Monarch Record Manufacturing Corp.

520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Monarch Tape Duplicating, a Division of Monarch Re- cord Manufacturing Corp. and United Electrical, Radio and Machine Workers of America (UE), Lo- cal 1421. Cases 31-CA-3170 and 31-RC-2042 August 13, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On April 25, 1973, Administrative Law Judge Da- vid E. Davis issued the attached Decision in this pro- ceeding. Thereafter, the Respondent filed exceptions and a 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 at- tached Decision in light of the exceptions and brief, and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order as herein modified.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below, and hereby orders that the Respondent, Mon- arch Tape Duplicating, a Division of Monarch Re- cord Manufacturing Corp., Los Angeles, California, its officers, agents, successors, and assigns shall take the action set forth in the Administrative Law Judge's recommended Order, as so modified: 1. Delete paragraphs 2(a) and 2(b) and substitute the following paragraphs: "(a) Upon request, bargain collectively with the Union as the exclusive bargaining representative of all Respondent's employees in the appropriate unit de- scribed in paragraph 3 of the section entitled 'Conclu- sions of Law,' and, if an understanding is reached, embody such understanding in a signed agreement. "(b) Post at its Vineyard plant in Los Angeles, Cal- ifornia, copies of the attached notice marked 'Appen- dix.' 2 Copies of said notice, in both English and Spanish, on forms provided by the Regional Director for Region 31, after being duly signed by Respondent's authorized representative, shall be post- ed by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material." 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. In view of the substantial number of non-English speaking employees employed by the Respondent, we shall order that the notice be posted in Spanish, as well as in English While Chairman Miller agrees that a bargaining order is appropriate here- in, he would, for the reasons stated in his separate concurrence in United Packing Company of Iowa, Inc, 187 NLRB 878, 880, predicate this remedy solely upon the extensive 8(a)(I) violations found herein 2 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with United Electrical, Radio and Machine Workers of America (UE), Local 1421, as the exclusive bargaining representative of all our employees in the appropriate unit which is described as fol- lows: All production and maintenance employees at our Vineyard plant, including shipping and re- ceiving employees, excluding the shipping clerk supervisor, the tape processor supervisor, office clerical employees, professional employ- ees, guards, and supervisors as defined in the Act. WE WILL, upon request, bargain collectively with the above-named Union as the exclusive bargaining representative of all our employees in the above-described appropriate unit, and, if an understanding is reached, embody such under- standing in a signed agreement. WE WILL NOT coercively interrogate or other- wise intimidate our employees in regard to their union activity. WE WILL NOT threaten our employees with clo- sure of the plant or loss of favorable working conditions because of their union activity. WE WILL NOT promise nor grant our employees benefits to persuade them to halt their union ac- tivity. WE WILL NOT in any other manner interfere 205 NLRB No. 90 MONARCH TAPE DUPLICATING 521 with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act. MONARCH TAPE DUPLICAT- ING, A DIVISION OF MONARCH RECORD MANUFACTURING CORP (Employer) Dated By (Representative) (Title) 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 compli- ance with its provisions may be directed to the Board's Office, Federal Building, Room 12100, 11000 Wilshire Blvd., Los Angeles, California 90024, Tele- phone 213-824-7357. DECISION STATEMENT OF THE CASE DAVID E. DAVIS, Administrative Law Judge: The consoli- dated hearing in the above-entitled proceeding was held on January 16, 17, 18, and 24, 1973, at Los Angeles, California, pursuant to a charge filed on June 15, 1972, and amended on July 31, 1972, and a complaint issued by the General Counsel on October 31, 1972, amended on January 9, 1973, and further amended at the hearing, alleging that Respon- dent, Monarch Tape Duplicating, A Division of Monarch Record Manufacturing Corp., had engaged in certain enu- merated unfair labor practices in violation of Section 8(a)(1) and had thereby engaged in conduct which undermined the Union I and destroyed its majority status in order to evade its obligation to bargain with the Union. Respondent, in its answer while admitting certain allegations of the complaint, denied that it had engaged in any unfair labor practices within the meaning of the Act. The complaint in this case (31-CA-3170) was consolidated for hearing2 with the Petitioner's objections to conduct affecting the results of the election conducted in Case 31-RC-2042 which alleged em- ployer threats of loss of jobs and misrepresentations