the Joint Respondent had engaged in inter- rogation and had made threats in violation of Section 8(a)(1) of the Act. On December 23, having investigated the status of the voters challenged at the election and the objections to the election filed by the Upholsterers, the Regional Director issued his decision thereon: (1) finding at least two of the challenged voters ineligible to vote, he eliminated the chal- lenges as a determining factor in the election; (2) overruling some of the objections, he found the remaining six to in- volve questions of credibility on substantial and material issues, and he directed that a hearing thereon be conducted by a Trial Examiner. Because the complaint in I1-CA-2491 and the objec- tions in the representation case involved common issues, the respects. No good cause to the contrary having been shown, the corrections indicated in the order to show cause (which is hereby received in the record as T.X.'s Exh. 1) are hereby ordered made Respondents' motion is granted to the extent it seeks corrections made by this order; in all other respects, it is denied 2 The two employers , collectively, will sometimes be referred to herein as the Joint Respondent Regional Director, on December 28, ordered that the two proceedings be consolidated for hearing. On March 31, 1965, before that hearing was held, the General Counsel issued a second complaint (in Case I I-CA-2613), alleging that the Joint Respondent had refused to bargain with the Upholsterers as agent of the employees in the involved bar- gaining unit, in violation of Section 8(a)(5) and (1) of the Act; and the Regional Director consolidated all three pro- ceedings for hearing. The consolidated hearing was held before Trial Exam- iner David London on various dates between May 24 and June 18, 1965, inclusive. On November 12, he issued his Decision in which he found that the Joint Respondent, through various named agents, engaged in nine incidents- basically, involving interrogation of or threats to employ- ees-amounting to interference with, or restraint and coer-' cion of, employees in the exercise of the self-organizational rights guaranteed them by the Act; posted a notice- to its employees, coercively predicting that they would be serious- ly harmed by the advent of a union, thereby further inhibi- ting employees in the exercise of self-organizational rights; and, in the form of a speech by the operating head of both employers, which speech was designed to influence the em- ployees to vote against the Upholsterers in the coming elec- tion, coercively threatened them, again unduly limiting them in the exercise of their rights-all in violation of Sec- tion 8(a)(1) of the Act. He also found that, on August 13, 1964-the day before it filed its Petition for Certification- the Upholsterers had asked the Joint Respondent for recog- nition as bargaining agent for the employees in an appropri- ate bargaining unit-the same unit as that found appropriate in the representation case; that, as evidenced by authorization cards signed by employees in that unit, at least 122 out of the 207 employees in that unit on that date had validly designated the Upholsterers as their collective- bargaining representative; that the Joint Respondent, in rejecting the union's request on or about August 14, pur- portedly on the basis of doubt as to the union's majority status, had raised the majority issue "in a context of illegal union activities" (citing Joy Silk Mills, Inc., 85 NLRB 1263, enfd. as modified on other grounds 185 F.2d 732 (C.A.D.C.). cert. denied 341 U.S. 914), thereby destroying the Upholsterers' majority; and that, thereby, the Joint Re- spondent had unlawfully refused to bargain collectively with the representative of its employees in an appropriate bargaining unit. As part of the remedy for the violations found, he recommended that the Joint Respondent be or- dered to bargain with the Upholsterers, both (or either) because the Joint Respondent had destroyed the union's majority by its 8(a)(1) unfair labor practices and/or because it had violated Section 8(a)(5) in its rejection of the union's demand on and after August 14. Finally,, because he found merit in three of the six union objections to the representa- tion election which had been referred to him for hearing, he recommended that they be sustained and that the election of November 6, 1964, be set aside. On March 11, 1966, the Board, in its Decision and Order reported at 157 NLRB 636, adopted the Trial Examiner's findings, conclusions, and recommendations with a minor modification irrelevant hereto .3 Among other 3 Finding it unnecessary to pass upon the validity of certain bargaining- Continued 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD things, in adopting his recommended Order in the repre- sentation case, it dismissed the Petition for Certification and vacated all proceedings therein. The Joint Respondent sought review of the Board's Order in the United States Court of Appeals for the Fourth Circuit, and that court, on June 28, 1968, issued a per cu- nam decision, reported at 398 F.2d 339, in part granting and in part denying enforcement of the Board's Order. Enforc- ing the remainder, the court specifically declined to enforce the bargaining order contained therein. Certiorari was granted by the United States Supreme Court, along with three other cases-Heck's and Gissel, both of which had been decided by the Court of Appeals for the Fourth Circuit," and Sinclair Company, decided by the Court of Appeals for the First Circuit.5 On June 16, 1969, sub. nom. N.L.R.B. v. Gissel Packing Co., Inc., reported at 395 U.S. 575, that Court delivered its opinion. Relevant allusions thereto appear at appropriate places hereinbelow; suffice it to say here that, with respect to the instant pro- ceeding, the Court, while rejecting the employer challenge to the authorization cards which had been accepted by the Board, nevertheless indicated that the Board's Decision had phrased its findings leading to its bargaining order in terms of a practice which the Court regarded as now superseded by a new Board practice and remanded the case to the Fourth Circuit with directions to remand to the Board for appropriate disposition. Thereafter, the case was remanded to the Board. On July 29, 1969, the Joint Respondent moved the Board to take further evidence, and the Board granted all parties the opportunity to file statements of position with respect to matters raised by the remand. Thereafter, on December 12, 