Elano Corp.

ELANO CORPORATION Elano Corporation and District Lodge 82 of the International Association of Machinists and Aerospace Workers, AFL-CIO. Case 9-CA-8087 February 21, 1975 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On July 26, 1974, Administrative Law Judge Milton Janus issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. We agree with the Administrative Law Judge's findings that Respondent violated Section 8(a)(1) of the Act by its various actions including surveillance, interrogation concerning employees' union activities, and conveying to employees the futility of selecting a bargaining representative. However, we do not agree with his further findings that Respondent discrimina- torily discharged employees Dorothy Moessinger, George Smith, and Helen Childers in violation of Section 8(a)(3). At the time of the discharge of these three employees there were union organizational activities taking place at Respondent's plant. The Carpenters had attempted to organize the employees on Septem- ber 13 and 18, 1973, but had received only 4 signed authorization cards from a unit of over 200 employ- ees. On September 26, the Machinists handed out literature and authorization cards to the employees outside the plant, and were also there on October 8 and sometime after October 16. Their efforts resulted in 11 employees signing cards, including the 3 alleged discriminatees. Smith had worked in Respondent's welding depart- ment since his hire in October 1968, and Childers, employed by Respondent in January 1969, had also worked in the welding department for some time just prior to October 12, 1973, the date on which both were discharged, assertedly for excessive talking and low productivity. Childers had accepted literature and cards from the 691 Machinists organizers on September 26, and returned her card to the Union by mail. She had also spoken to numerous employees at the plant about the Union. There is, however, no evidence that Respondent knew of any of this activity. Smith also accepted a card from the Machinists on September 26, and mailed it in to the Union. His only other union activity consisted of occasional conversations with Childers, and perhaps some other employees, at breaks and at lunch, or outside the plant. There is no evidence that Respondent was aware of Smith's union activity save for Smith's testimony of an event which took place shortly after the Carpen- ters conducted its short-lived campaign in September 1973. According to Smith, he was talking to fellow employees in the cafeteria about the Carpenters Union when his supervisor, Siders, entered the cafeteria. At that time employee Tolle said to Siders, "Hey Jim, George is thinking of becoming a Carpenter." Siders replied that that was all right, just so he didn't box himself out. According to Respondent, the decision to dis- charge Smith and Childers was made by Siders and Vice Presidents Grice and Sisler, following Sisler's October 11 memo to Siders which noted that Sisler had seen Smith and Childers talking away from their work stations, and that Siders should do whatever necessary to keep equipment operating at full capacity. In support of its contention that Smith and Childers were discharged for good cause, Respon- dent introduced evidence that it has a rule prohibit- ing employees from talking during worktime if it takes them away from their jobs, interferes with production, or creates a morale problem, although employees working side by side can converse if it does not affect their productivity. It also has a rule against eating food at any place except the cafeteria. Both Smith and Childers had been warned about violating the no-eating rule, Smith in March 1973, and Childers in June of that year. Similarly, both had received warnings about excessive talking. In Febru- ary 1973, Smith had been warned, and a written warning had been placed in his personnel file. In July and again on October 11, 1973, both Smith and Childers had received warnings, with written warn- ings placed in their files. The written warnings attributed loss of productivity to their excessive talking. Further, Respondent's records show that on their semiannual evaluations, the quantity and quality of these two employees' work was rated at various levels from "fair" to "good," but contained notations concerning Smith's excessive talking, and the fact that Childers' wage increase would have 216 NLRB No. 126 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been more if the quantity of her work had not been low. Siders denied that he had any knowledge that Smith and Childers engaged in any union activity. The Administrative Law Judge rejected the conten- tion of Respondent that Smith and Childers were discharged for excessive talking and low productivi- ty. In support of this finding, he noted that, despite the notations on the semiannual evalutions of Smith and Childers, and the warnings each had been given, they had received wage increases which were not substantially lower than those given to other employ- ees. Further, he regarded Respondent's assessment of the low productivity of the two employees as somewhat exaggerated. The real reason for these two discharges, according to the Administrative Law Judge, was Respondent's attempt to curb unionization in its plant by dischar- ging those it believed were in favor of having the Union. Although he found that both Smith's and Childers' union activities were quite limited and meant to be kept secret from management, he also found that, given Respondent President Nutter's confirmed antiunion bias which is evidenced by the activities found to be violations of Section 8(a)(1), Siders most likely noted Tolle's remark concerning Smith, and passed it on to his superiors. He found this to be the motivating element behind the decision to discharge Smith. As for Childers, the Administrative Law Judge found that because Smith and Childers engaged in "excessive talking," Respondent must have suspected that both were interested in the same thing, unioniza- tion, and decided to get rid of Childers because of this suspicion. We do not agree with the Administrative Law Judge that the foregoing evidence preponderates in favor of a finding that Smith and Childers were discharged for suspected union activities, rather than for the reasons given by Respondent. Even given Nutter's strong antiunion bias, which is clearly evidenced in the record, we do not believe that the evidence concerning Smith's and Childers' union activities and, more importantly, Respondent's knowledge of such activities, is sufficient to find that Respondent discriminatorily discharged them for such activity. The mere showing from Smith's testimony that Siders was told by another employee that Smith was thinking of becoming a Carpenter (and apparently in a jocular vein), some weeks before he was discharged, is not sufficient evidence to lead to the conclusion that Respondent suspected that Smith was supporting the Machinists Union which was organizing at the time of the discharge, or that Smith was in favor of seeing the plant become unionized. Since we find that the evidence is insufficient to conclude that Respondent knew or suspected that Smith was engaged in union activity, it necessarily follows that the evidence of Respon- dent's knowledge of Childers' union activities, which is based on the mere showing that Smith and Childers conversed often, is likewise insufficient. Dorothy Moessinger worked for Respondent from November 1972 to the day of her discharge, October 16, 1973. Just prior to her discharge, she worked at different jobs under both Supervisor Eldridge and Supervisor Siders. The extent of Moessinger's union activity consisted of signing an authorization card for the Carpenters during its September 1973 organizing drive, and later signing a card for the Machinists. Although Moessinger received a raise of 20 cents in February 1973, and a 10-cent raise in September 1973, she was discharged by Respondent on October 16 assertedly because she was guilty of excessive talking during worktime, for causing morale prob- lems among the employees, and for spending too much time in the restroom. On September 7, prior to any union activity, Eldridge noted on her employee rating sheet that she was causing morale problems by complaining about the Company to other workers. Thereafter, both her supervisors reprimanded her a number of times for excessive talking, excessive trips to the restroom, and interfering with the production of other employees. On October 15, Moessinger approached Siders concerning an incident she had observed when the Machinists representatives were handbilling on September 26; an employee had pinned an organizer against a rail with his pickup truck, and had sprayed gravel on the organizer by spinning his wheels. She appeared to equate this incident with Nutter's October 10 letter, his remarks about the violence attendant upon union organizing, and his remark that he would kill the union sons-of-bitches. When she told Siders that she had sent a letter to her