of ma- terial facts to employees at a captive audience meeting. Upon the entire record, upon my observation of the wit- nesses and their demeanor while testifying, and consider- United Electrical, Radio and Machine Workers of America (UE) Local 1421 2 The order consolidating the cases was issued by the Regional Director for Region 31 on November 16, 1972 ation of the briefs filed by the parties, I make the following: FINDINGS I JURSIDICTION It is admitted and stipulated that Respondent is a Dela- ware corporation which has at all times material herein maintained a plant at 3420 Vineyard, Los Angeles, Califor- nia, where it is engaged in the manufacture and nonretail sales of recording tapes and related products and that this is the only facility involved in these proceedings. It was further stipulated at the hearing and I find that Respondent during the past year sold and shipped from its Vineyard plant goods valued in excess of $50,000 to points located outside the State of California; and that Respondent is now, and has been, at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED It is stipulated and I find that the Union is a labor organi- zation within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Stipulations At the outset of the hearing, a stipulation was entered into on the record that Harry Goldstein was the general manager of Respondent until July 30, 1972.3 It was further stipulated that Carl Basurto was Respondent's personnel director and that Goldstein and Basurto were supervisors within the meaning of Section 2(11) of the Act. During the course of the hearing, Respondent Counsel stipulated that employees were granted their birthday off in 1972 but did not receive this day as a holiday in any other year previous to 1972. B. The Testimony Humberto Camacho, international organizer for the Un- ited Radio and Machine Workers of America since 1964, commenced organizing Respondent's employees in March. On March 8, after a previous visit to the plant on March 1, he passed out union authorization cards to a number of employees. Camacho credibly testified that he told the em- ployees that he wanted 80 or 90 percent of the employees to sign so that an election would not be necessary as he would ask the employer to recognize the Union. Camacho, who spoke Spanish, talked principally to employees who were Spanish-speaking. He directed employees who spoke in English to Pat Chaplin, another union official 4 Camacho also enlisted the aid of several employees including Teresa Montoya in securing signed authorization cards. He, him- self, received several signed cards from employees on that day. On March 15, having secured a number of signed 3 Hereafter all dates will refer to the year 1972, unless otherwise specified ° Patrick J Chaplin, field organizer for the Union. 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD authorization cards, Camacho contacted Nathan Duroff, Respondent's president. Camacho told Duroff that he would like to have the Union recognized as the representa- tive of the employees as he had signed authorization cards which he was willing to submit for inspection. Duroff said he couldn't make any decision and that Camacho would have to contact his attorney, Paul Gordon. About March 23, Camacho called Gordon on the telephone and stated he would like to have recognition for the tape plant employees and start negotiations for a contract. Gordon declined rec- ognition and, according to Camacho, said, "If you want to have an election or go out on strike for recognition that is your business." 5 Thereafter, on April 3, the Union filed its representation petition. The parties entered into a Stipula- tion for Certification Upon Consent Election and an elec- tion was conducted under the direction and supervision of the Regional Director for Region 31 of the Board on May 31 in a unit agreed upon by the parties as the appropriate unit and which was described as follows: All production and maintenance employees [at the employee's Vineyard plant] including shipping and re- ceiving employees; but excluding the shipping clerk supervisor, the tape processor supervisor, office clerical employees, professional employees, guards, and super- visors as defined in the Act. Camacho testified that he had a phone call from two employees, Nelen Vernon and Montoya who told him that two girls had been called into Goldstein's office; that he went to the plant and talked with Goldstein; that Goldstein explained that he had called the girls in because of a produc- tion problem; that he was satisfied with Goldstein's reply and let the matter drop. Continuing his testimonial account, Camacho related that on May 26, Chaplin called on the telephone and told him that he received a report that Respondent was holding meetings of employees and conducting an "active campaign of intimidation against the employees and that female em- ployees came out of their break period crying." As a result, Camacho arranged to meet Chaplin and Smith, another union official, and to proceed to the plant. On the way to the plant, Chaplin informed Camacho that he had been at the plant earlier that