1969, without any further hearing, the Board issued a Supplemental Decision, reported at 180 NLRB 56. Stating that it had reexamined the case in the light of the Supreme Court's Gissel guidelines, it reaffirmed its earlier conclusion that the Joint Respondent had violated Section 8(a)(5) of the Act, for (newly explicated) reasons noted infra. Further, it went on to say that, even absent the finding of an 8(a)(5) violation, it was convinced that a bargaining or- der was justified in this case; and, here again, it set forth reasons-see infra-in greater detail than had appeared in its original decision. Again, the case went to the Fourth Circuit, and, again, that court-in 445 F.2d 1350, decided on July 14, 1971-in an opinion written by District Judge Thomsen,6 disagreed with the approach taken by the Board. Noting that the Board, prior to issuing its Supplemental Decision, had re- fused to grant GSP a hearing at which it might present further evidence on the bargaining-order issue, the Opinion authorization cards, it concluded that the Upholsterers had been designated as bargaining agent by at least 120 of the 207 employees in the bargaining unit. 4 N L.R B v Heck's, Inc., 398 F.2d 337, and N.L R B v Gissel Packing Co, Inc, 398 F.2d 336 , in both cases, the court had deleted the Board's order to bargain. 5 N L.R.B v. Sinclair Company, 397 F 2d 157, in which the court had enforced a Board bargaining order based upon the employer's lack of good- faith refusal to bargain with a union which possessed a card majority of the em6ployees in the involved unit. Prompted by the dissent of Judge Winter, Chief Judge Haynsworth wrote a separate opinion concurring with Judge Thomsen but adding his own comments. criticized the Board's "apparent unwillingness" to consider seriously the new questions raised by Gissell; specifically, it criticized the Board here for declining to permit an inquiry into the proffered evidence. The Opinion recognized that some of the events GSP sought to prove in a reopened hearing had occurred prior to the first hearing before the Board, but pointed out that these events were not fully developed at that time because they were not relevant to an inquiry about the employer's "good faith" in his rejection of the proffered card count; now, it continued, the Supreme Court's Gissel decision made the proffered material "not only relevant but control- ling„ As for the evidence of events occurring subsequent to the Board's original decision which the employer(s) also sought to introduce, the Opinion recognized that this pre- sented a "more difficult question" (citing cases), but it went on to say that "the primary purpose of a bargaining order is not punitive; it is to protect the rights of the employees, and to ensure that their wishes will be carried out .... We do not intimate that in other circumstances the Board on remand should receive evidence of what has happened since the Board's original decision. In this case, however, the employer was successful in this Court in his attack on the bargaining order; and the Supreme Court ... remanded this case `for proper findings'. In these circumstances, the Board ought not to limit the inquiry to events occurring prior to the first unfair labor practice hearing, but should receive proof of any material facts occurring up to the date of the new hearing bearing upon a determination whether or not a fair election could be held." On August 27, 1971, the Board issued an Order Re- opening Record and Remanding Proceeding for Further Hearing, noting that the Fourth Circuit had remanded this proceeding to the Board to conduct a reopened hearing "concerning any change of circumstances that may have occurred, both before and after the initial unfair labor prac- tice hearing, bearing upon a determination of whether an election or a bargaining order is now appropriate." The order directed that the record in this proceeding be re- opened and that, at a further hearing, a trial examiner take evidence in accordance with the Court's remand. Notice of the instant hearing "on the issues bearing upon a determination of whether an election or a bargaining order is now appropriate" was issued by the Regional Direc- tor on November 17, 1971. 11 THE NEW FACTS 7 The evidence introduced at this hearing on remand fell into a number of categories. The first involved alleged changes in ownership and management of the High Point plant over the years. Early in 1963, The Seng Company, a Delaware corpo- ration with its home office at Chicago, Illinois (hereinafter, Seng), acquired all outstanding stock of GSP from Frank 7 As predicted by Judge Haynsworth in his concurring opinion in the Fourth Circuit's remand, the proffer at the instant hearing did not call for an extended factual inquiry The findings in this subsection are based upon the credited testimony of witnesses called either by the General Counsel or the Respondent, there were no meaningful controversies with respect to important items. GENERAL STEEL PRODUCTS 863 Hoffman, William Bencim, and James Groome; GSP be- came, thereby, a wholly owned subsidiary of Seng. (At the time of the acquisition, GSP itself wholly owned all stock of Crown Flex, which shared the GSP plant at High Point.) When Seng took over ownership of GSP, Francis A. Seng, chairman of the board of Seng, became GSP's presi- dent, but employment contracts providing, among other things, for a sharing of profits were given to the three prior owners. Hoffman, for example, was retained as GSP vice president and as plant manager;8 and, from that time for- ward, Hoffman was given broad autonomy in running the GSP plant .9 At or about April 1964, Seng installed C. Jeff Rountree as controller for GSP and assigned him full time to the High Point plant, with the duty of evaluating financial records and, generally, studying the plant's inventory and cost sys- tems. Responsible to Seng's financial vice president at Chi- cago, he was specifically instructed not to become involved in the operating end for the time being; on the other hand, it was "no secret" at the plant that he was Seng's representa- tive there. As of the date of the acquisition, Seng and GSP (but not Crown Flex) had been in direct competition with each other with respect to their basic product lines; and each had its own marketing structure. They were offering, and they continued to offer, competing choices to potential custom- ers. (The events found earlier in this proceeding to have constituted interference with, and