Hanover House Industries, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hanover House Industries, Inc. and Teamsters Local Union No. 430 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Cases 4-CA-8039, 4-CA-8241, and 4-RC-12199 November 2, 1977 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On May 6, 1977, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, General Counsel filed an answering brief, as well as cross-exceptions and a brief in support thereof, and Respondent filed a brief in answer to the General Counsel's cross-exceptions. 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 conclusions of the Administrative Law Judge, to modify the remedy so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977),3 and to adopt his recommended Order, as modified below. 4 The General Counsel has excepted to the failure of the Administrative Law Judge to find that three statements made by Respondent violated Section 8(a)(l) of the Act. During the critical preelection period, Respondent's president and chief executive, Jack Rosenfeld, met with employees in each depart- ment to discuss the Union. He also held an all- employee meeting slightly more than 24 hours before the election in order to express his views. At these meetings Rosenfeld told the employees that Respon- dent's parent company, Horn and Hardart, had once owned a commissary in New York City, the employees of which were represented by the Team- sters. According to Rosenfeld, the Teamsters de- mands were so unreasonable that Horn and Hardart was forced to close the commissary, thus putting 1200 employees out of work. During this same I Respondent has requested oral argument. This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. 2 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Incr., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 233 NLRB No. 36 meeting, Rosenfeld also stated that Respondent had a short lease and was free to move once it expired. And, in explaining to unit employees why the clericals had received a raise and they had not, he stated that his hands were tied and that the employees "should trust him and give the company time to prove itself, and vote no for the union." These latter two statements are, respectively, a threat, and a promise of benefits, and we have adopted the Administrative Law Judge's finding that they violated Section 8(a)(1) of the Act. The Administrative Law Judge found, however, that the statement concerning the closing of the commissary constituted "fair argumentation" which is protected by Section 8(c) of the Act. We disagree. In our view, the commissary example is a coercive overstatement designed to make employees fearful of the consequences of unionization. It was uttered for no reason other than to imply that if the Teamsters were to become the employees' bargaining represen- tative the same consequence would ensue at Hanover House, i.e., the Teamsters would make unreasonable demands which would eventually require Respon- dent to close and result in unit employees losing their jobs. This case is analogous to The Singer Company, Friden Division. 5 In Singer we found that respondent violated Section 8(a)(l) when it stated, in the context of other impermissible remarks, that the "IAM would have to assume responsibility in 'large part' for having made it impossible for the Company to continue doing business in . . . San Leandro." 6 Here, Respondent made an unconditional statement that the commissary had been closed because of the Teamsters "unreasonable demands." As the Supreme Court said in Sinclair Company v. N.L.R.B.,7 state- ments of this nature are outside the protection of Section 8(c) because: [A]t the least [the respondent] can avoid coercive speech simply by avoiding conscious overstate- ments he has reason to believe will mislead his employees. [395 U.S. at 620.] Accordingly, we find that the statement about the closing of the commissary violated Section 8(a)(l). Secondly, we find that Supervisor Beegle's interro- gation in his office of employee Doris Smith, whom he knew to be a union adherent, also violated Section I See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 4 Contrary to the Administrative Law Judge, we overrule Objection 2 in Case 4-RC-12199, which alleged unlawful interrogation, since the Adminis- trative Law Judge made no finding of an unlawful interrogation, and the record supports none. 5 199 NLRB 1195 (1972). 6 199 NLRB at 1212. Sub nom. N. LR.B. v. Gissel Packing Co., Inc.. 395 U.S. 575 (196%9). 164 HANOVER HOUSE INDUSTRIES 8(a)(1). Beegle called Smith into his office and asked her what she wanted if the Union came in. When she replied that she wanted improved benefits, including a pension plan, he asked her whether she would rather have a larger Christmas bonus than a pension plan. This conversation-initiated by Beegle-con- tained elements of both coercion and a promise of benefits which put it outside the protection of Section 8(c). First, Beegle summoned Smith to his office to discuss her reasons for supporting the Union. No other discussions of the Union cited by the Adminis- trative Law Judge took place in a supervisor's office. Taking the unprecedented action of summoning an employee to his office-the locus of managerial authority-reasonably and foreseeably could be expected to intimidate the employee, and, since she was a known union supporter, it could be expected to similarly intimidate other employees in the exercise of their Section 7 rights. Moreover, since at that time the employees had no pension plan, the second question implies that the employees would receive one of two benefits from the employer-a pension plan or a larger Christmas bonus-without the necessity of a union. As this constitutes a promise of a benefit, we find that this remark, as well as the previous interrogation, violated Section 8(a)(1).8 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 the Respon- dent, Hanover House Industries, Inc., Hanover, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraphs l(a) and (b) and reletter the subsequent paragraphs accordingly: "(a) Coercing employees by statements implying that the Union would make unreasonable demands which would force the Respondent to close the plant. "(b) Interrogating employees as to their reasons for the support of the Union." 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the election held on September 8, 1976, in Case 4-RC-12199 be, and it hereby is, set aside, and that Case 4-RC-12199 be, and it hereby is, remanded to the Regional Director for Region 4 for the purpose of conducting a second election. I Starkville, Inc.; Hillsdale Manufacturing Corporation, Lambert Mills, Inc., Wholly Owned Subsidiaries of Garan, Inc., 219 N LRB 595, 596, 600-601 (1975). [Direction of Second Election and Excelsior foot- note omitted from publication.] APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties were represented and were afforded the opportunity to present evidence in support of their respective positions, it has been found that we have violated the National Labor Relations Act, as amended, in certain respects and we have been ordered to post this notice and to carry out its terms. The National Labor Relations Act gives you, as employees, certain rights, including the rights: To engage in self-organization To form, join, or help a union To bargain collectively through a repre- sentative of your own 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 restrains or coerces you with respect to these rights. WE WILL NOT threaten to find pretextual reasons for terminating employees who engage in union activity, threaten plant closure or reduced work if employees designate the Union as their representative, interrogate employees as to their union beliefs, promise or grant benefits to discourage employees from continuing to support the Union, or in any other manner interfere with, restrain, or coerce our employees' rights to join or support Teamsters Local Union No. 430 a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT withhold wage increases, dis- charge, or in any other manner discriminate against employees because they join or support Teamsters Local Union No. 430 a/w Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or any other labor Organization. WE WILL offer Daniel Pittinger immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, and WE WILL make whole Pittinger and employees in the appropriate unit who were denied wage increases in August 1976 for any loss 165 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of earnings because of the discrimination prac- ticed against them, with interest. HANOVER HOUSE INDUSTRIES, INC. DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge: Upon an original unfair labor practice charge filed on June 11, 1976, a consolidated amended complaint was issued on Novem- ber 11, 1976, which as amended, alleges that Respondent independently violated Section 8(a)(1) of the National Labor Relations Act, as amended, by coercively interrogat- ing employees concerning their union activity, by promis- ing benefits to persuade employees from engaging in union activity, by threatening discharge and shutdown if employ- ees persisted in union activity, by threatening to withhold benefits because of union activity, and by granting a wage increase, a Christmas dinner party, and a Thanksgiving turkey to employees to influence them against supporting the Union. The complaint further alleges that Respondent violated Section 8(a)(3) and (1) of the Act by discharging and refusing to reinstate Daniel Pittinger because of his union activity, and by withholding pay and benefit increases to eligible voters in a scheduled Board election, while granting such increases to Respondent's other employees. In its duly filed answer, Respondent denied that any unfair labor practices were committed. Pursuant to a representation petition filed in Case 4-RC- 12199 on June 14, 1976, and a Decision and Direction of Election issued by the Regional Director for Region 4 on July 30, 1976, an election by secret ballot was conducted on September 8, 1976, in the appropriate unit. The tally of ballots, furnished to the parties, showed that of approxi- mately 104 eligible voters, 43 cast ballots for Petitioner, 56 against, with 102 challenged ballots. The challenged ballots were determinative of the results of the election. The Petitioner filed and served timely objections to conduct affecting the results of the election, based essentially on matters alleged in the heretofore described consolidated complaint. On October 22, 1976, the Regional Director for Region 4 issued a "Report on Challenged Ballots and Objections and Notice of Hearing," concluding that the challenges and objections, in their entirety, raised substan- tial and material issues of fact best resolved by a hearing. Through the consolidated complaint, referred to above, the aforesaid Regional Director ordered that the postelection issues in Case 4-RC-12199 be consolidated with Cases 4- CA-8039 and 4-CA-8241 for hearing and decision by an Administrative Law Judge. Pursuant thereto, a consolidated hearing was conducted before me in York, Pennsylvania, on December 6, 7, 8, 9, and 10, 1976. After the close of the hearing, briefs were filed by the General Counsel, Respondent-Employer, and the Charging Party-Petitioner. Upon the entire record in this proceeding, including my observation of the witnesses while testifying, and consider- ation of the posthearing briefs, I find as follows: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Respondent-Employer is a Pennsylvania corporation engaged in the sale and mail order distribution of various products, with a principal office and place of business located in Hanover, Pennsylvania. During the fiscal year preceding issuance of the complaint, a representative period, Respondent derived revenues from said operations grossing in excess of $500,000, and shipped products valued in excess of $500,000 directly to points located outside the Commonwealth of Pennsylvania. The complaint alleges, the answer admits, and I find, that Respondent-Employer 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. 11. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find, that the Charging Party-Petitioner is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. CONCLUDING FINDINGS A. The Issues The complaint imputes a bevy of independent 8(aX)(1) violations to Respondent, many of which allegedly oc- curred during the critical period preceding the election. In addition, issues are presented concerning alleged violations of 8(aX3) emerging from the discharge of Daniel Pittinger, and Respondent's withholding of a wage increase from production and maintenance workers clearly eligible for participation in the election, while granting such an increase to employees in clerical positions, who the Employer deemed ineligible. The alleged violations are not atypical from those arising in an initial organizational unfair labor practice proceeding, and no useful purpose would be served by delineating the charges against Respondent with more specificity at this point in the Decision. It is noted, however, that insofar as alleged unfair labor practices occurred during the critical preelection period, they are relied upon by the Charging Party- Petitioner as grounds for setting aside the September 8 election.' In addition, the Union raises several objections to the Employer's preelection conduct which, though not unfair labor practices, nonetheless, if substantiated, would constitute substantial grounds for setting the election aside. Finally, the Charging Party-Petitioner asserts that substan- tially all of the 102 individuals casting challenged ballots at the election conducted in Case 4-RC-12199 were eligible voters, and hence their ballots should be opened and counted, and a revised tally issued. I All dates refer to 1976, unless otherwise indicted. 166 HANOVER HOUSE INDUSTRIES B. Cases 4-CA-8039 and 4-CA-8241 i. Background Hanover House Industries, Inc., maintains a facility in Hanover, Pennsylvania, from which it is engaged in the mail order distribution business. Boris Leavitt is currently chairman of a division of Hanover House Industries. His son-in-law, Jack Rosenfeld, is president and chief executive officer of Hanover House Industries. For many years, Hanover House Industries had been owned and controlled by Leavitt and his family. About 4 years ago, Horn and Hardardt purchased Hanover House Industries from the Leavitt family, and at times thereafter has continued to operate that firm as a wholly-owned subsidiary. Jack Rosenfeld, in addition to his management position with Hanover House Industries, is an executive vice president of Horn and Hardardt. Respondent-Employer has a work force at its Hanover facility of approximately 200 employees. There has been no history of union representation for any of these employees. In April, Daniel Pittinger, an accountant in Respon- dent's bookkeeping department, contacted the Union and arranged a meeting at the union hall. Pittinger and five coworkers attended that meeting. Later, at a second meeting, held in late April or early May, union representa- tives gave Pittinger and the others present union authoriza- tion cards for distribution to, and signature by, fellow employees. The next day, Pittinger and the others who attended that meeting solicited card designations among employees at the Hanover facility. The signed cards were collected by Pittinger and returned to the Union. On May 12, the Union filed a petition in Case 4-RC- 12149. That petition was apparently beclouded by a challenge made by Respondent-Employer on grounds that supervisors participated in securing the showing of interest. Pittinger in consequence thereof, together with other individuals, conducted a renewed campaign to obtain signatures to new cards. Pittinger, in connection with this effort to obtain a new showing of interest, again collected the cards and submitted them to the Union. On June 14, the Union withdrew the petition in Case 4- RC-12149, and filed a new petition in Case 4-RC-12199. Shortly after the campaign in mid-May to obtain a new showing of interest, Pittinger, on June 7, was suspended, and then on June 9, formally terminated. 2. Interference, restraint, and coercion a. By Boris Leavitt On May 10 a letter was distributed to employees in their pay envelopes, over signature of Boris Leavitt. That letter 2 opened with an announcement that the Company had acquired a substantial mail order business located in Los Angeles, California, which offered Respondent-Employer a "great potential for growth." The import of this transaction to the employees was described as follows: "We expect that some of the operations of this new company will be moved to Hanover immediately after the purchase to provide 2 See G.C. Exh. 3. 3 See, e.g., Birdsall Construction Companv. 198 NLRB 163 (1972); B. F more work for all of us, provided this is not prevented by outside interference." The complaint alleges that the above reference violated Section 8(a)(1). I agree. The penultimate paragraph of the letter contains antiunion argumentation, referring to the Union as "an outside entity." Said reference leaves no room for interpretation as to the nature of the "outside interference" which, according to Leavitt, could impede additional work opportunities resulting from acquisition of the new business operation. Accordingly, by informing employees that their work opportunities could be impaired by union activity, I find that Respondent violated Section 8(a)( I) of the Act. b. By Jack Rosenfeld It will be recalled that Jack Rosenfeld is the son-in-law of Boris Leavitt, as well as an executive vice president of Horn and Hardardt, and the president and chief executive officer of Respondent-Employer. Rosenfeld, during the critical preelection period, conducted meetings with em- ployees on a departmental basis. He also held an all- employee meeting on the day before the election but outside the 24-hour insulated period. These meetings represented a personal effort by Rosen- feld to propagandize for a "no" vote, and the complaint alleges that in the course of such meetings, he overstepped permissible bounds and made statements violative of Section 8(a)(I). These allegations concern threats of plant closure, promises that employees would receive increased benefits, and statements to the effect that a plant located in the State of New York had closed and gone out of business because of a union. Evelyn Kuhn, Joan Messinger, and Belinda Redding testified on behalf of the General Counsel as to Rosenfeld's remarks at certain of these meetings. However, it is undisputed that Rosenfeld referred to a commissary in New York City owned by Horn and Hardardt which shut down after having operated many years. Rosenfeld explained that employees at the commissary designated the Teamsters Union as their representative, and after a period of time, demands by that union were so unreasonable that Horn and Hardardt was forced to close the facility, putting 1200 employees out of work. His comment in this respect was qualified in terms of causation with the blame placed clearly upon unreasonable union demands. The reasons for the commissary closing was expressed in terms which would readily be understood by employees, and this reference is deemed fair argumentation not exceeding the protective scope of Section 8(c) of the Act.3 This is not, however, to say that it represents a portion of Rosenfeld's antiunion remarks which are beyond consideration in weighing the legitimacy of other aspects of his conduct. Nonetheless, I shall dismiss the independent 8(a)(1) allegation based upon Rosenfeld's reference to the shut- down of the commissary in New York. There is also no dispute that Rosenfeld in the course of these meetings attempted to inform employees of the proprietary relationships between Leavitt, Respondent, Goodrich Footwear Company, 201 NLRB 353, 354 (1973), Federal Paper Board Company Inc., 206 NLRB 681, 683 (1973). 167 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Horn and Hardardt. However, according to the General Counsel's witnesses, Rosenfeld, in mentioning that Leavitt owned the building and property which was leased by Respondent, went on to state that that lease would soon expire and that Horn and Hardardt could easily move to another location upon conclusion of the lease. Rosenfeld admits that he informed employees that the lease had a short duration, but denies that he said anything further, or threatened that Horn and Hardardt would allow the lease to expire. I credit Kuhn, Messinger, and Redding. Rosenfeld was not a trustworthy witness. In this instance, his explanation as to his reason for mentioning the short duration of the lease made no sense at all.4 Aside from my general mistrust of Rosenfeld, his denial that he referred to a possible relocation, implying a shutdown at Hanover in mentioning the duration of the lease, struck me as far less probable than accounts of incumbent employees Kuhn, Messinger, and Redding. In contrast to his unconvincing effort to explain why he mentioned the term of the lease, consistent with the General Counsel's evidence, in the context of this antiunion talk, it seems more probable that this issue was raised by Rosenfeld as an extension of the antiunion thrust of his talk. Accordingly, I find that in various talks and meetings with employees, in which Rosenfeld expressed the Company's antiunion position, he advised employees that the lease held by Respondent at Hanover was of short duration, that Respondent did not have to remain there, and that it could move to another location upon termination of the lease. In the context of other aspects of the speech, and the absence of a specific delineation as to what considerations would lead the Company to relocate upon expiration of the lease, I find that in making these expressions to employees Rosenfeld engaged in a calculated effort to arouse employee concern with respect to the future of their jobs in the event that they designated the Union, and, accordingly, I find that Respondent, prior to the election, and in late August and September, thereby violated Section 8(a)(1) of the Act. 5 The complaint also alleges that Respondent violated Section 8(a)(1) through Rosenfeld's expressions that the employees would receive wage increases if they refrained from having the Union as their collective-bargaining