Plastic Composites Corp.

728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plastic Composites Corp. and International Union of Electrical, Radio & Machine Workers, AFL- CIO-CLC. Cases 25-CA-5457, 25-CA-5457-2, and 25-RC-5257 May 20, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On September 28, 1973, Administrative Law Judge James M. Fitzpatrick issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions, a supporting brief, and a brief in support of the Decision, and the Respondent filed exceptions and an answering brief. 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,' and conclusions of the Administrative Law Judge,2 subject to the modifications set forth below,3 and to adopt his recommended Order. We agree with the Administrative Law Judge that in view of its conduct violative of both Section 8(a)(1) and (3) of the Act, the Respondent should be required to recognize and bargain with the Union as the representative of its production and maintenance employees under the standards set forth in N. L. R. B. v. Gissel Packing Company, Inc., 395 U.S. 575.4 In so doing, however, we disavow his assertions that the threats found violative of Section 8(a)(1) were relatively minor, as compared to the discharge found violative of Section 8(a)(3), which, according to the Administrative Law Judge, "goes to the heart of the Act." Not only do we doubt the efficacy of any such attempt to make a comparative assessment of the two types of violations-a subject on which reasonable minds will readily disagree-but, more basically, we fail to perceive any useful purpose which might thereby be served, inasmuch as it is the combination of violations that herein provides the basis for the Gissel -type remedy recommended by the Adminis- trative Law Judge and hereinbelow ordered.5 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 and hereby orders that Respondent, Plastics Composites 210 NLRB No. 121 Corp., Fort Wayne, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the election conducted in Case 25-RC-5257 on March 7, 1973, be, and it hereby is, set aside, and that the petition for certification of representative filed therein be, and it hereby is, dismissed. I In adopting the 8(axl) violation findings of the Administrative Law Judge Chairman Miller does not rely on any statements made by the Respondent in the letters issued to employees on February 19 and 23 and March 5, 1973. In Chairman Miller's view, the statements there made do not exceed the bounds of privileged activity as defined by Sec . 8(c) of the Act. Adopting the remaining 8(axl) and 8(aX3) violation findings of the Administrative Law Judge, Chairman Miller agrees that a bargaining order is appropriate, but only as part of the remedy for those violations . See his separate statement of his views as expressed in United Packing Company of Iowa, Inc, 187 NLRB 878, 880, and General Stencils, Inc, 195 NLRB 1109, 1111. 2 We deny as without merit the Respondent's posthearing "Motion to Reopen the Record and Cite Additional Authority," which contends that the United States Supreme Court's postheanng decision in N.LR.B v. Savarr Manufacturing Company, 414 U.S. 270, requires a finding that the cards used to support the Union's showing of interest in the election herein were tainted and that the Administrative Law Judge 's Decision herein is therefore invalid. The basis for the motion is a letter from the Union's International to its Local herein, granting the Local's request for "exoneration for the present employees" from initiation fees "when they join IUE," and from the payment of dues until the signing of a contract between the Respondent and the Union. We conclude that this waiver of initiation fees does not warrant setting aside the election in Savarr, the Supreme Court characterized such a waiver as a legitimate interest of the union in eliminating an "artificial obstacle," e g, the expense of representation, from the employees' free choice in the election. This union interest "can be preserved as well by waiver of initiation fees available not only to those who have signed up with the union before an election but also to those who join after the election." The unconditional availability to all then present employees, whether they should join the union before or after the election , indicates that the waiver had not been conditioned upon support of the union in any form during the election. The absence of such condition avoids the creation of any impression that employees who refrain from supporting the union would be penalized therefor in comparison with those employees who support the union during the electral campaign In the instant case, the waiver was optional before or after the election and was clearly not conditioned upon the expression of support for the Union in any form during the electoral process 3 We correct the third paragraph of that section of his Decision entitled "VII The Alleged Refusal to Bargain" by changing therein the following words. "unlikely" to read "likely," and "likely" to read "unlikely." 4 In adopting the Gissel -type remedy recommended by the Administra- tive Law Judge, we find it unnecessary to consider his determination as to the challenged ballots and as to the Union's objection to conduct affecting the result of the election , involving alleged interrogation of employees at their work station, and the distribution of literature , raising new issues as to which there was insufficient time to respond ' Chairman Miller, unlike his colleagues, finds the Administrative Law Judge's rationale for the bargaining order constructive and would wish this Board might rationalize the basis of its bargaining orders as well as the Administrative Law Judge did here . See his dissent in General Stencils, Inc, 195 NLRB 1109, 1111, cited with approval by the Court of Appeals for the Second Circuit in the course of its opinion in that case, N.LR.B. v. General Stencils, Inc, 472 F 2d 170 DECISION STATEMENT OF THE CASE JAMES M. FITZPATRICK, Administrative Law Judge: This is an unfair labor practice proceeding consolidated with proceedings on challenged ballots and objections to PLASTIC COMPOSITES CORP. conduct affecting the results of an election, both under the National Labor Relations Act, as amended (the Act). The litigation arises in the following manner. On January 29, 1973,1 the International Union of Electrical, Radio & Machine Workers, AFL-CIO-CLC (herein Union or Petitioner), petitioned the National Labor Relations Board (herein the Board), for an election for collective-bargaining representative of the production and maintenance employ- ees of Plastic Composites Corp. (herein Employer or Respondent). Pursuant to a stipulation for certification upon consent election executed by the Petitioner and the Employer, and approved by the Acting Regional Director for Region 25 of the Board on February 20, an election was conducted by the Board on March 7. The tally of ballots in the election shows there were approximately 40 eligible voters and that 42 ballots were cast, of which 18 were for the Petitioner, 18 against, and 6 challenged. Enough ballots were challenged to affect the results of the election. On March 12 the Union filed timely objections to conduct affecting the results of the election and also filed unfair labor practice charges (Case 25-CA-5457). On April 30, based on those charges, a complaint issued alleging violations by the Employer of Section 8(a) (1), (3), and (5) of the Act. Following investigation the Regional Director on May 8 issued a report on challenged ballots and objections to conduct affecting results of election, recom- mendations to the Board, order consolidating cases, order directing hearing, and notice of hearing, in which he recommended, inter alia, that one of the challenges, to Calvin Compton, be sustained, and that a hearing be held to determine the voting eligibility of Claude Amburgey, Thomas Abercrombie, Frank Sutton, James Burnett, and Floyd Long, Jr., and to resolve issues raised by the objections and certain other additional objectionable conduct noted in his report. Also on May 8 the complaint in Case 25-CA-5457 was amended to include further allegations under Section 8(a)(1) and an additional discharge under Section 8(a)(3) of the Act. The Regional Director also ordered that the representation case (25-RC-5257) be consolidated with the unfair labor practice case (Case 25-CA-5457) for the purposes of hearing, , i ig, and decision by an Administrative Law Judge. 1 here being no exceptions to the Regional Direc- tor's report, the Board on May 25 adopted his recommen- dations. On May 25 the Union filed additional unfair labor practice charges (Case 25-CA-5457) which became the basis of a further complaint issued May 29 alleging another discharge in violation of Section 8(a)(3) of the Act. This was consolidated with the complaint issued earlier and the consolidated proceedings were noticed for hearing at the same time as the hearing on objections and challenges. Respondent, answering the complaints, denied the commission of unfair labor practices. The consolidated matters came on for hearing before me at Fort Wayne, Indiana, on June 13, 14, and 15. Upon the entire record,2 my observation of the witness- es, and consideration of the briefs filed by the General Counsel and the Employer, I make the following: i All dates herein are in 1973 unless otherwise indicated 2 The record includes a postheanng stipulation, together with six FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER 729 The Employer is an Indiana corporation engaged at Fort Wayne, Indiana, in the manufacture and sale of custom molded, fiberglass reinforced plastic products. It annually purchases goods and materials valued at over $50,000 which are transported directly to its plant from outside Indiana. I find it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent's principal products, commonly called cherrypickers, are plastic buckets extended on plastic booms for mounting on trucks used in the aerial servicing of utility lines. Safety and reliability in the finished product are extremely important. II. THE UNION AND ITS ORGANIZING CAMPAIGN The petitioning union is a labor organization within the meaning of Section 2(5) of the Act. In mid-January 1973 the