restraint and coercion of, the Joint Respondent's employees took place between July 1, 1964 and November 6, 1964, inclusive. The original unfair labor practice charge herein was filed on July 29, 1964, and a number of amendments were filed during the next 6 months. In addition, the representation petition was filed on August 16, 1964, and the ensuing election was held approxi- mately 3 months later.) On April 30, 1965, Hoffman resigned to go into busi- ness for himself, and, 18 days later, he was succeeded by Charles Probert, an employee brought in from Seng's Chica- go office. Although Probert remained on Seng's payroll, he became vice president of GSP and General Manager of the GSP plant. Now, for the first time, Seng took over the actual operational control of the plant; and, among other things, this involved the takeover of "industrial relations activities" there. It should be noted, in this respect, that Probert report- ed directly to Bard just as his predecessor had done, but, now that Bard was more familiar with the operation, Probert's range of autonomy was less than that which had been enjoyed by Hoffman. As noted earlier, the original hearing in this matter was held between May 24 and June 18, 1965. Sometime in 1966, the marketing structures of Seng and of GSP (as well as Crown Flex) were combined; but 8 Bencmi and Groome had been engaged in selling, and they were retained as salesmen , subsequently-in 1968 and 1965 respectively-they left the GSP plant to go into their own businesses. 9 He and Francis Seng did maintain occasional telephonic contact, and, beginning on December 1, 1964, he reported directly to Robert Bard, who became Seng's executive vice president on that date each continued to manufacture its own product, and, there- fore, continued to offer a choice to potential customers. On June 30, 1968, Crown Flex was dissolved as a going corporation, GSP taking over its assets. (At the time of the dissolution, Crown Flex employees were given the option of becoming employees of GSP, and some of them accepted the offer.) Subsequently, GSP sold these assets to another company, Young Spring & Wire Company, itself owned by Gulf and Western. The parties hereto were in agreement that neither Crown Flex, Young Spring & Wire Company, nor Gulf and Western has any place in this proceeding at this time. Probert remained as manager of the GSP plant until November 1969, at which time he left High Point. Roun- tree-who up to then had been involved only in the finan- cial end of the High Point operation-took over as acting general manager; 8 months later, he became vice president of GSP and operations manager at the GSP plant. On June 30, 1971, GSP was dissolved as a corporation and became a division of Seng. At that time, there was no interruption of the operation; the employees of GSP were retained as employees of the division; the same processes were utilized and the same products manufactured as previ- ously; and the plant continued to be known by the name posted on its gate, "General Steel." In effect, the parties hereto were in agreement that, for the purposes of this proceeding, GSP, as a division of Seng (hereinafter referred to as GSP-Seng) is the successor to Respondent GSP; and counsel for GSP-Seng concedes that any order herein should properly run against that employer. The second area of evidence introduced at the instant hearing concerned itself with alleged differences, labor rela- tions policy wise, between the new and the old owners/ managers. At the time of the original hearing herein, Seng was a 97-year-old company, with plants in Chicago, Illinois, Los Angeles, California, and Leitchfield, Kentucky. The pro- duction and maintenance employees at the Chicago plant, pursuant to a Board Election, had been represented since the mid-1940's by a local of the Furniture and Bedding Workers' Union, a division of the United Furniture Work- ers, AFL-CIO, and a "craft" union represented the tool and die makers there; the employees at the Los Angeles plant had been represented by the United Steel Workers of America since Seng acquired that plant in 1955; and the employees at the Leitchfield plant, built in 1970, were repre- sented, pursuant to a Board election, by the same local of the Furniture and Bedding Workers' Union as represented the Chicago employees. Throughout its history, Seng has never been found to have violated the Act. On August 1, 1970, Seng formulated a four-page "Cor- porate Philosophy" for inclusion in its manual on policies and procedures, purporting to codify certain of the company's longstanding policies. Among other things, the document, under the heading, "Personnel" contains the fol- lowing excerpts: The Seng Company will properly select, train, and de- velop its employees and continually strive for the at- tainment of good human relations without distinction or prejudice because of race, sex, color, creed or na- 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tional origin ....10 The Company will respect the right of its employees to join or refuse to join a labor orgam- zation. In any plant where a majority is chosen to be represented by a Union, the Company will negotiate in good faith with that Union and will live up to the letter and spirit of any collective bargaining agreement ... This statement of philosophy, according to the testimony of Robert Bard," was "inspired" by his having taken a man- agement course a year earlier. The statement, he said, con- tained "nothing new," and "there was no particular occasion to reduce it [to writing] at that time, but it had to be done some time and that was the time that I finally got around to doing it .... This is the introduction, really, to the manual [which] is still not completed. It's a changing thing . ..... Unmentioned in the document is the fact-which I find; on the basis of Bard's credited testimony-that it is the policy of Seng (in the absence of an enforceable order to bargain) not to recognize and not to bargain with a labor organization as agent of any of its employees solely on the basis of a showing of majority status by signed bargaining authorization cards. Finally, there was testimony about Seng's policy with respect to the hiring of minority employees. I find, on the basis of credited testimony, that Seng is, and was at least as far back as 1953, an "equal opportunity employer." Ap- proximately 30 percent of the employees at its Chicago plant, itself located in a minority neighborhood, are black.12 The third category of