Terry Industries of Oregon, Inc.

TERRY INDUSTRIES OF OREGON, INC. 133 Terry Industries of Oregon, Inc. and Retail Clerks Unison, Local No. 1612, Retail Clerks International Association, AFL-CIO. Cases 36-CA-2592- and 36-RC-3283 March 27, 1975 [Direction of Second Elections and Excelsior foot- note omitted from publication:] 5 The grounds for setting aside the results of the first election, held on June 28, 1974, stem solely from evidence adduced relevant to Petitioner's Objec- tions 3 and 4. As to Objection 3, the objectionable conduct found was not the promulgation of a presumptively valid no-solicitation rule, but the dis- criminatory enforcement of the "no-talking" portion of this rule to curtail union activity during the election campaign. DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS JENKINS, KENNEDY AND PENELLO On December 11, 1974, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. - ]Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions" and brief and has decided to affirm the rulings, findings,' and conclusions3 of the Administrative Law Judge and to adopt the recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge, and hereby orders the Respondent, Terry Industries of Oregon, Inc., La- Grande, Oregon, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order. i In the absence of exceptions, we adopt pro forma the Administrative Law Judge's conclusion that the General Counsel has not established that Respondent discriminated against dischargees David Pattee and Louis Ly- man, and the Administrative Law Judge's overruling of the Employer's objections. 2 Contrary to the finding of the Administrative Law Judge, the supervi- sory status of former Assistant Production Manager Robert Smith is^not admitted by the pleadings. It is clear from the record, however, that Smith had the authority to discipline and responsibly to direct other employees We therefore agree with the ultimate finding that Smith was a supervisor within the meaning of the Act. 3 The unlawful interrogation found herein occurred at the very beginning of the Union's organizational campaign In our opinion, the Administrative Law Judge inadvertently overstated the extent of supervisory and managerial awareness of, and opposition to, union activity at that time. We therefore rely only on clear record evidence concerning Respondent's supervisor, Smith, to establish Respondent's opposition to unionization at the time of the incident. 4 Members Kennedy and Penello rely on subsequent objectionable con- duct found to have occurred during the election campaign as evidence supporting the conclusion that the unlawful interrogation found herein was neither isolated nor de minimis. Member Jenkins considers the interroga- tion, standing alone, sufficiently serious and threatening to warrant finding a violation of Sec 8(a)(1) DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge: This mat- ter was heard at LaGrande, Oregon, on October 3, 4, and 5, 1974.1 The complaint,' issued August 29, is based on a charge filed June 27 by Retail Clerks Union, Local 1612, hereinafter referred to as the Union. The complaint alleges that Terry Industries of Oregon, Inc., hereinafter referred to as Respondent, violated Section 8(a)(1) and (3) of the Na- tional Labor Relations Act, hereinafter referred to as the Act. Pursuant to a petition filed in Case 36-RC-3282, involving the same parties, the Regional Director for Region 36 ordered a hearing on objections to election inasmuch as substantial and material questions of fact were presented by the objec- tions. On August 29, said Regional Director issued an order in which he consolidated Cases 36-CA-2592 and 36-RC-3283. Both cases were heard at LaGrande, Oregon, as aforesaid. ISSUES The principal issues are whether Respondent interrogated an employee concerning his union activities, in violation of the Act; whether employee David Pattee was discharged from union, activities; whether Louis Lyman was discharged for union activities; and whether a bargaining order is an appropriate remedy in this case. Several minor issues were presented, as more fully set forth below. All -parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to argue orally. Briefs, which have been care- fully considered, were filed on behalf of the General Counsel, the Charging Party, and Respondent. Upon the entire record,' and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent is an Oregon corporation engaged in the man- ufacture of travel trailers at a plant located near LaGrande, Oregon. Respondent annually sells and ships travel trailers valued in excess of $50,000 to customers located outside the State of Oregon, and annually receives goods and products i All dates are within 1974, unless stated to be otherwise. 2 Paragraph 10 of the complaint was amended at hearing. 3 G C Exhs. 9(a) and (b) are stipulated substitutions for an earlier incorrect 9(a) and (b). By undated motion to reopen the record, filed November 21, 1974, counsel for Respondent requested that the amendment to the complaint be corrected to show the proper date of the consent elec- tion agreement. Said motion hereby is granted 217 NLRB No. 29 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD valued in excess of $50,000 directly from suppliers outside the State of Oregon. The complaint alleges, Respondent admits, and I find, that Respondent is engaged in commerce within 'the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Alleged Illegal Acts A. Interrogation The complaint states as follows: Retail Clerks Union, Local No. 1612, Retail Clerks Inter- national Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES Background The Union initiated its campaign to organize the em- ployees of Terry Industries of Oregon, Inc., when its repre- sentative met with employee