lawyer in case something happened to her or her family, Siders attempted to allay her fears and convince her that Nutter was not capable of such violence. Finding this futile, he told her there was no need to discuss it further. Later that same day, when employee Fields complained to Siders that Moessinger was bothering him with her excessive talking, Siders made a memo of Fields' complaint and sent it to the personnel office. The following day, Fields complained again that Moessinger was bothering him with talk of the Nutter letter. Siders then consulted with Grice and Sisler, and decided to terminate Moessinger. Although the Administrative Law Judge found that there was no evidence that company officials knew ELANO CORPORATION that Moessinger had signed cards for either Union, or that she might have indicated her sympathies toward unionization by talk with other employees, he found that Respondent fired her because it suspected she was sympathetic toward the Union. This finding was partially based on the interrogation of Moessing- er by Eldridge found herein to be in violation of Section 8(a)(1). That incident concerned Eldridge's having asked Moessinger if she had signed her union card, to which she answered that she had not, and asked him if he had signed his. In that same conversation, Eldridge asked her if she knew what happens to those who sign union cards , and stated that Nutter didn't approve of unions. Moessinger told him she knew that. In addition to this interrogation, which the Admin- istrative Law Judge found showed that Eldridge suspected Moessinger's union affiliation, he found that Moessinger's rejection of Nutter's claims that unions were prone to violence, and her fear about Nutter's threats against union organizers, led them to believe that Moessinger had been swayed by union propaganda, and that she could no longer be trusted to accept Nutter's counterpropaganda. We do not believe that this evidence is sufficient to permit the inference that Moessinger was discharged by Respondent because of suspected union sympa- thies. As earlier noted, there is no evidence of knowledge by Respondent that Moessinger had signed cards or expressed thoughts concerning the Union to other employees. Further, when interrogat- ed by Eldridge some weeks prior to her discharge, she stated -that she had not signed a card . Although Respondent's officials might have suspected that she was prounion because of her stated fears regarding the Nutter letter, this is not necessarily so, and does not constitute sufficient grounds upon which to base a finding that Respondent discharged her for this reason. Although there is much evidence that Respondent was antiunion, the record does not support a finding that Respondent violated Section 8(a)(3), in our view. Rather, the record does show that Moessinger had been reprimanded for talking and interfering with the production of other employees on several occasions, and that a fellow employee had com- plained of her bothering him with her talk on both the day of her discharge and the previous day. Based on the foregoing evidence, we find that Respondent's discharge of Moessinger was not discriminatory, and we will dismiss that allegation of the complaint along with the allegations concerning the discharges of Smith and Childers. ORDER 693 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, Elano Corporation, Xenia, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as herein modified. 1. Delete paragraphs 1(a), 2(a), and 2(b), and reletter the remaining paragraphs accordingly. 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act protects employ- ees in their right to form, join, or assist labor unions or to refrain from such activity. WE WILL NOT keep under observation the handbilling of our employees by union organiz- ers. WE WILL NOT require our supervisors to eat in the plant cafeteria in order to keep the union activities of employees under surveillance or to inhibit open discussion about unions. WE WILL NOT coercively interrogate our em- ployees about whether they have signed union authorization cards. WE WILL NOT emphasize to our employees that it would be futile for them to select a bargaining representative because we would not bargain with it in good faith. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed by Section 7 of the National Labor Relations Act. DECISION STATEMENT OF THE CASE MILTON JANus, Administrative Law Judge: The General Counsel issued a complaint in this case on December 5, 1973, based on charges filed by the Charging Union (Machinists) on October 23, 1973. The complaint alleges that Respondent discharged two employees on October 12, and another on October 16, 1973, because they had joined the Machinists, and to discourage membership in it, and that it had also engaged in certain acts of interference, restraint, and coercion in the exercise of rights guaranteed by Section 7 of the Act. These acts are alleged to be in 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violation of Section 8(a)(3) and (1). A hearing was held in this matter on January 15-18, 1974, at Xenia, Ohio, at which all parties were represented . At the hearing, I granted the General Counsel's motions to amend the complaint to add other alleged violations of Section 8(a)(1). After the hearing, the General Counsel and the Respon- dent filed briefs with me which I have duly considered. Upon the entire record in the case, and my observation of the witnesses and their demeanor , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is an Ohio corporation with its principal office and place of business at Xenia, Ohio, where it is engaged in the manufacture of tubular products . During a recent 12-month period, which is representative of its operations, Respondent had a direct outflow of products valued in excess of $50,000 which it sold and caused to be shipped in interstate commerce directly to customers outside the State of Ohio from its plant in Xenia, Ohio. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED District Lodge 82 of the International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Respondent manufactures metal parts , such as fuel and exhaust systems for use in the railroad and aircraft industries . Although organized as a corporation, all its stock is owned by its founder and president, E. J. Nutter, who is also its operating head. The Company employs approximately 240 employees, of whom about 200 are production and maintenance workers on the first, or day, shift. The events described below took place from mid- September to mid-October 1973, and involved efforts to organize the employees. A representative of the Carpenters International Union was first in the field, placing enve- lopes with organizing literature and authorization cards on cars of employees parked outside the plant, on September 13 and 18. Four employees mailed in authorization cards in response to these efforts . On September 26, four represent- atives of the Machinists began to distribute union material and authorization cards on the road (Dayton-Xenia Highway), on which the plant fronts. Machinists,represent- atives were also at the plant on October 8, and on one day after the 16th, when they were joined by the three alleged discriminatees, Helen Childers, George Smith, and Doro- thy Moessinger. Eleven employees all told signed cards for the Machinists, among them the three who had been discharged in mid-October. B. The 8(a)(1) Allegations The incidents on which the 8(a)(1) allegations of the complaint, as amended, are based, fall into two main categories: (1) surveillance of Respondent's employees and of union representatives at the first distribution by the Machinists on September 26; and (2) three speeches by E. J. Nutter to the assembled employees on September 14 and 27 and October 15. Other incidents of alleged surveillance or intimation of surveillance occurred at the Union's second distribution on October 8, and in the plant cafeteria during lunchtime. There is also an allegation of coercive interrogation of one employee by a supervisor. Surveillance of handbilling: The plant is bounded on two sides by the Dayton-Xenia Highway and a driveway. The driveway ends at the highway, and it was at this intersection that the union organizers placed themselves. Employees who drive use either a reserved parking lot adjacent to the plant building from which they exit onto the driveway, or the unreserved parking lot which is across the highway. Those who park in that lot walk out of the plant's exit into the driveway, and then cross the highway, at the point where the organizers had stationed themselves. Most of the employees on the day shift left at 3:30 p.m. Sometime between 3 and 3:15 the afternoon of September 26, the organizers arrived, prepared to handbill the employees as they left the plant . Their presence was noted by plant officials before 3 : 30, and the first of them to appear outside was Stulpin, the personnel manager. He wheeled out two oil drums, placing one at the mouth of the driveway, adjacent to the