evidence introduced at the in- stant hearing concerned itself with the effect, if any, of Seng's general labor relations policies upon the High Point plant in particular. As earlier indicated, for about 2 years after its acquisi- tion of all outstanding GSP stock, Seng confined itself to studying the High Point operation and refrained from intru- sion into the active management. Its Board Chairman be- came GSP's nominal head, but his contacts with the plant were minimal; and Seng's man on the scene, Rountree, was specifically assigned only to familiarize himself with the finance and record aspects. There is no evidence that any agent of Seng had knowl- edge of the acts later found to be unfair labor practices at the time (in mid-1964) they were committed. Rountree did have an awareness of a union campaign, basically from "coffee-break" conversations with "front-office people," 10 The significance of this statement and of a number of related findings appearing herembelow-to the extent they have significance-is that one of the unfair labor practices heretofore found by the Board to have been com- mitted by the Joint Respondent involved the subject of race relations used in a coercive context A foreman , having called together a group of employ- ees, told them that General Manager Hoffman had just informed him that "the Union" was coming in, "and if it did come in, that a nigger would be the head of it, and he was putting in ten new machines on that line, and that if the Union did come in, the niggers would be the operators of them " 11 Earlier mentioned as Seng's executive vice president. In 1966, he became its ,resident, an office he still holds. Since that plant manufactures products ultimately sold to the Federal Government, its operations are subject to Executive Order No 11246 relating to equal employment opportunities. In the spring of 1971, a survey of the Chicago plant was conducted in connection with the Executive Order, as a result of which it was found that Seng was in compliance with the "affirma- tive action" criteria of the Order. but, insofar as is revealed by this record, he had no knowl- edge of the step-by-step actions of local management relat- ed to the campaign; and Hoffman did not keep Seng officials informed about them. At the instant hearing, Bard testified that, during the 6-month period following the filing of the original charge (on July 29, 1964), Hoffman sent him " general statements" regarding the filing of unfair labor practice charges but "nothing of the nature of the specifics"; that he did not see copies of the charges themselves and did not hear of the union's objections to the election (filed in November 1964) prior to early 1965; that he did not see a copy of the com- plaint herein (issued in October 1964) or know that there was to be a hearing until, perhaps, March of 1965; and that at no time-although "he was curious" as to whether the charges had merit-was he aware of the "basic nature" of the General Counsel's complaint insofar as it alleged an unlawful refusal to bargain or sought a bargaining order. It strains my credulity to be asked to credit this testimony in all its implications: While it is entirely plausible that neither Hoffman nor anyone else reported the commission of viola- tions of law as and when they occurred, I cannot believe that Hoffman did not alert Seng, the owner of all GSP stock, either through Bard or some other official, 13 of a union campaign at the time it was being conducted; of the receipt of notice from the Board's Regional Office that unfair labor practice charges had been filed, along with details thereof, at or about the end of July 1964; of the receipt of the Upholsterers' request for bargaining on or about August 15, 1964, and of the filing of the representation petition which followed; and of all subsequent developments, as they oc- curred, related to the unfair labor practice and the repre- sentation proceedings. Although I do not doubt-indeed I credit-Bard's testimony that Hoffman and all other super- visors involved denied violating the Act, I specifically find, on the other hand, that Seng was kept currently aware of all steps in this proceeding. When Hoffman left the plant, just before the original hearing in this matter, no announcement was made to the employees as to the reasons for his departure; certainly- since this was not a reason-they were not told that it was because he had committed unfair labor practices. Bard attended most, if not all, of the hearing, sitting with counsel, and he was seen there by many employees of the GSP plant. As noted earlier, Charles Probert took over the active management of the plant on May 18, 1965. He was charged with the responsibility of applying Seng policies to the GSP organization, up and down the line. Asked in what respect these newly applied policies differed from those already in effect at the GSP plant, President Bard testified 14 only that "They were more defined." It has been found that Probert, from the beginning, exercised less autonomy than had Hoffman; I find further, that Seng's central office maintained progressively greater control over local High Point management after Hoffman left the scene ; but this fact was not communicated to the High Point employees. 13 It should be noted that Bard was not associated with Seng in 1964, until December 8 14 Probert was not called as a witness. GENERAL STEEL PRODUCTS 865 At or about 1966 or 1967, Seng commenced to distrib- ute "The Seng News," its company organ, to employees at the GSP plant. In 1967, the company practice of giving Seng seniority recognition pins was instituted at High Point. On several occasions early in 1967, there was handbill- ing at the plant by "a union"; and there is no evidence of any company interference therewith or, for that matter, of any company interdiction of union discussions between em- ployees conducted on non-working time. As the employment of each of the supervisors who had participated in the unfair labor practices was terminated from time to time thereafter-see infra-no announcement was made to employees that the separation was due to such participation. In fact, as I find hereinbelow, none of these separations was for that reason. At no time since the original hearing did Seng notify the High Point plant employees that company policy with respect to labor relations had changed from that which had existed before. In point of fact, when the Board's Regional Director (in January 1970) rejected an offer by GSP to