Royal Aluminum Foundry, Inc.

102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Royal Aluminum Foundry, Inc. and International Molders and Allied Workers Union, AFL-CIO-CLC1 Royal Aluminum Foundry, Inc. and Local 230, International Molders and Allied Workers Union, AFL-CIO-CLC. Cases 38-CA-1666, 38-CA-1710, and 38-RC-1313 January 4, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On July 31, 1973, Administrative Law Judge Eugene F. Frey issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. The General Counsel filed exceptions, a brief in support of his exceptions, and a brief in partial support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 and conclusions3 of the Administrative Law Judge, as modified herein, and to adopt his recommended Order. The Administrative Law Judge found that Respon- dent violated Section 8(a)(5) of the Act by refusing to bargain with the Union on the Union's presentation of union authorization cards from a majority of the employees while, at the same time, embarking on a course of unlawful acts designed to destroy the i We amend the caption of this proceeding to reflect the names of all parties involved in the cases consolidated for hearing 2 We hereby correct apparently inadvertent errors in the Administrative Law Judge's Decision as to the number of employees in the bargaining unit at the time the Union requested recognition and also as to the outcome of the election On January 31, 1973, when Respondent received the Union's written request for recognition, there were 14, and not 17, employees in the unit (G C Exh 2) On that date the Union had authonzation cards from a majority, or 12, of the employees On April 2, 1973, when the election was conducted, the tally of ballots showed 17 votes, including 6 challenged ballots The vote was 6 for, and 5 against, the Union. At the hearing in this proceeding the parties stipulated that two of the challenged voters be included in, and two excluded from, the bargaining unit The Administrative Law Judge found that the remaining two challenged voters (the alleged discriminatees in this case) had quit Respondent's employment before the eligibility date. Thus the number of eligible voters at the time of the election was 13 Because the election is herein set aside on account of Respondent 's unlawful conduct, the Board does not order a final tally of all votes The tally of the Regional Director showed only that the vote was indecisive, and not lost by the Union as the Administrative Law Judge found. 3 The General Counsel has excepted to the Administrative Law Judge's failure to find a violation in Foreman Molloy's comment on piecework to employee Ineichen . In view of the other 8(a)(1) violations that we do find, Union's majority. He found unfair labor practices by Respondent's coercive interrogation, threats of dis- charge, threats of loss of wages, pay raises, overtime work, insurance and other benefits, and promises of wage increases and actual grant of wage raises. He found that this conduct was engaged in to induce employees to vote against the Union, that it invalidated Respondent's claim of bona fide doubt as to the Union's majority status, demonstrated a refusal to bargain in good faith, and constituted a violation of Section 8(a)(5). He therefore ordered, under standards set out in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, that Respondent be required to bargain with the Union, upon request. We adopt the Administrative Law Judge's findings that the serious unfair labor practices-and particu- larly the grant of a general wage increase to all employees just before the election-were so perva- sive and extensive that their "coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be had." Gissel, supra, 613-614. In the circumstances of this case we consider the employees' signed union authorizations as a more reliable measure of the employees' representation desires. We hold that, by refusing the Union's bargaining request and engaging in the aforesaid unfair labor practices, Respondent violated Section 8(a)(5) and (1) and that a bargaining order is necessary to protect the majority selection of the Union and otherwise to remedy the violations committed.4 In adopting the Administrative Law Judge's conclusions and recommended Order, however, we do not adopt his comments respecting whether Respondent had a "bona fide doubt" as to the Union's majority or whether it refused to bargain "in good faith." Such factors are not relevant to this we hold that it is unnecessary to pass on the issue raised by the General Counsel A further finding would be only cumulative and would not affect our remedy Member Kennedy would not adopt the findings of the Administrative Law Judge that Respondent violated Sec 8(a)(I) of the Act when Foreman Molloy reprimanded employee Ineichen for his failure to wear required safety glasses and for his failure to follow the plant rule about notifying the Company when absent from work. In his view , the evidence does not establish that Respondent's enforcement of its safety and work rules was discriminatorily motivated He notes that employee Ineichen previously had received two other reprimands for quitting work early and for not following instructions Finally, the employee voluntarily quit his employment on the day after he received his last reprimand because he was late for work and was also dissatisfied with the amount of his earnings. Because a connection has not been shown between Foreman Molloy's smashing of the radio, which Ineichen was playing loudly at work , and any union activity. Member Kennedy would not find this incident to be violative of the Act 4 Skaggs Drug Centers, Inc, 197 NLRB 1240, sec 3, enfd 84 LRRM 2384, 72 LC 9 13,951 (C.A 9), Tower Records, 182 NLRB 382, 385-387 While Chairman Miller agrees that a bargaining order is appropriate herein, he would , for the reasons stated in his separate concurrence in United Packing Company of Iowa, Inc., 187 NLRB 878, 880-881 , predicate this remedy solely on the extensive 8(a)(I) violations found herein. 208 NLRB No. 8 ROYAL ALUMINUM FOUNDRY, INC. 103 case. Rather the Board applies a standard, approved by the United States Supreme Court in Gissel, supra, to determine the appropriateness of a bargaining order, which evaluates the unfair labor practices committed. In this case we find that Respondent has committed "serious unfair labor practices that interfere with the election processes and tend to preclude the holding of a fair election." Gissel, supra, 395 U.S. at 594. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that Respondent, Royal Aluminum Foundry, Inc., Davenport, Iowa, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as herein modified: In paragraphs 2(a) and 2(c) substitute the words "Officer-in-Charge for Subregion 38" for the words "Regional Director for Region 38." IT IS FURTHER ORDERED that the petition in Case 38-RC-1313 be, and it hereby is, dismissed, and that the election held in that case be, and it hereby is, set aside, and all proceedings in that case be vacated. DECISION refused to recognize and bargain with said Union as the statutory bargaining agent of employees in said unit, in violation of Section 8(a)(5) of the Act.' The issues in Case 38-RC-1313 are whether or not one or more instances of employer conduct cited above also tended to affect the results of the election and warrant an order setting it aside.2 The parties waived oral argument, but have filed written briefs which have been carefully considered by me in preparation of this Decision which was signed and released by me on July 27, 1973, for distribution to all parties in the usual course.3 Upon the entire record in the case, observation of witnesses on the stand, and consideration of the briefs filed, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS, AND STATUS OF THE UNION Respondent is an Iowa corporation with its office and principal place of business located in Davenport, Iowa, where it is in the business of making aluminum castings. During the 12 months preceding issuance of the complaint, Respondent in course of its business had a direct inflow and outflow of goods, materials and finished products valued in each case in excess of $50,000. Respondent admits, and I find, that it is 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. The Union is a labor organization within the meaning of Section 2(5) of the Act. STATEMENT OF THE CASE EUGENE F. FREY, Administrative Law Judge: This case was tried before me, on due notice, on May 21, 22, and 23, 1973, at Rock Island, Illinois, with General Counsel and Respondent, Royal Aluminum Foundry, Inc., participating through counsel (the above-named Union made no appearance) after pretrial proceedings in compliance with the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein called the Act). The issues in Cases 38-CA-1666 and 1710 are whether or not (1) Respondent coerced employees by interrogations, threats of discharge and other types of economic reprisal, granted a wage raise, reprimanded some workers, gave the impression of surveillance of employees' union or concerted activities, and discharged two employees, all because of their adherence to and activities on behalf of the above-named Union, in violation of Section 8(a)(1) and (3) of the Act, and (2) by the above and other conduct tried to undermine and destroy the majority status achieved by the Union in an appropriate unit of Respondent's employees, and 1 The issues arise on a consolidated complaint issued April 27, 1973, and amended during trial, after Board investigation of charges filed by the Union on February 9 and April 9, 1973, in the above cases, and answer of Respondent admitting jurisdiction but denying the commission of any unfair labor practices. 