organizers, and the other in the parking lot across the highway. On each he taped a sign, reading "Union Trash." Two other officials were also in the area just about the time the employees began to leave the plant. These were Sam Grice , a vice president, and Stanley Nolte, an office employee, one of whose jobs was to act as the Company's official photographer. Nolte took at least six pictures between the time Stulpin wheeled out the oil drums and the moment when the employees began to walk down the driveway toward the point where the organizers were waiting for them . (Resp. Exh. 10-1 to 10-6.) Since Grice and Stulpin are both visible in one of these pictures (Resp. Exh. 10-3) and since Nolte took it, it is apparent that all three were in a position to observe the employees as they approached the intersection where the organizers were waiting. I therefore find that Grice was mistaken in his testimony that he had left the area and had returned to the plant by 3:30. Stulpin testified that after positioning the two barrels he walked back up the driveway toward the plant and on the way told the employees walking toward him not to litter. However, the three organizers who testified, Vaughan, Boggs, and Dunlap, all testified that Stulpin remained near them during the entire shift change of 10 to 15 minutes, as they passed out their literature. Vaughan also testified that Nolte took pictures of the handbilling, while Boggs said he observed Nolte telling employees not to accept the union literature. Nolte testified that he took only the six pictures introduced in evidence , none of which show the employees close enough to the organizers to engage them in conversation. ELANO CORPORATION No employees who left at 3:30 testified on what they saw, or which management officials, if any, were outside the plant at the time. I am satisfied, from the credited testimony of the organizers and the evidence of the pictures, that Grice was in the driveway for at least a few minutes after the first employees reached the mouth of the driveway , where the organizers were standing, and that Stulpin and Nolte were close by for most or all of the shift change period . I am less certain that Nolte took pictures of the handbilling, but since he was well known to the employees as the company photographer, and was un- doubtedly still carrying his camera equipment while at or near the intersection, it would be natural for the employees to assume that he was there to take pictures of the organizational activities, whether or not he did in fact do so. I find therefore that Stulpin and Nolte, agents of the Respondent, were present at the 3 :30 handbilling, and kept the employees under surveillance. It is clear, and I find, that such open observation of contacts between union organizers and employees is a violation of Section 8(a)(l). After the 3:30 shift change was over, Vaughan and Dunlap left for a while , while Boggs remained . About this time, Nutter and others came out of the plant in a group to watch and exchange remarks with Boggs . No employees were present at the time . I credit Boggs' recollection over that of Vaughan, who had testified that Nutter and his group were present at the 3:30 handbilling. Later that afternoon, Supervisor Comer and others stood in a doorway of the plant and observed the organizational activities then going on. The distance from the doorway to the mouth of the driveway is about 80 yards, too far, it seems to me, for them to see or to be seen by employees who may have been at the point where the organizers were. I find that neither Nutter's nor Comer's observations that afternoon 'constitute improper surveillance. I also find, based on the credited testimony of Boggs, that no management officials kept under observation the handbilling which took place on October 8. Other surveillance: The Company provides a lunchroom in the plant, and no eating is permitted on the premises except there. Although the lunchroom is also referred to as the cafeteria, food is not prepared or served there. Employees either bring their lunch or purchase food from vending machines in the lunchroom. The place seats about 80 employees. In mid-September, after the first union organizing efforts began, the foremen were directed to eat in the lunchroom, whereas previously they had been allowed to eat their meal in a control room overlooking the plant floor. Based on the testimony of Dorothy Moessinger, one of the alleged discriminatees, that the foremen started to eat their meals in the lunchroom after the inception of union organization, the General Counsel argues in his brief that Respondent's purpose was to learn which employees supported the Union, or at least to inhibit discussion about it during employees' free time. Vice President Grice testified that he had first issued an order early that summer I In fact, there is a coffee machine in the control room, and the supervisors continued to have coffee and doughnuts whenever they were there. 695 to the supervisors that they were not to eat lunch in the control room, but that by September his order was being ignored. He said he then went to Nutter, who immediately reinstituted the order against supervisors eating anywhere but in the lunchroom. Grice's stated reason for his order was that the control room was to be used by the foremen solely for scheduling the work and for other official purposes.' On September 27, the day after the first appearance of the Machinists organizers outside the plant, Nutter gave the second of his three speeches to the assembled employees. One of the items he touched on was a report he had gotten that someone considered the management people in the lunchroom to be spies. He denied it, saying that he had specifically directed that management people eat with the other employees in the cafeteria (1) to make sure that the supervisors ate the same food that was available to the factory help, on the premise that what was good enough for the latter group was also good for the former; and (2) to give the employees a chance to mingle and talk on an informal basis with their supervisors. I note, as to the credibility of these two reasons, that Grice testified that he had issued his order some months before only to keep the control room free from eating, and not for Nutter's stated purposes. I also suspect that Nutter's purported concern that the food available in the lunch- room be the same for the supervisors as for the nonsupervi- sory employees was something less than what he had in mind. Employees and supervisors could bring their lunch, and thereby avoid having to eat vending machine food, so that forcing the supervisors to eat with the production employees did not ensure that they would be eating the same food. More likely, it was Nutter's purpose to have the supervisors present on the only occasion when the employees could discuss the Union on their free time if they were so minded to. I find that the newly instituted requirement that supervisors be present when the employees ate their lunch was to keep the latter's union activities under observation or to inhibit open discussion about the Union.2 Although this matter was not alleged in the complaint nor added by amendment at the hearing, I find that Respondent chose to litigate the effect of Moessinger's testimony about the presence of supervisors during employees' mealtime after union activities began, by Grice's testimony as to his reason for ordering them to eat in the lunchroom. Interrogation: At the opening of the hearing, I granted the General Counsel's motion to add a further allegation to the complaint, over the Respondent's objection, regarding interrogation of an employee by a supervisor as to the employee's union activities. The evidence in support of the allegation was given by employee Dorothy Moessinger who testified that John Eldridge, a supervisor in the burr room, had asked her if she had signed her union card. She said she had not, and then asked him if he had signed his. Later in the same conversation, Eldridge asked her if she knew what happens to those who sign union cards, and referring back to an earlier mention of Nutter, said that 2 Hawthorn Company, 166 NLRB 251 (1967), enfd. on this point N L R.B. v. Hawthorn Company, 404 F.2d 1205, 1208-9 (C.A. 8, 1969). 