morning and had seen some of the girls crying; that he went into the plant looking for Basurto and found Basurto talking Spanish with a group of girls in the lunchroom; and that he interrupted the meeting. When the three union officials arrived at the plant about 11:30 a.m., Camacho saw some of the employees outside the plant pa- tronizing a lunch wagon. Camacho requested the employees to invite all the employees to come outside on their lun- cheon break. When about 12 employees arrived, Camacho summarized what Chaplin had told him, saying that Basurto was having meetings with employees and telling them how bad the Union was; that the Union secured a wage increase of 3 cents per hour in the first contract with Elan products, also something about immigration. Camacho told them that 5 This conversation stands uncontradicted and I credit Camacho in this retard Etan products is another subsidiary of Monarch Enterprises Its employ- ees were represented by the Union they didn't have to worry about any of these things; that he was going to talk to the president of the company to stop this campaign. Camacho then joined Chaplin and Smith and went to see Duroff at Monarch Enterprises. When they met Duroff, Camacho said that there were some problems at Monarch Tape and asked Duroff to accompany the union officials to Monarch Tape. Chaplin told Duroff that Basurto was hav- ing meetings with the employees; that some of the employ- ees had been crying when they came out on their morning break; that there was some intimidation of employees and statements saying how bad the Union was in that it had sold out the employees in settling for a 3-cent increase at Elan. Chaplin then told Duroff that this kind of propaganda was damaging the forthcoming election. Duroff replied that they would go over to Monarch Tape and straighten matters out. The three union officials and Duroff proceeded to the Monarch Tape offices, more specifically to Goldstein's of- fice, where Basurto and Goldstein joined the gathering. Chaplin repeated his complaints about the meetings with employees and the anti-union propaganda. Basurto asserted he had a right to speak to the employees. Duroff said "We don't want any more of this problem" and ordered Basurto back to his office. Camacho further testified that he held two meetings of Monarch Tape employees, one on March 13 which was attended by the employees listed in General Counsel's Ex- hibit 11. The meeting of March 21 was attended by the same employees listed on the same document. Grace M. Bates, employed by Respondent about 3 years and currently the leadlady in the quality control depart- ment, testified that she signed a union authorization card 7 on March 8 when Chaplin handed her one just before she went to work on that day. On Friday, May 26,8 Goldstein came into the plant's working area and shouted, "Grace, Nina, and Gloria I want to see you in my office right now." When the three girls arrived in Goldstein's office, Basurto was also there. Bates said to Goldstein, "I know the reason you called me and Gloria Totty, you think we started the Union, but we didn't." Goldstein replied, "It is not the point of who started it, but it is why you are carrying it on." Bates told him she was carrying it on for better benefits, pay raises and seniority. After Bates finished, Goldstein asked if any- one else had anything to say. Gloria Totty complained that Goldstein didn't even say good morning to the employees. Goldstein replied he didn't have to. Nina Vernon then gave her reasons why she wanted the Union but Bates could not recall what Vernon said. Basurto asked at some point what they thought the Union could do for them and also told of the union negotiations with Monarch Records which result- ed in a strike for more money. Goldstein told Vernon that she was not doing right; as the only reason she was working at Monarch Tape was because of her cousin. Goldstein said that many privileges the employees had would be terminat- ed if the Union came in, like the use of the telephone. Bates testified that there was further discussion which got her so upset that she commenced crying and walked out. She pro- ceeded to the ladies lounge; that Vernon came in shortly 7G C Exh. 12 s Bates identified the date as the Friday before Memorial Day MONARCH TAPE DUPLICATING thereafter, "screaming like she had lost her mind," and that Totty also was crying when she came in; that Goldstein followed them into the lounge saying that there was no reason to act like that; Bates replied that Goldstein should have called in all the employees and not pick on the three of them. Bates further testified that on the morning of March 8, she heard Goldstein ask "Sherry " 9 how many people had signed for the Union and Sherry replied that everyone ex- cept Salvadore Ortiz, Frances Brown , and herself; Bates volunteered that she had signed a card ; later the same day when passing through her department Goldstein said that the company could not afford a union ; about 2 weeks after March 8, all the employees met with Basurto about 4 p.m.; Basurto asked why they wanted a union and how they would benefit