2 These issues arise on eight objections timely filed by the Union to conduct affecting the election in the representation case. By order of May 1, 1973, the Regional Director for Region 13 ordered a formal hearing on said objections, and on May 2, 1973, he consolidated the hearing on the II. THE ALLEGED UNFAIR LABOR PRACTICES 4 A. The Union Campaign Sometime in January 1973, the Union began an organizing campaign at the plant of Respondent, in course of which it procured signed authorization cards from 12 employees out of a workforce of about 17 by January 30. On January 31, it filed a petition with the Board in Case 38-RC-1313 seeking an election and certification as bargaining agent for all full-time and part-time production and maintenance employees of Respondent excluding managerial, supervisory, and clerical employees and guards, as defined in the Act, which Respondent admits and I find to be a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. The election was held on April 2, 1973. The Union lost, 6 to 5 with 6 challenged ballots, and thereafter filed objections to conduct affecting the results of the election which are considered hereafter. The record clearly shows that the 12 employees who objections with the trial of the unfair labor practice complaints. 3 On June 22, 1973, counsel for General Counsel moved on notice to correct the transcript in certain respects. The motion has been considered and, there being no objection, the transcript is hereby corrected in the particulars set forth in the motion . The motion paper is marked as G.C Exh. 28 and will be considered as part of the file of original exhibits in the case 4 All dates stated herein are in 1973 , unless otherwise noted. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed authorization cards on or before January 30 all read their respective cards before they signed, so that they understood they were thereby designating the Union as their agent for collective bargaining. I consider these cards reliable proof of majority status. As there were 17 eligible voters in the unit aforesaid as of March 20, 1973, 1 find that the Union on and after January 30 represented a majority of employees in the unit aforesaid for purposes of collective bargaining with Respondent and by virtue of Section 9(a) of the Act has been and now is the exclusive bargaining agent of all employees in said unit. B. Respondent's Dealings with Union On January 30, the Union sent Respondent the usual letter claiming majority status in said unit, requesting a meeting for purpose of negotiating a contract and also offering to prove its majority status through a card check by an impartial third party. When Plant Manager Sunny Lee Fuller received the letter on January 31, she discussed it with Respondent's president, Chester D. Knapp, and gave it on February 5 to Richard Wells, attorney for Respondent, together with a copy of the election petition which she had received February 2. On February 5, Wells replied to the Union's letter, accepting the suggestion of a card check and asking for conference to work out details of that procedure. He also advised that the plant had 13 workers qualified for union membership at the last pay period before the Union's letter, and said he would send the Union a list of them shortly. Thereafter the union agent in charge of the campaign, Norma Redder, tried to contact Wells by telephone, and finally wrote him a letter on February 9, suggesting a local clergyman be chosen to handle the card check, and advising that the Union had asked the Board to return for this purpose all authorization cards filed with the representation petition. She suggested a meeting after February 14 to work out procedures. Ridder had a phone talk with Wells on February 15, in which she outlined the procedure for a card check, involving examination of the signed cards by a third party who would check names and signatures against a list furnished by Respondent. Wells replied that Respondent did not understand this "version" of a card check, having assumed that it would involve only a company examina- tion of signed cards before they were sent to the Board before an election. Ridder replied that this would not take place. Wells also said Respondent was irked because it had not been advised of the union meeting at which the cards were signed, and felt it should have had "representation" at that meeting. Ridder said the employer had no right to appear at the meeting, this would violate the Act. Respondent never sent the Union the list of employees it had promised. C. Reaction of Respondent to the Union Campaign The record shows, and I find that, the following officers and agents of Respondent, all being supervisors within the meaning of the Act, were involved in the events discussed hereafter: Chester D. Knapp, president; Sunny Lee Fuller, plant manager; Francis L. Molloy, foundry foreman; and Ronald L. Shelangoski, foreman. Knapp became an owner of Respondent about 15 years ago, and has been its sole stockholder since about 1971 when he bought out the other 50-percent stockholder. He has also been owner and sole proprietor for about 25 years of ABC Pattern Works, a business which became a division of Respondent in April 1972. Years ago Knapp was a member and once president of another labor organization, Patterns Makers League of Amenca, which has represented employees of ABC Pattern Works since its inception. When Knapp started that business as a shop owner, he took a withdrawal card from Pattern Makers League of Amenca, and has held that card ever since, but has for about 25 years recognized and dealt with that labor organization as the bargaining agent of employees of ABC Pattern Works. There is no proof that Knapp's relations with that labor organization have been other than amicable. It is clear, and I find, that Respondent knew of the union campaign at least from date of receipt of the letters from the Union and the Board noted above. The record also shows that: President Knapp discussed the campaign with foundry foreman Molloy on some date before February 2, while Molloy was in a hospital recuperating from an illness; however, Respondent did not engage in any formal countercampaign against the Union by use of group talks with or speeches to workers, or distribution of antiunion literature. 1. The treatment of the Duvalls The circumstances of the separation of employees James and Shirley Duvall on February 2 will be considered first, because Respondent's treatment of them on this occasion is charged as the first and most serious indication of its union animus and disregard of the basic purposes of the Act, and thus it might color the attitude of Respondent in its later conduct during the union campaign. James Duvall worked for Respondent as a molder, on and off, from 1963 to February 2, 1973. His last steady employment was from October 1972 to the separation date. His supervisor was Foundry Foreman Molloy. Shirley Duvall was hired by Respondent February 14, 1972, on the demand of her husband under circumstances set forth hereafter, and worked until the separation date mainly as a grinder under Foreman Shelangoski. Both Duvalls were considered good workers in their respective jobs, and each received various meat raises at rather regular intervals during their employment. At the separation date James Duvall was one of the highest paid molders in the plant; from a starting rate of $2.75 an hour he rose to $4.40 an hour at his separation. The Duvalls were the prime movers in introducing and soliciting for the Union in the plant. During discussions about their wage system with an employee ofABC Pattern Works and a member of the Union representing that craft, the latter repeatedly advised them late in 1972 and on January 7, 1973, that Respondent's employees needed a union to further their interests. The Duvalls finally agreed with him on the latter date and began soliciting the views of Respondent's employees about a union. They personally arranged for a meeting of the employees with an agent of the Union "to set up this union" at a mobile home court outside Rock Island on January 28. Ten or eleven ROYAL ALUMINUM FOUNDRY, INC. employees including the Duvalls attended the meeting, at which the Union procured 11 signed authorization cards. President Knapp admitted that by February 2 he had learned about the meeting and that the Duvalls had arranged it, and had discussed that fact with Molloy. In March 1972 Shirley suffered a bum injury while at work, which required a course of treatment by company and other doctors. About 6 months later she experienced another physical disability which required a long series of examinations and treatments by insurance and other doctors. She filed a claim on the first injury with Aetna Casualty and Insurance Co. (herein called Aetna) the workmen's compensation insurance carrier of Respondent, which was paid in due course. On the second disability, which was still bothering her at time of her separation, Aetna refused to pay her medical bills, claiming it was an illness, not a work-related injury. Shirley then filed a claim for those bills with Occidental Insurance Co., the group health and insurance carrier for Respondent. That carrier refused the claim on the contention that her disability had an occupational cause. The dispute between the two was still pending when the Duvalls separated from Respondent on February 2, 1973. Both Duvalls had continuous discussions with company officials as noted hereafter about the dispute between the carriers and their failure to pay Shirley's doctor bills, particularly those arising during her second illness, and the apparent inability of various doctors to cure her ailment. The last discussion was on February 1, 1973, when Shirley came to Fuller's office, bleeding from the mouth, and asked Fuller if she would "now believe that she was ill." Fuller replied she had never doubted that Shirley was ill, and that she could only advise Shirley to go back to Dr. Sonderbrook, the company doctor who had first treated her original injury. Fuller phoned the doctor for an immediate appointment, and the doctor saw Shirley that day. About 8 a.m. on February 2, James Duvall left his work to visit Fuller in her office, where he complained about the lack of payment of his wife's medical bills, and the inability of the doctors to help her. He also charged that Sonder- brook had taken personal liberties with his wife on her last visit to him. Fuller denied this, saying she had talked to the doctor, and commented that if Shirley would stop going to so many doctors, this would not occur, the insurance company would have paid their bills. Duvall said he knew how