Union , having been contacted by some of Respondent's employees, commenced organiz- ing activities by forming an organizing committee . Respon- dent first learned of the organizing activity on January 19 when it received a letter from the Union naming the employee members of the organizing committee. On January 24 the Union wrote Respondent asserting it represented a majority of the employees and requesting recognition and bargaining . Organizing activity continued until the election on March 7. During the weeks prior to the election Respondent countered the Union campaign with its own campaign to persuade the employees to vote against the Union. III. ALLEGED THREATS, COERCION, AND RESTRAINT The complaint alleges, and the answer denies, that Respondent committed various independent violations of Section 8(a)(1) of the Act. These allegations include solicitation of grievances of employees ; promises of benefits and threats of loss of benefits and changed working conditions in order to induce employees to withhold support from the Union ; threats that the plant would close ; imparting to employees the impression that union activities were under surveillance; and paying or loaning employees money to induce them to refrain from supporting the Union. A. The Alleged Solicitation of Grievances and Promises of Benefits 1. Cavanaugh's survey The record shows that after the organizing activity began and Respondent learned thereof it retained the services of labor relations consultant James Cavanaugh . Cavanaugh began a study aimed at identifying and analyzing problems within the Company, including personnel problems. As part of this study he interviewed most of the employees between February 1 and 5. Employee attendance at these appendices thereto, which is designated Joint Exh. I 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interviews was voluntary. Respondent contends that steps were taken to effectively maintain employee anommity. I find steps were taken for that purpose but make no finding as to whether they were effective to maintain employee anommity because I deem it unnecessary to a disposition of the issue. Cavanaugh opened each interview with the same question. Each employee interviewed was asked "If, when you awaken tomorrow morning you were President of this corporation, what would you do?" Although some employ- ees did not respond to the query, most of them did. Many of the responses dwelt on terms and conditions of employment and matters of normal employee concern such as their problems at work, and employee complaints. The collected results of Cavanaugh's interviews showed in part the following: 41 percent of the responses indicated that the pay was too low resulting in excessive turnover; 33 percent commented about the supervision; 28 percent felt absenteeism was the result of too much management leniency and failure to enforce company rules resulting in high turnover and unfairness to those working; 26 percent expressed the need for a retirement program, either profit- sharing or a pension program; 28 percent indicated serious concern regarding safety. The results of the interviews were read at one of the meetings with employees referred to hereinafter. I find that the question asked was designed to elicit employee gripes, complaints and grievances and was effective in doing so. 2. Meeting with employees On February 19 Cavanaugh submitted the results of his study to Company President John Lanmore in a document entitled "Recommendations." Among other things, Cava- naugh recommended a grievance procedure, a grievance committee, a profit-sharing retirement program, an incen- tive system, a safety committee, and a job posting and seniority system. During the preelection period John Larimore and Cavanaugh conducted a series of group meetings with employees. At one of these John Larimore read to the employees parts of Cavanaugh's "Recommen- dations." At subsequent management-employee meetings, prior to the election, various portions of Cavanaugh's program were discussed. During the preelection campaign management held an estimated 10 of these general meetings with employees. Two were devoted to the subject of attendance. The other eight were for the avowed purpose of stimulating commu- nications between management and the employees. Most if not all of the meetings for the purpose of improving communications were conducted by John Lanmore with some participation by Cavanaugh. Larimore opened each meeting with the statement that he would not and could not make any promises. Further, various Company witnesses including John Larimore, his brother Robert, Production Superintendent Marion Hetrick, As- sistant Foreman Gene Gray, Ralph Bentrup and Claude Amburgey all testified that he did not promise anything at these meetings. I do not fully credit what I view as the conclusion of these witnesses because of the circumstances and the contradictory testimony of other witnesses. At these meetings employees were permitted to ask questions from the floor. Numerous questions were asked by employees, particularly those on the union organizing committee. As a result of these questions and the subject matters posed by Cavanaugh's recommendations, John Larimore had occasion to explain and make statements respecting terms and conditions of employment for the present and for the future. A preponderance of the evidence shows that in doing so he explicitly or implicitly indicated on a number of occasions that improvement could be expected. As communications from the president to the employees these necessarily were promises. Thus, when John Larimore reported to the employees what Cavanaugh had recommended he said, according to the credited testimony of Paul Muscello, "Some of these we can do, and some of them we just can't do at this time." This version is corroborated by the credited testimony of Lynn Royse that John Larimore in effect said he could not promise but then went on to say he was going to look into Cavanaugh's recommendations and see if they were economically feasible for the Company. The net effect was to dangle Cavanaugh's recommendations before the employees as prospects for the future. The credited testimony of Floyd Long, Jr., indicates that the subject of safety in the plant was mentioned at two meetings. At the first of these Cavanaugh reported on the percentage of employees interviewed who had commented on safety problems. Franklin Sutton recalled that John Lanmore said he could not promise that safety problems would be taken care of overnight. But Cavanuagh's recommendations included procedures for handling em- ployee complaints about safety-in other words a griev- ance procedure. Lynn Royse credibly testified that John Larimore explained in detail the four steps of the recommended grievance procedure. The employee meet- ings themselves were, in a loose sense, such a procedure since their declared purpose was that of a vehicle for two- way communication. And even after the election cam- paign, according to the testimony of Assistant Foreman Gene Gray, plans for employee meetings in the future using the device of a so-called hot box, were discussed. Such meetings apparently were held after the election of March 7, the last such meeting being the week prior to the hearing herein. According to John Larimore the Company since at least June 1972 had pending plans for a combination profit- sharing retirement program for employees. At the time of the events involved herein these plans had not come to fruition, but they were, according to John Larimore a subject of discussion at the employee meetings . According to Franklin Sutton, when he asked at one of the meetings about the pension plan, John Larimore said he could not promise when they would have it; that it was a complex matter; and that they had been working on it for 6 months. Paul Muscello recalled that John Larimore said they were going to follow through on the pension plan. Considering that such a program had been in the works for some time, it is not clear whether John Larimore was promising any change from the existing situation. I find the evidence in this regard is insufficient to establish that he was promising such a change. PLASTIC COMPOSITES CORP. 731 On at least one other topic the circumstances were such that the employees could reasonably infer that conditions would improve if they went along with the Company rather than the Union. At one meeting John Larimore, using charts, undertook to demonstrate that a number of terms and conditions of employment at Respondent's plant were at least comparable to those at other plants in the area. On the topic of paid holidays, however, the charts showed the conditions were better at the other plants than at Respondent's. Noting this John Larimore commented, "Well, we're behind on that, but we'll do something about that." In a word, then, in these meetings the Company promised the employees improvements in general terms, proposed a grievance procedure for handling safety and other problems which employees could raise, and promised an improvement in paid holidays. 