from a union ; when Basurto said that they had the same benefits as Monarch Records, she (Bates) spoke up and said that wasn't true pointing out that they did not get New Year's Eve off and that Monarch Records had a better insurance plan; other employees mentioned seniori- ty; there was another meeting for Spanish -speaking employ- ees which she attended briefly as she could not understand Spanish ; in 1972, for the first time, she received a paid holiday on her birthday ; she approached Goldstein on April 6, her birthday , and said "today is my birthday"; he told her to take the next day off and she informed other employees that she was getting a day off because it was her birthday; some of the employees asked , "What came over Harry?"; later she learned that several other women , whose birthday came later, also received their birthdays off. Teresa Montoya, employed by Respondent in the label- ing department since 1969, testified she signed a union card on March 8 and returned it to Camacho; she took some blank union cards from Camacho and passed them out to some Spanish-speaking girls; some of the girls returned the cards to her with their signature and she gave them to Camacho's secretary at the union hall; she heard Goldstein, on the morning of March 8, ask Ascencion Barron whether everyone had signed cards; Barron replied in the affirma- tive ; she attended two meetings called by the Company on its premises; the first about 2 weeks after March 8 at which all the employees were present including Goldstein and Ba- surto; Basurto did all the talking asking why they wanted a union and saying that they didn 't need a union ; the girls asked about their benefits ; there was another meeting on May 26; this was for the labeling department only; Gold- stein and Basurto were present ; again the employees were told that they didn't need a union because they had the same benefits as the "record place"; she received a paid holiday on her birthday , April 21, 1972; and she did not receive such a holiday in 1970 or 1971 ; Bates told her about the paid holiday being given on birthdays and she then asked Goldstein and he told her she could have the day off. On cross-examination, Montoya recalled that Basurto stat- ed to the employees at the meeting on May 26, "You can get no more money than what we give you because the Union don't give raises . We are the ones that give you raises. So you can get nothing with the Union." 523 Gladys Mane Tyler, leadgirl in the labeling department and employed for about 4 years by Respondent, testified that she has been a member of the Union since 1946; that on March 8 she met Goldstein near the timeclock and the following conversation took place: GOLDSTEIN Marie, the Union was here? TYLER Yes. GOLDSTEIN Did they sign cards? TYLER Yes. Testifying further, Tyler stated that she attended the March meeting of the employees; she stated that she did not stay long but that she heard Basurto ask why they wanted a union; he also stated that they could join the Union if they wanted to; it didn't matter to him whether they joined the Union or not; Goldstein told her about a week prior to June 25 to tell the employees that they could expect a pay in- crease in their next paycheck due on June 25; and she found out other girls had received their birthday off in 1972 and she informed Goldstein that her birthday was May 30, and was given the day off. Nelen L. Prince 10 testified that she has been employed by Respondent since November 1970; she signed a union card on March 8; she heard Goldstein talking to Bates on that day; Goldstein asked whether Bates signed a card; she at- tended three meetings with supervisors; at the first meeting about 2 to 3 weeks after she signed a card all the employees were present; Basurto wanted to know why the employees wanted a union; Basurto also said if the employees did get a union the plant might have to close down because the Company couldn't afford it; about a month later Basurto talked to the Spanish-speaking girls; she could not under- stand what was said at that meeting; the third meeting took place a few days before the election and consisted of Bates, Totty, Goldstein, Basurto, and herself; Goldstein sum- moned them to the meeting by shouting to them from the doorway of his office; Goldstein said that he called them in to find out why they wanted the Union; nobody responded and Goldstein said, "When you are outside you talk about it, and now that you are in here this is your chance to talk about it"; Bates then stated she wanted a union to make more money and because nothing was fair in the plant; Bates then listed several other complaints, Goldstein argued and shouted at her about some of her remarks, Bates got angry, started to cry and walked out of the room, saying, "Harry, you thought we started the Union, but we didn't"; Totty then said that Goldstein knew Bates was right about her last remark; Goldstein said it was not correct; Totty then voiced a complaint about the engineers; Prince agreed with Totty in this regard; at some time in the conversation Goldstein said that if the Union came in the employees would