representative. In this connection, it is noted that the election was to be conducted in a unit which expressly excluded "office clerical employees." On or about August 17, Respondent granted wage increases to those whom it deemed to be within the excluded clerical classifications. Evelyn Kuhn and Joan Messinger testified that in the course of the various employee meetings conducted by Rosenfeld, he informed employees of the increases granted to the clericals. Messinger relates that at the shipping department meeting just prior to the election, Rosenfeld informed employees that the clericals were getting raises, that the production workers would not, that "his hands were tied," but adding that the production workers "should 4 Rosenfeld's claim that he attempted to further demonstrate the independence of Leavitt from Respondent's principals by calling their attention to the short duration of the lease seemed contrived. When the matter was explored further, any logic to his explanation was vitiated by his admission that the lease contained renewal options, which, from the standpoint of Horn and Hardardt and Hanover House Industries, indicated that the lease was not of short duration at all. trust him and give the company time to prove itself, and vote no for the union." Rosenfeld denied ever informing employees that they would not receive an increase because the Union was attempting to organize the Company. However, this denial, as was true in many instances where Respondent's counsel attempted to elicit rebuttal testimo- ny, was more narrow than the statements imputed to him by Messinger and admitted of a response possibly laden with Rosenfeld's own conclusions and interpretations. I credit Messinger. In the context, the appeal that the eligible voters, who were denied the increase, "trust" the Company and vote "no" carried the plain implication they would enjoy wage parity as soon as the union issue were removed. Accordingly, I find that this implied promise of benefit violated Section 8(aX I) of the Act. Finally, an additional allegation that Respondent violat- ed Section 8(aXI) of the Act through Rosenfeld's an- nouncement of a Christmas dance is considered below in conjunction with other related allegations. c. Statements attributed to supervisors Ron Beegle and John Staub Beegle and Staub are admitted to be frontline supervi- sors. Beegle occupies the position of credit manager, and is responsible for 12 clerical employees. Staub, at times material to the issues herein, was in charge of the shipping department. Coincidentally, both Beegle and Staub initial- ly denied having any discussion with employees concerning unions. When pressed, however, both admitted to such discussions. I regarded their denials as untrustworthy, and believed the testimony of all witnesses offered by the General Counsel who imputed misconduct to them. With respect to Beegle, the complaint alleges that Respondent violated Section 8(a)(1) of the Act by coercive interrogation, by telling an employee that he was under pressure to discharge her because of union activity, and by promising a higher Christmas bonus if employees rejected the Union. In support thereof, Doris Smith credibly testified that, in August, Beegle called her to his office and asked what she wanted if the Union came in. In response, she described the benefits she wanted. Although the General Counsel contends that this segment of the conversation involved coercive interrogation, Smith admits that the incident occurred during a period in which she frequently wore a union button. The vice in the type of inquiry Beegle put to Smith on that occasion lies in its tendency, by indirection, to probe the union sympathy of the employee. However, Smith, having overtly demonstrated her support of the Union, it is my conclusion that this aspect of the conversation was limited to a noncoercive interchange between employee and supervisor with respect to the pros and cons of unionization, and in no sense constituted 5 Rosenfeld in certain of the meetings, and in a letter to employees dated August 28, disclaimed any intention of discriminating against employees because of their union support. These ambivalent expressions, however, do not, considering the totality of this record, including the other unfair labor practices found herein, serve to neutralize the effects of the threat implied in his remarks concerning the duration of the lease. 168 HANOVER HOUSE INDUSTRIES coercive interrogation. I shall dismiss the 8(a)( I) allegation in this regard. Smith further testified that in that same conversation Beegle asked if she would rather have a larger Christmas bonus than a pension plan. To this, Smith replied that employees would like to have both. Smith credibly relates that Beegle then grinned. Contrary to the General Counsel, I am unwilling to read, from this vague and limited exchange, that Beegle was promising a larger Christmas bonus if employees rejected the Union. I shall dismiss the alleged 8(a)(1) violation based on this aspect of her testimony. Finally, Smith testified to a subsequent conversation with Beegle in late August or early September. On this occasion Smith had gone to the office of Beegle to ask him a question. Beegle at that time indicated, "whatever you do, behave yourself." Smith countered with the view that she had always behaved. Beegle then said "well, I'm under such pressure that one little thing you do, I can get rid of you." Smith then argued that Beegle would really have to find something before he could fire her. Beegle said that he could do that. Smith continued the argument, stating that her good work habits would interfere with Beegle's ability to get rid of her. Finally, Beegle repeated "You know, the pressure I'm under and everything, I could just take one tray of your work and if I find any mistakes that would be grounds to fire you." Smith then indicated that it would not be upheld under Labor law. To this, Beegle responded "I could find something that could hold up under Labor Board law," going on to state "so, I'm just telling you ... to behave yourself." Although the essence of Smith's account was denied by Beegle, as indicated, I regarded Smith as the more trustworthy witness, and considering her credited testimony, together with her open support of the Union, I find that in this conversation Beegle threatened to seek pretextual grounds for discharging Smith if she persisted in her union activity. Based thereon it is concluded that Respondent violated Section 8(a)(1) of the Act. With respect to John Staub, the complaint alleges violations of Section 8(a)(1) based upon Staub's telling an employee that Respondent would close down if the Union were designated, and that Respondent would withhold wage increases and benefits from employees because of their interest in the Union. In support of these allegations, the General Counsel relies on the testimony of incumbent employees Evelyn Kuhn and Joan Messinger. The testimo- ny of both relates to conversations with Staub at their work stations in which the latter spoke to them individually in late August or September. Kuhn credibly relates that in her conversation Staub indicated that they were getting old, and if the Union came in that there was a possibility that the Company would close and move. Messinger testified, in response to examination by the Charging Party, that on another occasion Staub came to her work station, stating "If the Union gets in here, there is a possibility that this place might close and you wouldn't be able to draw unemployment." As heretofore indicated I I See cases cited at fn. I I. ? Ibid. prefer the testimony of Messinger and Kuhn to that of Staub, and based thereon I find that Respondent violated Section 8(a)(1) by threatening a close down and possible removal if the Union were designated by the employees. Finally, with respect to Staub, it is alleged that he unlawfully made statements linking a withholding of benefits to union activity. In this connection, Joan Messinger and Belinda Redding testified in support of the General Counsel's claim. According to Messinger, Staub approached her at her work station on one occasion stating "Joan we have a list this long of things we have to give you. It's a shame the Union is trying to get in because we can't do nothing about it now." Similarly, Redding testified to an encounter with Staub in which he indicated, "I just came from a meeting and I have to talk to you ... we're going to have a voting on September 8 and I have to talk to you about it." Staub then stated that the Company had a package deal ready but that he could not discuss what it was, indicating that their "hands were tied as long as the Union is trying to get in." Based on the credited testimony of Messinger and Redding, I find that Respondent-Em- ployer violated Section 8(aX)() of the Act through Staub's clear implication that by virtue of union activity, employ- ees had sustained an immediate loss of improved benefits. 6 d. By Burnell .awrence The complaint alleges that three letters over the signature of Burnell Lawrence, dated August 12, 19, and 26, contain unlawful references to the withholding of wage increases from production and maintenance employees. Of these letters, that dated August 26 includes the following: The Company has in the past reviewed and granted pay increases. Very recently, unfortunately, some employ- ees who deserve raises didn't get them because they were prevented from getting them because of OUTSIDE UNION INTERFERENCE. Immediately under the above quote, is a concluding paragraph which recites as follows: There is one way to guarantee that Hanover House will be even a better place to work and will continue to grow so as to provide bigger and better opportunities for all employees. THAT WAY IS BY VOTING "NO" AT THE ELECTION. This letter reflects an intemperate, broad brushed effort to disparage the Union. It, without qualification, links a withholding of benefits to union activity. Under establish- ed Board policy, expressions seeking to gain undue advantage from statutory restrictions on the right to grant benefits during an organization campaign are unlawful where, as here, such a principle, designed as it is to preserve uncoerced employee choice, is forged into a cutting edge through which the employer seeks to defeat unionization.7 Respondent, by placing the onus for the denial of benefits upon the Union, violated Section 8(aX)(1) of the Act.8 a In view of my findings, infra, that the actual withholding of the increase violated Sec. 8(aX3) and (I) of the Act, and the finding heretofore made (Continued) 169 DECISIONS OF NATIONAL LABOR RELATIONS BOARD e. Postelection 8(a)(1) issues The complaint alleges that Respondent violated Section 8(a)(1) of the Act, on or about November 16, by informing employees that it would hold a Christmas dinner dance on December 3. The General Counsel also contends that Respondent violated Section 8(a)(1) by giving its employ- ees a free turkey for Thanksgiving on November 22. It does not appear that Respondent, within the last 10 years, had provided such benefits to employees. With respect to the Christmas dinner dance, the sole explanation offered by Rosenfeld was that Christmas parties are "traditional," and that since he was not elevated to the chief executive position until January, he therefore was not in a position to provide such a party in prior years. Similarly, with respect to the Thanksgiving turkey, Rosenfeld simply testified that this gift was bestowed because, "it was a nice thing to do." Under the law, employers are debarred from using their economic strength in order to influence employees against supporting a union. The benefits in question here, though small, were announced and/or granted at a time when the question concerning representation remained open and the possibility of a second election was common knowledge. These efforts, though unprecedented, occurred against a background in which the Employer sought, through antiunion propaganda, to inculcate the feeling that Hano- ver House was a good place to work. The Christmas party and turkey constituted a symbolic and tangible economic reminder of the Employer's commitment to a happy, satisfied work force, and, in the context of the Employer's campaign, were calculated to influence employees in the event that a further election proved necessary. I find that Respondent violated Section 8(a)(1) of the Act by an- nouncing and providing a Christmas dinner dance, and by giving employees a Thanksgiving turkey during the period in which the question concerning representation remained unresolved. The complaint also alleges that Respondent violated Section 8(a)(1) by granting the production and mainte- nance employees a wage increase on October 18. The issues here are linked materially to the allegation that Respon- dent violated Section 8(a)(3) and (1) of the Act by withholding such increases from this group earlier in August. In order to avoid duplication, this allegation shall be considered in the section dealing with the discriminato- ry withholding of the increase. 3. The alleged discrimination a. The preelection withholding of wage increases and the postelection grant of such benefits to eligible employees The complaint alleges that Respondent violated Section 8(a)(3) and (I) of the Act by denying a wage increase in mid-August to employees eligible to vote in the election. The complaint further alleges that the grant of such increase after the election in October violated Section 8(a)(1) of the Act. concerning statements attributed to Supervisor John Staub involving this precise subject matter, an assessment of the August 12 and August 19 letters would be cumulative, and would not affect the remedy. There is no dispute that in mid-August Respondent granted minimum general wage increases of 20 cents per hour or more to employees it deemed to be office clericals, a category excluded from the appropriate unit in the Decision and Direction of Election issued by the Regional Director for Region 4 on July 30. Respondent denied similar increases to production and maintenance employ- ees clearly eligible to vote in the election. It was stipulated by the parties that the Employer had no pattern, practice, or policy of granting increases on a regularly scheduled periodic basis over the last 5 years. Furthermore, in its brief, Respondent concedes that no determination had been made as to the amount or nature of the increase before the advent of the Union. Nor is there evidence that any of Respondent's employees expected, or were mindful that a wage increase was being contemplated by management prior to the instant organization effort. The first published explanation for the withholding of the increases from production and maintenance employees appeared in a letter distributed to all employees on or about August 12, over the signature of Burnell Lawrence. That letter states as follows: Dear Fellow Employee: I am writing you so that you will know why some people in the Company have received a recent wage increase while others have not. In early May, when the first petition for a union election was filed, your Company was forced by law to stop giving increases. Even though we had been: working on an improved pay plan, unfortunately, it was not completed at the time the petition was received. Therefore, our hands have been completely tied in regard to those employees who will vote in the election. We even had our legal counsel check on all our past procedures, hoping he could give us an OK on increases. His answer was, "As much as I would like to see you give all employees the increases you planned, I have to advise you that if you do so, the union will file charges against you." If a Teamster official or organizer has told you your Company can give increases to employees who will vote in the election, he does not understand the law, or he is misleading you. In its first petition, the union included office clerical employees, accountants, etc., which was wrong because such employees cannot belong to the same unit as production and maintenance employees. In their second petition, the union, of course, excluded these categories of employees. Your Company is therefore free to go ahead with increases to employees who are not in the production and maintenance voting unit, and the Company has put increases into effect this week for these people. Your supervisor will be glad to answer any questions you may have on the above; or, if you wish, please contact me. Sincerely, /s/ Burnell Lawrence Burnell Lawrence 170 HANOVER HOUSE INDUSTRIES The record convincingly establishes that the denial of the wage increase to the production and maintenance voting unit was seized upon by the Company as a significant prop in its antiunion campaign. Thus, letters distributed to all employees over the signature of Lawrence, dated August 19 and 26, refer to that issue. Indeed, that dated August 26 includes a reference, heretofore found to be violative of Section 8(a)(1), to the effect that "some employees who deserve raises didn't get them because they were prevented from getting them because of the OUTSIDE UNION INTERFERENCE." In addition, I have heretofore found that Supervisor John Staub unlawfully attributed the denial of wage increases to union activity. Respondent by way of defense points out that "Hanover House Industries could not have granted wage increases to its production and maintenance employees prior to the election without committing an unfair labor practice or interfering with the election." That argument is predicated upon the fact that the wage increase was not pursuant to any practice or policy and that indeed no formal plan for implementation of the wage increase was adopted prior to the Union's filing of its first petition in May. The foregoing lends a strong taint of illegitimacy to the wage increase granted the clerical employees. Although the grant of the increase to that group is not the subject of an unfair labor practice allegation, that phase of Respondent's conduct is a relevant factor to be considered against Respondent's entire course of conduct on the issue. Any assertion that Respondent was free to do as it pleased with respect to the clerical employees in view of their exclusion from the unit would be unsupportable. Respondent at all times was aware of the Union's effort to organize those it deemed to be clerical employees. Indeed, up to the day before the election, the Employer continued to communi- cate its antiunion propaganda campaign to the clerical group. Further, it is entirely possible that Respondent, prior to the election, had reason to believe that the Union would urge the eligibility of these employees as outside the excluded office clerical category.9 In any event, it is clear enough from the record as a whole that Respondent knew that, even if not covered by the instant petition, the recipients of the wage increase were subject to continuing organization by the Union. The grant of precedented wage increases to excluded categories of employees, while denying such benefits to eligibles, would naturally have a dramatic chilling effect where all employees work in close contact with each other and share the same facilities, while housed under the same roof. The deprivation of equal benefits to the eligible voters fell equally upon all members of the voting group, and would seem inherently destructive of their right to engage in union activity when coworkers not eligible to vote reap the benefits solely by virtue of their noninvolvement in the election. In the circumstances, the conduct here is more 9 The official stenographic transcript of the preelection hearing in Case 4-RC-12199, which occurred on July 7. is in evidence as G.C. Exh. 7. At p. 9, II. 14-17 thereof, counsel for the Union clearly asserted that the agreed- upon unit included about 200 employees, a statement clearly conveying the Union's position that many of the recipients of the August wage increase were eligible to vote in the election though occupying clerical classifications. offensive to statutory rights than would have been the case if the increase had been granted to all employees. Aside from the illicit overtures concerning the Union's responsi- bility for the withholding, the conclusion is inescapable that the Employer, with respect to the increase granted to the clericals and the denial of the increase to the production and maintenance employees, implemented a devisive and discriminatory stratagem calculated to influ- ence the outcome of the election, by prejudicing the eligible employees solely because they, clearly, were the immediate object of the Union's effort to become the exclusive statutory representative of Respondent's employees. Aside from the foregoing, the 8(a)(3) and (1) allegation is substantiated on other grounds as well. Under established Board policy, the manner in which an employer explains a withholding of benefits to employees may be the sole predicate for finding that the actual withholding violates Section 8(aX3) and (1) of the Act. Thus, an employer has a legal duty to proceed with respect to the granting or withholding of benefits as he would have done but for the advent of a union.10 And where on the basis of objective facts such as past practice employees are aware that an increase is due during an organizational campaign, the employer is obligated to follow such practice or policy on pain of violating the Act. Here, the withholding of the wage increases did not arise in circumstances where there was prior practice or policy of granting same, and there is nothing to suggest that employees anticipated receipt of such benefits prior to the advent of the Union. In such circumstances, the Board has held that "where there is an absence of objective evidence excusing the timing of whatever the employer does, he may change his course of action so long as his motive is a limited one of protecting himself from charges of unlawful conduct." 