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nutter didn't approve of unions. Moessinger told him she knew that. Eldridge testified later on behalf of Respondent, as to the circumstances of Moessinger's discharge, but was not asked about a conversation with Moessinger in which the matter of her signing a card, and what might happen to those who do, came up. Moessinger's report as to what Eldridge said to her is therefore undenied, and I credit it. I find it clearly coercive for a supervisor to ask an employee if she has signed a union card when it is coupled with an admonition that the company president does not like unions, and that she should bear in mind what happens to those who sign the union cards. Nutter's remarks: Paragraph 5(a) of the complaint alleges that Respondent violated Section 8(a)(1) by the following conduct of president Nutter: (1) On or about September 26, 1973, in threatening its employees with reprisals by telling them that if they signed authorization cards of the Union they knew what would happen to them. (2) On or about September 26, 1973, in telling its employees that he could find out who signed the authorization cards, implying that their union activity would be under surveillance. (3) On or about October 2, 1973, in making veiled threats to its employees by making profane and disparaging remarks about representatives of the Union in their presence. The only evidence proffered by the General Counsel in support of these allegations came from the three discrirtii- natees. Moessinger said that in a speech to the employees, at a time when the Union was outside, Nutter held up a union card and said, "You may sign this card if you want to. You know how I feel about unions. And you all know how I feel about the union and you know what will happen to you if you do." Smith testified that Nutter spoke to the employees on September 26, that he referred to the Machinists, held up a card, and said, "You can fill these cards out if you like, but you know what will happen if you do. There are no stockholders in this company, I'm the owner and I'm the only one." Childers testified that in a speech on September 26, Nutter said he had called them to let them know the union boys from the IAM were out there, and that he held up a card, saying "It's up to you employees if you want to sign it. It's okay with me." He then said, according to Childers, that he did not like the Union, and he knew what would happen, he'd find out who signed these cards and sent them in. He then went on to say that he would not talk to the union people - that he'd either have a heart attack or he would go to jail for killing the sons-of-bitches. Childers testified that she left the plant at 4:30 that day and accepted literature from the organizers, while Smith said he left at 5:30 and did the same. As part of its case, Respondent offered in evidence transcripts of three speeches Nutter had made to the assembled employees on September 14 and 27 and October 15, which had been taped by Nolte, the plant photographer and audiovisual expert. I received the transcripts, marked 3 Thus, he pointed out that Nutter had said in his October 15 speech that he had already spoken for an hour and 10 minutes, even though the tape as Respondent's Exhibits 11, 12, and 13, respectively, over the General Counsel's objections, subject to checking them against the tapes. At a recess during the hearing, represent- atives of the parties and I listened to the tapes and checked them against the transcripts. There were no differences between the two, and I am satisfied that the typed transcripts of Nutter's three speeches to the employees accurately record what we heard on the tapes. I then also accepted the tapes into evidence as Respondent's Exhibits 30 (the speeches of September 14 and 27) and 31 (the October 15 speech). The General Counsel continued to urge the possibility that part of what Nutter actually spoke in one or more of the speeches might have been omitted or deleted from the tapes, or that they might have been tampered with in some way.3 The parties then agreed to make mutual arrangements to have the tapes examined by two acoustics experts to be selected by them, with the tapes to remain in my possession until the examination could be arranged. On April 5, when the two-man panel had been selected, I mailed the tapes to it. On June 11, the report of the panel was submitted to me and the parties, and I reopened the record to receive it. The report is hereby designated Joint Exhibit 1, and will be discussed later. I also granted the parties until July 1 to submit comments on the panel's report. These have been received and have been considered in reaching my conclusions as to the authenticity of the tapes. At the close of the hearing, with the transcripts of Nutter's three speeches now in evidence, the General Counsel moved to amend the complaint based on what Nutter admitted he had said. This was done by adding a new paragraph (f) to section 5, alleging that in one or more of his talks, Nutter had told the employees that (1) Respondent would refuse to bargain in good faith with a Union, thereby implying that their organization efforts would be futile; (2) he had threatened the employees for engaging in union activities; (3) he promised benefits to them if they refrained from engaging in union activities; (4) he solicited employee grievances in order to discourage union activities; and (5) he encouraged employees to report on the union activities of other employees. Paragraph 5(a) is thus based on the recollections of Smith, Childers, and Moessinger as to what Nutter said to the assembled employees, while paragraph 5(f) is based on the transcriptions of the tapes (Resp. Exhs. 11, 12, and 13). There is nothing in the transcribed speeches which would even remotely show that Nutter had mentioned anything to the employees that something might happen to them if they signed union cards, or that he would find out who had signed and sent in union cards. The basis for the allegations of paragraph 5(a) collapses unless it can otherwise be shown that Nutter made the remarks attributed to him by Smith, Childers, and Moessinger in another speech which was not taped or transcribed, or that the three transcriptions we have are inaccurate or incom- plete. As to the first alternative, that Nutter spoke to the employees in an unrecorded speech, it is true that Nutter admitted speaking to them on occasions when his remarks cassette has a nominal playing time of 60 minutes per side, and the entire speech was recorded on only one side ELANO CORPORATION had not been taped . However, I am satisfied that the General Counsel has not shown that the testinibny of Smith, Childers, and Moessinger relates to anything other than one of the transcribed speeches, most probably that of September 27. Thus, Childers and Smith gave the date of the speech as September 26, which is the date on which the IAM organizers first appeared outside the plant, while Moessinger, although uncertain as to the exact date, placed it as the time when the Union was outside the plant. This almost certainly would also be the 27th, since the Carpenters, who were there on the September 13 and 18, made no open distribution of campaign material to the employees, but only left its literature on cars in the parking lot. Further, it is extremely unlikely that Nutter spoke to the employees on the 26th as well as on the 27th. It will be recalled that the IAM organizers made their first appear- ance at the plant, with no prior notice, between 3 and 3:15 on September 26, so that if Nutter had wanted to reach the majority of the employees, whose shift ended at 3:30, he would have had to call them together as soon as he became aware of the union presence outside, yet none of the General Counsel's witnesses recalled or remarked that the speech had been given on such short notice. I find that Childers and Smith were in error in their testimony that Nutter spoke on September 26 (when his remarks, if taped, were not transcribed) but that he spoke on the 27th, so that the transcription of that speech accurately presents what he said, unless something was omitted from the taped record or the tape itself was altered . That brings me to the Report of the technical consultants. The consultants have impressive credentials, and their report is a model of clarity, attention to detail and completeness. The following quotation from their "Conclu- sions" is persuasive and convinces me that the tapes themselves were not altered in any manner: In the full light of the events of interest noted in the foregoing logs it appears that these cassettes are straightforward recordings of the events that occurred while the recorder was turned on. Both panel members agree completely that there is no evidence of any attempt to delete, edit, alter or obscure the material originally recorded on these tapes whether by physical editing, electronic erasure, or the introduction of spurious signals to obscure original content. These conclusions are based not only upon the rigorous examination already described, but also upon consider- ation of the proceedings recorded on the tape. At no point is there any evidence of a break in the continuity of events such as would likely be apparent if a portion of the proceedings had been deleted. Except for the interruptions specifically noted there are none of the abrupt changes in the character of background noise or anomalies in the texture of the recording that would suggest a physical or electronic alteration. Now it is perfectly true that, if sufficient sophisticated techniques are used, magnetic tape recordings can be a Respondent submitted with its supplemental brief on the report, a motion to reopen record to take the testimony of a witness who had not previously testified , to explain the