comply with the Board's original order except for the direc- tion to recognize and bargain with the Upholsterers, no steps were taken by Seng (or by GSP) to implement the offer anyhow--e.g., there was no posting of a notice to employees assuring them of their freedom to exercise the rights of self-organization guaranteed them by Section 7 of the Act; when GSP became a division of Seng (on June 30, 1970), no announcement of any change in labor relations policy was made to the employees of the GSP plant; and the "corpo- rate philosophy" with respect to minority hiring and free- dom of employees to organize which found its way into Seng's manual on policies and procedures (in August 1970) was never distributed to rank-and-file employees. With respect to Seng's implementation, at the High Point plant, of its minority hiring policy, supra, GSP-Seng's witnesses testified, and I find, that, whereas there was no more than one minority group employee working at the GSP plant at the time of the first hearing in this matter, minority employees constituted approximately 25 percent of the working force at the same plant under GSP-Seng's management at the time of the instant hearing, that black employees were scattered throughout every department, and that their number has, from time to time, included one subforeman and "several" black craftsmen, despite the fact that the High Point plant is not subject to the compulsion of Executive Order 11246. Testimony was introduced at the instant hearing as to the turnover among the agents whose conduct, attributed to the Joint Respondent, had been found earlier herein to constitute interference with, or restraint or coercion of, em- ployees in the exercise of their guaranteed self-organization- al rights. The agents in question were Frank B. Hoffman, Jr., executive vice president of GSP and Crown Flex and operat- ing head of both companies; E. L. Curry, a foreman for Crown Flex; R. H. Lewis, "utility man" for Crown Flex; James Riggsbee, GSP foreman in Bedside Assembly; Bob- by Simpson, shipping foreman and assistant superintendent for GSP; Richard Davis, a "time study man" for GSP; and Walter T. Parrish, chair fixture packing foreman for GSP. On the basis of credited testimony, I find that none of these individuals was employed at GSP-Seng's High Point plant at the time of the instant hearing. Hoffman's connec- tion with the plant ended on April 30, 1965; Curry's employ- ment there ended on June 30, 1968; Lewis' on the same day; Riggsbee, having been demoted to a nonsupervisory posi- tion in the Fall of 1964, was completely separated on July 21, 1969; Simpson's employment ended on December 31, 1967; Davis' on February 5, 1965; and Parrish's on October 18, 1968. Analysis of these personnel change dates reveals that Hoffman, Riggsbee, and Davis were no longer agents of the Joint Respondent at the time of the original hearing in this matter; that Simpson's status as agent ended between the time of the Board's original decision herein and the circuit court's issuance of its first decision; and that Curry and Lewis lost any connection with the Joint Respondent at the time that Crown Flex was dissolved as a corporation, 2 days after the circuit court issued its first decision herein.. Except with respect to Hoffman, the evidence intro- duced at the instant hearing gives no clues as to the reasons for the respective terminations; for all that is known, these terminations, or some of them, may well have been the result of voluntary separations. At any rate, I find, on the basis of the credible testimony, that the employment of none of these agents was terminated because he had en- gaged in acts found to have violated the Act. Rather gratuitously, testimony was introduced on the basis of which I find that, of the 16 persons acting in one or another supervisory capacity for the Joint Respondent on August 15, 1964,15 only three were on the High Point plant's payroll at the time of the instant hearing, and one of these was now a nonsupervisory employee. And, finally, testimony was introduced at the instant hearing with respect to the turnover of employees in the bargaining unit since the Joint Respondent's rejection of the Upholsterers' request for recognition on August 15, 1964. As noted earlier, there were 207 employees in that unit on the date of that request.16 On October 29, 1971, just before the instant hearing, there were only 155 employees in the unit. And the names of but 15 individuals appear on both lists. From sometime in 1965 until the instant hearing began, approximately 3,000 individuals had been hired at the High Point plant. Considering the fact that the average total em- ployment there was something less than 200, the yearly turnover for the period exceeded 200 percent, a fact which has been a source of concern to the company; on the other hand, approximately 50 percent of the workforce at the plant, over the entire period, has been "relatively stable," i.e., has stayed there at least 2 years. For what it may be worth, I find, in accordance with credited documentary evidence, that, of the 155 employees in the bargaining unit on October 29, 1971, the seniority of ten exceeds 10 years-that is, they were hired at the High 15 The list, based upon less than perfect records, omitted the name of Plant Manager Hoffman ; the name of one Robinson, mentioned as a foreman in the original proceeding herein , and the names of Richard Davis and R. H. Lewis, earlier described as a time-study man for GSP and as a utility man for Crown Flex, respectively, but both found to have been agents of the Joint Respondent. At any rate, none of these was in the employ of GSP-Seng at the time of the instant hearing 16 This figure included 18 employees of Crown Flex 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Point plant during or prior to 1961-while the seniority of the remaining 145 is 5 years or less-that is, they were hired during or subsequent to 1965. III DISCUSSION-CONCLUSIONS The Fourth Circuit, in its first decision herein, refused to enforce that part of the Board's order calling for the Joint Respondent to bargain with the Upholsterers, on the assert- ed ground that the 8(a)(1) violations found by the Board were not so extensive or pervasive as to prevent the conduct of a valid secret election ; and it footnoted this assertion by the statement that, while it was not passing upon the validity of the election actually held, the 8(a)(1) violations "were not so pervasive that available remedies were