1 Critical to an assessment of the employer's motive is the nature of statements made to the employees. Thus, as indicated in The Singer Cornany, Friden Division, 199 NLRB 1195, 1196 (1972), "where an employer has made clear in its campaign statements that its only reasons for postponing expected benefits was to avoid the appearance of election interference, its action did not constitute objectionable conduct." On the other hand, where the employer admon- ishes its employees during an organizational campaign that a discretionary increase will not be granted, such action has been deemed violative of Section 8(aX3) and (1) of the Act where the employer expressed itself in a manner seeking to capitalize upon its stated legal position, by blaming the failure to grant the increase upon the Union or the employees' support of the Union.12 In the instant case, the withholding of the increase with respect to the production and maintenance employees was accompan- nied by expressions not limited to sober explanations of the Employer's legal obligation. Respondent initiated the l0 See. e.g., The Gates Rubber Company, 182 NLRB 95 (1970). 11 See, e.g.. S-H Division, Sun Chemical Corporation, 226 NLRB 646 (1976). 12 See, e.g., S-H Division, Sun Chemical Corporation, supra, and Colorado Seminary (ULniversary ofDenver), 2 19 NLRB 1068, 1070-71 (1975). 171 DECISIONS OF NATIONAL LABOR RELATIONS BOARD commentary on the withholding issue, repeated the matter in at least three formal campaign documents containing antiunion messages, repeated its position in campaign meetings presided over by its chief executive officer, and had the message carried further by at least one frontline supervisor. The direct effort to connect the denied increase with the Union's presence is evident from the independent 8(a)(1) violations heretofore found which are based on documentary evidence and the credited testimony concern- ing statements made by Rosenfeld and Staub. Based thereon, I find that Respondent violated Section 8(aX3) and (I) of the Act by, during the preelection campaign, withholding an increase to production and maintenance employees to discourage them from supporting the Union in the impending election. The complaint also alleges that Respondent violated Section 8(a)(1) of the Act by granting the withheld increases in October, after the election. According to the credited testimony of Kuhn and Messinger, on or about October 20, Rosenfeld conducted a meeting of all employ- ees, at which he announced that the employees who participated in the election would receive the previously denied increases, explaining that though his hands were tied he had not heard anything from the Union and was going to give the increases because the matter could drag on for several years. Rosenfeld explained the basis for his decision to act at this time through the following portion of his testimony: We had continually had people come to us. I mean continually from the summer time on, asking for wage increases, people leaving. I don't know how many left, but I know people did leave and got jobs elsewhere. Then we were caught in the trap by this Byzantine case that we have here, so that we were able to give increases to one group, while we couldn't give it to the other group which made it worse for the group who didn't get it obviously, and the pressure from that group was even worse. They wanted increases. They had been, to my knowledge, told they could get increases, not by ourselves, but by others and we had people that were leaving or looking for jobs elsewhere and I went to counsel. The grant of a wage increase after an election, but while objections are pending may constitute a violation of Section 8(a)(1).'3 The lawfulness of the October increase turns upon analysis of Respondent's conduct with respect to wage increases during the critical preelection period. As heretofore indicated the preelection increases were not granted pursuant to a prior practice or policy, there is no evidence that employees expected increases at any time after commencement of the union drive, and indeed Respondent-Employer concedes that plans for the imple- mentation of a specific increase were not formulated at any time prior to the filing of the first petition in May. In these circumstances, the record is devoid of a material justifica- 13 See Westminster Community Hospital, Inc., 221 NLRB 185 (1975). 14 Spangler, though apparently available to testify, was not called, and I credit Pittinger's uncontradicted testimony as to what transpired between them on June 4. s1 The logs maintained by the bank listing users of the room indicated tion for an increase at any time since inception of the organization campaign. Had the increase been granted to the production and maintenance employees during the critical preelection period, it would have been unlawful. The increase given after the election, and while objections to the election were pending, carries the same vice as would have been the case if effected during the critical preelection period. Accordingly, I find that Respondent violated Section 8(a)(1) of the Act by granting the October increase as a further step in the overall effort to discourage employees from supporting the Union. b. The discharge of Daniel Pittinger (I) General statement Daniel Pittinger was initially employed by Respondent in May 1973. Since 1975, Pittinger worked as an account- ant and was directly responsible to Bruce Mogol, a vice president and Respondent's comptroller. As outlined previously, Pittinger made the initial contact with the Union and remained a leading protagonist thereof up to the day of his termination. (2) The discharge During the first week of June, Pittinger, on request of union representatives, attempted to secure a room where union officials could meet with Respondent's employees. The Farmer's Bank & Trust Company, at one of its branches, maintains a meeting room which it from time to time makes available to various groups and organizations. On Friday, June 4, Pittinger called the bank and spoke with a Mrs. Spangler, the branch manager, stating, "I'm Dan Pittinger of Hanover House Industries. I'd like to see about renting a room." Pittinger advised that he wished to reserve the room for Tuesday, June 8, at or about 7 p.m. Spangler advised Pittinger that she would call him back and let him know whether the room could be made available for that time. About a half hour later, Spangler called Pittinger, indicating that the room would be available. Spangler told Pittinger to go to the branch on Saturday and see a Mrs. Berwanger to pick up the key and examine the room. On Saturday, June 5, Pittinger and another employee of Respondent, Doris Smith, went to the bank branch.14 In entering the bank, Pittinger requested to see Berwanger. Berwanger, without introduction, asked "Are you Dan Pittinger?"' s He indicated he was, where- upon she said, "I believe you came to see about the room." While en route to the room, Smith informed Berwanger that the room would be used for a "union meeting." Berwanger gave the key to Pittinger and he and Smith left. Pittinger was not asked to sign a user agreement customari- ly required by the Bank on letting the meeting room. Thereafter, leaflets were prepared for distribution to employees to announce the union meeting at the Farmer's Bank. On Monday, June 7, the cousin of Doris Smith, a nonemployee, attempted to place the leaflets on cars that the reservation was listed as "7:30, Boris Leavitt, H.H.I." The entry was made by A. LeRue Brown, an officer of the bank, who testified that "it was my understanding" that Spangler informed him that Boris Leavitt wanted the room. There is no evidence whatever that any Leavitt was mentioned in the conversations between Spangler and Pittinger. 172 HANOVER HOUSE INDUSTRIES parked on the Company's parking lot. That afternoon, at approximately 1:30 p.m., Pittinger received a phone call from Smith's cousin with the latter indicating that he had been caught passing out the literature and told to leave the Company's property. Following that phone call, Bruce Mogol informed Pittinger that Boris Leavitt wanted to see him. Mogol and Pittinger went to Leavitt's office. Present were Leavitt, Mogol, Dwight Harris, president of Farmer's Bank & Trust Company, and Burnell Lawrence, senior vice president of the Company.' 6 Leavitt spoke first, stating "You are the one that arranged to have a meeting at the Farmer's Bank," going on to state, "You did this in the name of Hanover House Industries and you are not allowed to do that." Pittinger then indicated he "was the one that arranged for the meeting." Leavitt then accused Pittinger of having authored prounion literature that had been posted around the plant. Pittinger denied responsibility for the letters. Harris then told Pittinger that he could not have the meeting in the bank and wanted the key returned. Arrangements were made for the return of the key, and Pittinger left the room, after Leavitt informed him that he would be suspended. 17 Leavitt, admittedly prior to the suspension of Pittinger, gained knowledge, through the leaflets, that Pittinger acquired the Farmer's Bank room for a union meeting. He also admits to accusing Pittinger of having sent vulgar letters, which Leavitt associated with the union campaign, and which he had found on his desk that morning. s8 On Tuesday, June 8, Pittinger, on advice of the Union, telephoned Mogol, requesting that the Company provide a written statement of position for the action taken against him. Mogol indicated that he would do so and wished Pittinger luck, indicating that he was sorry about what had happened. Thereafter, Pittinger received the following letter, dated June 9. Dear Mr. Pittinger: This letter is to inform you that your employment with Hanover House Industries, Inc., has been termi- nated due to the fact that you reserved a meeting hall in the name of Hanover House Industries, Inc., without the permission of Hanover House Industries, Inc., for use by an outside organization connected in no way with Hanover House Industries, Inc. 16 Mogol and Lawrence, though called as witnesses, were not examined as to this event. IT The foregoing is based on the credited testimony of Daniel Pittinger who impressed me generally as straightforward and direct and a trustworthy witness. I was highly suspicious of the testimony of Leavitt and Harris and credit them only as to matters contrary to Respondent's interest in this proceeding. is The record is devoid of evidence that prounion literature or any employee-oriented literature was distributed that could objectively be described as vulgar. Indeed, the most vulgar or profane language that Burnell Lawrence observed in such literature was the term "bull shit." It was my impression that Lawrence had the opportunity to peruse much of the propaganda circulated on behalf of the Union by employees during the campaign. Leavitt seemed bent, while on the stand, to diminish deliberately his expressed concern for Pittinger's union activity. A similar effort was pursued, though unsuccessfully, through Dwight Harris of the Farmer's When confronted by the Company and the president of the establishment where the meeting room was reserved, you admitted to the above facts. Your termination was for this reason only. Sincerely, /s/ B. Leavitt B. Leavitt (3) The defense Respondent urges that the allegations concerning Daniel Pittinger be dismissed on grounds that he was discharged for legitimate cause; i.e., misrepresenting the Company's name in the effort to obtain use of the Farmer's Bank room. In the alternative, Respondent-Employer contends that Pittinger was a supervisory and/or managerial employee and, as such, beyond the protection of the Act. (4) The supervisory issue Bruce Mogol is the chief financial officer of Respondent and is responsible for the entire accounting office. Dan Pittinger was directly subordinate to Mogol. At the time of the election, the accounting department consisted of some 11 employees.' 