circumstances of the two "pauses" in the 697 dramatically altered in ways that will defy detection by even the most expert examiners. As a matter of fact, given the intention of making such alterations, the introduction of high level background noise is an extremely useful device for masking other changes. But again, there is nothing to suggest that such techniques have been employed in this instance. And given the general character of the proceeding it seems unlikely that such sophisticated techniques would be called into play to alter or obscure the contents of the tapes. There were, however, according to the report, four points during the three speeches when the recorder was apparent- ly stopped and restarted, and it is possible that during these periods of nonrecording Nutter could have said something on which the testimony of Smith, Childers, and Moessinger might possibly have been based. The most significant of these interruptions occurred in the October 15 speech, when after 14 minutes of recording, the machine was apparently placed in the "pause" mode for some indetermi- nate period. This occurred at the time when the recipients of a bonus were named and called up to receive their $100 bills. The speech was then interrupted, probably while the distribution was going on. At the end of his recorded speech, which lasted about 61 minutes, Nutter stated that he had been speaking for an hour and 10 minutes, and it is this discrepancy which the General Counsel points to in arguing that Nutter must have said something more, which was not recorded. He also attacks Nolte's general credibili- ty, since Nolte, who did the taping, testified that he had never once stopped the machine? I do not think much can be made of the interruption after 14 minutes in the October 15 speech. I am satisfied that the recorder was in fact placed in the "pause" mode (which means that the electronics is in a state of operational readiness, but with the motion of the tape suspended) while the winners came up front, and that Nutter would not and did not suddenly and in complete indifference to what was then going on, launch into an attack on the Union. There is, moreover, an even more fatal flaw in the General Counsel's contention that Smith and Childers have accurately reported matter spoken by Nutter on October 15, which was not recorded. It is that Smith and Childers could not have been present at that speech, since both had been discharged on October 12. It is true that Moessinger could have been present then, as she was not discharged until the next day, but I am satisfied that her recollections of what Nutter said are based on his two recorded speeches in September. There was another interruption in the October 15 recording, at the very close of the speech, when the recorder was stopped as it seemed that Nutter had concluded, and was then restarted when Nutter appeared to want to say something more. Again, it lends no support to the General Counsel's surmises, particularly since Smith and Childers were not in attendance and could not know what Nutter had said then. In the tape of the September 14 speech, there were two recording of the October 15 speech. I deny the motion since at this point in time litigation must finally have an end, no matter how instructive further inquiries would be 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the tape of the September 14 speech, there were two quick successive interruptions of less than a second each, occurring 20 seconds after the tape started. Although there is no way of determining how long the recorder was stopped in each instance or what transpired while it was off, the comment of the consultants seems eminently reasonable. The report offers this explanation: "Each interruption is a small interval of silence in the background noise. This could have resulted from starting the recorder too soon, stopping it when it was realized that the meeting was not yet ready to begin and then restarting when it appeared that things were about to get underway." Finally, to cap it all, the tape for the September 27 speech, which in my opinion is the one on which the testimony of Smith, Childers, and Moessinger was based, contains no stops or interruptions of any sort. I find that Nutter said nothing more or differently on that occasion than the transcript for the speech (Resp. Exh. 12) reveals and to conclude, I find that there is no credible evidence to support the allegation of paragraph 5(a). I shall recom- mend that it be dismissed. I turn now to paragraph 5(f) which was added at the close of the hearing, and which is based solely on the transcriptions of Nutter's three speeches. It alleges that Nutter violated Section 8(a)(l) by implying that the employees' organizational efforts would be futile since he would not bargain with the Union in good faith; that he both threatened the employees and promised them benefits in order to interfere with their right to organize; and that he solicited employee grievances and encouraged employ- ees to report on the activities of other employees in order to discourage their union activities. Reference to union matters occupied only a portion of the speeches, most of them being devoted to plant matters, a contest to increase production, prizes in the contest, politics, and personal reminiscences.5 To give the flavor of his remarks on unions, I quote them in full from his first speech, that on September 14, the day after the Carpenters first began to distribute campaign literature. The following quotation from that speech is also representative of his remarks on September 27. After beginning, on September 14, by referring to the efforts to exceed past production quotas, Nutter referred to the appearance of the Carpen- ters the day before by saying: Let's see what else I have. Oh yeah. Before I get into all this. . . . How many of you have seen the union card? You knew darn well that I had to say something. I'm sorry it had to come up today. Our friends are out there passing them out. If you haven't gotten one they'll be sure to get you one if you want one. It says "Be union, sign union, talk union, and think union." I want to advertise for them. Let there be no doubt in your mind what I think about them. I think they're a bunch of S.B.s. You have a perfect right to do whatever you want to do with them, except we are in a strange position in this Company. We don't have any outside stockholders. Unfortunately, or fortunately, I don't know which for you guys, only one guy owns the Company. And I don't like the bastards, and I have no intentions of ever working with them. So it's your choice on what you want to do. If it comes to this. I don't know whether there's anything to it or not. But just because I've gotten a little older . . . . for some of you younger people, I haven't changed my mind a bit. If I ain't scared of elephants, I ain't scared of unions. But the main point is, this Company, the type of business we're in, can't work under a situation of that kind and our customers don't want us under a situation of that kind, and they don't give business to people who are under those situations because they can't afford to have work stoppages and that sort of thing. So I just want to let you know that I know all about it and you have a perfect right to do what you want to do with it, but you also must consider how I feel about it and what my reactions might be. I have to be very careful what I say so I don't intimidate anybody. Somebody asked me what would happen if I talked to a union leader. I told them in the first place I have no intentions of talking to them, but if I did, either two things would happen, one of two things, I'd die of apoplexy and heart failure, cause I'd get so mad or I'd kill the son-of-a-bitch. One of the two. Then I'd get tried for murder. So that's the way I feel about it and you may quote me any place you want to. I've been threatened before and that don't bother me either. Those guys don't have near as much nerve as elephants, I'll tell ya'. OK Want me to say anymore about that? OK, if I say much more then I get mad. I'll stick that one [union card] in my pocket. Incidentally, I don't think I'll send it in. In his October 15 speech, Nutter spoke about the production contest which had just been successfully completed, announced the bonus winners, and then spoke about the Union for what I would estimate from the number of transcript pages, to be 15 to 20 minutes. He began by saying that he would not deny anyone there the right to join a union or sign a card, but would deny them the right to force it on someone else or on him. He said that in his past talks he had mentioned the Union in a jesting way, but he was sincere about how he felt. He then adverted again, as he had in the other speeches, to the fact that the Company had no other stockholders but him, that he owned everything there, that he considered everyone there as his family, and as long as it stayed that way he enjoyed it and loved to run the Company; but if it wasn't to be that way, he didn't and he wouldn't. He