not reasonably calculated to assure a free exercise of the employees' choice by secret ballot rather than by resort to a count of question- able cards." The Supreme Court's Gissel decision expressed agree- ment with the Board on a number of issues involved in the group of cases before it. In pertinent part, however, the opinion noted that the Board's practice of testing the employer's good-faith doubt as to the union's majority sta- tus (the "Joy Silk" doctrine) had been virtually abandoned and that, "under the Board's current practice, an employer's good-faith doubt is largely irrelevant, and the key to the issuance of a bargaining order is the commission of serious unfair labor practices that interfere with the election pro- cesses and tend to preclude the holding of a fair elec- tion";" thereupon, the Court noted that the Board had made no finding in this matter "that a bargaining order would have been necessary in the absence of an unlawful refusal to bargain. Nor did it make a finding that, even though traditional remedies might be able to ensure a'fair election there was insufficient indication that . . . a rerun [election] would definitely be a more reliable test of the employees' desires than the card count taken before the unfair labor practices occurred. . . . Because the Board's current practice at the time required it to phrase its findings in terms of an employer's good or bad faith doubts .. . [and] the precise analysis the Board now puts forth was not employed below.... we therefore remand [the instant case] for proper findings." 18 The Board, in its Supplemental Decision, stated that it had reexamined this case in the light of the Gissel guidelines, and it reaffirmed its earlier conclusion that the Respondent had violated Section 8(a)(5), "not because it lacked a good- faith doubt as to the union's majority status when it refused the union's bargaining request, but because of its refusal to bargain with the Union while engaging in its campaign of unfair labor practices to undermine the Union's support among its employees."19 The Board went on to say, "The Respondent's campaign to defeat the union's organizational efforts consisted of serious and extensive acts of interfer- ence, restraint, and coercion as found above. The Respondent's unfair labor practices were so flagrant and coercive in nature as to require, even absent the 8(a)(5) violation we have found, a bargaining order to repair their effect. Our further view is that it is unlikely that the lingering effects of the Respondent's unlawful conduct would be neu- tralized by resort to conventional remedies which would have produced a fair rerun election. We therefore find that the employees' sentiment as expressed through the authori- zation cards is a more reliable measure of the employees' desires on the issue of bargaining representation than a rerun election, and that the policies of the Act would be better effectuated by a bargaining order to remedy the 8(a)(5) as well as the 8(a)(1) violations."" On a petition for review and a cross-application for enforcement, the Fourth Circuit remanded the case to the Board to receive evidence-therefore proffered by the Re- spondent-of events occurring prior to the original unfair labor practice hearing and also of material facts occurring up to the date of a new hearing, bearing upon a determina- tion whether or not a fair election could be held.?t In Gissel, the Supreme Court set up what have colloqui- ally come to be known as Category I, Category II, and Category III cases, for use in determining whether a bar- gaining order based on authorization cards (rather than on an election) is called for in the absence of an out-and-out refusal to bargain in violation of Section 8(a)(5). The Board, in two decisions handed down in 1969,22 restated its posi- tion: in its view, the Gissel opinion had established the following principles: A bargaining order may be issued to redress unfair labor practices so coercive that such an order would be needed to repair their unlawful effects even in the ab- sence of a violation of the Section 8(a)(5) bargaining duty. (Category I) Where the unlawful conduct is less flagrant, the Board may find a Section 8(a)(5) violation and issue a bar- gaining order if the possibility of erasing the effect of the unfair labor practices and ensuring a fair election by the use of traditional remedies is slight and the employees' preference, as expressed through authoriza- tion cards, would be better protected by a bargaining order. (Category II) The Gissel opinion itself stated that "Under the Board's remedial power there is still a third category of minor or less extensive unfair labor practices, which, because of their minimal impact on the election machinery, will not sustain a bargaining order 23 The parties, in their briefs in the instant proceeding, arrive at different conclusions with respect to whether the situation prevailing at the time of the original hearing fell under one or another of the Gissel categories. The General Counsel argues that the Gissel opinion, in discussing Sinclair (one of the quartet of cases taken up on review in Gissel), found, in the context of the language used, that that case was a Category I case; and that, in its remand decision in the instant case, the Board, while not directly classifying this case as a Category I case, made findings similar to those in Sinclair. He further argues that a comparison of the unfair labor practices in Sinclair with those found in the instant case demonstrate that the latter are, in general, more exten- 20Id, p 57 21 445 F 2d 1350, 1356 17 395 U.S. 575, 594. 22 Marie Phillips, Inc, 178 NLRB 340, and Garland Knitting Mills of Beau- 18 395 U.S., at 615-16. fort, South Carolina, Inc., 178 NLRB 396. 19 180 NLRB 56. 