to "straighten it out," as he had been advised by a friend to take the claim before the Iowa Industrial Insurance Commission. Fuller, who had apparently been reading what looked like a letter from the Union, replied "If you are so damn smart, go ahead." He retorted that he was "smart enough to get a union in here," and Fuller commented that he was a "stupid bastard." By this time, the discussion had become rather heated, with both raising their voices. At this point, as Duvall started to walk out of Fuller's office, Knapp came out his office which was about 10 feet away across the lobby and typists' area, and asked what was going on. Duvall turned to Knapp and said "I am done, I have had all of this I am going to take, I am not going to try to talk to her any more, I will handle this in my own way, I have had it with this, I quit." Knapp replied 105 "that's fine, but before you go, I would like to see you and Shirley in my office." Duvall asked what it was about, and Knapp replied "I do not want to talk about insurance or anything else, but just about Jim and Shirley and Chet Knapp." Duvall went to the grinding room, told his wife that he had been in the office about her insurance problem, and that Knapp wanted to see them both. When they entered Knapp's office, he closed the door and told them to sit down, while he sat 'at first at his desk. He said he did not want to talk about the insurance claim or anything else but just "Shirley, Jim and Chet." He then reminded both that he had always been good to them, that when Jim was in prison he had written a letter to the prison authorities at the request of Shirley, promising Jim a job when he was released. He told them that the plant had lost money in 1971 and early 1972, but was just then beginning to show a profit, and he had a big workload and he needed their help on production in return for his past favors. He said "You knowhowmuchbusiness wehavehere, and how busyweare; and now I need your help you don't want to help me, you want to quit, I don't think I deserve that kind of treatment " Jim replied, "I don't give a damn, I am leaving." Knapp said he thought he had the right to tell them how he felt about that. He said he was not going to have anyone come in and tell him what he could do in the business. He referred to sloppy work done by the molders, said it made him "sick to my stomach." He also said he had a friend who had run a plant and told him he was "too soft," that the boss had to be a "mean s-o-b" and put the "fear of God" in his workers in order to be a good boss, but "neither of you is going to make me into an s-o-b." Shirley told Knapp there was nothing "personal" against him when they brought the Union in, it was because of the "raw deal" the workers got in the "other office," indicating Fuller's office. Knapp commented "Maybe I got the wrong one in that office, you two are so smart." Shirley replied "No, I am happy right where I am." Jim retorted "I am smart enough to get a union in this plant." Knapp commented "you must not be happy here, to do this behind my back," and "I am sorry I ever laid eyes on you," suggesting "you better leave right now," adding that they would be much happier if they left. Shirley repeated that she was happy working there, and asked if she was fired. Knapp said "No, but I want you people to leave right now." Jim Duvall got up and, as he walked out, said he was 100 percent behind the Union, but was leaving. Shirley said "Well, if Jim quits, I am quitting, too." Jim left to clean up. As he walked through the foundry he threw his hat down on the floor and said angrily "I quit" and went into the shower room. After Jim left the office, Shirley stayed behind and told Knapp of workers' complaints about Fuller's management of the plant, including elimination of the incentive system and installation of the piecework rate, which meant less money for the workers. Knapp indicated he was not concerned about what Fuller did, and commented that perhaps the Duvalls should be running that office. Shirley said that was true, indicating she could not even get proper medical care for her injuries. She brought up her unpaid medical bills. Knapp said he could do nothing about them, 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he paid good premiums for insurance coverage, but he told her to bring in the bills and he would forward them to the insurance company to see if he could get them paid, however he could not settle the bills for her. He reminded her that she had said her lawyer had the bills, so he told her to get copies to him. He also said the insurance company had advised him the best way to get the claim settled was to have her lawyer contact them. When Shirley was complaining about the actions of Fuller, both she and Knapp were talking rather angrily with raised voices. As Shirley was complaining about the "royal screwing" Fuller was giving the workers, the latter burst into the office, pounded the desk, and said she was "sick and tired of you running to all these doctors to prove this was an industrial accident," that she wanted it stopped that she "cannot even sleep at night." Shirley then told Knapp that she was leaving, but was not quitting. As she walked into the lobby with Knapp, Shirley repeatedly asked, directly and by leading questions, if he was firing her. He replied each time in effect "No, I did not tell you that, if you want to work here, that is fine, I am not firing you, you are quitting on your own, that is your own business." Jim Duvall was already dressed and waiting for his wife in the lobby, having just received his regular paycheck from the company accountant, Daniel John- ston.5 As the Duvalls walked out, Shirley or Jim repeated that they had always been happy there working for Knapp, that they had nothing "personal" against him, but things had changed so much that it was impossible to work there any longer, they "could not take it, the trouble here is in that other office," so they were leaving. Knapp replied he was sorry this had happened, "but it is a big world, you will go down the road, you will get along." At the last, Shirley told Knapp "the Union will hear about this." Shirley walked back into the plant to get her personal belongings. As she passed Fuller, she told her that Fuller was the reason the workers tried to get a union, that Fuller should not have cut out their incentive pay. Fuller commented that Shirley "did not kill yourself" working there. Shirley replied with a vulgar expression, called Fuller a "big fat ass" who did not work hard, either. They had further words in angry voices, and finally Fuller told Shirley to get out of the plant. In the meantime, Jim Duvall had driven his car to the front of the plant, where Shirley met him. He went in and asked Knapp for their final paychecks .6 Knapp replied that the bookkeeper was not there to write them up, but they would be mailed to the Duvalls (they actually received the checks by mail a week later). Jim then went out to the car, and Shirley came in to give Knapp a letter regarding her insurance claim, and then left. On Sunday night, February 4, Shirley telephoned Foreman Molloy to ask if the Duvalls were supposed to come to work Monday. Molloy, who had not yet returned to regular work from a stay in a hospital, replied "not that I know of, as far as I know, you quit, you will have to call Chet." Shirley asked Molloy if he had said that he had "got S Jim came in from the shower room to get his check , while Shirley was still talking to Knapp in his office. When asking Johnston for his paycheck, the latter asked if Jim wanted Shirley's check. Duvall replied , "No, let Shirley get her own." He then waited until his wife and Knapp came out of rid of the two biggest bellyachers when Jim and I walked out." He admitted that he said that, adding "that is all you have been doing for the past 6 weeks, bitching." Shortly after, Shirley telephoned Knapp at his home, and asked if the Duvalls were supposed to come back to work Monday. Knapp replied "Why, no, there would, be no reason for you to come in Monday, you people quit." Shirley denied this several times, and Knapp kept insisting they had quit. Knapp added "I am much happier, and the other office is, too, without you people" and "you will both be happier." Shirley said she could not afford to be idle, needed some income, and Knapp replied that if she filed a claim for unemployment compensation, "since you quit, I won't contest it, I will just let it go through." He also commented that the Duvalls had "too much spunk to draw unemployment compensation," they would both get other jobs. Shirley asked about her insurance claim, and Knapp told her to send in the bills to him, and he would do what he could to get them paid. The Duvalls sought reinstatement by anoint letter sent to Knapp and Fuller on April 25, and received by Respon- dent April 27. They repeated the request by similar letter mailed May 10 and received by Respondent May 15. Respondent has never answered the letters or offered them reinstatement in any way. The above facts are found from a composite of credible testimony of both Duvalls, Knapp, Fuller, Shelangoski, Doris Holley, and Daniel Johnston. Testimony of any of these witnesses in conflict therewith is not credited, for reasons noted below. The content of the conversations of the Duvalls with Knapp on February 2 rests mainly on a careful appraisal of sharply conflicting testimony of the Duvalls and Knapp. Knapp's long membership (though inactive) in another labor organization, and his long amicable dealings as an employer with that organization, would tend to support his flat denials of any mention of the Union, or unions in general, in the terms stated by the Duvalls. It is apparent from testimony of the three that Knapp made it clear when he called in the Duvalls that he wanted to talk only about the personal relations of the three and nothing else. Consistent with this his first remarks in effect reproached them for ingratitude for past favors, since Jim was leaving him "in the lurch," so to speak, when he needed all the good workers he could get. These remarks, admitted in part by the Duvalls, impel the belief that his only purpose in the final talk was to indicate his displeasure with their ingratitude, not to talk about their known union activity or the insurance claim. That this was the whole tenor of his remarks is also shown by record proof showing Knapp's long sufferance of Jim's erratic employment history, Respondent's endurance of Shirley's illnesses, and her continued complaints about trouble with her insurance claims, and Knapp's generous treatment of both notwithstanding the fact that Jim had been convicted of two felonies during his employment, and lost a year from the plant while serving a sentence in prison, Knapp readily took him back after he was released, Knapp's office. 