said it wasn't easy for him to say, but he was the only person in the Company with the power to give or to take away, so he wanted them to know exactly how he felt. He would not be licked at his own game, that union leaders are in a business, which is to collect dues, and that they love employees only because they can make a contribution to their till. "Unions sell you out and unions sell their members out same as they would sell me out . . . . They're always fighting about it, they tear up things, they cause great fears, they murder, and I won't have any part of that kind of an organization or anybody connected with that type of organization in my plant. Nobody says I have to 5 Nutter is a big-game hunter and references to his hunting experiences are used illustratively. ELANO CORPORATION and I have a choice. But you also have a choice - I want to keep reminding you of that." He then said that unions are also part of the manage- ment tool in places like General Motors, where the president can't go down and talk to their employees and visit with them as he did, so that in big Plants unions are used to manage their employees . He could make a good deal for himself with the Union, but he wouldn't do that because he would not sell out to anybody. Then, without specifically attributing it to a union , he told about his young son having received a telephone call at home a year or so ago in which the unidentified caller had threatened to kill him (Nutter) if he didn't stop this fight. He asked what the Union could do for them in benefits, said that he and the employees were a team or a family, that they needed each other, and enumerated benefits which the Company was then giving. He urged any employees who were union organizers to insist on getting paid for their work because the Union people who pass out leaflets are well paid. "They know how to cuss you out, and they know how to beat you over the head, and they know how to do a few other things. Now if you've been suckered into doing something and without getting a good compen- sation on the side, this is your chance to draw Elano pay, at least for awhile, as well as union pay, you can get paid double." Turning to the matter of union cards, Nutter said that the rules about not seeing them had changed in the past few years. "Now the favorite way a union has of getting in the place is to get you to sign up some cards and when you sign up the cards they like to come in our front door and they'd like to find me if they could, which they can't, and lay them on the table," thereby revealing the employees' names. Nutter next mentioned plant shutdowns as a result of union problems and troubles, mentioning a specific plant which he had bought in Pennsylvania after a union had come in, and that he had moved the equipment to his own plant, so that his employees now had the jobs that the employees in the other plant had once had. He then mentioned the names of other employers whom, he said, the unions had run out of town. The next topic was negotiations with a union: Now, the union said to you, "Don't worry about negotiating." I said I'd never negotiate with the union, I won't! Well the laws say the Company has to negotiate with the union, fine, I can find plenty of people to negotiate with the union and they can negotiate till hell freezes over and they gotta ask me whether it's good or bad and if I decide I don't like it, then what can happen? Well, then you can strike and what's that going to gain you? If there was a strike and the plant shut down, Nutter said he would put his negotiators back to work while he might go to Africa and hunt, or he might open the plant and replace the strikers. 6 John Wanamaker, Philadelphia, Inc, 199 NLRB 1266 (1972) 7 Similar sentiments were also expressed by Nutter in a letter sent to all 699 Finally, Nutter said many employees had asked him for things, and if he could do it for them he would but he had to divide up his dollars as he got them, "and you can't go out and get somebody else to come in to beat me over the head and get anything out of me - you'll never get anything out of me, it just won't come." The Union was asking them to choose up sides, and he urged them to do so. The choice was not "love me and leave me"; it was "love me OR leave me." He urged everyone who didn't like the Company not to stay. He estimated that there were about 1,600 persons (employees and their families) who depended on the Company, and those employees who choose the union side can go its way. "You know if you can get into a battle you want to do something about it and you are either on one side or the other, so we either get in this thing or get out and that's exactly the way I feel about it." Certain allegations in paragraph 5(f) of the complaint based on Nutter's speeches can be disposed of without extended discussion. They are that Respondent (1) prom- ised the employees benefits if they refrained from union activity; (2) solicited employee grievances; and (3) encour- aged employees to report to it on the union activities of other employees. (1) In his October 15 speech, Nutter named certain benefits, such as college tuition payments, which the Company was then giving. There is no expression or hint in any of the three speeches that he was prepared to do more if the employees rejected the Union. (2) In the same speech, Nutter did point out that if employees wanted something, they could ask for it directly and did not need a union's intervention. I do not consider this to be an invitation to employees to open new channels of discussion or negotiation with management for adjust- ment of grievances, but rather a reiteration of the Company policy that its president was always available to then t.6 (3) The only possible support for this allegation is from the October 15 speech, in which Nutter told the employees that they could write letters to the Union saying they didn't want any part of it, or they could write him that they didn't want the Union. There is no suggestion that those who wrote him should reveal the names of fellow employees who supported the Union. I find, based on the above, that these allegations of paragraph 5(f) have not been proved. (4) The General Counsel contends that Nutter's remarks in his October 15 speech that the secrecy of the union cards could not be maintained are a violation of Section 8(a)(1).7 In these two communications, Nutter denied the Union's assertion that the Company would never know who had signed its cards. He said that if a union demands recognition on the basis of signed cards, it will give the employer a chance to examine them, while if it petitions the Board for an election, "or there is NLRB litigation involving the union and the company, it is possible that your signed card will be made a matter of public record." (G.C. Exh. 4.) the employees about October 10 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I consider the proper test for deciding whether these remarks are a violation of the Act, to be that set out in Forenta, Inc., 165 NLRB 641, (1967), cited to me by the Respondent. There, the Board reversed the finding of a Trial Examiner that the employer's statement as to the lack of secrecy of union authorization cards conveyed an implicit threat that employees who signed such cards might anticipate employment reprisals or discrimination. The Board said that it would not find such a statement to be a violation of Section 8(a)(1) unless there was language suggesting reprisal or other accompanying unfair labor practices from which an implied threat of reprisal might fairly be inferred. Neither Nutter's speech nor letter threatens employees with reprisal in their employment if they signed cards, and although I have found that the Company has committed other unfair labor practices in its surveillance and intimations of surveillance , these are violations of another type, and unrelated to the specific charge here. I shall, therefore, with some doubts, recom- mend dismissal of the allegation that Respondent violated Section 8(a)(1) by stating that under some circumstances the names of those who signed cards might be revealed. (5) The General Counsel argues that Nutter's disparag- ing and profane remarks about unions in his speeches are in effect threats to the employees and therefore in violation of Section 8(a)(1). Nutter did not attempt to conceal his contempt and hatred for unions; he accused them of being capable of violence and even murder, of selling out employees and having no interest in them beyond collecting their dues, and he called them crooks and other defamatory names. The Respondent admits that Nutter defamed and cursed unions but argues that his remarks are protected by Section 8(c) as free speech. I agree with Respondent. I find that Nutter's expression of his opinion of unions and their representatives and his exhortation to employees to take a stand either for or against him are privileged as free speech and legitimate argument .8 (6) Finally, it is the General Counsel's contention that the effect of Nutter's speeches was to impress on the employees the futility of attempting to exercise their organizational rights under Section 7. Respondent, on the other hand, argues that, at most, Nutter was saying that he would not personally meet or participate in the negotia- tions, but that since he would send authorized representa- tives to deal with the Union , he was not engaging in an anticipatory refusal to bargain . It further argues that Nutter's acknowledgement that the employees had a legitimate right to join and support the Union, disposes of any further contentions that he was expressing the futility of organizing. A consistent theme in all three speeches is Nutter's assertions that he is the Company - that there are no stockholders but him, and that he is answerable to no one in his conduct of the Company's affairs . In the first speech, he said, "Unfortunately, or fortunately, I don't know which for you guys, only one guy owns the Company. And I don't like the bastards, and I have no intentions of ever working with them." In his second speech the same thought is expressed as follows : "So . . . the only thing those guys " Olney Motels, Inc, 176 NLRB 903, fn . 