13 395 U.S at 615 GENERAL STEEL PRODUCTS 867 sive and serious than those in the former. Therefore, the argument continues, General Steel is most certainly a "first category" case within the meaning of Gissel as of the time of the original litigation. The Respondent's brief, on the other hand, submits that the language used by the Supreme Court in reversing the Fourth Circuit's first decision herein, "despite our rever- sal of the Fourth Circuit ... the actual area of disagreement between our position here and that of the Fourth Circuit is not large as a practical matter .... The only effect of our holding here is to approve the Board's use of bargaining orders in less extraordinary cases marked by less pervasive practices ..... fairly implied that this was, at best, a "second category" case calling for an inquiry into whether the effects of past unfair labor practices can be erased by the use of traditional remedies and whether a fair rerun election can be held. In point of fact, I interpret the Respondent as contending, in effect, that the case (prior to this remand) was in the third category. Upon reflection, I have concluded that, whatever the characterization of the case as of the evidence available to the Trial Examiner in the original unfair labor practice hear- ing,24 the "law of the case" herein is that established by the second Fourth Circuit decision-namely that any categori- zation based upon the facts found at the original hearing is immaterial, and that the material categorization and the appropriate remedy should be determined only after a full consideration of the original facts plus the facts found in the hearing on remand. The General Counsel argues further that the "cate- gory" of the case is determined by the nature of the unfair labor practices originally found, and that once a Category I or II label is attached to a set of circumstances, the necessi- ty for a bargaining order has been established and cannot be wiped out by subsequent developments. For the same reason dust given-that the law of this case requires a full consideration of the facts found on remand as a condition precedent to categorization-I cannot accept this argument. And so we proceed to the implications of the new facts superimposed upon the old. Without doubt, the situation prevailing today at the High Point plant is unlike that which prevailed when the original hearing herein was held. Ownership and manage- ment have completely changed, albeit the change was al- ready beginning to take place at the time of that hear- ing;25 and there has been a complete turnover among top 24 There is no doubt that the Board, in its Supplemental Decision, did decide that-considering only the evidence made available at the original hearing herein-this was a Category I case. "The Respondent's campaign to defeat the Union's organizational ef- forts consisted of serious and extensive acts of interference , restraint, and coercion as found above The Respondent's unfair labor practices were so flagrant and coercive in nature as to require, even absent the 8(a)(5) violation we have found , a bargaining order to repair their effect. Our further view is that it is unlikely that the lingering effects of the Respondent's unlawful conduct would be neutralized by resort to con- ventional remedies which would have produced a fair rerun election-We therefore find that the employees ' sentiment as expressed through the authorization cards is a more reliable measure of the employees' desires on the issue of bargaining representation than a rerun election , and that the policies of the Act would be better effectuated by a bargaining order to remedy the 8(a)(5) as well as the 8(a)(1) violations." 180 NLRB at 57 25 But Trial Examiner London 's Decision shows no awareness that the transition had commenced , let alone that the plant employees had been made management and a virtually complete turnover among the operating supervisors. All of the individuals whose conduct, attributable to the Joint Respondent, was found to consti- tute unlawful interference, restraint, and coercion have long since departed the scene, albeit the conduct in question had nothing to do with their exits, and the rank-and-file had no reason to believe the contrary. And, as for the rank-and-file themselves, they consist, as might have been expected over the course of 6-plus years, of an almost completely new complement. There is no indication, no contention, and certainly no evidence, that the new management is unfair-labor-prac- tice-prone; to the extent there is evidence on the point, it is in the opposite direction. The "albeit" here, and this case is full of them, is that there has been no showing that any effort has been made to bring this to the attention of the rank-and-file. Most important, 6-1/2 years have passed. This matter deserves to be laid to rest. In assigning to the Board the task of enforcing the Act and its various amendments from time to time thereafter, Congress never promised a rose garden. Through the years, in a field fraught with controversy, the agency has had to face up to selectively controversial situations. In Gissel, the Supreme Court imposed upon the Board the heavy respon- sibility,26 or more accurately confirmed that the Board still has the responsibility, of assessing the effect of a given set of acts upon a given group of workers in determining wheth- er a representation question should be disposed of without resort to the traditional secret ballot. And the Courts of Appeals for various Circuits 27 have added to the task by insisting upon more fully aticulated bases for the Board's conclusions in this respect. Expertise (such as exists) in an area as fluid as that of labor relations does not come easy. And, difficult as it is to utilize this expertise to solve a labor relations problem with- in the limitations set by Congress, it is often even more difficult fully to explain how the solution was reached. In many cases, the Board has been reduced to reciting the facts as uncovered by the evidence and, upon sober reflection thereon in the light of its insight in the field, to concluding that these facts do or do not "add up" to a violation; in many such cases it would be difficult or impossible and, perhaps, dishonest otherwise to rationalize a conclusion drawn from specialized experience 28 In the instant case, on all of the evidence, I see little, if any, likelihood of a recurrence of the unfair labor prac- tices heretofore found. And I see little, if any, indication of a residue of the effects of the 1964 unfair labor practices upon the workforce at the High Point plant which, given adequate reassurances, would not permit them an untram- meled choice of bargaining agent in a future election. aware of the fact 26 See General Stencils, Inc, 195 NLRB No 173. 27 See cases cited at p. 1354 of the Fourth Circuit's remand herein. 