3. Company letter to employees on February 19 John Larimore further commented on Cavanaugh's recommendations in a letter to the employees on February 19. In this letter he told the employees, among other things, that through the Cavanaugh survey management had learned of shortcomings in its relationship with its employees; conveyed the idea that management would do its utmost to correct the shortcomings; and urged them in the upcoming election to vote against the Union as being unnecessary to the solution of existing problems. Thus, specifically referring to Cavanuagh's survey, he noted that many of the employees' comments, suggestions, ideas, and criticisms were surprising to him, indicating that communi- cations had been poor, and that in responding to the survey the employees were helping to start the Company on the way to a better understanding. The letter continued, "We told Jim [Cavanaugh] that it was his responsibility to make sure we are treating our employees fairly. I also asked Jim to give me his recommendations on how we can continue to improve not only our communications, but our ability to work together." Somewhat further on he wrote, "I sincerely hope that you will agree with me that the I.U.E. is not necessary for each of us, and the Company as a whole, to improve, progress and continue to grow." While it is true that in the mid-portion of the letter, in alluding to the technical nature of Board election regula- tions, he asserted that management had not promised, nor would they promise, the employees anything, the sense of the letter as a whole is to promise employees better conditions. Thus, he went on to say, "I know that we are not perfect. Jim's report pointed that out . . . but I would hope that we can continue to work together to solve problems rather than be pulled apart. Resorting to an International Union by employees MAY be necessary, and even a good thing, where a Company has a sweat-shop condition .. . where it always mistreats its employees .. . and where there is no possibility of improving conditions by working through the Company itself. I have told you that I am not opposed to unions where employees have exhausted every other possibility." He then mentioned some existing conditions and plans which were favorable and noted that wages, hours, and working conditions were generally in line with other companies in the area. But then he suggested that without the Union there could be further improvement by writing, "This is not to say that we're perfect and have no room for improvement. I now know that we have some problems and that a variety of changes need to be made. What we need now is your advice and confidence. We can work out our problems, together, WITHOUT a need for you to pay your hard earned money to this union who want to put an end to our direct relationship with each other. I hope the great majority of employees agree that we are small enough to be able to talk to each other directly." Toward the end of the letter he wrote the following, "I can assure you that I will do my level best to find solutions to our existing problems, which are fair. As you know, we have always tried to do this in the past, and now with better communications we can be even more effective." He ended by asking the employees to vote against the Union. In sum, in his February 19 letter Larimore inferentially promised the employees improved conditions without the Union, explicitly invited direct bargaining with them, and urged them to reject the Union. 4. Company letter to employees on February 23 On February 23 John Larimore sent to each employee what he called a "fact letter" setting forth a number of past or present conditions or facts which he deemed favorable to the Company's position. In addition he referred to Cavanaugh and the Company's intentions with respect to his recommendations which had been communicated to the employees, the employee meetings, and John Lari- more's letter of February 19. This present letter conveyed the idea that Cavanaugh's recommendations would result in future advantages for the employees. While nothing in this letter conditions the receipt of any advantages on rejection of the Union, Larimore had already made clear to the employees that he did not favor a union and that a union was not necessary for the employees to progress. Against a background of a union campaign, the letter of February 23 could only be understood by employees as an inducement to reject the Union at the upcoming election. The precise words used in the portion of the February 23 letter referred to above are as follows: FACT: It is our intention to utilize Jim Cavanaugh's knowledge of employee relations to help you and me better understand each other's needs, not just for now, but for the remainder of this year and as long as needed. I find this was a general promise of better things to come. 5. Company letter to employees on March 5 Two days before the election John Larimore sent each employee another letter enclosing a review of facts which he had prepared. In this letter he again indicated in general terms the idea that they would fair better at the hands of the Company than if the Union were in the picture. His precise words in this regard were: I honestly believe, that at this time, each of you will have more to gain personally and more opportunity, if 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD you give your company a chance and let us continue progressing together. Therefore, I urge you to think and then vote NO, on Wednesday and give your company that chance. This letter cannot be viewed in isolation . In context with the whole antiunion campaign , and although it purported to only be Larimore's belief, it was a promise to the employees of "gain" and "more opportunity" if they rejected the Union. Of course in the attachment of this letter John Larimore stated, "I have made no promises because the law will not allow me to" to offset the fact that, "The Union talks about all the promises I've made ." But this type of disclaimer did not offset the impact of the promises he in fact had made. Summing up regarding the preelection campaign, I find Respondent committed unfair labor practices prohibited by Section 8(a)(1) of the Act by soliciting employee complaints and grievances through the device of Cava- naugh,s survey, by generally promising the employees better conditions without the Union in the employee meeting and in the letters of February 19 and 23 and March 5, and more particularly by promising a grievance procedure to handle safety and other problems and a better paid holiday program at employee meetings. See Tom Wood Pontiac, Inc., 179 NLRB 581, enfd. 447 F.2d 383 (C.A. 7, 1971); Fairchild Camera and Instrument Corporation, 169 NLRB 90, enforcement denied 404 F.2d 581 (C.A. 8, 1968). B. Other Alleged Promises and Threats of Plant Closure The complaints allege, and the answers deny, that additional statements in violation of Section 8(a)(l) of the Act were made by John Larimore, Manager Robert Larimore, and Supervisor Clyde Crutchfield in the form of promises of greater benefits, by Supervisor Christey Hees in the form pf a warning that the plant would close if the Union came in, by John Larimore in imparting to employees the impression of surveillance of their union activities, and by John Larimore and James Cavanaugh in threatening the lost of benefits, changed working condi- tions, and harsher work rules. Considering the record as a whole I find no evidence that John Larimore violated the Act by giving the employees the impression of surveillance of their union and concerted activities, nor that he or Cavanaugh violated Section 8(a)(1) by threatening employees with loss of economic and other benefits, changed working conditions or harsher work rules if they did not refrain from becoming or remaining members of the Union or giving assistance or support to it. 1. The supervisory status of leadmen The allegation that Respondent is liable for unlawful statement of two alleged supervisors, Crutchfield and Hees, depends in part on whether either was a supervisor within the meaning of the Act. For the reasons indicated below I find that both were. Crutchfield and Hees hold comparable positions and the evidence in the record relative to supervisory status is applicable to both . Respondent employs a number of persons, including Crutchfield and Hees , who are some- thing more than rank-and-file employees and something less than full-blown supervisors. At the hearing Respon- dent witnesses referred to them as leadmen. The General Counsel's witnesses all referred to them as foremen. Most of the leadmen wear distinctive shirts provided to them by the Company on which are embroidered their name and the word supervisor. The preponderance of the evidence shows that they spend a substantial amount of their time (as much as 75 to 80 percent) performing the same work as rank-and-file employees. Hees is a leadman in the mold department, Crutchfield in the boom department. Higher management of the Company consists of the president, John Larimore, his brother and manager, Robert Larimore, superintendent of production, Marion Hetrick, and assistant foreman, Gene Gray. During the preelection campaign James Cavanaugh was a part-time consultant and an agent of the Company. The leadmen operate immediately under Hetrick and Gray. Each leadman has a minimum of about four or not greater than about seven employees on his crew and for whom he is responsible. There are six leadmen . They attend supervisors' meetings. Regarding the leadmen assistant foreman Gray testified: Their responsibilities as leadmen in their departments, they supervise in a sense the men and make sure that the job is being done right. Working supervisors is what they are, working leadmen. More particularly John Larimore described their duties as being responsible for the assignment of work to the men on their crew, keeping records of production including records of man-hour output, ensuring that production schedules are met, and inspecting and ensuring that the work is properly performed. According to Gray if a problem develops in a department the leadman tell Gray or Hetrick and one of them takes over. In matters of discipline the leadman ordinarily do not discipline but calls such matters to the attention of Gray or Hetrick who then observe the employee involved. The report of the leadman to the assistant foreman or the superintendent of production is essentially informational but they rely on the recommendations of the leadman as to what appropriate action should be taken. Ralph Bentrup, a leadman, testified that their recommendations, both adverse and favorable, are effective. I so find. A prepon- derance of the evidence establishes that leadmen have the authority to initial an employee's timecard in the event the employee has missed punching in and also on occasions when an employee works overtime. They do not on their own have authority to pull timecards or to discipline employees by sending them home. In such matters they make their recommendations to higher management. Among the routine duties of the leadmen are included the training of new employees and the periodic filling out of standard forms for evaluating each rank-and-file employee under him. In doing so the leadman makes some judgment regarding the employee's competence and the quality of his work and makes recommendations based PLASTIC COMPOSITES CORP. 733 thereon. Wage increases received by employees are ordinarily based upon these evaluations. In view of the foregoing and because all of the leadmen appeared to have had essentially the same authority, I find that Crutchfield and Hees at the time of the events involved in this case had sufficient indicia of supervisory authority to make them supervisors within the meaning of the Act and to make Respondent responsible for their conduct. 