2 (1969); Amerace Corporation, 162 NLRB 338, 346 (1966); and S. & H. Grossinger's, Inc., 156 NLRB 233, haven't figured on, is the fact they can't get a durned thing for you that I don't give 'em. And if they can't get it out of me nobody can, and I personally have no intentions of ever talking to one of those fellows, like I said the last time, so, I'll be pretty hard to get." And again, in his third speech: "So, in that light [that he owns the Company ] and it's not easy for me to say, and I don't hold myself up on a pedestal by saying it, but I'm the only person in the Company who has the power 'to give' or the power to `take away,' or the 'authority,' . . . . So it is rather important to me how I feel and you don't have to agree with me, but I want you to know without a doubt, exactly how I feel." Thus, there is continued emphasis on the fact that he will make the ultimate decisions even though he selects others to meet with the Union in the first instance, and that after his "negotiators" negotiate "till hell freezes over" (Resp. Exh. 13) and a strike has ensued , and the plant has been shut down, he might decide to go hunting in Africa. This is the very antithesis of an intention to meet with and discuss the proposals of an authorized bargaining representative in good faith, either personally or through negotiators with full authority. Nutter was most bluntly conveying to the employees the futility of selecting a bargaining representa- tive, since he would neither meet with it nor delegate to his "negotiators" the power to discuss its proposals with an eye to reaching an agreement. I find Nutter's speeches, in this regard, to be in violation of Section 8(a)(1). C. The 8(a)(3) Allegations George Smith and Helen Childers: Smith had worked in the welding department since he was first hired in October 1968, while Childers' last job was also in the same department. She had been employed by Respondent since January 1969. Smith worked at the automatic welding machines and also did simple setup and repair work on them. Childers did spot and seam welding, cut parts in the Erie department, replaced shop rags and gloves for other employees, and did other miscellaneous jobs. Respondent claims that their supervisor, Jim Siders, discharged them at the end of their shift on Friday, October 12, for repeated violations of company rules, particularly for excessive talking and low productivity. Respondent has a rule prohibiting employees from talking during working time if it takes them away from their jobs, interferes with production, or creates a morale problem. Employees are permitted to talk to each other if they are working side by side so long as their productivity is not affected. The Company also has a rule against employees eating anything during worktime or on breaks except in the cafeteria. Smith had been warned about violating the no- eating rule in March 1973, while Childers had received a similar warning in June 1973. In February 1973, Smith had been warned about excessive talking during working hours , and both he and Childers had been similarly observed in July and again on October 11, the day before their discharge. Warnings had been placed in their files about these offenses , and Smith admitted he had been verbally warned three or four times, 242(1965). ELANO CORPORATION 701 while Childers could recall only one such warning from her supervisor. The written warnings placed in their files attribute a loss of productivity to their excessive talking. How much these violations may have contributed to lower productivity is in dispute. In his latest semi-annual evaluation of Smith's work, about a month before his discharge, supervisor Siders marked the quality and quantity of his work as "Good" but only marked him "Fair" for "Co-operation," commenting that he was being given only a token increase because of his continued excessive talking. In the earlier evaluation, 6 months before, Siders had also commented that Smith's quantity of work was only fair, being affected by his excessive talking, although "Quality" was marked Good. In September, Childers had been marked as Fair on "Quantity" with the comment that she would have had a larger wage increase if her quantity had been low. Despite this concern over their production, Childers had been given a 10-cent-per-hour increase, and Smith 15 cents. Although Siders testified that these were only nominal raises, I am satisfied that they were not substan- tially below the amounts given to other employees for the same period. Siders also testified that their replacements, after they were discharged, had "shipped out" 15.2 percent more parts than Smith and Childers in a comparable period. I regard this exact figure as undoubtedly exaggerat- ed, since the parts produced by Smith and Childers were not "shipped out" but were simply components in an integrated production process. In any event, it seems likely that the production record of Smith and Childers left something to be desired, and that their talking may have contributed somewhat to their performance, which I gauge to have been somewhat less than they could have attained. Siders testified that the decision to terminate Smith and Childers was reached on October 11 by himself, Grice and Sisler, two of Respondent's vice presidents, after Sisler sent Siders a memo that he had observed them talking away from their work stations, also noting in the memo that Siders should take necessary steps to keep equipment operating at full capacity. Siders denied that he had any knowledge that Smith and Childers had been engaging in any union activity, and asserted that his only reason for discharging them was their violation of the Company rules against talking, and their low productivity. It is true that the activities of Smith and Childers for the Union were meant to be kept secret from management. Both had accepted literature and cards from the Machin- ists organizers on September 26, and had mailed their cards in after taking them home. Childers said that she was unaware that any supervisor had seen her accept a card that day, although she thought that supervisors had been standing at the plant entrance and might have seen her. If it were in fact so, it cannot be proved. Other than that, Childers said she had spoken to 40 or 50 employees at the plant about the Union. I suspect her estimate is an exaggeration but, in any event, there is no evidence that any of the employees she spoke to informed on her. Thus, as to Childers, there is no evidence that the Company knew of her sympathy for the unions, except as it may have made an educated guess that she and Smith had a common purpose since they worked and talked together. The evidence as to company knowledge of Smith's union activities is sparse. It depends wholly on Smith's testimony that one day in the cafeteria, after the Carpenters' short- lived organizing campaign had begun, he was talking to fellow employees on behalf of the union when Siders approached. According to Smith, Harley Tolle, a fellow employee seated at the next table, said to Siders, "Hey, Jim, George is thinking of becoming a Carpenter." Siders replied, still according to Smith, that that was all right, just so he didn't box himself out. Tolle was not called as a witness, either to confirm or deny Smith's report as to what he had said, while Siders who testified at length as to his reasons for firing Smith and Childers, was not asked what, if anything, Tolle might have said to him about Smith wanting to become a Carpenter. Given President Nutter's confirmed antiunion bias, and his opinion that there was no room in the Company for both himself and a Union, it is very likely that manage- ment was concerned to learn who the union adherents were in the plant. Granted that the only evidence of Company knowledge of Smith's interest in unionization is Sider's hearing from Tolle that Smith was thinking of joining the