28 As I understand it, a number of university professors are presently engaged in the study of the effects of specified employer conduct upon employees' freedom to make choices in a given number of representation cases Without deprecating their efforts, I venture to say that, even in their limited area of study, they will be forced to conclude no more than that certain types of conduct will (or will not) have a tendency to influence employees in a given direction (or another) under a specified set of circum- stances 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' Without here attempting to set up a model against which one can measure a given set of violations of the Act for the purpose,of deciding whether their effects can be overcome by subsequent events, and without trying to "sec- ond-guess" the Board's prior evaluation (see fn. 24 in its Supplemental Decision) of the effects of the unfair labor practices herein, I do believe that one must examine the unlawful conduct here in terms of what would be needed to wipe out its effects. In essence, the Board found that the following occurred: (a) A foreman asked an employee whether a union representative had called upon him; and another fore- man asked an employee if he had signed a union card. (b) A foreman asked an employee if he had heard anything about the Union, adding that the boss would fire anyone favoring it; and a supervisor, mentioning to an employee that he had heard that a union was around, cautioned him to stay out of it because the boss would probably fire anyone favoring it. (c) A foreman told an employee that the incoming of the Union would probably presage an influx of blacks (1) to run the Union and (2) to work alongside the present employees. (d) The Company posted a notice telling employees, among other things, of its belief that a union, instead of benefiting them, would work to their serious harm; and a foreman told an employee that the employees at the plant did not need a union-it would do them more harm than good. (e) The operating head of the plant, in a preelection speech, said that if the Union won, his only obligation was to negotiate, an occupation which could be stretched out interminably; that the Union's only weapon was a strike, a useless weapon in North Caroli- na; and that, in the event of a strike, the employees would be out of work. (f) A foreman asked two employees how they intended to vote in the coming election and, told that they were going to vote for representation, jocularly told them that he would fire them if they did; and another fore- man asked an employee how he was going to vote and, told that still another employee was going to vote "Yes" unless he was given a requested transfer, said that that man would be fired if this was true. (g) A foreman told a group of employees that they could vote as they pleased but that if the Union came in, (1) perhaps 'many people wouldn't buy the Company's products because it was union made and (2) they might encounter difficulties finding work if they ever left this plant. The nature and extent of this conduct appear to be more like that in the several cases 29 in which the Board had 29 Blade-Tribune Publishing Company, 180 NLRB 432 (interrogation as to union sympathies, implied promises of new benefits, and an actual change in the schedule of a union adherent); Stoutco, Inc, 180 NLRB 178 (threats to close plant, to take away certain existing benefits, and to impose less favorable working conditions, a promise of certain benefits, and the making of several coercive statements-all by a firstline foreman with no authority declined to issue a bargaining order and which the Board majority in the General Stencils case 30 felt called upon to distinguish therefrom, than to the conduct in General Sten- cils itself,31 particularly in the light of the facts first elicited in the hearing on remand. At any rate, I have confidence in the Board's ability to improvise a remedy short of a bargain- ing order which will clear the air of any coercive impact arising out of the 1964 unlawful conduct. In sum, upon serious consideration of all the facts here- in, I find and conclude that the effects of the unfair labor practices here found can be dissipated by appropriate reas- surances to the involved employees; and that, therefore, this case "adds up" to a situation in which there is no necessity for a bargaining order at this time.32 CONCLUSIONS OF LAW Assuming that the involved employees are given adequate assurances of their freedom to exercise the self- organizational rights guaranteed them by the Act, effectua- tion of statutory policy in this case does not require the issuance of a bargaining order to restore the status existing prior to the 1964 unfair labor practices which prevented a fair election from being held at that time. THE REMEDY I have made reference to "adequate assurances" sever- al times. The usual test of the need for a bargaining order without an election-indeed, that applied in Gissel-is whether the Board's "traditional remedies" will be sufficient to wipe out the effects of past violations. But the term is a relative one; the "traditional remedies" are those which fit a given situation. In the instant case, I would think that the "adequate reassurances" called for, i.e., the "traditional remedy" for this case at this time, consist of the posting of a Notice to Employees more closely tailored to the unfair labor practices found than that which was originally or- dered posted, plus, in any such notice, a specific disavowal by GSP-Seng of the acts of the Joint Respondent found to have been violative of Section 8(a)(1) of the Act; and I shall frame my recommended order accordingly. [Recommended Order omitted from publication.] to carry out any severe threats, in a situation in which, on many of the occasions in question, the coercive statements were made during give-and- take discussion often initiated by employees consisting largely of expressions of the foreman's personal views .), and Schrementi Bros., Inc, 179 NLRB 853 (interrogation by the employer of an employee about her union sympathy and his engagement man emotion laden outburst of physical violence against nonemployee union organizers). 30 195 NLRB No. 173. 31 Interrogation of an employee as to a statement given to a Board agent, and threats that certain existing benefits would be eliminated , that a dormant no smoking regulation would be enforced, that there would be layoffs if the work became slack, that there would be discharges arising out of the institu- tion of a new rule concerning tardiness , and that the plant would be closed down. 32 In arriving at this finding and conclusion , I do not rely on the turnover among the rank-and-file, for to do otherwise could permit a wrongdoing employer to profit from any delay Franks Bros Co v. N L R B, 321 U S 702, 704-706