1 2. The alleged unlawful conduct of Christey Hees In the latter part of January, about the time that Respondent should have received the first letter from the Union notifying it of the identity of the union organizing committee, an employee member of the organizing committee asked Hees what he thought would happen when John Larimore received the letter . Hees testified about his reaction as follows, "I was thinking in the terms of like everybody walked out and went on strike, I don't know, I didn't know that much about unions; if everybody went out or something like that, I said that John would just probably shut it off and stop it." He was not sure if he prefixed his opinion on the condition that there existed a walkout, but that it is what he was thinking. Franklin Sutton also testified credibly that in late January or early February at a time when he was exasperated because Hees had not ordered needed parts, he blurted out, "You sure can tell that the plant is very unorganized." By unorganized he meant inefficient. Hees overheard him and apparently construed his remark as meaning nonunion and Hees responded that there would never be a union in the plant because John Larimore would close the doors and fire everyone. Floyd Long, Jr., also testified credibly that in late January or early February while working in the plant he tried to pursuade Hees to attend a union meeting. According to Long, Hees replied no, that he did not want anything to do with it because if the Union ever got in the plant John Larimore would close the plant down. He further indicated, when pressed by Long as to his reasons, that in his view John Larimore was vindictive and Hees, hoping for a good recommendation at such time as he left Respondent's employ, intended to avoid his ire. Hees denied that he ever stated to any employee that John Lanmore would shut the plant down if the Union got in. However, that generalization is inconsistent with other testimony by him as well as with the credible testimony of Sutton and Long, and the fact that all three apparently were testifying about separate incidents. Accordingly, I find that during the preelection campaign Hees in effect stated to employees that if the Union got in the Company might shut the plant down. I further find that such conduct constituted violations of Section 8(axl) of the Act for which Respondent is answerable. In so finding I am mindful of the fact that Hees was a minor supervisor, and that there is no evidence that higher management directed his conduct in this regard. In the incident reported by Long, Hees responded to urging by a member of the organizing committee to attend a union meeting and when pressed gave a personal explanation for his reasons for not doing so. I find that that particular instance was not a violation of the Act. 3. The alleged unlawful conduct of Clyde Crutchfield On March 7, the day of the election, Crutchfield in talking to employee Ellis Caudill expressed his personal opinion about the prospects of a retirement plan for employees . Caudill had said that the Company was now large enough to benefit from having a union represent the employees and that he himself would like a retirement plan of some kind. Crutchfield then commented that he believed they would have a retirement plan sooner or later , with or without the Union. Considering the fact that Crutchfield was a minor supervisor expressing a personal opinion, and that his observation regarding a future retirement plan was not specifically conditioned on whether the Union prevailed or not, plus the fact that a retirement plan had long been in the planning stage, I find that the remark was not interference with, or restraint or coercion of, employees in the exercise of their Section 7 rights. In my view the remark did not rise to the level of an unfair labor practice. C. Employee Loans and Payments The complaints allege, and the answers deny, that sometime between January 29 and the election of March 7 Respondent committed unfair labor practices by loaning or paying money to employees to induce them not to support the Union. The evidence does not sustain the allegation. Respondent has a longstanding practice of giving regular employees advances on their wages . On the morning of the election, March 7, John Lanmore went to each employee in the plant individually and asked each in effect to vote against the Union by saying in substance, "Now is when I need your help, and I want you to give me a chance." Among the employees he approached in this manner was Roberto Gonzalez, a probationary employee. Gonzalez was overheard telling Larimore that he was in legal trouble and needed $100 to retain a lawyer. Larimore did not say yes or no; he just told Gonzalez to see him after the election. Sometime after the election, and after regular working hours, Gonzalez again approached John Larimore for money for a lawyer. The past practice of advances against wages apparently did not include advances to probationary employees. Larimore told Gonzalez the Company could not loan him the money. He, however, made a personal loan to Gonzalez, which was all the money he had in his wallet at the time. The sense of Gonzalez' testimony is that he obtained the loan on the evening of the day of the election. John Larimore placed the time as March 9, 2 days after the election. His version is supported by the text of a note signed by Gonzalez which is dated March 9. Absent evidence indicating that the note was postdated or executed some time after the loan, I find that John Larimore's version of the time is more accurate. In any case the loan came after the election, it was a personal loan from Lanmore to Gonzalez and not from Respondent, and 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it was neither promised nor refused prior to the election. In the circumstances I find that the loan was not conditioned upon Gonzalez' vote in the election or upon his support for or lack of support for the Union, and Lanmore did not violate Section 8(a)(1) of the Act in making the loan. The record also indicates at some point in the preelection campaign (the precise date not being established) the Company gave each employee a piece of literature in the form of a folder containing $1.64 in cash purportedly to demonstrate the increase in the dollar value of hourly benefits between 1967 and 1972. Because the amount was apparently paid to everyone, was a small amount, and payment was not conditioned on how employees voted, I find the payment did not violate Section 8(a)(l) of the Act. IV. THE ALLEGED DISCRIMINATIONS A. Thomas Abercrombie Thomas Abercrombie was hired in July 1971 and terminated February 2, 1973. He worked on bucket layup. He was on the union organizing committee, the Union having so advised the Company by letter of January 23. Production of Respondent's products requires considera- ble specialized labor. Safety and reliability in the final product are important. For these and other reasons the Company has long emphasized to employees the impor- tance of regular attendance. Rules 4 and 5 in the company handbook provides: 4. ABSENCE There will be no intentional absence from work without prior permission from your foreman. He will require the purpose of your request, before considering it. REPORT ABSENCE BY 8:00 A.M. If there is involuntary absence from work, the employ- ees must call and report to the office before 8:00 A.M., or within 1 hour after starting time, each day that he is absent, unless other arrangements are agreed upon. NO-REPORT PENALTY Anyone who is absent and does not call in for three consecutive days shall be considered as having quit without notice. 5. WARNING NOTICES A written warning notice may be given for any infraction of a work rule. An accumulation of three such notices during a 12-month period is cause for suspension or release. Enforcement of rules has not been umformly strict. However, from time to time business requirements have dictated sterner enforcement. Such a situation obtained in the weeks prior to and during the union campaign. On January 9 John Lanmore had called a meeting of the employees at which he informed them of customer rejection of their products and noted an apparent drop in employee efficiency and morale. He announced attendance rules would be applied. On January 25 he reiterated the instructions. Abercrombie was a good worker. In late 1972 he received a raise. But at various times during his employ- ment he had received written warnings because of unauthorized absences. On January 4 he received another such notice putting him on probation for 90 days and warning that further unauthorized absence during that period would result in automatic termination. Against this background he called in before 7 o'clock on the morning of Tuesday, January 30, saying that his car would not start because of a dead battery, that he was trying to get it started, and that James Burnett, who regularly rode with him, was with him. However, they neither came in nor called in again that day. On the morning of the next day, Wednesday, January 31, Abercrombie arrived at the plant in street clothes saying to Production Superintendent Hetrick that he wished to go to Alabama because his father was being hospitalized. He asked for his check, which he did not receive because no one authorized to issue them was in the office . According to Abercrombie, when he asked Hetrick if he should go to Alabama, Hetrick pointed out that he was already on probation. He did not give him permission to leave saying if he left he probably would not have a job on his return. On the next day, February 1, Abercrombie returned in mid-afternoon. He asked Manager Robert Larimore for his check and also if he still had a job. The manager was unable to give him a definite answer . Abercrombie also sought out President John Larimore that day but he was too