not have the privilege of using the telephone or the hotplate and that when the bell rang the employees would have to be at their work stations; Goldstein told Prince that she should not be saying anything because if it was not for her cousin she would not be working there; Goldstein's voice was angry and that he jumped from his desk whereup- on Totty started to cry and left the room; Prince also started to cry and went with Totty; Basurto sat through the entire conversation and was grinning; Goldstein followed them 9 Gladys Mane Tyler 10 Sometimes referred to in the record and herein as Nelen Vernon 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD into the lounge, told them there was no need to act like that and they didn't have to go home; her birthday was in Janu- ary but she did not get a dayoff until May 19, the day she got married; she told Goldstein on May 18 that she didn't get her birthday off and that she would not be in the next day because she was getting married; and Goldstein said he would sign her timecard so that she could get paid for that day. Gloria Totty, an employer of Respondent since Novem- ber, 1971, testified that she signed a card on March 8 and returned it to Chaplin. The remainder of her testimony substantially corroborated the credited testimonial account of Bates and Prince as set forth above with regard to the various employee meetings, particularly that of May 26 when Goldstein summoned Totty, Bates, and Prince to his office. Accordingly, Totty's testimonial account will not be further detailed herein. Saul Juarez, employed by Respon- dent for about 2 weeks ending March 8, received a card from Camacho on that date. After he signed the card, he talked with Goldstein through an interpreter. Goldstein asked him if he signed a card for the Union. He replied in the affirmative. The interpreter, an employee named Sal Ortiz, said that Goldstein said they didn't want people there who would make trouble. Juarez was then asked for his green card.l t Juarez said he lost it. Goldstein then told him when he brought it in he might then be able to work at the company again. Juarez finished the day but did not return to work.12 Patrick Chaplin, a field organizer employed by the Union for the past 20 years, testified he participated in the Union's organizing campaign at Respondent's plant by meeting with the employees on March 8 in an attempt to have the em- ployees sign union authorization cards; he met with a num- ber of the women employees who spoke English; he told them that he was asking them to join the Union in order to obtain recognition and to enable the Union to bargain for that division of the Company; the Union already repre- sented three other divisions of Monarch Enterprises; while he was speaking to the Spanish-speaking employees; on May 26 he received a telephone call from Vernon (Prince), who was quite hysterical while informing him that the com- pany had called in three of the employees and was question- ing them about their union membership and activities; he went to the plant and saw Bates, Vernon, and Totty; they were crying and told him that they were called into Goldstein's office; Goldstein accused them of starting the Union; Goldstein said the Company could not afford a union; it would close down if the Union came in; they would lose privileges they now had; while he was talking to the girls just outside the plant he learned that Basurto was having a meeting with some other employees; he went into the plant looking for Goldstein; he saw Basurto in the bench area conducting a meeting of employees; he hollered at Basurto asking him what he was talking about to the people; I It was stipulated that the green card referred to herein is one issued to immigrants to show that they obtained legal entry into the United States 12 It was not clarified further whether or not Juarez did or did not possess a green card at any time Accordingly, I make no findings with regard to Juarez' testimony However, I do regard the episode as demonstrating Goldstein's hostility to the Union The General Counsel does not contend that Juarez' card is to be counted in computing the Union's majority status and Goldstein then came up and he asked Goldstein what he was doing so that employees were in tears; that he told Goldstein to stop Basurto "right now from telling lies about the Union." Chaplin then left the plant and went to Smith's office where he got in touch with Camacho and arranged to contact Duroff as testified by Camacho.13 Harry Goldstein, a witness called by Respondent, testi- fied that he was the general manager of Respondent from 1969 to July 31, 1971; currently he is employed by the "mother" company, Viewlex, Incorporated; his office, how- ever, continues to be at the same address; he became aware of the Union's organizing effort on March 8; and in Janu- ary, he had met with Basurto and they agreed to institute a new health policy and to give employees an additional holiday on their birthday. Goldstein asserted that he expect- ed Basurto to implement the new policies by meeting with the supervisors and lead personnel to spread the