representatives on February 28. On that date union authorization cards were given by the union representative to an employee and one other person, for solicitation of signatures at Respondent's plant. The Union had an organizational meeting for employees on March 27. After obtaining 74 signed cards, the Union addressed a letter on April 15, 1974, to Respondent, making a demand for recognition and bargaining. The letter was received by Re- spondent on April 17. By letter dated April 22, Respondent refused to bargain. On June 10, the Union held a second organizational meet- ing for employees. Pursuant to a petition filed April 24, 1974, by the Union, an election was conducted on July 23, 1974. The Union lost the election and on July 30, 1974, filed objections to the election. In February 1974, according to the allegations of the Gen- eral Counsel, one of Respondent's supervisors questioned an employee about possession of union authorization cards and implied that the employee would be terminated for engaging in union activity. It is admitted by the pleadings that, on June 10, Respondent discharged employee Pattee and employee Lyman, and the General Counsel contends that their dis- charges were because they were engaging in union acitivity. In seeking a Gissel type of bargaining order, the General Counsel contends that Respondent interfered with union ac- tivities, was extremely hostile to the Union and was guilty of such pervasive and illegal acts throughout the plant that Respondent should be ordered to bargain with the Union, even though the Union lost the election. In objections to the election filed by the Union's attorney on July 30, 1974, it was alleged that Respondent made intem- perate antiunion speeches, promulgated an unlawfully broad no-solicitation rule, changed working conditions, harassed employees, threatened the loss of the bonus plan, threatened closure of plant, and otherwise frustrated and interfered with the Union's activities at Respondent's place of business. Re- spondent does not contest the fact that it was desirous of whining the election and concedes that it discharged Pattee and Lyman. However, Respondent contends that those dis- charges were not for union activity, but rather were for good business cause. Respondent also contends that it did not harass the employees or interfere with union campaign activi- ties within the plant. In February 1974, assistant production manager, Robert Smith, questioned an employee about possession of union authorization cards and implied that the em- ployee would be terminated for engaging in union activ- ity. Jessie Lene, employed by Respondent, testified that in Feb- ruary or March 1974, he had two conversations on the same day with Robert Smith, then assistant production manager of Respondent.4 Lene said Smith, on the final occasion, asked him, "how's the unemployment line, Jessie?" Lene said he then told Smith, "he couldn't scare me with that'' Lean said that on the second occasion,5 Smith "actually came right out and asked me for a card, an authorization card." Lene objected, saying that he had been instructed not to give the cards out during working hours, but Smith report- edly said it was all right, that he wanted one for the office. Lene then gave Smith a card. Robert Smith was called by General Counsel as a rebuttal witness, and cross-examined, but he gave no testimony con- cerning this alleged incident. There being no contradictory testimony and no apparent reason for doubting Lene's testimony, Lene's version of the incident is accepted. It is found that the words and actions attributed by Lene to Smith accurately were conveyed at the hearing. The fact that Respondent's supervisors and managers were fully aware of, and opposed to, union organization attempts at the time of the incident-involved herein, is well established by the record. Respondent's opposition to unionization being apparent, this incident properly cannot be considered isolated from Respondent's other actions, as de minimis. San Diego Paper Box Company, 174 NLRB 1118 (1969). Whether or not Lene recited the two portions of the inci- dent in their correct chronological order is immaterial. It is also immaterial whether or not Smith's asking Lene for an authorization card, in and of itself, is a violation of the Act. The crucial part of Lene's testimony is Smith's question about the unemployment line. In view of management's awareness of the open opposition to unionization, and in further view of management's knowledge that Lene was an active union organizer,6 Smith's query could have but one meaning: It was a threat of discharge or layoff if Lene continued his activity on behalf of the Union. Respondent, through Smith, thereby violated Section 8(a)(1) of the Act. Fairview Nursing Home, 202 NLRB 318 (1973); Glassmaster Plastics Co., 203 NLRB 944 (1973). 4 It is admitted by the pleadings and hereby found that Robert Smith was a supervisor within the meaning of the Act. 5 Lene said the chronology related by him possibly could be reversed; that perhaps this was the first, rather than the second , conversation. 