6 Respondent's practice is to pay workers at noon on Fridays, but one week behind. ROYAL ALUMINUM FOUNDRY, INC. 107 preparing the way with the written promise of a job at the request of his wife. On his first quit in November 1971, Respondent made special efforts to get him back, offering him a raise and no loss of seniority or other benefits, and even agreeing to hire his wife and two other relatives. When Jim again quit in August 1972, mainly because of his disgust over the aggravation caused by his wife's insurance problem, he came back at the request of Fuller after Molloy promised him a raise, only because his wife was still working for Respondent and he still had hopes they could get the insurance claim straightened out.7 Through- out this period and right up to February 1, 1973, both Duvalls were continually complaining to Knapp and other company officials about her illness, which came on about 6 months after the work injury, and about her inability to get doctor bills paid. When she turned in medical bills, as received, to Knapp or other company officials, they were promptly forwarded to the insurance carriers. She also sent some bills direct to the carrier or through her lawyer. She was out a long while for the second illness late in 1972, and intermittently up to February 2, 1973. In December 1972, and early January 1973, she told Knapp she felt she ought to quit because of these problems, but he tried to comfort her and persuaded her to stay on. In some of their talks about the doctor bills, Knapp offered to use his personal influence to try to get them paid, but was apparently not successful because of the dispute between the carriers, Jim likewise threatened to quit early in January, indicating he might move to another state. Again, Knapp talked him out of it. Hence, when Jim vehemently indicated he was fed up with the insurance problem, and was quitting, after his angry February 2 argument with Fuller about it, it is a fair inference, and not unnatural, that Knapp, also, was fed up with trying to placate and humor the Duvalls and readily accepted at face value Jim's announcement of quitting, as well as Shirley's similar announcement, since he knew they were a close husband-wife team that- usually acted together. Although his remarks about the business and their ingratitude also indicated he knew of their union activity and that he would not allow anyone else (inferentially a union) to run his business, despite their gripes about Fuller, he emphasized that he would never let any action of theirs or other employees turn him into an employer "s-o-b." His final remarks that indicated disgust with the Duvalls, suggesting they leave at once, as they were not happy there, are also consistent with their voluntary quit remarks and his acceptance of them. I do not credit testimony of the Duvalls which portrays Knapp as disparaging unions from the outset of the final conference in a loud, coarse, and threatening manner, with much walking about, shouting and armwaving, charging the Duvalls with ingratitude in bringing in the Union behind his back, and threatening to get rid of them and 4 I find the facts as to his past employment record from credited testimony of Duvall and Knapp, plus company personnel records. B On the stand Knapp impressed me as a man of rather mild manner and temperate speech, who tried to recall events as best he could, and did not hesitate to admit when he could not recall or give a specific reason for his conduct or lack of it. In this respect, he appears in sharp contrast to Foreman Molloy, whose manner of speech will be noted hereafter Knapp's demeanor is also in sharp contrast with that of Shirley Duvall, who impressed me as a palpably partisan witness, telling a carefully rehearsed story, particularly about her last conference with Knapp, and who another employee who brought in the Union, or all employees who signed cards (as Shirley put it). Coming from a husband-wife team who were the prime union organizers, this testimony is obviously partisan and hence suspect. I find it hard to believe that Knapp, who appeared to be 'a soft-spoken and mild-mannered man, with a long union background, both personally and in dealing with another union, would start the discussion with such virulent and blatantly discriminatory remarks, and then calm down and listen to a long tirade from Shirley Duvall about her complaints, after her husband had left in a huff, indicating he was quitting. James Duvall indicated Knapp raised his voice only a bit above normal during his remarks, and does not support his wife on the angry gesticulations. Her version of Knapp's conduct was obviously highly exaggerated in an effort to make him appear from the outset as an angry, vengeful employer, indifferent to employee welfare, and bitterly hostile to unions, which is at war with her later insistence that she was happy there (despite her long-continued insurance problem, past threats to quit, and repeated dissatisfaction with Superintendent Fuller, another woman) and did not want to leave but would have to be fired. Hence, I credit Knapp's denials of any reference to the Union or their union activity, except to the limited extent found above, which is in itself far from substantial indication of discriminatory motive. Shirley's credibility is also weak- ened by her constant attempt to couch Knapp's alleged antiunion remarks in vulgar, coarse terms accompanied with cursing, which appears far out of character in my appraisal of Knapp and his general demeanor .8 Finally, considering the close husband-wife relationship of the Duvalls and the evidence of their past unity of interest and action in connection with their employment, I am convinced that, when Jim quit in a huff, Shirley instinctive- ly followed suit and did the same but then after he walked out, immediately tried to give the appearance of cancelling her voluntary separation by refusing to leave the office, protesting repeatedly that she was not quitting, that she was happy in the plant, and all their troubles stemmed from Fuller, not Knapp, and trying to entice Knapp into an admission that she was fired, not quitting, all of which convinces me that she palpably was trying to build a spurious picture of a discriminatory discharge. I also consider Shirley's February 4 request and their two later written requests for recall as part of the same buildup created for presentation to the Board, particularly since Shirley admitted that right after the February 2 conference she quickly procured a job with another local manufactur- er by one phone call,9 and started work there on February 5. Shirley also testified she had been rejecting repeated overtures from Sears to work for it for some time, only appeared as an aggressive person, quick to flare up in anger and to lapse into coarse and vulgar speech . The last trait was well illustrated by her quick, loud, and angry flareups during testimony, one in protest against some claimed facial expression by Knapp while she was testifying, and another when a question put to her described her as a union organizer, which she clearly was. I also noted her angry charge to Knapp that Fuller was giving the workers a "royal screwing," and her later angry argument with Fuller in the plant, when she cursed and used vulgar expressions. 9 Sears Manufacturing Company, herein called Sears. 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because she did not want to leave Respondent until released by her doctor and her medical bills were paid.io This clearly indicates that, but for the insurance problems arising from her injury and later illness, she was ready to go to Sears, which is consistent with a sudden voluntary quit on February 2, when her husband angrily quit because he could not get action on her claim by further complaints to Respondent. In this connection, Caroline Crews, personnel director of Sears, testified credibly that Shirley had inquired in January about work at Sears, and that when Shirley reported at Sears on February 5, she asked Shirley what occurred at Respondent, and Shirley replied "when we went in to pick up our checks, Chet said he was tired of our bitching all the time, wished we would leave, so I quit," and that she was no longer happy working for Respondent. This not only gives the lie to her protestations of happiness to Knapp, but also is consistent with testimony of Molloy that he told an employee on February 2 that he had "got rid of the 2 biggest bellyachers" when the Duvalls walked out. He also admitted this to Shirley on February 4. I conclude from these circumstances that Shirley had long been ready to quit Respondent for Sears, but held off only in hopes she could persuade Respondent to do something to have her medical bills settled, but when they could not work that out, she quit promptly when Jim did and went over to Sears.ii General Counsel argues, in part on the basis of questions asked of Knapp by the court, and his answers, that discriminatory discharge is indicated by Knapp's failure to keep two satisfactory and needed workers on the job, which he could have done by accepting Shirley's offer to stay at work on February 2, or the later request of both for reinstatement. There is some force to this argument, for the record shows that on February 2, Respondent was shorthanded in both molders and grinders, and after both Duvalls quit, it was even worse off. This shortage continued to the trial, and Respondent hired one new grinder in May. Knapp's only excuse for not taking back Jim was his feeling that he had no "future" as an employee