word. Con- tinuing his testimonial account, Goldstein stated that a maintenance engineer, Howard Levin, told him on March 8, that there were some union representatives in the alley near the plant having cards signed by Respondent's employ- ees. Goldstein, seeing Tyler nearby, asked her whether union people had been there that morning and whether employees had signed cards. Goldstein, while denying that he had asked any individual whether they personally had signed a union card, stated that "Cinci" Barron came over to him, told him the Union had been there that morning and a lot of people had signed cards. Goldstein conceded that an across-the-board raise of 15 cents per hour was put into effect about June 12, saying that Basurto and he had had discussions concerning a raise sometime in February; Ba- surto discussed wage increases with him about every 3 or 4 months but that prior to June, Respondent had never grant- ed an across-the-board raise to its employees; after Febru- ary, Basurto and he did not discuss wage increases until after the May 31 election among Respondent's employees; during that period approximately half of the employees had approached him concerning a wage increase; he replied that he could not do anything until after the election; production had increased slightly during that period because of addi- tional employees; he was afraid he would lose some of his key employees; in April, they received a written communi- cation from Respondent's attorney's which outlined permis- sible areas for company discussion with employees; Basurto and he decided to conduct a series of meetings with employ- ees by department, Basurto was to talk to the Spanish- speaking employees and he to the English-speaking employ- ees; they agreed to hold their meetings close to the election and decided that May 26 would be an appropriate day; he commenced his meetings with Bates, Vernon, and Totty about 10 a.m. on May 26; he called to them from 40 to 50 feet away; after the girls sat down he asked, "Why do you want to join the Union"; Bates said she didn't want to talk about the Union, she wanted the engineers to treat them with respect and to listen to them; soon tears started to flow; Totty said he showed no respect by never saying good morning to her; Vernon joined in and all three raised their voices; Bates left the room and the others started to cry and 13 Essentially Chaplin's testimony corroborated the testimonial account of Camacho in this regard and the events that followed MONARCH TAPE DUPLICATING also left; he followed them to the restroom and calmed them down; and they then returned to work at his request. Gold- stein denied that the hotplate or use of the telephone was discussed. In reply to a question from Respondent's counsel whether "anything else concerning management's view to- wards the Union," was discussed, Goldstein replied, "No, we didn't because we didn't want to talk about the Union." Goldstein testifying further stated that two other meetings were held that day in other departments; Basurto conducted the meetings; and he was not present. After the election, during the first week in June, Gold- stein, continuing his testimony, stated that he discussed the question of wage increases with Duroff; at that time he did not know that objections to the election had been filed by the Union:14 he told Duroff he would like to give about a 15-cent-per-hour raise to each of the employees; Duroff said that he should talk to him later; he called Duroff on the telephone later that day and told him to do what he wanted with regard to the wage increase; he then called the payroll department and told them to institute the pay raise for the week ending June 12;15 he did not speak to Basurto as Basurto was on vacation; at the time he spoke to the payroll department and up to the time the employees were paid on June 15, he was unaware that objections to the election had been filed On cross-examination, the General Counsel established through certain exhibits that Goldstein was in error when he stated in an affidavit that he had given to a Board agent that certain employees received their birthdays off in 1972. The General Counsel also pointed out that certain language in Goldstein's affidavit was subject to an interpretation that employees also received a holiday on their birthday in 1971. C. Analysis and Conclusions I find that Petitioner's objections to the election must be sustained. It has been established by abundant credible evi- dence, as detailed above, that Respondent through Gold- stein and Basurto conducted at least three meetings of employees in which they engaged in coercive interrogation and other illegal acts for the purpose of dissuading them from supporting the Union. The meeting of May 26 to which Totty, Bates and Prince were summarily summoned by Goldstein demonstrates the character and purpose of the meetings. While the other two meetings did not develop the emotional outbursts and results of Goldstein's meeting with Totty, Bates, and Prince, I find that essentially the same ground was explored by Basurto and Goldstein at the other meetings and that at all of the meetings Basurto and Gold- stein discouraged the employees from pursuing their union activity by eliciting their reasons for wanting the Union, threatening closure of the plant, and withdrawal of current indulgences or benefits such as use of telephone and hot- plates. I do not credit Goldstein's denials that he did not utter such threats. 