6 That knowledge is established by Smith's asking Lene for an authoriza- tion card. Nothing in the record shows that Smith's knowledge on this subject was increased at any time during the day, thus the chronology of the day's events is not material. TERRY INDUSTRIES OF OREGON, INC. 135 B. Pettee's Discharge The complaint states as follows: On or about Monday, June 10, 1974, Respondent dis- charged employee David Pattee and at all times since has failed or refused to recall or reinstate said employee because of his activities on behalf of the Union. Respondent contends that it fired Pattee solely because he defaced bathroom walls by writing on them. The record clearly shows, and it is found, that defacement of bathroom and other walls is a serious, continuous, and longstanding problem at Respondent's plant.7 Uncon- tradicted testimony shows that David Stahl was discharged by Respondent 3 or 4 years ago for writing on bathroom and other walls. No other discharge was established for that rea- son alone, but the testimony and commonsense show the difficulty in proving who does such writing.' It has been necessary to repair bathroom walls at Respondent's plant because of writing on them at least five times, including two or three times since the first of 1974. Efforts have been made by Respondent to identify the persons involved, but without success. Pattee told his supervisor there were others who wrote on walls, but he did not name those persons. Richard Smith, general manager of Respondent, testified that he was personally aware of the problem because of his knowledge of its history (including Stahl's discharge), his regular weekly and monthly inspections of the plant, and his receipt of em- ployee complaints. Unchallenged, credited testimony shows that the problem of wall defacement was one of frequent coverage in company meetings. It was discussed and action urged by management at management meetings , leadman meetings, employee gath- erings, and in personal conversations with individual em- ployees. David Pidcock, Respondent's production manager, discussed the problem with supervisory personnel as late as Monday of the week when he discovered on Thursday that Pattee had been writing on bathroom walls. Pidcock credibly J testified that the problem had been brought to his attention several times by the janitor and by production employees. He said Richard Smith instructed him on several occasions to have the restroom walls cleaned and painted. There is no doubt but what all employees of Respondent, including Pattee, were fully aware of the problem and of company prohibition of wall writing, and it is so found. Pattee was employed by Respondent May 6, 1974. His leadman was Bruce Kibbey, who testified that the subject of witing on walls was discussed at a lead meeting and that he was instructed by Pidcock at that meeting to tell employees they were not to write on walls. Kibbey credibly testified that he so told Pattee. On June 6, Kibbey noticed handwriting on the bathroom wall, and since he suspected it was Pettee 's handwriting, he confronted Pettee.9 They went into the room, and Pattee ad- I Uncontradicted testimony shows that there was more writing on walls in 1 he spring of 1974 than usual. 8 Writing on walls is a violation of written company rules See Resp Exh. 4, p. 18, Item 13. mitted he had done the writing. Kibbey reported the incident to Robert Smith, then assistant production manager, who called Pattee into his office. Smith told Pattee he would not fire him for it this time, but that Pattee would have to repaint the restroom walls. Smith testified that he normally discussed matters of discipline with David Pidcock and that he dis- cussed the Pattee incident. The record is not entirely clear, but Smith conferred with Pidcock about Pattee on Thursday, June 6, or Friday, June 7. On Monday, June 10, Pidcock advised the general manager, Richard Smith, of the Pattee incident, and asked his counsel. Smith credibly testified that he and Pidcock dis- cussed the matter in detail and that he told Pidcock that if he was in Pidcock's position, he would fire Pattee. Pidcock testified that he then decided to fire Pattee, and that he did fire him at the close of business that day, June 10, for the sole reason of writing on bathroom walls.10 Pattee testified that he signed a union authorization card June 5, 1974. He said he gave an authorization card to another employee, who did not return it. He said he attended some union meetings. Pattee testified that he never discussed the Union or its campaign with any supervisor, but that he did attend a group meeting conducted by Respondent. This testimony is strong support for that of Richard Smith, who testified that at the time he talked with Pidcock about Pattee on June 10, he did not know that Pattee was engaged in any union activity. It is abundantly clear that Pattee was not a union leader in any sense of the word. At most, he was a union sympathizer. In view of the foregoing, it is clear that Pattee was fired for writing on the bathroom walls and for no other reason. It is so found. General Counsel's only rebuttal of any substance is the testimony of Robert Smith, who said Pidcock told him Tues- day, June 11, something to the effect that "he got rid of another union guy," but Smith qualified the statement by saying, "I can't say exactly . . . ." That testimony is not credited, because: (a) Smith was not sure of his testimony; (b) Respondent's defense was established by overwhelming evi- dence; (c) Smith testified quite definitely that Pidcock told him he fired Pattee for writing on the restroom wall; (d) Pidcock credibly testified that he did not remember talking with Smith about Pattee after Pattee was fired; and (e) when interviewed by Respondent's counsel, Smith said nothing about the purported statement by Pidcock. In any event, as the Board stated in Erie Strayer Co., 213 NLRB No. 45, fn. 9 (1971): We have long held that even when an employer may want to rid himself of an employee whose union activi- ties have made him persona non grata, "if the employee himself obliges his employer by providing a valid in- dependent reason for discharge-i.e., by engaging in conduct for which he would have been discharged 9 Kibbey credibly testified that he did not know, and could not identify, anyone else who had written on the restroom walls. He also testified that Pattee did not tell him about anyone else involved 10 Pattee testified that he was told by Pidcock when he was fired that the reason was writing on the bathroom wall. Pattee also testified that he told Wayne Mooney, a leadman, that he had been fired for writing on the walls. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD anyway-his discharge cannot propertly be labeled a pretext and ruled unlawful." See also Kaye-Smith Enterprises, 211 NLRB 1034 (1974). Pattee's claim that he did not know of any company rules about not writing on walls is not credited. He admitted seeing posted company rules, and reading at least part of them. Further, Bruce Kibbey, Pattee's supervisor, credibly testified that he told Pattee about instructions from Pidcock not to write on walls. It is found that Pattee was not discharged by Respondent, wholly or partially, because of his union activity and that this portion of the complaint was not proved. C. Lyman's Discharge The complaint states as follows: On or about Thursday, June 13, 1974, Respondent dis- charged employee Louis Lyman and at all times since has failed and refused to recall or reinstate Lyman be- cause of his activities on behalf of the Union. Respondent contends that it fired Lyman for three reasons: (a) failure to wear safety glasses as required by company rules; (b) excessive talking on the job; and (c) smoking against company rules, while not on a break or mealtime. (a) The record clearly shows, and it is found, that the wearing of safety glasses is a matter of longstanding concern of Respondent, and has been treated in serious manner. For- mal company rules, including those relating to safety glasses, have been published and distributed to all employees." Plant safety rules have been posted at all times relevant herein, in a convenient and prominent place frequented by all employees. 12 Credited testimony, which was not challenged, shows that the subject of safety glasses was discussed, and employees admonished to wear them as required by company rules at management meetings, leadman meetings, employee gather- ings, and in personal conversations with individual em- ployees. Respondent's general manager, Richard Smith, testified credibly and without contradiction and supported by other testimony that he advised all employees at a general plant meeting in April and again in May that the wearing of safety glasses was a requirement, and that violation would be grounds for termination. He also said that corporate head- quarters (Fleetwood) had issued verbal and written instruc- tions of Respondent that proper wearing of safety glasses was mandatory and that U.S. Government inspectors in April of this year commented that several of Respondent's employees were not wearing glasses as required. There is no doubt but what all employees, including Ly- man, were fully aware of company requirements relative to 'safety glasses, and it is so found. Richard Smith testified credibly and without contradiction that he found Lyman not wearing safety glasses as required on several occasions and warned him to put them on. He also 11 Resp. Exh. 4. 12 Resp. Exh. 5 testified that after the first such incident, he advised David Pidcock, the production manager, of the warning.13 Bob Smith, then assistant production manager, testified that he warned Lyman in writing on May 30 for failure to wear safety glasses as required and that he advised Pidcock of the warning. He also testified that on May 31 he gave Lyman ,a final written warning for failure to wear safety glasses and so advised Pidcock.14 He said he also warned others about not wearing glasses and that Lyman's failure to wear them was not more flagrant than some other employees. However, Smith did recommend that Lyman be fired. David Pidcock, production manager, credibly testified that he warned Lyman three or four times for'not wearing safety glasses and that he warned Lyman more than he considered "normal." He said he warned about 15 employees for the same reason, but that usually (about 80 percent of the time) no further warnings were necessary. Lyman acknowledged being in a company meeting at which employees were told to wear safety glasses as required, and that he had been warned three or four times about wear- ing them. He also acknowledged that when he was fired, he was told that one of the reasons was his failure to wear safety glasses as required. (b) Clifton Amos, a fellow employee, testified that he and Lyman were reprimanded by Dick Pidcock on June 1-3 for talking while working, and Pidcock, when asked by Amos, "Is it getting to the point you can't talk to people out here anymore?" replied, "You know what I mean, this has been going on for a long time." Amos said Pidcock warned him and Lyman that if the talking continued, he would "have to do something about it." Merrill Goldsberry, Lyman's leadman at the time, testified that, on one occasion, leadlady Nancy Ledoux complained to him and asked him to tell Lyman to stop talking with one of the employees in Ledoux's department. Michael Durfee, a fellow employee, testified that during the last part of April, Bob Smith (then assistant production manager) told him and Lyman just at the close of a break period to stop talking about the Union and get back to work. He said the bell had already rung, and the break was over at the time of Smith's statement. Patricia Walker, a leadlady, testified that Lyman was in her work station almost every day, talking with and bothering people there during Lyman's working time, usually about the Union. She said she thought she talked with Bob Smith about the matter. Nancy Ledoux, a leadlady, testified that, on several occa- sions, Lyman came into her work area to visit with employees and with one particular girl. She said those occasions were during working time, but Lyman was doing no work. She said Lyman was there almost constantly one day, and she asked him twice to go back to his own crew. She testified that she complained, and asked Lyman's leadman to keep Lyman in his own department except during lunch hour and regular breaktime. 