because of his "consistency of quits," ignoring the special efforts of management to get him back after his two prior quits, and the facts that when both Duvalls indicated (before the union activity began) a desire to quit, Knapp took pains to talk them out of it; the contrasting fact is that, when both quit in a huff after their union activity was known, Knapp made no attempt to get them back, but instead insisted on relying on their instant voluntary quit. However, this circumstance, while suspicious, has little significance on the facts here, because the Board has held that, while an employer may desire and welcome the 10 It is not clear from her testimony what type of "release" from a doctor she was waiting for if it meant the usual release from convalescence to go back to work, she must have secured that from some doctor long before, for company records show she returned to work from her last absence for illness about September 18, 1972, and that she had been at work intermittently since that time If she meant a release in the form of paid medical bills, both Duvalls knew from a letter they received in January 1973, that bills would probably not be paid until the two insurance companies settled on which should pay bills of her last illness Although Shirley hired a lawyer to handle this about that time, there is no proof that he took any action for her to get the dispute settled and the bills paid Her excuse in this respect is invalid, for it is clear she could have paid the bills herself, and then quit to go to Sears, long before February 2 1 believe she chance to get rid of prominent union adherents, he does not violate the Act when they give him just cause to separate them, and he discharges them for that reason.2 The same reasoning applies all the more where the employees separate themselves voluntarily, and the em- ployer merely accepts and relies on their action. The timing of the final separation conference immediate- ly after Respondent had received the Union's demand and notice of the filing of its petition for an election, in light of Respondent's admitted knowledge of the prominence of the Duvalls in the Union's campaign, and the proof of union animus inherent in the ensuing conduct of Respon- dent, particularly Molloy, some of which is found hereafter to be violative of the Act, would present a strong case of discriminatory discharge, if the Duvalls' version of Knapp's remarks and conduct on February 2 is accepted. As I have discredited their version, the other circumstances of that conference in light of the Duvalls' past employment history including their continued irritation at Shirley's medical and insurance problems, and growing desire to leave Respondent in order to get rid of those problems, present countervailing facts which strongly rebut the facts and circumstances relied on by the General Counsel. In reaching this conclusion, I have carefully considered various other aspects of remarks and conduct of both the Duvalls and Knapp which are susceptible of inferences supporting a finding of discriminatory discharge, but those circumstances are equally susceptible of inferences indicat- ing that the Duvalls finally quit in a huff, as a team, after Jim's final but unproductive argument with Fuller about the insurance claim, and that Shirley at least was prepared to do so, because she already had an assurance of ajob at Sears. In light of these circumstances, her flagrant attempts to depict Knapp as a union-busting, foul-mouthed employ- er, with some testimonial help from her husband, and to show that she was happy under him and wanted her job back (even though her insurance claim was stalemated between two insurance carriers) are so at war with credible facts found above as to make her story incredible. In sum, the issue is close and in substantial doubt. Hence, to doubt is to deny, and I conclude that the pertinent facts adduced by Respondent to show that the Duvalls voluntarily quit their jobs are adequate to rebut the proofs to the contrary adduced by General Counsel, and that General Counsel has not sustained the ultimate burden of proof by substantial evidence in the record as a whole that they were discharged because of their union activity. I shall recommend dismissal of the consolidated complaint insofar as it charges a discriminatory discharge of and refusal to reinstate the Duvalls. stayed on with Respondent, in hopes that Knapp could use influence with the insurance carriers to settle the dispute Even after she quit, she tried to enlist Knapp's aid, getting his promise to forward any medical bills she sent in to the insurance companies ii i have carefully considered other peripheral facts cited by General Counsel to support a finding of discharge, such as the lower rate of pay Shirley received at Sears, but find them all less persuasive of a finding of discharge, than the facts and circumstances noted above which strongly indicate a voluntary quit 12 PG Berland Paint City, inc, 199 NLRB 927, Klate Holt Co, 161 NLRB 1606, 1612, Republic Cotton Mills, 101 NLRB 1475, and cases cited in fn 13 ROYAL ALUMINUM FOUNDRY, INC 109 2. Other conduct of Respondent in the union campaign Donald C..Wellendorf, an elderly grinding room employ- ee who had known Knapp for about 30 years, testified that on an unidentified date "about the first week in February" Knapp came to him in the grinding room and said there would be no more odd jobs on Saturdays if the Union came into the plant; Knapp said nothing more, and Wellendorf did not reply. No other workers heard this remark, and there is no proof that Wellendorf passed this remark on to other workers. Although Wellendorf worked at times on Saturdays at his regular jobs when the whole grinder force worked that day, he had never done any odd jobs, which were mostly cleanup duties in various parts of the plant and performed by one or more of four part-time workers, plus an occasional full-time employee. Knapp flatly denied any such remark to Wellendorf or any other employee, and testified that after the period stated by Wellendorf the odd-job schedule was never changed or curtailed. It is clear from the demeanor of Wellendorf on the stand, and uncontradicted testimony of Knapp, that Wellendorf is quite hard of hearing, for which reason Knapp has tried to avoid conversations with the grinder, who usually did most of the talking when they occasionally did talk together in the noisy grinding room. Since Wellendorf did no odd jobs himself, and there is no proof that he was an active solicitor for the Union like James and Shirley Duvall, as noted hereafter, it is hard to conceive why Knapp would make this single isolated remark to Wellendorf or to conclude that it carried coercive connota- tions, if in fact made. I consider it much more likely either that it was not made or that Wellendorf distorted or misconstrued something else Knapp may have said, due to his poor hearing. I also consider that Knapp has long been a union man, and hence unlikely to make a remark indicative of union animus, even though Wellendorf tries to place the remark shortly after Respondent received the Union's demand. In all the circumstances, I conclude that General Counsel has not sustained the burden of credible proof that Knapp made the remark as charged by Wellendorf. I will recommend dismissal of paragraph 5(b) of the consolidated complaint insofar as it deals with this charge. On February 5, Foreman Molloy approached Molder Armando Sanchez at work and asked him how he felt about the Union. Sanchez replied that he liked it, as he had worked under a union before. Molloy said that if the Union came in, there would not be any more overtime, but workers would get only 40 hours of work a week, and that Respondent would not pay for the workers' insurance, so that "with the Union in, you won't come out ahead." At that time Sanchez was getting about 5-8 hours of overtime work per week, which he was given on his application, when such work was scheduled. On one occasion about a month before the election (apparently early in March), Molloy asked Sanchez at his work place how he was going to vote in the election. Sanchez replied that he did not know, and Molloy commented "I wish I knew." Shortly before the election Molloy accosted Sanchez in the plant and said he would give him a 14-cent an hour raise, which would bring him to $3.80 per hour, "if you will forget the Union." Sanchez said he would think about it.i3 I find that the interrogations about Sanchez' sympathies toward the Union, the threat of depravation of overtime work and paid insurance if the Union won, and the offer of a raise to forget the Union, were all coercive conduct by a supervisor, and that Respondent thereby violated Section 8(a)(1) of the Act.14 I find from credible testimony of Molder John Mickle- wright and Molloy, that about a week before March 17, 1973, Molloy said to Micklewright at his workplace "I wish you had the Duvalls and the Union with my foot up your ass." Micklewright made some reply indicating Fuller was "screwing" Molloy and Foreman Shelangoski, but "she is not screwing me." At the time, Molloy was recently out of the hospital, and was under pressure from management to try to increase the production, and was working overtime to try to achieve this. He had found Micklewright running a lot of scrap, which affected his production, and had also noted that Micklewright was frequently absent , at times without reporting in upon absence. Molloy, Sanchez, and Knapp testified that Molloy was normally a blunt, plain spoken, excitable man, who tended to become irritable and "fly off the handle" when he was under pressure. While the quoted remark indicates Molloy's hostility to the Union and resentment toward the Duvalls as former employees, I consider it an equivocal comment as regards Micklewright in the particular circumstances involving Micklewright and his unsatisfactory work and attendance habits, so that it is more likely that Molloy made it in a burst of irritability with Micklewnght's work, in an attempt to push him to produce more, than that it was calculated to have a coercive effect. This remark is not specified in the consolidated complaint. I find no violation of the Act in Molloy's remark. About mid-February, molder-trainee Charles Ineichen asked Molloy in the foundry if the incentive-pay system was still in operation. Molloy replied that it was "out, they are working on piecework over there, and I will tell you one thing, that piecework will be here a hell of a lot sooner than that union of yours." About a week later, Molloy stopped Ineichen in the plant and said "I don't know if you are for the Union," Ineichen interrupted to say he was, and Molloy went on "I will tell you one thing, if that union comes in, you will not be making as much money as you are now" He also said Chet (meaning Knapp) "once told me he would burn this place down before he would ever have a union come in." He also said Knapp was "not about to pay 3/4 of your insurance." He finally told Ineichen "if the Union gets in, do not expect any $180 advances like you have been getting." Ineichen had received several such 13 I find the above facts on credited testimony of Sanchez Molloy admitted the February and March interrogations , and could not recall, but did not deny, the remarks about deprivation of overtime and paid insurance Hence , I do not credit his denial of the promise of the 14-cent raise for dropping the Union. 