14 The record shows that the Board conducted the election on May 31, that the tally of ballots shows that 9 were cast for the Petitioner, 12 against, and that on June I the Petitioner filed timely objections which were duly served on the Employer 15 Goldstein agreed that the checks were not distributed until June 15 525 I find Prince's account of the two meetings that she at- tended fully credible. Moreover, her account is substantially corroborated by Totty and Bates in its basic clements. As Basurto did not testify, I credit the uncontradicted evidence adduced by the General Counsel from Montoya, Tyler, Bates, Prince, and Totty, concerning Basurto's statements and conduct at the two meetings conducted by him and attended by the above witnesses. Additionally, I find that Respondent commencing April 6 instituted a policy of granting employees a day off on their birthday when an employee so requested. I conclude that employees who received a day off under these circumstanc- es regarded the day off as a favor and bonus from manage- ment. On the other hand, I find that Goldstein instituted the policy in order to instill a feeling of gratitude in the employ- ees for the purpose of affecting their union inclinations. The inauguration of this policy within 2 weeks of the first em- ployee meeting 16 and 3 days after the filing of the represen- tation petition would seem to support the foregoing conclusion. Goldstein attempted to explain the institution of the birthday holiday by linking it to a meeting regarding insurance held some time in January and by stating that thereafter he looked to Basurto to implement the policy. I regard this contrived explanation as pure fiction. The evi- dence plainly shows that no employees were ever notified of the policy until Bates received her birthday holiday on April 6. Moreover, Basurto did not testify and I do not credit Frances Brown's testimony that she was told on January 23 about the birthday holiday. According to her testimony, she received the news from engineer, Howard Levin, and that she then talked with Goldstein but did not take her birthday holiday until September when it was added on to her vaca- tion.17 As Brown is excluded from the unit by mutual agree- ment because of her position as tape processor supervisor, it seems clear that even if she were credited, her knowledge of the birthday holiday does not support a contention that such a policy was published to employees within the unit. Under all the circumstances, I hold that the institution of the birthday holiday on April 6 constituted a benefit viola- tive of Section 8(a)(1) of the Act and interfered with the results of the election conducted on May 31 pursuant to the union petition filed on April 3. I further find, as indicated above, that Respondent violat- ed Section 8(a)(1) by Goldstein's interrogation of Barron, Bates and Tyler on March 8 when he asked each of them questions concerning the signing of union authorization cards. It does not matter whether he asked them if they personally signed or if he asked whether others signed. In either posture, under all the circumstances, the question is coercive and violative of the Act. I further find that Basurto at the March meeting coercively interrogated employees in violation of Section 8(a)(1) of the Act by asking them why they wanted the Union and threatened them with reprisals if they continued to support the Union. I find that Goldstein similarly violated the Act on May 26 at his meeting with Totty, Bates, and Prince. I do not credit Goldstein's assertions that he did not know that objections to the election had been filed when he 16 Prince, Bates, and Barron testified that the first meeting of employees was held about 2 weeks after March 8 17 Company records do not show that she took a holiday in September. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD caused the 15-cent-per-hour wage increase to be paid to all employees.'8 He was the active manager of Respondent's business and continually displayed an avid interest in the election and its results by timing a series of employee meet- ings on May 26 dust before the election. Moreover, it was Goldstein who participated in illegal conduct including in- terrogation of employees concerning their signing of au- thorization cards and threatened them with reprisals if the Union was selected. I am convinced that his interest in the final election results was unabated and led him to continue his policy of interference with the results of the election by influencing the employees. Accordingly, this wage increase, at this time, decisively rendered the holding of a second election a futility. It forcibly demonstrated to the employees that the Union was not necessary to secure wage increases and that the employer could disregard