13 Smith said he warned five or six other employees about safety glasses, and that no employee has been fired for that sole reason. As stated above, Respondent contends that Lyman was discharged for three reasons 14 Resp Exh 2(b). This testimony is supported by that of Bob McMurphy and is credited TERRY INDUSTRIES OF OREGON, INC. Wayne Mooney, a leadman, testified that on several occa- sions, Lyman came over to his work area "just to visit" with a female employee, during Lyman's working time (not on break). Virgil Woldberg, a leadman, testified that he had observed Lyman "visiting" during working time; he said he also saw other employees doing the same thing. Bob Smith, then assistant productnon manager, testified that he warned Lyman June 13 for "standing around," and he told Pidcock that if Lyman did not quit "standing around," he should be terminated. Bob Smith testified that there was "lots more" talking among employees during working time while the union com- paign was going on than there previously was, and that David Pidcock instructed that talking during working time should be broken up "because it would probably be union activity they were talking about." He said the company policy gov- erning talking during working hours was more strictly en- forced during, than before, the campaign. Smith said he was instructed to, and did, make sure from about the end of May, that employees did not stand around talking but did their job. However, he said he was not instructed to watch Lyman specifically. Finally, Smith testified that when he recommended to Pid- cock that Lyman be fired, the reason was stated to be because Lyman frequently was "standing around, not working."15 Lyman's testimony about his conversation with Michael Durfee being broken up by Bob Smith was the same as Dur- fee's. Lyman acknowledged that he was warned approxi- mately April 5 by Bob Smith about talking too much on the job; a second time by Bob Smith about a week later; and a third time by Bob Smith and Pidcock on June 13 (McMurphy also was present). Lyman acknowledged that Nancy Ledoux, on one occa- sion, told him he was bothering employees in her work area. It is found that Lyman repeatedly talked about nonwork matters, and loafed during work time, following warnings by supervisors not to engage in such activity. (c) Testimony established, and it is found, that employees who are temporarily caught up with their assigned work are under instructions to assist others who are not caught up. Ramon Loos testified that he had seen Lyman smoking in the restroom during working hours while not on break, "on occa- sions." Donald Mooney testified that he met Lyman in the bath- room smoking and talking with other employees on more than one occasion. Virgil Woldberg testified that he had observed Lyman not working during working time, "visiting, restroom smoking." Bob McMurphy testified that he was told by two individu- als that a couple of people were sitting in the bathroom smoking during working hours at or about 2 p.m. on May 29. He said he called the two, Lyman and a fellow worker named Jim Willis, into the office with their supervisors and gave them a verbal warning. Thereafter, McMurphy placed formal warnings in the employment records of the two. [See Resp. Exh. 2(b).] L5 Lyman was warned in writing on June 13th about talking instead of working. See Resp Exh. 2(b) 137 Lyman did not deny the May 29 incident. He testified that he and two others were in the restroom smoking, because they did not have anything else to do. As seen by the foregoing, it is quite clear that Lyman in fact did not wear his safety glasses as required by company rules, and was warned about his derelication on several occasions; he was an unsatisfactory employee because of excessive talk- ing during working time and was warned about that problem several times; he was caught loafing and smoking in the rest- room and was warned about that, too. It is also quite clear that the three matters summarized above were given by Bob Smith to Lyman as the reasons for his discharge and Lyman admits as much.16 Pidcock testi- fied to the same effect, without contradiction, and stated that he reached his decision to fire Lyman solely on Lyman's employment record, as shown by Respondent's Exhibit 2(b). Pidcock commented at the time to Bob Smith and Bob McMurphy that Lyman had received more than the normal number of warnings and should be terminated. There is no question but what Respondent had ample cause, and good cause, to fire Lyman, and it is so found. The only question, therefore, is whether an inference can be drawn based on the General Counsel's evidence that Ly- man was fired because of his union activity, rather than be- cause of the reasons given by Pidcock." Lyman was employed by Respondent March 4, 1974. He testified that he attended his first union meeting about a week after he was hired and that he did not know of any union activity prior to that time. He said Clifton Amos gave him a union authorization card and that he signed the card March 13 and gave it back to Amos. He testified that about 2 weeks thereafter, he received blank cards from Amos, and gave about 15 of them to prospective signers. He said he received back about seven signed cards. On one occasion, according to Lyman, he asked Bob Smith if he would like to sign a card, and Smith declined. Lyman related one conversation with Michael Durfee about union matter. There is no evidence of other union activity on the part of Lyman. Testimony shows that a total of 104 cards were signed. Of that number, seven were obtained by Lyman, according to his testimony.18 Ly- man