14 Although the two interrogations by Molloy might appear to be isolated instances, I must consider them as violative of the Act, in the context of the other clearly coercive threats and promises, particularly since the questions were not attended by the safeguards against coercion promulgated by the Board in Struksnes Construction Co, 165 NLRB 1062, 1063 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD advances against his salary before the union campaign started.15 I find that the threats of loss of earnings, insurance benefits, the right to money advances, and that the plant would be "burned down," if the Union came in, were coercive and that Respondent thereby violated Section 8(a)(1) of the Act.16 This is the only persuasive inference here, even giving full weight to the fact that Molloy was excitable, tended to be blunt-spoken, irritable, and "fly off the handle" in dealing with and talking to workers, at times giving irritable orders like "punch out" which he never carried through. Talk of this type can still be coercive if the employees, such as Sanchez and others, did not know when Molloy was serious in his remarks or just "blowing off steam," so to speak. Molder Nimroy Anderson testified that on February 7, 1973, Molloy approached him, said he did not know how Anderson felt about the Union, but he would give him a 25-cent raise "if it did not go through." Molloy flatly denied making the above remark, and testified that at an unidentified date he did tell Anderson he had a 25-cent raise coming, because he had been an apprentice molder for about a year, so was due for a raise, but that it could not be paid then because the Union would call it a bribe. I am inclined to credit the affirmative testimony of both, but to discredit Molloy's flat denial of the promise. Fuller admitted that Molloy had authority effectively to recom- mend raises, and company records show that Anderson actually received a 25-cent raise in the week ending March 25, which was 15 weeks after his last prior raise. Anderson had received six prior raises, making a total of seven in the 17 months he had worked at the plant. These were clearly individual merit raises, since that was admittedly Respon- dent's only raise policy. I am satisfied that Molloy must have known the seventh raise was due shortly, so used that knowledge as the occasion for the coercive promise of the raise, as found above. Molloy' s statement at another time that the raise had to be held up because of possible charges by the Union was also coercive. I find Respondent violated Section 8(a)(1) of the Act by both remarks.17 The Change of Discipline Policy On an unidentified date in February, Ineichen was running molds on a small machine. His quota was 180 molds per shift. He produced 190 molds by 3 p.m., a half hour before his usual quitting time, so stopped his machine and went to the shower room to wash up. Molloy followed him in, asked why he was there, and told him to get back to work. Ineichen asked what the standard of production was for his job. Molloy said 180 molds. Ineichen said he had done 190. Molloy then said "we will put the standard up to 200 then," and told him to go back to work. Ineichen returned to his machine, but only began to clean up around it. Molloy yelled at him "I told you to put up some molds, if you are not going to, just get out the door." Ineichen produced one more mold, stopped work about 3:20, waited Is These conversations are found from credited testimony of Ineichen. Molloy admitted portions of all of them, could no{ recall other portions, and denied only the remarks about the advent of piecework in Ineichen's department, and the threat to "burn the place down ." Considering Molloy's blunt and aggressive manner of speech I consider it more likely than not that he made all the above remarks. until 3:30 p.m., then checked out. He was not discharged but quit later. At this time, molders were paid by the hour. Ineichen's standard was not increased to 200 molds before he quit. On March 6 Ineichen received a written reprimand from Molloy for his failure to report in when absent on the 5th. On March 7 Molloy gave him another written reprimand for failure to wear required safety glasses at work that day. He had his glasses off while changing a pattern on his machine. When Molloy gave him the second reprimand, he told him he should keep it, saying "you get 3 of these, and you are fired." On March 8, Ineichen was late for work, so quit to get another job. Before these reprimands, Ineichen had once received a 3-day suspension for failure to report in when absent, which violated a rule posted on the bulletin board stating such requirement.18 General Counsel argues that issuance of two quick reprimands under a new discipline policy, with threat of discharge if he got a third, were a deliberate institution of more stringent work rules and discipline policy plus threat of discharge thereunder during the union campaign which violated the Act and was designed to coerce employees to refrain from supporting the Union in the election. Respondent replies that the new reprimand system was justified by good business reasons plus requirements of Federal safety laws and regulations, and that it was applied to Ineichen solely because of his poor work habits and antagonistic attitude toward supervision. The position of General Counsel is supported by testimony of James Duvall and John Micklewright to the effect that: molders usually stopped work about 3:15 p.m., and spent the last 15 minutes of the shift in washing up patterns, cleaning up sand spilled around the small machines, and then washing up personally prior to going home, all without criticism from management. Fuller admitted that cleanup of sand by molders at machines is normal practice. However, Micklewright also admitted that when he made his standard as much as 30 minutes before end of shift, he would continue to mold or find other work to do, as well as cleaning patterns and around his machine, thus doing some necessary work until end of the shift. In contrast, Ineichen's testimony indicated he did no more work of any kind after 3 p.m., on the day on question, until he was ordered back to work by Molloy. In addition, Molloy testified without contradiction that he had once previously reprimanded Ineichen orally for spending about 30 minutes to wash his patterns, a job that should take no more than 5 minutes. Knapp testified credibly that when Ineichen quit in March, he told Knapp in the exit interview that his failure to earn more money, his stated reason for quitting, was due in part to an intentional slowdown in his work. Further, Ineichen admits at least one argument with Molloy on an unidentified date before he quit, about the way he molded, with Molloy insisting that he mold the way he had trained him to, not the way his uncle, John Micklewright, had 16 1 find no violation of the Act in Molloy's equivocal comment that the piecework system would be "here" sooner than the Union. 17 Great Plains Steel Corp, 183 NLRB 968. 18 These facts are found from credited testimony of Ineichen and Molloy ROYAL ALUMINUM FOUNDRY, INC. shown him. The argument arose when Ineichen refused to follow orders on this, although Molloy had previously shown him how he wanted the molding done. In testifying on this point, Ineichen was evasive and argumentative in his answers, which supports Molloy's testimony that he had trouble getting him to obey orders with arguments. Molloy's credibility on this point is also enhanced by his admission that Ineichen was a good worker when he worked, but that he often did not keep busy at work during his whole shift, which caused Molloy to crack down on him when necessary. In this period, as found above, Molloy was quite irritable because of the pressure from manage- ment to get out the production. In light of these circumstances, I am convinced that Molloy's direction to Ineichen to "get out the door" if he could not obey orders and keep working was prompted solely by Ineichen's failure to keep busy until his shift ended, and not motivated in any way by the union campaign or Ineichen's possible adherence to the Union. In this connection, I note that in their argument on this occasion there was no mention of the Union in contrast to the instances of coercion of Ineichen found above. I find no violation of the Act in Molloy's remarks to Ineichen on this occasion. On the change of disciplinary policy, testimony of James Duvall, Fuller, and Molloy shows that: Prior to early February 1973, Respondent had a practice of giving workers 3-day suspensions without pay, for infractions of work rules, particularly failure to wear required safety equipment and failure to report in when absent from work. However, the practice had not been enforced strictly, with supervisors giving oral warnings and only rarely a 3-day suspension. Respondent had been experiencing trouble in keeping a full workforce for several years, and discovered late in 1972 that workers