9 Mogol described Pittinger as his assistant. If this be an accurate description the import thereof is mitigated by the narrow scope of Pittinger's responsibility, and the clear fact that his activity was by no means coextensive with that of Mogol. Pittinger earned a salary of $165 weekly, and neither this nor his benefit range are considered conclusive to the issue. It does not appear that Pittinger was ever informed by any representative of management that he was clothed with any of the statutory indicia of supervisory authority. Moreover, he clearly had no authority to hire, fire, transfer, suspend, layoff, recall, promote, discharge, reward, discipline, or formally evaluate employees. The claim that Pittinger was a supervisor rests primarily upon Pittinger's duties in connection with the Company's advertising analysis, and his responsibility for ensuring both the accuracy of checks typed by Belinda Fulco, Mogol's secretary, and that such payments were charged to the proper expense account. Other than the foregoing, Pittinger's responsibilities as a conduit between Respon- dent's employees generally and insurance carriers under- writing Respondent's health benefit program,2 0 as well as Bank & Trust. Harris, called by Respondent to corroborate Leavitt, though testifying on direct examination that he heard nothing pertaining to the union organization drive at that meeting, on cross-examination admitted that Leavitt mentioned to Pittinger the cards that were posted on the windshields of cars and that he accused Pittinger of using company time to have those cards put on the windshields. Harris, who was in many respects unreliable, in the course of this change in his testimony, conceded that those cards pertained to the union meeting. is Resp. Exh. 5 is an organizational chart prepared by Mogol. It reflects the alleged structure of the accounting department as of December 1975. Mogol conceded that the chart was prepared shortly before and for use at the hearing. No explanation was offered as to why he chose to prepare a document reflecting a picture remote from the period material to this proceeding and it is considered to be an irrelevant self-serving document. which is given no weight. 20 Pittinger's work in connection with the insurance program was to (Continued) 173 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his responsibilities in connection with workmen's compen- sation claims,21 though perhaps necessarily of some secondary significance to the issue, do not themselves entail the exercise of supervisory authority. With respect to Pittinger's operating responsibilities, other than accuracy checks on certain work performed by Mogol's secretary, Pittinger's duties related entirely to the Company's advertising analysis. Before discussing Pitting- er's role in connection therewith, it is necessary to point out that the Company derives the bulk of its revenues from mail order sales. The success of its operation depends on the efficiency of its advertising in various media. The advertising analysis produces criteria which enables man- agement to determine whether expenditures in various media have produced effective results. Pittinger is responsi- ble for the preparation of the advertising analysis. Each analysis when completed properly will reflect a profit or loss on a particular ad. Pittinger receives the raw figures, including the item by item sales volume from a particular ad, cost of the ad and item, and selling price. With this information, computations are made pursuant to a preset formula founded upon ordinary principles of accounting. The computations and slotting of final figures produces data of aid to a judgment on the part of higher manage- ment as to how its advertising dollars can best be spent. Pittinger's responsibility is limited to the mechanical preparation of the analysis, and he has no responsibility, and no authority, to make recommendations as to whether a particular ad should be continued or discontinued. He simply forwards the results of the completed analysis to higher management. It is the sense of the record that from time to time when Pittinger's workload in this connection was heavy, other employees have been assigned to assist him in the ad analysis. Pittinger admits that, on one such occasion, after suggesting to Mogol that Fulco, Mogol's secretary, use her spare time to help him with the analysis, Mogol agreed. Otherwise, Pittinger had no role in selecting his assistants. Others who have helped with the analysis are Jeff Small, assistant to Bookkeeping Manager Carl Filsinger, and Don Mummert. Of this group, Fulco and Small plainly had primary responsibility to persons other than Pittinger, and process all claims made by employees to the carrier and to prevent the filing of claims clearly not covered by the insurance policy. There is no evidence, whatever, that in carrying out his duties, he ever refused to submit a claim arguably covered under the policy's terms. Pittinger also was responsible for educating employees as to changes in the insurance program, and he did so by posting notices and conducting meetings with employees. Pittinger's activities in this regard, while relevant to the administrative convenience of the insurance carrier and the interests of the employees, hardly affected matters of significant concern to the Company. Indeed, the only manner in which the Company could be prejudiced by his actions would result from an increase in premium due to an abundance of improper claims. This consequence would follow only if the insurance carrier erroneously paid noninsured claims Pittinger forwarded for payment, a somewhat remote possibility. Contrary to Respondent's position, it is entirely possible that Pittinger was selected for this liaison role as a neutral, lacking the taint of management, who could serve the interests of the employee beneficiaries with credibility. 21 Pittinger's responsibility with respect to workmen's compensation claims appears limited to assisting employees in filling out the form necessary to file a claim. Although he would discuss a particular case with the insurance camer, his opinion as to whether injunes were job related was neither solicited, nor offerred. He would discuss the facts of a particular case insofar as he was aware of them with the insurance carrier, but the latter it is fair to assume that their work on the ad analysis was confined to periods when other duties made them available and demands on Pittinger required their assistance. The record is not so clear as to Mummert. However, a proper inference may be drawn that his case was no different. Mummert was one of the few salaried employees in the accounting department. Respondent at the hearing assert- ed that he was a managerial employee. Furthermore, Pittinger testified without contradiction that an employee by the name of Don Aulman worked as a purchasing agent. This coupled with Mogol's testimony that Mummert replaced Aulman, suggests that Mummert had some responsibility as a purchasing agent as well. From the foregoing, it is fair to assume that the mechanical computations performed on the ad analysis by Mummert were supplemental to his regular duties performed else- where. Those assigned to assist Pittinger were given the more mechanical subordinate computations to complete. They were trained by Pittinger, and he assigned them their work. These assignments were the analogue of those between journeyman and helper in a craft setting, with Pittinger simply turning over manual duties to assistants, which otherwise he would perform. No independent judgment was otherwise involved in this assignment process. In sum, the record merely shows that Pittinger, as an accountant, possessed overall working responsibility in connection with the development of Respondent's ad analysis and that based on his familiarity with this project, and his experi- ence, he acted in a nonsupervisory lead capacity with respect to employees who from time to time were assigned to assist him.'2 Also unpersuasive is the claim that Pittinger's responsi- bility concerning Fulco's typing of checks pointed to supervisory authority. Apparently, Fulco was responsible for typing checks on accounts payable and charging them to the proper account. Pittinger had no role in assigning any work to Fulco in this regard. Upon completion of the typing, Pittinger simply would check the typing and the invoice to see if her work was accurate and if she had charged payment to the right account.2 3 This double check or a verification procedure concerning company payments, would itself make a determination as to the validity of a claim. Here, again, it is difficult to imagine how Pittinger could be deemed a supervisor on the basis of such activity. It does not appear that the discharge of supervisory authority was involved, and, like my view of his designation as company representative for handling health insurance claims, it is also possible that here too Pittinger was awarded a task because he was an individual trustworthy in the eyes of members of the rank-and-file work force. 22 There is testimony that in 1975 Respondent hired a CPA as an independent contractor to assist Pittinger with the ad analysis. Pittinger, prior to the employment of this individual, Tim Weed, had requested help, but had nothing to do with the selection of Weed. Pittinger reviewed the work of Weed and trained him in making the computations. Pittinger credibly testified that Weed was removed from the advertising analysis when Pittinger reported to Mogol that Weed was no longer needed because he had caught up with his work. Mogol, though acknowledging that Weed was never replaced, claims to have transferred Weed after Pittinger complained that he was "too slow." As between Pittinger and Mogol I regarded Pittinger's testimony as the more probable, and the former was regarded generally as the more credible witness. 23 Pittinger and Fulco maintain a "chart of accounts" on their desks which lists every type of expense and is used as an aid to determine the account to which a payment should be charged. If Fulco and Pittinger 174 HANOVER HOUSE INDUSTRIES and Pittinger's role in it, is in consonance with the assignment of responsibility to an experience, trusted rank- and-file employee. This aspect of his work is insufficient, either standing alone or considered with other factors, to establish that Pittinger possessed supervisory authority. Respondent also contends that Pittinger recommended effectively the termination of employee Don Aulman. Mogol testified that about 2 years prior to the hearing, he acted on Pittinger's recommendation and terminated Aulman. This incident would appear to correspond to the time in which Pittinger served as a purchasing agent. Indeed Pittinger testified that he trained Aulman as a purchasing agent, a position not held by Pittinger since February 1975. Pittinger admits that because Aulman was not doing his work, he recommended to Mogol that the latter be terminated. Pittinger credibly relates that a week passed before Mogol acted. Mogol claims that he terminat- ed Aulman "on the strength" of Pittinger's comments. It does not appear that Pittinger was ever told that he had authority to evaluate any employee. The Aulman incident was remote in time from the instant issues and related to a period when Pittinger was serving in a different capacity. 