testified that only on one occasion did any member of management talk with him about union activities-and that was when Bob Smith replied to Lyman's question about what would happen if the Union came into Terry trailers. Accord- ing to Lyman, Smith said the plant probably would close down." Although Bob Smith knew about Lyman's union activities and probably discussed them at least once with him, and although Smith recommended to Pidcock that Lyman be fired, the uncontradicted and credited testimony shows that Smith's recommendation was based on Lyman's " .. . standing around, not working." and Pidcock made the final 16 Clifton Amos testified that Lyman told him he had been "terminated for smoking in the can." 17 Some of the argument and questioning of witnesses was directed to the fact that Smith was supervisor with authority to hire and fire. Apparently the thought was that whatever Smith said or did was the last word on the subject of Lyman Such is not the case. Pidcock was Smith's supervisor obviously having authority to change any order or action 'by Smith 18 This testimony is suspect-Lyman could recall only the names of two signers. 19 This statement is not the basis for any charge by the General Counsel. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decision to fire Lyman based on the written warnings in the employment record. The record is devoid of any showing that Pidcock was aware of Lyman' s union activity. Further, that activity was of a very limited nature. Lyman was employed by Respondent a short time (less than 3 months) and had such a limited acquaintance among the employees that he handed out no more than 15 cards, and could only remember the names of two that he received signed cards from. On the other hand, Amos was an employee of about 3 years, handed out about 40 cards, received all of them back signed, and obviously was quite active with the Union. He, too, was warned when Lyman was, for excessive talking. Amos still is employed by Respondent, as are Jessie Lene and Bob Ashe, who also received cards at a union meeting for signature solicitations. Lene distributed 30 or 35 cards and got all of them back, signed. Further, Lene discussed union activities with Pidcock. If Respondent wanted to shoot down union activists, it would set its sights on the obvious targets, such as Amos and Lene, who were admittedly active and who had broad acquaintanceship among employees, developed over a long period of employment. There is no hint in the record of any move to oust Amos, Lene, or any other union sympa- thizer. General Counsel urges consideration of the fact that others were warned about not wearing safety glasses, but were not fired; others were warned about talking on the job, but were not fired; others were caught smoking in the restrooms, but were not fired. That fact may be true, as alleged . However, it is clear from the record that Lyman's abuses of company rules were more frequent, more serious, and more varied, than other employees. he received more warnings, and more important, he was fired for all three reasons, not just one. Finally, Pidcock credibly testified that his decision to fire Lyman was based on the latter's written employment record, which includes warnings as outlined above. There was noth- ing in Pidcock's testimony or demeanor, nor in the record, on which to conclude that Lyman was discharged for other than the reasons given to him. General Counsel also urges consideration of the fact that Lyman was watched more while at work than other em- ployees. The inference that Respondent was "after" Lyman for his union activities is solicited. It may well be that Lyman was under special surveillance, although that conclusion is not dictated by the record. But assuming it is dictated, the obvious answer, based on testimony of almost every witness in the case, is that he needed to be watched. His working habits hardly were those of an employee to be trusted. He ignored repeated warnings to wear safety glasses; he spent much time out of his work area bothering other employees; he talked and "stood around" during much of the working day; he hid from management eyes to loaf and smoke. If ever an employee had to be watched to keep him gainfully oc- cupied, it was Lyman. Timing of the discharge is of interest. After repeated verbal warnings, without effect, written warnings were initiated by Respondent. The record shows four of them-May 29 for loafing and smoking in the bathroom; May 30 for not wearing safety glasses; May 31 for not wearing safety glasses; and June 13 for loafing and talking too much during work hours. Ly- man was fired June 13 after Pidcock reviewed his record. All Lyman had to do to prevent his discharge was to conduct himself as an employee should. He was given plenty of-oppor- tunity, but refused to follow reasonable and proper intruc- tions of his employer. As in the case of Pattee, the only substantive argument is the testimony of Bob Smith, who stated that, after Pidcock left the night Lyman was discharged, "He said he got rid of a union pusher." Again, that testimony is not credited, be- cause: (a) Respondent's defense was established by over- whelming evidence; (b) Smith testified that he recommended Lyman be fired for standing around talking too much; (c) when interviewed before hearing by Respondent's counsel, Smith said nothing about the purported statement by Pid- cock; and (d) Pidcock credibly testified that he did not remember talking with Smith about Lyman after Lyman was fired. Even assuming, arguendo, that the statement was made, it would not be persuasive under the facts of the case. Erie Strayer Co., supra,' Haye-Smith Enterprise, supra. In view of the foregoing, the question must be answered in the negative-an inference cannot be drawn, based on the General Counsel's evidence, that Lyman was fired because of his union activity rather than because of the reasons given by Pidcock. It is found that Lyman was not discharged by Respondent wholly or partially because of his union activity and that this portion of the complaint was not proved. 