were taking advantage of lax enforcement of the absent reporting rule, increasing the absentee problem and shortage of help, and that issuance of 3-day suspensions worsened that shortage. To cut down the absentee problem and violation of the reporting rule, the new practice of issuance of two written reprimands for work rule infractions, plus corrective discipline as drastic as discharge after a third reprimand, was instituted. After it went into effect, at least three molders, including Ineichen, and one grinder got written warnings for violations of the safety equipment rule; Ineichen's first reprimand was for failure to report in when absent, as found above; one molder, Tom Micklewright got his safety reprimand on April 6; however, he did not get a reprimand for safety violation on March 7, although also failing to wear his glasses. The suspicious aspect of the new policy is that Respondent admittedly never explained it to employees in any meeting, nor was written notice of it posted in the plant. Indeed, the safety equipment reprimand given to Ineichen on March 7 had a notation on it addressed to Molloy "This is a first notice on this rule. Please explain to employees," which is some indication that the safety equipment rule was not well known and should be explained to workers. This lack of notice of change of discipline policy affords support for the inference that the 18 There is no charge that Ineichen's voluntary quit on March 8 because he feared a discharge on a third reprimand when he knew he would be late for work that day, amounted to a constructive discharge. Ill sudden imposition of written reprimands on successive days upon Ineichen, plus the oral warning of discharge if he got a third (although according to Fuller discharge was not the automatic discipline for a third) was motivated, at least in part, by a desire to enforce work rules by more rigid discipline in retaliation for employees' adherence to the Union, and also to influence their vote in the coming election. In addition, the failure to give a similar reprimand to Tom Micklewright on March 7 is some indication that Molloy was deliberately "bearing down" on Ineichen who had already been subjected to various coercive threats of reprisal after Molloy learned he was a union adherent. Considering that Molloy was the one supervisor notably hostile to the Union and prominently engaging in antiun- ion and coercive conduct before the election, as found above, I am inclined to believe, and therefore find, that his abrupt enforcement of the new discipline policy against Ineichen, without prior explanation of it to him or the workforce in general, was motivated, in part at least, by antiunion considerations and was well calculated to coerce and restrain employees in exercise of their rights under the Act, including the right of free choice of bargaining agent. I find that under the above circumstances, issuance of two reprimands in quick succession, with abrupt warning of discharge if he got a third, was coercion in violation of Section 8(a)(1) of the Act.19 On an unidentified date in February, Molloy found Ineichen playing a radio loudly at his workplace. He came over, picked it up, and smashed it on the floor without any remarks to Ineichen. The radio had belonged to Molloy, but Ineichen found it, abandoned and apparently inopera- tive, in the plant before the union campaign started, repaired it, and then played it almost daily for several months while running his molder. Molloy claims Ineichen was playing it loudly, and appeared to spend more time tuning and tinkering with it than on his molder, so Molloy got mad and smashed it. Molloy could not explain why he just did not take it away, or tell Ineichen to stop playing with it and run his molder. In light of Molloy's animus toward the Union and Ineichen for his adherence to it, and his other coercive harassment of Ineichen found above, I can only conclude that this was another instance of Molloy's impulsive and coercive reprisal against Ineichen for his union adherence. I find that by this conduct Respondent further violated Section 8(a)(1) of the Act. When Francis H. Burton was hired as a grinder late in February 1973, he was told by Foreman Shelangoski that he would get raises if he did good work. After working about 30 days, Burton asked for a raise. Shelangoski said he was a good worker, and he would see what he could do about the raise. A few days later he told Burton he had requested a 10-cent raise for him. A few days after that he told Burton he could not get the raise because the Union would call it a bribe. Burton argued that Respondent could not bribe him for 10 cents an hour. Shelangoski said there was nothing he could do about it at that time. After the Union lost the election, Burton did get a 10-cent raise.20 It is clear that Burton would have received the raise but for 20 These facts are found from credited testimony of Burton and Shelangoski 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the advent of the Union and Respondent's fear that grant of it would be charged as a violation of the Act. I find that withholding of the raise for such reason is coercive and a violation of Section 8(a)(1) of the Act.21 The record shows that Respondent gave employees in the appropriate unit a 10-cent an hour raise across-the- board effective March 19, and actually paid March 30,22 3 days before the election. It is clear that this was an unusual, one-time general raise, because the record shows that Respondent had never given such a raise before, and its normal policy was to give only individual merit raises. To justify the raise, Fuller testified that it was given to help prevent further attrition in its workforce, since the foundry was already short three molders at the time, with only three working, one being a trainee, and that many employees had been asking for raises, and one had quit for failure to get one. It was most important to cut down the attrition rate, because Respondent had a backlog of about $100,000 in orders, and the existing workforce was hard put to it to handle the, load. Although there is no specific proof from Respondent as to which or how many workers had asked for raises in the past, and it is clear from testimony of company officials that a shortage of workers had been plaguing it for about 2 years, Ineichen did testify that Molloy told him in late February 1973, when he asked questions about the incentive-pay system, that Molloy had recommended all foundry workers for a 40-cent raise before the Union came on the scene. Molloy testified that Ineichen had several times asked him for a raise. In addition, Burton asked for a raise in March, as found above, and James Duvall testified that he asked for one in January. It is inferable from these facts that Molloy would not have answered Ineichen as he did if there had not been rather general requests for raises before that. These facts tend to support Respondent's defense. On the other hand, the withholding of Burton's requested raise because of the appearance of the Union, and grant thereof after it lost the election, Molloy's coercive promise of raises to Sanchez and Anderson if they did not support the Union, and Molloy's explanation to Anderson that he was due for a raise but could not get it then because it would be called a bribe, followed by actual grant of it March 25, indicate strongly that Respondent was using the grant or withhold- ing of individual raises to persuade employees to vote against the Union. In this atmosphere of financial coercion, I must conclude that the one-time unannounced grant of a small general raise just before the election was an action well calculated to coerce the whole workforce on a broad scale in the exercise of its vote in the election. I find that this raise was coercive and violated Section 8(a)(1) of the Act.23 The Refusal To Bargain It is clear from the sequence of events found above that 21 Great Plains Steel Corp, supra 22 Sanchez actually got an l l-cent raise, and another worker 25 cents 23 Tower Enterprises, Inc, 182 NLRB 382, 386, Colonial Knitting Corp, 187 NLRB 980, 985 In view of the variety of coercive conduct by Respondent found above, on which remedial action is recommended as set forth below, I deem it unnecessary to make specific findings or conclusions on other minor but similar instances of conduct set forth in the record. Respondent, within 2 days after receiving the Union's claim of majority status and demand for recognition, and notice of its request for certification after an election, began a campaign of varied and serious coercive action against employees which included interrogation, threats of various types of reprisal including withdrawal of benefits, discharge and destruction of the plant, and promises and actual grant of benefits to dissuade employees from adhering to or voting for the Union. This conduct was well calculated to undermine or dissipate the majority status already achieved by the Union. In light of these serious unfair labor practices, I find no merit in Respondent's claim that it is not required to recognize the Union because that organization never proved its majority status. That status as of January 30, 1973, clearly appears from the union cards in evidence, and Respondent never accepted the Union's offer to prove the status by a third-party card check. Although Respondent's attorney may have been unfamiliar at the outset with the exact purpose of the card check offered by the Union, his reply to the Union indicates the contrary, where it stated Respondent's desire for "impartial third party" to "determine whether or not your Union has majority status ...." However, this is no defense, where Respondent actually participated in the consent election procedure, but thereafter engaged in the unfair labor practices which were well calculated to coerce employees in their voting choice, and thus prevented the free and untrammeled election required by the Act. Such conduct also vitiates the claim that Respondent at any time had a bona fide doubt of the Union's majority status. I conclude that Respondent's unfair labor practices while participating pro forma in the election procedure, but making a fair election