the Union's represen- tation claims by instituting benefits unilaterally. As this wage increase, for the first time in Respondent's history, was given to all employees its effectiveness is sharply empha- sized. Thus Respondent's wage increase supported Basurto's and Goldstein's statements previously made to employees that management alone had the power to grant benefits to its employees, "and demonstrated the futility of a umon." As the authorization cards in evidence show that the Union on March 15 possessed signed authorization cards from every employee in the appropriate unit 19 except Tyler who had been a member for a number of years, it is clear that the Union had majority status on that date. According- ly, I find that Respondent is under the obligation to bargain with the Union under the Gissel doctrine. ° Clearly, Gissel is applicable because Respondent engaged in unfair labor practices "that interfere with the election processes and tend to preclude the holding of a fair election." (395 U.S. at 594). As I have found above that Respondent engaged in the conduct described in the Petitioners' objections to the elec- tion, I sustam the objections and I shall recommend that the Board set aside the election in Case 31-RC-2042. Upon the basis of the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the mean- Ing 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. All production and maintenance employees employed by Respondent at its Vineyard plant, including shipping and receiving employees , excluding the shipping clerk su- pervisor, the tape processor supervisor , office clerical em- ployees, professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of 18 As indicated above, I believe that the increase was paid to employees on June 22 19 The testimony casts some doubt on the validity of one or two cards, however, this would not affect the ultimate result and no discussion of their inclusion or exclusion is warranted 20 Gissel Packing Co, 395 U S 575 (1969). Section 9(a) of the Act. 4. Since March 15, 1972, the Union has been and is the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. Since March 15, 1972, Respondent has refused and is refusing to bargain collectively with the Union, and thereby has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. Respondent, by the above-described refusal to bar- gain, by coercively questioning and otherwise intimidating its employees with regard to their union activities, by threat- ening them with closure of the plant and loss of favorable working conditions if their self-organizational efforts were successful, by promising and granting its employees paid holidays on their birthdays, and by promising and granting its employees wage increases, thereby engaged in conduct violative of Section 8(a)(1) of the Act and interfered with employees' rights guaranteed to them under Section 7 of the Act. 7. Petitioners' objections to the election conducted on May 31, 1972, are hereby sustained. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies and policies of the Act. Additionally, for the reasons stated above, it will be rec- ommended that Respondent be ordered to bargain with the Union upon request, and to cease and desist from refusing to bargain with the Union. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 21 Respondent, Monarch Tape Duplicating, a Division of Monarch Record Manufacturing Corp., Los Angeles, Cali- fornia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the Union, Un- ited Electrical, Radio and Machine Workers of America (UE), Local 1421, as the exclusive bargaining representative of Respondent's employees in the unit found appropriate above in paragraph 3 of the section entitled, "Conclusions of Law." (b) Coercively interrogating and otherwise intimidating its employees in regard to their union activities. (c) Threatening its employees with closure of the plant and with loss of favorable working conditions because of their union activities. (d) Promising and granting its employees benefits for the 21 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions , and order, and all objections thereto shall be deemed waived for all purposes MONARCH TAPE DUPLICATING 527 purpose of dissuading them from engaging in activity for and supporting the Union. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive bargaining representative of all Respondent's employees in the appropriate unit described above in para- graph 3 of the section entitled "Conclusions of Law." (b) Post at its Vineyard plant in Los Angeles, California, copies of the attached notice marked "Appendix." 22 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by the Respondent's authorized representative, shall be posted by the Respon- dent and maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 31, in writ- ing, within 20 days from the date of the receipt of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that Petitioners' Objections to the election be sustained and that the election conducted on May 31, 1972, in Case 31-RC-2042, be and it hereby is, set aside. 22 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."