24 In conclusion, it is noted that while the evidence does establish that Pittinger was regarded as a key employee, and participated in special benefits only available to higher management, neither this factor, nor other secondary indicia of supervisory authority override the weight of the evidence in this record which indicates that during the entirety of the organization drive, and, thereafter, Pittinger occupied a position devoid of the authority enumerated in Section 2(11) of the Act. At best, his responsibility for training and directing the work of others was an adjunct of his familiarity with the procedures with which he worked, and his primary responsibility, as a rank-and-file account- ant, for the final work product. The issue here is not whether Pittinger was held out to other employees as a supervisor by Respondent. Nor can the issue be resolved on the basis of Pittinger's description of himself and references by the Company to the term "supervisor" in categorizing Pittinger for purposes of its benefit plans. The issue is simply whether Pittinger possessed or exercised supervisory authority as defined in the Act. I find that the record fails to substantiate that this was the case and on the contrary warrants the conclusion that, in his capacity as an accountant in the bookkeeping department, Pittinger acted in a manner akin to nonsupervisory lead personnel frequently encountered in an industrial setting. I reject Respondent's contention that he was precluded from statutory protection by virtue of his alleged supervisory status. disagree on proper account allocation of a particular payment, Mogol would resolve the difference. 24 Respondent also points to the fact that Pittinger substituted for Filsinger, the bookkeeping manager, at times when the latter was absent. This substitution occurred once in 1975 for a period of I week. Furthermore (5) The managerial issue In N.L.R.B. v. Bell Aerospace Company, Division of Textron, Inc., 416 U.S. 267 (1974), the Supreme Court held that managerial employees, though not specifically exclud- ed by the Act or any of the amendments thereto, nonetheless are to be denied statutory protection. Contrary to Respondent, on the facts presented here, that holding furnishes no substantial defense against the charges of discrimination. Pittinger as an accountant earned $165 per week, a salary hardly within the level of remuneration that could be fairly expected of one serving in an executive capacity. His work responsibility, at times material, was set, and there is no claim that his job was on a promotion ladder, offering reasonable expectancy of advancement to acknowledged management levels. Although he was de- scribed as the assistant to Vice President Mogol, his duties were not coextensive with those of Mogol, with his area of responsibility narrowly circumscribed to the ad analysis and the verification of checks and charges typed by Mogol's secretary. In performing his duties in this regard, as well as his role in connection with workmen's compensa- tion and health insurance programs, he functioned within fixed parameters, exercising independent judgment only to the extent to be expected of highly trained and experi- enced, senior employees occupying white collar positions. In his position, as it stood at the time of the instant election campaign, he had no authority to pledge credit, and it does not appear that he at any time participated in the formulation or determination of specific employer policies, with his role in the operation being confined to the rank- and-file implementation of narrow work responsibilities within the framework of Respondent's overall accounting function. I find that Pittinger's relationship to management was insufficient to override the clear identity and commu- nity of interest he shared with rank-and-file clerical employees, and, accordingly, I conclude that he was not a managerial employee. (6) The assigned cause for the discharge There is no question as to the general right of employers to terminate those who would improperly utilize the Company's name in seeking to serve their own interest. The issue here is not whether such a ground for discharge constitutes good cause, but rather, whether that, as distinguished from Pittinger's union activity, constituted the motivating force behind his termination. I find that it was not. Pittinger, during his 4 years of employment with Respondent, had been a trusted employee, who at various turns in his employment history was entrusted with a high degree of responsibility. Mogol, his immediate superior, in February, Small became Filsinger's assistant, and, thereafter, he, rather than Pittinger, filled in for Filsinger. Any sporadic exercise of supervisory authority by Pittinger as Filsinger's replacement was both too isolated and remote from the material time frame to have bearing on his status at the time of his discharge. 175 DECISIONS OF NATIONAL LABOR RELATIONS BOARD never expressed even the slightest degree of dissatisfaction with Pittinger's work. 25 Respondent suspended Pittinger on Tuesday, June 7, an act which matured into his discharge several days later, with knowledge that he had reserved the room at the Farmer's Bank for purposes of conducting a union meeting. From all appearances in the record, Leavitt made the decision to initially suspend Pittinger, but Respon- dent's testimony is somewhat confused with respect to the decision to terminate him. Leavitt claims that he alone decided to effect the discharge, and there is no reference in his testimony to any conversation with Rosenfeld as to his decision. Rosenfeld, who in a highly improbable segment of his testimony denied knowledge of union activity, claimed that he, in a telephone conversation with Leavitt, recommended and authorized the discharge.2 6 I find that Pittinger did not in fact misuse the Company's name in the effort to obtain the meeting room. Further- more, as heretofore indicated, I credit Pittinger's account of what transpired at the afternoon meeting on June 7, which led to his suspension. From his account, considered against other aspects of Respondent's testimony, I am convinced that Leavitt's posture at that meeting was not one of honest objective investigation, but that of a manager offended by an employee's concerted activity, seeking to find some ground on which a discharge could be predicat- ed. Leavitt, no doubt, was quick to interpret certain statements and responses made by Pittinger at that time as an admission of misconduct. Yet, as the events unfolded leading to the suspension, Leavitt was alerted to the secondary nature of Harris' information and the possibility that bank officials might well have been guilty of a misunderstanding.27 Considering Pittinger's service and position with the Company, it was my impression that Leavitt would have pursued his investigation more directly, talking to Branch Manager Spangler, rather than utilizing Harris as a secondhand source, and acted more evenhand- edly were it not for his hostile reaction towards Pittinger's union activity. Indeed, the testimony of Respondent's own witnesses reflects that Leavitt's hostility to Pittinger's role in the campaign became manifest during the meeting leading to Pittinger's suspension. Leavitt admits that, after suspending Pittinger, he accused Pittinger of having written nasty letters. On direct examination, Leavitt seemed bent on excusing this comment by asserting that the letters contained undefined vulgarities. There is no confirmation that any employee-inspired literature contained language which in this day and age could be described fairly as 25 I discredit the testimony of Leavitt and Rosenfeld generally to the effect that they regarded Pittinger as a poor worker. This testimony was so obviously contrived as to heighten the inference of union-related discrimina- tion. Neither had an opportunity to observe Pittinger in his work to a degree even approaching regularity. Despite their criticism, neither opted to intervene in a manner calculated to correct any deficiencies in Pittinger's work, and from all objective indicators, Pittinger discharged his responsibili- ty without interference or criticism during the entire period of employment up to his discharge. If Pittinger's work was genuinely a proper subject for criticism, Mogol surely would have been aware of it and so testified. This aspect of the testimony of Leavitt and Rosenfeld created a distinct impression that their characterization of Pittinger was born of the same bias towards union activity as present in the decision to effect his termination. 2s Rosenfeld's testimony struck me as a ploy to place responsibility for the discharge decision in one who acted without knowledge of union activity. Rosenfeld, to say the least, was not believed. vulgar. In addition, though Leavitt denied that any reference to the Union was made in the suspension interview, at the very end of his testimony he admitted that he associated the letters with the union campaign. Harris, president of the Bank, initially participated in this effort to suppress references to the Union at this meeting, by testifying broadly that he heard no statements at that meeting pertaining to the Union, nor to Mr. Pittinger's having engaged in union activity. However, on cross- examination, Harris admitted that Leavitt directly accused Pittinger of using company time to have cards, pertaining to the Union, placed on cars in the Company's parking lot. Indeed, Harris, a witness for Respondent, testified that it was his impression that Pittinger was suspended "for using company time to reserve the community room at Farmer's Bank and also to print up those cards and have them distributed." 28 Leavitt's unconvincing effort to conceal or mitigate the degree to which Pittinger's union activity aroused his feelings on June 7 was consistent with a pattern of testimony designed to conceal the real, substantial, motivating consideration behind the discharge.29 Considering Pittinger's length of service with the Compa- ny, the position of responsibility he occupied, the fact that his involvement in the Union was a known consideration at the time of his suspension and discharge, together with Leavitt's deliberate effort to conceal his animus toward Pittinger's union activity, and, indeed, my disbelief of essential elements of the defense, I find that the preponder- ance of the record supports the conclusion that the real, substantial reason for the action taken against Pittinger was his union activity. Accordingly, I find that by terminating him on June 7, and by at all times thereafter refusing to offer him reinstatement, Respondent violated Section 8(a)(3) and (1) of the Act. c. Case 4-RC-12199 (I) The objections The Union's objections to the election closely parallel the unfair labor practice issues raised by the consolidated complaint. Pursuant to findings heretofore made, I shall sustain Objections 2, 3, and 6 in view of my findings that during the critical preelection period Respondent through its supervisors and agents violated Section 8(a)(1) by the discriminatory withholding of benefits, by promising benefits, by threats of plant closure, and by threatening discharge. In my opinion, these unfair labor practices 27 1 discredit the testimony of Hams and Leavitt to the effect that Pittinger admitted to a misuse of the Company's name in his dealings with Spangler. 