busy to discuss matters and Abercrombie got no authoritative answer . But he did get his check and then left for Alabama. On his return to the area several days later he received written notice from the Company dated February 6 of his termination effective February 2 because of absenteeism and breaking the conditions of probation. At the hearing John Larimore seemed unsure whether Abercrombie quit or was fired . Respondent's attorney took the position that he quit. Be that as it may, on the facts noted above, I find that he was fired. It is clear that Respondent had sufficient cause to discharge him for failing to call in or report for work on January 30 after indicating he would be in, and for failing to report for work on January 31 and February 1 and 2. Although it is true that on January 31 and February 1 he sought a leave of absence, it was never granted to him. On the contrary, Hetrick indicated that if he left, he did so at his peril. Respondent was within its legal rights in withholding the leave of absence. Because sufficient cause existed for the discharge, and absent any evidence that those reasons were a sham, there is insufficient evidence upon which to base a finding that he was fired because of his union or concerted activities. Accordingly, I find that Abercrombie's discharge did not violate Section 8(a)(3) and (1) of the Act. B. James Burnett James Burnett was hired in March 1971. He was discharged February 12, 1973. At the time of discharge he was employed in the small parts finishing department. The Company had been advised that he was a member of the initial union organizing committee on January 19. PLASTIC COMPOSITES CORP. 735 Burnett's work was satisfactory and his attendance record was characterized by John Larimore as "not too bad." According to Larimore the Company's problem with Burnett was that on those occasions when he did not come in he failed to call in and let them know he was not coming. During the period of his employment he received a number of written warnings because of this including warnings for absence without calling in on 2 days in August 1972, another in September 1972, and a third in December of that year. Burnett was with Abercrombie on January 30 when Abercrombie called in before 7 in the morning to say they had car trouble but would be in later . Neither showed up that day nor called in again. As a result on February 2 Burnett was given a written warning which read in part as follows: Absence on 1/30/73 not coming in as agreed. Due to present conditions we are only putting you on proba- tion for 60 days, instead of terminating you. If you break any work rule or are absent without sickness (sickness must be verified in writing from the doctor stating cause and time) you will be automatically dismissed. On Monday, February 5 , the next working day after the above warning, he was again absent . According to Burnett he had received an anonymous threatening telephone call the night before which caused him to disconnect the telephone. About 8: 15 in the morning he called the Company from a public telephone to explain the situation. He said he would be in to work provided he could get a relative to stay with his family. It turned out that he was unable to make that arrangement and stayed home with his family himself. But he did not again call that day. When he returned to work the next day Robert Larimore again warned him saying he wanted to talk to John about it. After several days delay Burnett was called into John Larimore's office on February 12 and told by John that they were going to have to let him go . Larimore suggested that he resign with notice, thereby allowing him to receive additional pay and a good recommendation for future employment. He declined to resign. Burnett's employment with Respondent had apparently been arranged through a rehabilitation program. The Company explains its efforts to get him to resign on the ground that management had kindly feelings toward him and did not want to see him return to the "fast life." John Lanmore's testimony in this regard is unrefuted and I find is an accurate explanation. The Company had grounds for terminating Burnett. The delay of a week in firing him raises some question but a possible explanation for this was the feeling of Manager Robert Larimore that he needed to discuss Burnett with John Lanmore and the fact that they were involved in some business travel about that time. Even though these explanations are not entirely satisfying, the lingering doubt together with Company knowledge of Burnett's union activities are insufficient to destroy the validity of the asserted cause for discharge . Admittedly the Company was campaigning against the Union. Yet there is no showing in this record of virulent union animous . Nor are the violations of Section 8(axl) of the Act found earlier herein such as to throw serious doubt on discharge where a valid cause exists . Accordingly I find that there is insufficient evidence in this record to establish that Burnett was discharged because of his union or concerted activities rather than cause. The Company, therefore, did not violate Section 8(a)(3) and ( 1) of the Act in discharging him. C. Floyd Long, Jr. Floyd Long, Jr., was hired November 15, 1972, as a probationary employee. He was discharged February 12, 1973, shortly before the end of his probationary period. He was a good worker, had been favorably evaluated by his supervisor, and had received a wage increase during his probationary period. Long was the principal union activist in the plant. It was he who initially contacted the Union to arrange for the first group of employees to meet with union representatives. Of the employees who solicited employee signatures on union authorization cards, he was the most successful , having obtained II signatures. When he applied for a job with Respondent he filled out an employment application which included information about his prior employment history . At that time he was given an extensive 2-1/2 hour interview by Manager Robert Larimore which included, inter alia, discussion of his previous earnings . During the discussion the manager made notes on the back of the application. Appended to the application is a form to assist in checking references. No such check of references was made when Long was hired, although that was standard practice. It is not clear why it was not done at that time. Long's 90-day probationary period would have ended about February 15. Just a few days before that, in the midst of the preelection campaign, Respondent began to check Long's prior employment . Respondent's president, John Lanmore, apparently made part of the reference check. Part was done by an office secretary, Ruth Ann Carpenter. About February 8 Mrs . Carpenter telephoned Delong Kennels, the last prior employment of Long listed on his application where he had listed himself as self-employed. In talking on the telephone with his parents she received information that the kennels had been defunct for 3 years; that his prior employment with Lau Industries was also about 3 years earlier, apparently about the time he was operating the kennel ; and that before that he had worked in filling stations, being unable to obtain factory work because of a heart condition . Mrs. Carpenter could get no definite answer to the question where he had worked since Lau Industries. She was told that he had a family and needed the job, although on his application he had indicated he was divorced and had left the question of the number of dependents blank. Mrs. Carpenter made notes at the time she made the reference check. She testified in a credible manner . There is no reason to question her honesty in reporting what she understood she was told. It was that information upon which Respondent in part based its discharge of Long. Long's father (Floyd Long, Sr.), who was one of the persons Mrs. Carpenter talked to, did not testify. His mother (Mrs. Floyd Long, Sr.), was a witness. In some 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD regards she contradicted the testimony of Mrs. Carpenter in that she testified neither she nor her husband stated that their son could not get into factory work because of a physical problem. But at that point in her testimony she already revealed a somewhat poor memory. In the circumstances, I credit Mrs. Carpenter as to the informa- tion she reported to Company higher -ups. Even assuming that the substance of what she reported was erroneous, the fact of such error does not eliminate that information to explain the company motive. As a child of 11 or 12 Long in fact had experienced a heart problem and had been examined in a clinic for it, but he had experienced no handicap since that time and did not himself consider that he had a heart condition. At the time of the hearing, he was 29 years of age. A further check of his employment with Lau Industries indicated that his attendance record was poor and that there was some question regarding the validity of some doctor's excuses he had provided to justify absences from work. On February 12 Long was called to the plant office and fired. John Larimore told him they heard he had a bad heart. Although Long denied it, John said his condition was a safety hazard to himself and others , the Company's insurance would not cover him, and they would have to let him go. Not until the end of the interview did John Larimore mention deficiencies in his application and then refused to specify what they were. In a word, management rejected out of hand Long's assertion that his heart was not a problem and gave him no opportunity to explain questionable information on his application. John Larimore confirmed Long's termination in a letter to him that same day. The letter stated generally "you have unsuccessfully completed your probationary period." The specified reasons for this decision were (1) tardiness, (2) absenteeism, (3) questionable medical slips during previous employment, and finally, "falsification and voids" in his application for employment with Respondent including (a) what he was doing between January 1970 and August 1972 and (b) ". . . most disappointing of all, you stated that you were in good health...." This letter reveals some shifting in the rationale for the termination . Testimony regarding the termination interview does not indicate that the first three items in the letter were even mentioned then. In explaining his reasons for the termination, John Lanmore testified that Long's tardiness was a minor point, that the major reason was the deficiencies in his applica- tion for employment, the failure to supply certain informa- tion and apparent errors in other responses. When asked why he terminated Long he testified, "Basically for-he was a starting probationary employee, and basically one of the points was gross falsification of his application." While that appears to be an over drawn conclusion, the reference check raised a number of questions about Long. For example, Lau Industries (a prior employer) reported he had a poor attendance record there and supplied forged doctors excuses to justify absences. And his own parents had raised a question about his health, and gave the impression there were gaps in his employment history. Any or all of the reasons raised by Respondent, or for that matter no reason at all, would have been adequate grounds to terminate a probationary employee such as Long. But the existence of adequate grounds for discharge is really not the issue here. The crucial question is Respondent's motivation in discharging Long . Although the matter is not free from doubt, after assessing all the factors I find that Long's union activity was the principal reason he was fired . I reach this result because the reasons offered by Respondent do not appear to me to be the real reasons. Long's work record with Respondent was good. His attendance record was improving. Whatever latent defi- ciencies lay in his past or his application, they had not prevented him from being an adequate employee for almost 3 months. Although Respondent needed competent employees and had let the reference check go undone until the end of the probationary period with no adverse consequences, John Larimore launched his back tracking on the leading unionist in the plant during the height of the preelection campaign in which the Company overtly opposed the Union. The sifting through the past turned up some reason not to keep Long which, in my view, Respondent would not have asserted had the Union not been in the picture. The inadequacies in Long's application, which were in part apparent when he was first interviewed , were let go until union activity started. If Long had been asked, he might have been able to explain to Respondent's satisfaction many of the questions raised by the reference checks . But Respondent never gave him the opportunity. Even though he was owed no duty in this regard, the failure to check back with him suggests Respondent really did not want to know if he could explain. John Larimore's asserted serious concern about employ- ee forthrightness would be more understandable if he did not otherwise demonstrate tolerance of human frailities unrelated to the job. Thus the record suggests Respon- dent's participation in a program of rehabilitation through employment. Finally, Respondent's asserted reasons involve some shifting from primary emphasis on the heart condition at the discharge interview. John Larimore's letter confirming the termination set forth tardiness as the first reason and absenteeism as the second. In the context of the letter these terms seem to relate to attendance at Respondent's plant and the reasons most relied on in the letter. But at the hearing emphasis had slipped to lack of forthrightness revealed by deficiencies in the employment application and by the reference checks. As a result, Respondent's claimed motives are suspect. When balanced against the coinci- dence of the discharge of the leading union adherent in the middle of a preelection campaign by an employer openly opposing the Union, the weight of the evidence warrants the finding that a desire to unload this union activist was the chief reason Long was fired. Accordingly, I find Respondent violated Section 8(aX3) and (1) in terminating him. D. Franklin Sutton Franklin Sutton was hired July 17, 1972, and terminated February 23, 1973. He worked as a gel coater for molds, a PLASTIC COMPOSITES CORP. 737 critical task because it is a predicate for the work of other employees . He was a good worker and received no complaints about his work. He was among the more active union supporters in the plant, having obtained the signed union authorization cards of five employees, including his own on January 17. With Long, he was on the initial union organizing committee about which the Company received notice on January 19. In the early part of his career with the Company he was a valued employee . In August 1972, a month after being hired, he was favorably evaluated and given a raise. In October of that year he was again favorably evaluated and given another raise, although it was noted his attendance was down due to transportation difficulties. And he continued to have attendance problems . On October 20 he was warned for tardiness. On December 19 he was further warned for tardiness and put on probation for 60 days. He was absent on December 26 and received a warning for this the next day. On February 5 he did not come in until just afternoon, but he had called in at 7 in the morning to report that he had no ride, and apparently was not reprimanded for poor attendance on that occasion. Such was Sutton's situation when he learned of the discharge of Burnett and Long on February 12. The following day, February 13, he did not report for work. Instead in the later part of the morning he called on the Larimores in the office in street clothes to ask for an explanation of those firings and what the implications were relative to his own job security. John Larimore reassured him on that score. At the end of the conversation he asked Sutton if he was then going to go to work. According to Sutton, whom I credit as a particularly forthright witness, he replied no, that if he decided to work he would be in the next day and if he decided not to work he would not be in. The testimony of John and Robert Lanmore as to the latter part of their conversation conflicts with Sutton's version which I credit. They recalled him saying that he quit and the only question left open was whether he was quitting with or without notice . But the contradiction is academic because he reported for work the next morning and both he and management treated the situation as if he had not quit. When he left the office about noon on February 13 it was his unspoken intent to leave and not return. But that evening union representative George Gould pursuaded him not to quit. During work on February 14, according to the testimony of his Supervisor Hees, whom I credit in this regard, he asked Hees if he could get him fired. Hees said no. He asked Sutton if he had a betterjob lined up. Sutton replied yes. On February 16 Sutton was given a delayed "Final" written warning notice for his "lateness" and "absence" on February 13. The notice carried the following remarks: It would appear from your actions that you are intentionally violating company rules for the possible purpose of being terminated. To date we have been very lenient with you. But we wish to advise you that one more serious violation within 60 days, will leave us no choice but immediate termination. On the morning of February 22 Sutton overslept and was late for work . The next day he was fired for breaking the terms of his probation by being late February 22 with no acceptable cause . John Larimore testified that he consid- ered Sutton's being an hour late a serious violation because as a gel coater of molds a delay in his work delayed other employees whose work depended on his. On these facts I find there is insufficient evidence to find that Respondent discharged Sutton because of his union or concerted activities. Whatever suspicions one might have because of the timing of the discharge, management had clear grounds, related to his work, for discharging him. There is no evidence in the record that indicates that Respondent neglected that valid ground in favor of one forbidden by the Act. Accordingly, the discharge of Sutton did not violate Section 8(a)(3) and (1) of the Act. E. Mark George Mark George began work as a probationary employee on February 22. Prior to hiring him Respondent made a reference check of his previous employer which indicated that he was "possibly arrogant," thus raising some question as to his attitude as an employee. He was , nevertheless, hired. On his first day he was directed to observe the work done in his department. He did not actually perform work himself. In the afternoon of that day he attended a meeting of the employees with company management at which various matters were discussed . Management asked if there were any questions and in the discussion which followed George expressed the view that employees over a 12-year period had not received much advancement in their pay. Other employees present expressed a different view. Another topic raised was plant safety, particularly the blocking of aisles and the placement of fire extinguishers. George expressed the view that the accumulation of waste on floor, particularly in areas where the catalyst, resin, and acetone were stored, constituted a fire hazard. John Larimore agreed, stating that they would have to clean that up. In his brief the General Counsel contends the discussion at this meeting initiated by management were protected, describing them as both concerted activities and the pressing of grievances . I do not think they rise to the level of either. There is no evidence to indicate that George was speaking on behalf of other employees . He merely voiced his individual, personal views, not the views of any group. They were not a manifestation even of embryonic concerted action . Accordingly, even if George was later discharged because of his comments at that meeting, such did not constitute an unfair labor practice under the Act. On the second day of his employment George performed actual work under the instruction of leadman Ralph Bentrup. Respondent's assistant foreman, Gene Gray, had left a boom in the aisle near where George was working. George went out of his way to complain to Gray about the boom, telling him he could