1. The first objection to election is as follows: The Employer has interfered with a fair election by call- ing employees into his office individually and in small groups and making intemperate antiunion speeches to them. There is nothing in the record to show that any individual was called by the Employer into his office to listen to any speech, intemperate or otherwise. It is established, however, that all employees, in small sepa- rate groups of 9 to 12, were called" into General Manager Richard Smith's office a few days before the union election. Principal speaker at the meetings was Kenley Palmer, direc- tor of labor relations for the parent company (Fleetwood Enterprises, Inc.). Richard Smith also attended and spoke on some matters. Palmer distributed copies of six contracts, then current, between various Fleetwood companies and unions. As employees asked questions about various subjects, they were directed to the appropriate contract page, the item would be read and questions of employees would be dis- cussed. Palmer testified that he made the following state- ments when employees asked about the negotiation process: I explained that if a union were voted in and the com- pany recognized the union, we'd enter into negotiations. We would start from scratch. They'd present what they desired to have in a proposal and we would counter- propose, back and forth, and we would negotiate, and what was agreed upon would be written into a contract. But, not everything that was presented by either side would come into the contract in its final form. 20 Some controversy arose over whether attendance at these meetings was voluntary or mandatory Based on the record, it is found that attendance was, at least by implication, mandatory, and that the meetings were held during regular working hours, on company time. TERRY INDUSTRIES OF OREGON, INC. Palmer was asked by counsel for the Charging Party what he meant by "start from scratch," and Palmer testified, ` .. all wages and benefits were up and subject to negotiation and that whatever was proposed and agreed upon, might change what was presently in effect." Palmer testified that a question was asked about strikes, and he gave the history of strikes at each of the Fleetwood plants. He said economic strikers were replaced at one plant. Richard Smith testified that he was asked by one employee about an overtime matter that has arisen in the plant. He said he would investigate. He later ascertained the facts and dis- seminated the information through lead people. Smith testified that he was asked at nearly all meetings about a wage survey and that he explained such a survey had been conducted in the local market and covered wages and benefits of Respondent's competitors. The surveys, he said, were forwarded to the corporate office and returned to Re- spondent, approved or disapproved. When employees asked about the most recent survey, he said he was not at liberty to disclose the recommendations or conclusions at that time because of the then current campaign. Smith testified that the meetings generally were on a very friendly basis, with quite a lot of joking. He said the doors were open, and they were interrupted by people "coming or going." Jessie Lene testified that he attended one of the group meetings about 2 or 3 days prior to the elections. He said Palmer distributed union contracts Fleetwood then had cur- rent, and that "They were showing us, trying to give us a comparison between a company that had gone union and the companies that weren't union." Lene said the obvious goal of the comparison was to show that employees in plants that had gone union lost money. He stated that no predictions were made at the meeting about what would happen if the plant were to go union, and he said strikes were not discussed; that the word "strike" did not come up. He also stated that Palmer did not shout but that he did get irritated a couple of times. Chfton Amos testified that he attended one of the group meetings on June 24. He said his group was told, as the contracts were reviewed, that if they went union, they would make no more than they then were making. He said insurance was the only benefit mentioned, and Palmer remarked that all Fleetwood plants have the same insurance program. Palmer distributed at the meeting a "computer for lost wages" (Charging Party's Exh. 5). Amos also testified that Palmer said that in one of the Fleetwood plants, employees were on strike 9 months, and those on the picket line were the last to be called back to work-some did not come back at all. Michael Durfee testified that he attended one of the group meetings about 2 or 3 weeks before the election. He said existing Fleetwood contracts were compared with existing pay and benefits at Respondent's plant and that Palmer said any benefit that would be in a contract would have to first be negotiated. Durfee testified, " . . . 