28 Harris' role in Respondent's development of the cause for Pittinger's discharge was considered suspect. Harris could not be regarded as an unbiased witness. His bank has strong business ties with Leavitt, who has considerable real estate holdings in the Hanover area. In addition, his interests were prone to influence by the economic impact of Hanover House Industries in the area, since that firm is among Hanover's top 10 employers. Though he folded when pressed, Harris otherwise struck me as inclined to afford whatever testimony would support the Company's interest in this case. 29 The testimony by Rosenfeld that Pittinger's alleged use of the Company's name to secure the hall was akin to "stealing" struck me as an argument overreaching and calculated to distract me from the real reason for the action taken against Pittinger. 176 HANOVER HOUSE INDUSTRIES disrupted conditions enabling a free and uncoerced choice in the election. On the other hand, I shall overrule Objection I on grounds that material misrepresentations of the type asserted here under the new standard recently announced in Shopping Kart Food Market, Inc., 228 NLRB 1311 (1977), offer no cogent reason for setting an election aside. I shall also overrule Objection 4 based on Respon- dent-Employer's alleged noncompliance with the rule in Excelsior Underwear Inc., 156 NLRB 1236 (1966), for, in view of my rulings on the challenged ballots, the evidence does not substantiate the Union's claim that the Employer excluded about one-half of the employees eligible to vote from said list. Finally, I shall overrule Objection 5 based on the discharge of Daniel Pittinger. Although I have found that Respondent violated Section 8(a)(3) and (1) in this respect, the operative events relative to this act of discrimination occurred prior to the filing of the petition, and hence was time-barred, under Board policy, as substantial grounds for invalidating an election. (2) The challenged ballots It will be recalled that the election results showed that of about 104 eligible voters, 43 votes were cast for, and 56 against, the Union, with 102 determinative challenges. In his report the Regional Director for Region 4 concluded that all 102 challenges raised substantial and material issues of fact best resolved on the basis of testimony taken at a hearing. At the outset of the instant hearing, it became apparent to me, from information in the hands of the General Counsel, which is now a part of the record, that many, if not most, or indeed all, of the challenge issues were subject to resolution without need for the taking of proof and counterproof at a formal hearing. In conse- quence, in the interest of assuring that the record be limited to issues involving disputed questions of fact, counsel for the Union was instructed to prepare an offer of proof as to the evidentiary basis for his claim that all challenged voters were eligible. He did so, and at the hearing, based on said offer, together with revised statements of positions by the parties, 95 challenged ballots were sustained on grounds that the offer raised no material issue warranting the taking of further testimony.3 0 Those rulings were based on rationale specifically stated at the hearing by me and reported at pages 747-762. It need not be repeated here. After close of the hearing, on December 15, the Union filed with the Board a request for special permission to appeal the aforedescribed rulings. By telegraphic order dated January 13, 1977, a Board panel (Members Jenkins and Walther, Chairman Murphy dissenting) denied said re- quest. (3) Final conclusions Having found that the challenged ballots are not determinative, and that the Employer engaged in preelec- tion misconduct interfering with the laboratory conditions required for a free and uncoerced choice on the question of representation, I shall recommend that the election of 30 At the hearing. the parties agreed that Curvin Bair was an eligible employee and based thereon the challenge to his ballot was overruled. In addition, the Union withdrew its claim that Katherine Dillon and Peggy September 8 be set aside and that a rerun election be conducted at such time as the Regional Director for Region 4 deems appropriate. CONCLUSIONS OF LAW 1. Respondent-Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Charging Party-Petitioner is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. Respondent independently violated Section 8(aXl) of the Act by threatening employees with plant closure and reduced work if they designated the Union, by promising benefits to dissuade employees from supporting the Union, by threatening to find pretextual grounds for terminating an employee if she persisted in her union activity, and by granting benefits to discourage union activity. 4. Respondent violated Section 8(aX3) and (1) of the Act by suspending on June 7, and discharging on June 9. and thereafter, at all times refusing to reinstate, Dan Pittinger, in reprisal for his union activity, and by, in August, withholding a wage increase from those eligible to participate in the election. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act. Having held that Respondent discriminatorily dis- charged Daniel Pittinger, I shall recommend that Respon- dent offer him immediate reinstatement to his former position, or, if not available, to a substantially equivalent position, without loss of seniority and other privileges, and make him whole for any loss of pay resulting from the discrimination against him by payment of a sum of money equal to the amount he normally would have earned as wages from June 7 to the date of a bona fide offer of reinstatement, less net interim earnings during that period. Backpay shall be computed on a quarterly basis in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and shall include interest at 6 percent per annum as provided by Isis Plumbing & Heating Co., 138 NLRB 716 (1962). In addition, to remedy the discriminato- rily withheld increase of August, I shall recommend that Respondent make whole all employees affected thereby for resultant losses between that date and October, when the increase was granted, plus interest as specified above. See S-H Division, Sun Chemical Corporation, supra. The discriminatory discharge strikes at the heart of the rights guaranteed by the Act, and, accordingly, a broad order shall be recommended directing Respondent to cease and desist from "in any other manner" interfering with, Crest are eligible, and, accordingly, as no controversy existed, the challenges to their ballots were sustained. Four remaining challenges could not affect the results, and no effort has been made to litigate or resolve them. 177 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coercing, or restraining employees in the exercise of their statutory rights. In addition to the foregoing, the Union seeks certain extraordinary remedies which transcend those necessary to effectuate statutory policies herein. First, a bargaining order is sought despite the absence of a showing that the Union at any time represented a majority. In such circumstances, Board authority does not countenance the issuance of a remedial bargaining order. Second, the Union seeks a remedial package, including requirements that (I) Boris Leavitt personally sign the Board's notice and read it to employees at an assembled meeting; (2) that Respon- dent mail a copy of said notice to all employees; (3) that the Union be provided access to company bulletin boards and opportunities to address employees on company time; and (4) that Respondent supply the Union with a list of employees' names and addresses. In this regard, as was true in Haynie Electric Co., Inc., et al., 225 NLRB 353 (1976), Respondent's unfair labor practices, though of a serious nature, are not deemed so aggravated or pervasive as to necessitate the extraordinary measures requested by the Union. Finally, the Union seeks reimbursement for attorney fees and litigation and organizational costs. The Board in Hecks, Inc., 215 NLRB 765 (1974), limited such relief to situations where the defenses raised by a charged party are frivolous. The issues in this case turn essentially on credibility, or involve brinkmanship raising close questions of law, giving rise to fairly debatable issues, and the defenses simply fail to qualify as frivolously raised. Accordingly, the Union's request for special remuneration is deemed inappropriate. Upon the foregoing findings of fact and conclusions of law, and upon the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER3 1 The Respondent, Hanover House Industries, Inc., Hanover, Pennsylvania, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Threatening to find pretextual grounds for terminat- ing employees if they engage in union activity. (b) Threatening employees with less work opportunities or that the plant will close if they designate a union as their representative. 31 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. (c) Promising or granting benefits for the purpose of influencing employees against designating the Union as their representative. (d) Discouraging membership in a labor organization by discharging, withholding wage increases, or in any other manner discriminating against employees because they have joined or supported a labor organization. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed by Section 7 of the Act. 2. Take the following affirmative action deemed neces- sary to effectuate the policies of the Act: (a) Offer Daniel Pittinger immediate and full reinstate- ment to his former position, or, if this position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges and make him whole, together with employees discriminatorily denied a wage increase in August, for lost earnings in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records, and reports, and all other records necessary to analyze the amounts of backpay due. (c) Post at its Hanover, Pennsylvania, facility, copies of the attached notice marked "Appendix."3 2 Copies of the notice on forms provided by the Regional Director for Region 4, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 4, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED, that the election conducted on September 8, be set aside, and that Case 4-RC-12199 be severed and remanded to the Regional Director for Region 4 for the purpose of conducting a rerun election at such time as he deems the circumstances permit a free choice on the issue of representation. 32 In the event the Board's Order is enforced by a Judgment of the 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." 178