Carpenters Union, I am convinced, given the climate of opinion at the plant, that Siders noted the remark and passed it on to his superiors, and that it was the motivating element in the decision to discharge Smith. Furthermore, it must have seemed to the Company, and I so find, that with Smith and Childers engaged together in "excessive talking" that they must both be interested in the same matter, and that it was better to get rid of Childers, even on suspicion, than to risk her retention. I find that Respondent regarded Smith and Childers as an expendable pair of employees against whom it had a colorable basis for discharge, but that in fact it did so because of its well-founded suspicion that they were interested in seeing the plant become unionized. Discharge of employees for such a reason is, of course, discriminatory, and I find that Respondent violated Section 8(a)(3) thereby. Dorothy Moessinger: She had been hired in November 1972, and was discharged October 16, 1973. In the last few months of her employment she was assigned to the weld shop under foreman Siders, but when her boom welder was not operating, she would work in the burr room under assistant foreman Eldridge. In February 1973, she had received a 20-cent-per-hour increase, and in September, a few weeks before her discharge, she got a 10-cent raise. Moessinger was I of the 7 employees who had signed an authorization card for the Carpenters, and 1 of the 11 who had signed a similar card for the Machinists. Despite the company rule against talking, Moessinger spoke to other employees during worktime, and they spoke with her. Moessinger also went to the restroom and engaged in general conversation with other female employ- ees there. Presumably this was not against company rules, although the Company now claims that she went more often and stayed longer than others. If so, no warning slip was placed in her file about it from November to the following September. On September 7, before the first appearance of the Carpenters, Eldridge noted on her employee rating sheet that she was causing morale problems by complaining 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about the Company to other workers. Thereafter, she was warned and reprimanded a number of times by both her supervisors for excessive talking, spending too much time in the restroom, and interfering with other employees' production. Moessinger seemed to be a nervous and fearful woman who took Nutter's remarks about the violence attendant on union organizational efforts seriously. She seemed to be particularly concerned about his letter to the employees of October 10 (G.C. Exh. 4) in which he again referred to the violence and property damage which employees and their families might suffer during a strike. The following Monday, October 15, Moessinger asked Siders if she could talk to him about the violence that was being done by the Company, and related to him an incident she had observed on the day of the Machinists first handbilling, when a company employee had pinned one of the organizers against a guardrail with his pickup truck, and had then spun his wheels while leaving, spraying gravel on the organizer. She then told Siders that she had sent a letter to her lawyer in case something happened to her or her family. Siders asked her if she thought Nutter was capable of violence. She said she did not know, but that he had threatened to kill the union sons-of-bitches. Siders tried to allay her fears but finally decided it was futile and told her there was no need to discuss it further. Later that day, employee Fields told Siders that Moessinger was bothering him with her excessive talking. Siders made a memo of Fields' complaint and sent it to the personnel office. The next day, Fields again complained to Siders that Moessinger was continuing to bother him by talking about the Nutter letter, at which Siders, after first consulting with Vice Presidents Sisler and Grice, decided to terminate her. There is no evidence that company officials knew that Moessinger had signed cards for either or both of the Unions which had instituted organizing campaigns, or that she might have indicated her sympathies toward unioniza- tion by talk with other employees. I have, however, found that Supervisor Eldridge had asked her if she had signed a union card and if she knew what happens to those who do. It indicates at the very least that Eldridge had some reason to suspect that she had signed a card, and was warning her as to its possible consequences. Later, the company's suspicions were confirmed that Moessinger was sympathet- ic towards the Union by her rejection of Nutter's claims that unions were prone to violence, and her fearful belief that Nutter was serious about his threats against union organizers. To Siders, Grice, and Sisler, Moessinger was acting disloyally to the Company by equating union violence with company violence. It is immaterial that Moessinger's expressed fears about what Nutter might do seem irrational, since it was Nutter's own virulent remarks which had prompted her fears. I find that Siders, Grice, and Sisler were motivated in terminating her by their belief that Moessinger had been swayed by the union propagan- da and promises, and that she could no longer be trusted to 9 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. accept Nutter's counter propaganda. I therefore find that Moessinger's discharge was a violation of Section 8(a)(3). CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District Lodge 82 of the International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily discharging George Smith, Helen Childers, and Dorothy Moessinger , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By keeping under observation the handbilling of its employees by union organizers ; requiring its supervisors to eat in the plant cafeteria in order to keep the union activities of employees under surveillance or to inhibit open discussion about unions ; coercively interrogating employees about whether they had signed union authoriza- tion cards ; and by emphasizing to its employees that it would be futile to select a bargaining representative because it would not bargain with it in good faith, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act, and in violation of Section 8(a)(1) of the Act. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has committed certain unfair labor practices, I shall recommend that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. Having discriminatorily discharged George Smith, Helen Childers and Dorothy Moessinger, I find it necessary to order the Respondent to offer them reinstatement, with backpay computed on a quarterly basis from the dates of their terminations to the date of the offer of reinstatement, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), plus interest at 6 percent per annum. I shall also order it to post appropriate notices. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS Respondent, Elano Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in District Lodge 82 of the International Association of Machinists and Aerospace Workers, AFL-CIO, or in any other labor organization of its employees, by discriminatorily discharging, or in any other manner discriminating against any employee in 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. ELANO CORPORATION regard to hire, tenure, or any other term or condition of employment. (b) Keeping under observation the handbilling of its employees by union organizers; requiring its supervisors to eat in the plant cafeteria in order to keep the union activities of its employees under surveillance or to inhibit open discussion about the Union; coercively interrogating its employees about whether they had signed union authorization cards; or emphasizing to its employees the futility of selecting a bargaining representative because it would not bargain with it in good faith. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to join or assist the above-named labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act, or to refrain from any or all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer George Smith, Helen Childers, and Dorothy Wessinger immediate and full reinstatement to their 10 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 703 former jobs, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings each may have suffered by reason of the discrimination against them, in the manner set forth in "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents for examination and copying, all records necessary to analyze the amount of backpay due, and the right of reinstatement. (c) Post at its plant and office at Xenia, Ohio, copies of the attached notice marked "Appendix." 10 Copies of the notice, on forms provided by the Regional Director for Region 9, after being duly signed by an authorized representative of the Respondent, shall be posted immedi- ately upon receipt thereof, 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 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."