not store it in the aisle. Gray was offended by George's presumptuousness in question- ing the conduct of a supervisor. Gray also overheard George comment to Bentrup that Bentrup was too 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD particular in his work and would not have been able to work for George's former employer. On that same day in the course of normal conversation with other employees George was asked where he had worked before and what he had been paid. He gave them a figure higher than the rates in Respondent's plant. According to Bentrup this adversely affected the morale of the listeners. Both Bentrup and Gray reported to Hetnck and Robert Larimore on their observation of George. Bentrup opined that George was bad for the morale of other men in the department, his judgment of the man admittedly being influenced by the knowledge that George had criticized him. Gray testified, "I didn't feel that he would be a good employee there because of the type of materials and things that we did, and the way we did them, it had to be right, and with this type of attitude he was dangerous." Gray admitted he was concerned by the fact that George had criticized him the day before. Late in the afternoon of February 23 production superintendent, Marion Hetnck, discharged George with the words, "Mark, we're going to have to let you go." When George pressed him for a reason, Hetrick stated, "Well, I think you have a poor attitude." And when pressed further Hetrick stated that the reason was because George had told other employees what his pay was at his prior place of employment. The evidence indicates, and I find, that this was a reason he was fired. The General Counsel contends that his conversation with other employees on the subject of his prior wages was protected concerted activity and therefore his discharge violated Section 8(a)(1) of the Act. The General Counsel further contends that because a discharge for that reason during the course of a union organizing campaign would affect other employees, the discharge likewise violated Section 8(a)(3) of the Act. I cannot agree with the premise that George and the other employees with whom he briefly and casually conversed were engaged in concerted activity. There is no question but that they were engaged in conversation and that George was fired because of the effect, or possible effect, of the subject matter upon the other employees. But there is no evidence that as a group or individually any of them did anything or were about to do anything about that subject. Accordingly, I find that the record fails to establish that concerted activity on the part of employees was involved in this incident. Therefore George's discharge because of what he said to the other employees did not violate the Act. Cf. Buddies Supermarkets, Inc., 197 NLRB 407, enforcement denied 481 F.2d 714 (C.A. 5, 1973). V. CHALLENGED BALLOTS At the Board election on March 7 the Union challenged the ballot cast by Claude Amburgey, the Company challenged the ballots cast by James Burnett, Floyd Long, Jr., and Franklin Sutton, and the Board's agent challenged the ballots cast by Thomas Abercrombie and another whose ballot is not now at issue. The Board has ordered that the eligibility of these voters be resolved. A. Claude Amburgey Amburgey's eligibility to vote depends on whether at the time of the election and immediately prior thereto he was a supervisor. At one time Amburgey admittedly was a supervisor within the meaning of the Act. He then carried the title of assistant foreman and in fact exercised those functions. In recent years, however, he has suffered a series of disabling heart attacks, the latest in February 1972 which have necessitated his progressive retreat from heavy responsibili- ty and work. As on old and valued employee -he retains his title as assistant foreman , is paid a salary rather than an hourly wage, and attends management meetings of supervisors. He does not now possess or exercise superviso- ry authority. There are no employees for whom he is responsible. His duties now include inspecting and running tests to maintain quality control, and training of new employees. I find that during the first 3 months of 1973 including the period from the filing of the petition for an election through the date of the election, Amburgey was not a supervisor within the meaning of the Act. The Company contends he was a leadman . But he has not been supervising to the extent the other leadmen have. Not being a supervisor at the time , Amburgey was eligible to vote in the election and his challenged ballot should be opened and counted. B. James Burnett James Burnett was discharged on February 12. At the time of the election on March 7 he was not an employee and, therefore, not eligible to vote unless his termination was in violation of the Act. As found earlier herein, he was discharged for cause and not in violation of the Act. Accordingly, he was not eligible to vote in the March 7 election. His ballot should not be opened and counted. C. Floyd Long, Jr. Floyd Long, Jr., was also discharged on February 12. As found earlier herein , he was discharged in violation of Section 8(a)(3) and ( 1) of the Act. But for his unlawful discharge it must be presumed he would have continued to be an employee at the time of the election on March 7. As a rank-and-file production worker he would have been entitled to vote. Accordingly, the challenged ballot cast by him should be opened and counted. D. Franklin Sutton Franklin Sutton was discharged on February 23. As found above, he was discharged for cause and not in violation of the Act. As in the case of Burnett, he was not on employee eligible to vote in the March 7 election and his ballot should not be opened and counted. E. Thomas Abercrombie Thomas Abercrombie was discharged on February 2. As in the case of Burnett and Sutton, and as found above, he' was discharged for cause and not in violation of the Act. PLASTIC COMPOSITES CORP. 739 He was not eligible, therefore, to vote in the March 7 election and his ballot should not be opened and counted. VI. OBJECTIONS TO CONDUCT AFFECTING RESULTS OF ELECTION A. Objection One The petitioning Union's first objection alleges in relevant part that between February 16 and March 7 Employer questioned employees about union activities, and promised benefits to whose who opposed, and threatened a loss of benefits to those who favored the Union. The same conduct was alleged in the complaint herein as violative of Section 8(a)(1) of the Act. As found hereinabove Respon- dent did commit unfair labor practices in violation of Section 8(a)(1) by soliciting the grievances of the employ- ees, by promising them better conditions generally, and specifically a grievance procedure to handle safety and other problems which they might raise, by promising improvement in regard to paid holidays, and by threats of plant closure. Employee rights were infringed by such conduct which was incompatible with the running of a fair election. I therefore recommend that the objections be sustained. B Objection Two and Other conduct The second union objection asserted that on the day of the election the Employer (a) interrogated each employee at his work station, and (b) distributed literature raising new issues to which the Union had insufficient time to respond. The record reveals no evidence of such interroga- tion and the Employer is not obligated to afford the Union an opportunity to answer new issues raised by the campaign literature. I recommend that the objections on these grounds be overruled. While the Regional Director was investigating the Union's objections other allegedly objectionable matters came to his attention. In this connection, it was asserted that the Employer gave the impression of surveillance of employee union and concert- ed activity. The record, however, reveals no substantial evidence of such conduct. Accordingly, I recommend that an objection on this ground not be sustained. It was also asserted that during the campaign the Employer paid each voter $1.64. The record indicates some payment of undisclosed amount was made sometime during the campaign, although not precisely when. In its brief Respondent admits that a folder containing $1.64 was given each employee in the unit in order to demonstrate, as set forth in the literature included, that the dollar value of employee hourly benefits had increased from 1967 to 1972. Considering that the sum was small, was given to all employees, and payment was not conditioned on how the employees voted in the election, such payment (as found earlier herein) did not amount to an unfair labor practice. I find further that such conduct would not warrant setting aside the election and I recommend that an objection on that ground not be sustained. VII. THE ALLEGED REFUSAL TO BARGAIN There is no dispute that Respondent has refused to recognize or bargain with the Union. On January 24 and February 6 the Union requested recognition and bargain- ing. On the latter date it offered to prove its majority status by submitting the authorization cards to an impartial third party. Respondent merely referred these communications to its lawyer. On January 29 the Union filed its petition for an election. On February 16 Respondent and the Union executed a stipulation for a Board election. The payroll period cut-off date for voter eligibility was February 10. The election was held March 7. On January 24 when the Union first sought recognition it held 28 signed authorization cards out of 45 eligible employees in the bargaining unit ; when the Union made its second demand for recognition on February 6, there were 42 eligible employees in the unit of which the Union held 26 authorization cards; on the eligibility cut-off date, February 10, the Union held 26 authorization cards out of 41 employees in the unit; by February 16 when the election stipulation was signed it held 23 authorization cards out of 37 employees in the unit; and on the day of the election March 7, they held 22 authorization cards out of 42 eligible employees in the unit. The authorization cards alone indicate that the Union held a majority at all material times. However, when the election was held on March 7, and excluding the challenged ballots, the Union failed to receive a majority of the other votes cast. The General Counsel argues that under the standards set forth in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), the Company should be required to bargain with the Union as the majority representative as demonstrated by the authorization cards. In considering the matter I note that the violations of Section 8(a)(1) found earlier are not of the most serious type. The threats of plant closure were made by a minor supervisor, there being no evidence of directions to do so from top management. The various promises of improvements which followed the Cavanaugh survey is not far outside the border of permissible Section 8(c) activity. But in addition to those unfair labor practices I must consider the discriminatory discharge of Long, the leading union proponent in the plant. This violation of Section 8(aX3) goes to the heart of the Act and together with the other unfair labor practices found it was calculated to put a permanent chill on unionism which would not unlikely be erased by a cease-and-desist order. In a small plant such as Respondent's it is likely that an atmosphere in which a fair election could be held will be achieved in the reasonably near future. In the circum- stances I find that the authorization cards are a better expression of employee sentiment than an election would be. Accordingly I find that Respondent should be required to recognize and bargain with the Union as the representa- tive of its production and maintenance employees. VIII. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in sections III, IV and VII, above, occurring in connection with the opera- tions described in the section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce between the several States and tend to lead to labor disputes burdening and obstructing commerce and 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the free flow of commerce . They are unfair labor practices within the meaning of Sections 8(a)(1), (3), and (5) and 2(6) and (7) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By soliciting grievances from its employees, promis- ing better conditions without a union, and threatening plant closure if the Union came in, all during a preelection campaign, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and committed, and is committing, unfair labor practices within the meaning of Section 8(axl) of the Act. 4. By discharging Floyd Long, Jr., because of his union and concerted activities, Respondent discriminated in regard to hire or tenure of employment thereby discourag- ing membership in a labor organization, and thereby violated, and is violating, Section 8(a)(3) and (1) of the Act. 5. All production and maintenance employees, includ- ing leadmen,3 of the Employer at its Fort Wayne, Indiana, establishment but excluding all office clerical employees, all guards and all professional employees and supervisors as defined in the Act constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 6. At all times since January 24, 1973, the Union has been the exclusive bargaining representative of the employ- ees in the aforesaid appropriate unit within the meaning of Section 9(e) of the Act. 7. By refusing to recognize and bargain collectively with the Union as exclusive representative of employees in the aforesaid appropriate unit, Respondent since January 24, 1973, has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8. Such unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in unfair labor practices, I recommend that it cease and desist therefrom, and take certain affirmative action to effectuate the policies of the Act. I recommend that Respondent be ordered to offer Floyd Long, Jr., immediate and full reinstatement to his former job or, if that job is not available, to a substantially equivalent position, without prejudice to his seniority and other benefits and privileges, and that he be made whole for any loss of earnings he may have suffered by reason of his discharge by paying to him a sum of money equal to that which he would have earned in wages from the date he was terminated to the date of reinstatement, less his net earnings during such period, backpay to be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent calculated according to the formula set forth in Isis Plumbing & Heating Co., 138 NLRB 716. I also recommend that Respondent preserve and make available to Board agents, upon request, all pertinent records and data necessary in analyzing and determining whatever backpay may be due. Inasmuch as Respondent's violations of Section 8(axl) and (3) of the Act have undermined the Union's majority and caused an election to be a less reliable guide to employee free choice than the signed authorization cards by which they designated the Union to represent them, and because Respondent in failing to recognize and bargaining with the Union while engaging in such unfair labor practices violated Section 8(a)(5) and (1) of the Act, I recommend that as an appropriate remedy Respondent be required to recognize and to bargain with the Union as well as to remedy the other unfair labor practices found. See Federal Prescription Service Inc., and Drivex Co., 203 NLRB No. 145. I further recommend that Respondent post appropriate notices. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER4 Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees or otherwise discriminating in any manner with respect to their tenure of employment, or any term or condition of employment, because they engaged in concerted activity or activity on behalf of International Union of Electrical, Radio & Machine Workers, AFL-CIO-CLC, or any other labor organization. (b) Failing and refusing to bargain collectively in good faith with International Union of Electrical, Radio & Machine Workers, AFL-CIO-CLC, as the exclusive bar- gaining representative of all its employees constituting the unit herein found to be appropriate for the purpose of collective bargaining. (c) Soliciting grievances from employees in a manner violative of Section 8(a)(1) of the Act. (d) Expressly or by implication, promising employees benefits or improvements in working conditions as an inducement to refrain from supporting the above-named Union or any other labor organization. (e) Threatening employees that the plant will close if a union is selected to represent them. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self- 3 It is not clear on the record that all leadmen are supervisors. At this conclusions, and recommended Order herein shall, as provided in Sec. juncture I am not prepared to find that they are all supervisors or to alter 102.48 of the Rules and Regulations, be adopted by the Board and become the description of the unit its findings, conclusions and order, and all objections thereto shall be 4 In the event no exceptions are filed as provided by Sec. 102 46 of the deemed waived for all purposes. Rules and Regulations of the National Labor Relations Board, the findings, PLASTIC COMPOSITES CORP. organization, to form labor organizations , to join or assist the International Union of Electrical, Radio & Machine Workers, AFL-CIO-CLC, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(aX3) of the Act as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Floyd Long, Jr., immediate and full reinstatement to his former job, or if such job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges and make him whole for loss of earnings in the manner set forth in the section herein entitled "The Remedy." (b) Preserve and make available to the Board or any of its agents, upon request, all records necessary to analyze the amount of backpay due Long under the terms hereof. (c) Upon request, recognize and bargain with the above- named Union as the exclusive representative of all the employees in the bargaining unit described above and, if an understanding is reached, upon request embody such understanding in a signed agreement. (d) Post at its plant in Fort Wayne , Indiana, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by Respondent's authorized representative, shall be posted by the Respon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 25, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the election held pursuant to Case 25-RC-5257 be set aside and the petition for election in said case be dismissed . It is further recommended that the allegations of the complaint not hereinabove found to be supported by the evidence be and they hereby are dismissed. b 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." 741 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. The Act gives all employees these rights: To engage in self organization; To form, join or help unions; To bargain collectively through representa- tives of their own choosing; To act together for collective bargaining or other mutual aid or protection; and To refrain from any or all these things. WE WILL NOT do anything that interferes with, restrains or coerces employees with respect to these rights. WE WILL NOT discriminate against our employees by discharging them in order to discourage membership in International Union of Electrical, Radio & Machine Workers, AFL-CIO-CLC, or any other union. WE WILL NOT unlawfully solicit grievances from our employees. WE WILL NOT directly or by implication, promise employees benefits if they reject the Union. WE WILL NOT threaten employees that the plant will close if a union is selected to represent them. WE WILL reinstate Floyd Long, Jr., with backpay. WE WILL bargain collectively with International Union of Electrical , Radio & Machine Workers, AFL-CIO-CLC, as the exclusive collective-bargaining representative of our employees in the unit of All production and maintenance employees, including leadmen of Plastic Composites Corp. at its Fort Wayne, Indiana, establishment; but excluding all office clerical employees, all guards and all professional employees and supervisors as defined in the National Labor Relations Act, as amended. Dated By PLASTIC COMPOSITES CORP. (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 concerning this notice or compliance with its provisions may be directed to the Board's Office, ISTA Center, 6th Floor, 150 W. Market Street, Indianapolis, Indiana 46204, Telephone 317-633-7360.