impossible, by unlawful conduct, amounted to a refusal to bargain in good faith with the Union as the majority representative of employees in the appropriate unit, in violation of Section 8(a)(5) of the Act.24 The Objections to the Election Objections I and 6 charge Respondent with financial inducements, including a wage raise, to induce workers to vote against the Union. This objection is sustained, in light of Molloy's coercive offers of a wage raise to Sanchez to forget the Union, and to Anderson if the Union lost, and the coercive general wage raise of March 19, 1973. Objections 2 and 4 charge Respondent with threats of loss of jobs and other benefits if they voted for the Union. This objection is sustained, in light of Molloy's coercive threats to Sanchez of loss of overtime and paid insurance benefits, his threat to Anderson of withholding a raise because of the Union, and his threats to Ineichen of loss of pay, insurance benefits, and the right to advances against pay, as well as possible destruction of the plant, if the Union won. 24 In light of this coercive conduct, particularly the wide impact of the one-time general wage raise just before the election, the inference is inescapable that all employees in the unit may well have been affected, so it is immaterial that at least five employees including the Duvalls were no longer eligible to vote when the election date came Respondent cannot rely on an alleged doubt of majority status clearly undermined by its own acts ROYAL ALUMINUM FOUNDRY, INC. 113 Objection 5 charges Respondent with creation of an atmosphere of fear and confusion among workers in the critical penod before the election. This objection is sustained, in light of the various types of continuous coercive actions against Sanchez and Ineichen by Molloy found above. Objection 3, based on the alleged illegal discharge of James and Shirley Duvall, is overruled, in light of my finding that an illegal discharge of them was not proven. As the conduct covered by Objections 1, 2, 4, 5, and 6, resulted in substantial interference with the election I shall recommend that the election of April 2, 1973, in Case 38-RC-1313 be set aside.25 Ill. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. N. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and also-take certain affirmative action which is necessary to effectuate the policies of the Act. The variety of unfair labor practices committed by Respondent requires a broad order. However, such order shall not be construed in any way to require Respondent to withdraw or cancel any wage raises, individual or general, or other benefits, which it may have granted to employees as found above or at any time since January 28, 1973. As Respondent has unlawfully failed and refused to bargain with the Union as the statutory bargaining agent of its employees in an appropriate unit, I shall recommend that it be ordered to do so, upon request, and, if an understanding is reached, embody such understanding in a signed agreement.26 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce, and the Union is a labor organization, within the meaning of the Act. 2. By questioning employees in a coercive manner about their union sentiments and voting desires in a Board- conducted election; by threatening employees with dis- 25 Most of the coercive conduct found herein had its impact upon the election in the period between the filing of the petition and that event. As it is well settled that objectionable conduct occurring in that crucial period need not be violative of the Act to warrant an order setting aside the election, it follows that conduct clearly violative of the Act a fortiori tends to affect the result of the election. Dal-Tex Optical Company, Inc, 137 NLRB 1782, 1787, Hawkins-Hawkins Co, 173 NLRB 818, 823. 26 The bargaining order is directly warranted by the finding of violation of Sec 8(a)(5) found above, but even if a refusal to bargain were not specifically charged, a bargaining order would be warranted here, because the variety and serious nature of Respondent's unfair labor practices so permeated the atmosphere in the crucial period before the election that the charge, loss of wages , pay raises, overtime work, insurance and other benefits, if they voted for the Union; and by promising and actually granting wage raises to induce them to vote against it, Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act, thereby engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and 2(6) and (7) of the Act. 3. Respondent did not discharge James or Shirley Duvall and has not violated the Act by failing or refusing to reinstate either of them after those employees quit their jobs. 4. All full-time and part-time production and mainte- nance employees of Respondent excluding managerial, supervisory, and clerical employees, and guards, as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. The Union was on January 30, 1973, and has been at all times thereafter, the exclusive bargaining agent of employees in the unit aforesaid, within the meaning of Section 9(a) of the Act. 6. By refusing to bargain in good faith , upon request, with the Union as such bargaining agent, Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(5) and 2(6) and (7) of the Act. 7. Except as found above, Respondent has not engaged in unfair labor practices as charged in the consolidated complaint herein. 8. By the unfair labor practices set forth in paragraphs 2 and 6 above, Respondent has engaged in conduct affecting the results of the election of April 2, 1973. Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER 27 Respondent, Royal Aluminum Foundry, Inc., of Daven- port, Iowa, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Questioning employees in a coercive manner about their union sentiments and voting desires in a Board- conducted election, threatening them with discharge, loss of wages, pay raises, overtime work, insurance and other benefits, and other reprisals, if they voted for the Union in possibility of clearing the air of coercion and insuring a fair election by mere posting of a notice with cease -and-desist provision is very slight In such case, the desires of employees once expressed through authorization cards should prevail and be protected by a bargaining order N L.R B v. Gissel Packing Co Inc, 395 U S 575, 614-616 (1969); Cohen Bros Fruit Company, 166 NLRB 88, 90 See also Textron, Inc (Talon Division), 199 NLRB 132 27 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, 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. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such election, or promising or granting them wage raises to induce them to vote against the Union. (b) In any other manner interfering with, restraining, and coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act, including the right of free choice of bargaining representative. (c) Failing and refusing to recognize and bargain, upon request, with the above-named Union as the exclusive bargaining representative of its employees in an appropri- ate unit consisting of all full-time and part-time production and maintenance employees of Respondent, excluding managerial, supervisory, and clerical employees, and guards, as defined in the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Post at its Davenport, Iowa, plant, copies of the attached notice marked "Appendix." 28 Copies of said notice, on forms provided by the Regional Director for Region 38, after being duly signed by Respondent's authorized representative, shall be posted by it immediate- ly upon, receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing 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. (b) Upon request, recognize and bargain with the above- named Union as the exclusive bargaining representative of its employees in the appropriate unit described above with respect to rates of pay, wages, hours of employment, or other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (c) Notify the Regional Director for Region 38, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that paragraphs 5(b) and (d) alleging threats by Chet Knapp, 5(e) charging Knapp with creating the impression of surveillance, 5(g) charging him with a threat to close the plant, and paragraph 6 dealing with alleged discharge of the Duvalls, as well as related portions of paragraphs 8(c), 9(c), 10, 11, and 12, of the consolidated complaint, be dismissed. IT IS FURTHER RECOMMENDED that the election of April 2, 1973, in Case 38-RC-1313 be set aside. 2s 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice, and we intend to carry out the Order of the Board and abide by the following: The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representatives of their choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT do anything that interferes with or restrains or coerces employees with respect to-these rights. WE WILL NOT question employees in a coercive manner about their union sentiments and voting desires in a Board-conducted election. WE WILL NOT threaten employees with discharge, loss of wages, pay raises, overtime work, insurance or other benefits, or other reprisals, if they vote for the Union named below in a Board-conducted election. WE WILL NOT promise or grant employees wage raises to induce them to vote against said Union in such an election. WE WILL NOT in any other manner interfere with, irestrain, or coerce employees in the exercise of the rights guaranteed to them by the Act as set forth above. WE WILL, upon request, recognize and bargain with International Molders and Allied Workers Union, AFL-CIO-CLC, as the exclusive bargaining represent- ative of our employees in the appropriate unit de- scribed below with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The appropriate bargaining unit is: All full-time and part-time production and maintenance employees, excluding managerial, supervisory and clerical employees and guards, as defined in the Act. Dated By ROYAL ALUMINUM FOUNDRY, INC. (Employer) (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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Savings Center Tower, 10th Floor, 411 Hamilton Boulevard, Peoria, Illinois 61602, Telephone 309-673-9312.