1Mr. Palmer said it wouldn't matter if the union was voted in or not, whether or not they wanted to negotiate the contracts-what we wanted in the contracts." Ramon Loos testified that he attended one of the group meetings and that Palmer stated, " . . . if we would go union, that negotiations would start, and we'd go out on 139 strike and that also in comparison with our wages, there would be no bonus." However, on cross-examination, Loos testified that Palmer, "didn't come out and say we were going to go on strike if you want a union." He testified that was his assumption, based on what Palmer said at the meeting. Loos also testified that Palmer said economic strikes would be replaced. He said he received a copy of Charging Party's Exhibits 5 and 6 at the meeting. Based on their conduct and demeanor on the stand, and the support generally given their statements by other witnesses, the testimony of Smith and Palmer relative to conduct of the meetings is credited. There is no evidence, even remote, to support the allegation of "intemperate" speeches. It is found that the speeches of Smith and Palmer during the group meetings were temper- ately made. It is found that the meetings were open, frank, generally friendly, and conducted in a noncoercive manner. It is found that no predictions were made during the meet- ings, by management, of results if the Union were to be voted in, and it is found that strike talk was limited to a review of strike history at other Fleetwood plants, including the state- ment that economic strikers legally can be replaced. Such statements do not violate the Act. Texas Boot Manufacturing Co., Inc., 143 NLRB 264 (1963); Mississippi Extended Care Center, Inc., d/b/a Care Inn, Colliesville, 202 NLRB 1065 (1973); James Hotel Company a Corporation, d/b/a Skirvin Hotel and Skirvin Tower, 142 NLRB 761 (1963). It is found that no management representative at the meet- ings said a strike was inevitable. It is apparent that the principal topic at all meetings, and in fact almost the only topic, was comparison between Re- spondent's nonunion plant and other Fleetwood plants that had gone union. Absent coercive acts or deeds, such compari- sons are not in violation of the Act. Island Holidays, Ltd., 208 NLRB 965 (1974), Globe Shopping City, 203 NLRB 177 (1973). It is found that all meetings involved herein were conducted free of coercive acts or deeds. Charging Party's Exhibit 5, given to employees at the meet- ings, is a "Strike Cost Computer." One sentence thereof is patently in error": "Without a union strikes cannot happen." However, the rest of the exhibit is factually correct, or in- nocuous. The exhibit was introduced by the Charging Party, and Respondent stipulated to the authenticity thereof. Nei- ther-the General Counsel nor the Charging Party challenged the propriety or legality of the exhibit. A similar cost tabula- tor was found not objectionable in Nalco Chemical Co., 163 NLRB 68 (1967). It is found that Charging Party's Exhibit 5 is not objection- able. Charging Party's Exhibit 6 also was free of challenge by the General Counsel or the Charging Party, so far as propriety or legality are concerned. The exhibit contains no threat or coercive statement. It is no more than a rather crude attempt to say that the Union offers disadvantages as well as advan- tages, and cannot keep all the promises it may make. Obvi- ously, the coupons are propaganda, and not intended as con- tract forms. Such an attack on union promises does not interfere with the election process. Oxford Pickler, Division of John E. Cain Co., 190 NLRB 109 (1971). The Board has long held that it will not restrict the right of any party to inform employees of the advantages and 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disadvantages of unions, so long as the information is im- parted in a noncoercive manner.21 Exhibit 6 falls within the principles relied on by the Board. It is found that Charging Party's Exhibit 6 is not objection- able. It is clear, and is so found, that Palmer's statement about "starting from scratch" was free of threat or coercion and made within the framework of a large statement that was objective, factual, and entirely proper. The statement is not objectionable. Oxford Pickles, supra. In summary, it is found that Objection 1 is not supported by the evidence. 2. The second objection is as follows: The Employer has interfered with a fair election by dis- charging two employees, Lyman and Pattie [sic] for their union activities. This objection is discussed above. 3. The third objection to election is as follows: The Employer has interfered with a fair election by pro- mulgating an unlawfully broad no-solicitation rule. The rule complained of is found on page 17, of Respon- dent's Exhibit 4, and reads as follows: Posting of written or printed matter of any description, circulation, or distribution of such matter in working areas or solicitation on working time without approval of the Production Manager. Much the same rule was embodied in a letter to employees, Charging Party's Exhibit No. 2, reading as follows: No person will be allowed to carry on union organizing activities in the working area during working time. Any- body who does so and who thereby neglects his own work or interferes with the work of others will be subject to discharge. Neither the foregoing rule nor the letter to employees is invalid per se. The prohibition against solicitation is limited to working time, which presumptively, is a valid limitation. Stoddard-Quirk Manufacturing Co., 138 NLRB 615 (1962).22 Testimony shows, and it is found, that talking during work time was a problem of Respondent's plant during the union campaign and that Respondent increased its efforts to enforce its no-solicitation rule during the campaign. The testimony does not clearly establish, however, whether that effort was made to protect production or to interfere with the union campaign. Had there been no union campaign, the no-solicitation rule probably would have been largely ignored, as in the past. Union activity, alone, caused increased enforcement, as shown by the credited testimony of Amos, Durfee, Walker and Robert Smith. That testimony was not contradicted by 21 Elgin Butler Brick Company, 147 NLRB 1624 (1964); Sharnay Hosiery Mills Inc., 120 NLRB 750 (1958); Motec Industries Inc., 136 NLRB 711, Oak Manufacturing Co., 141 NLRB 1323 (1963); Shure Brothers, Incorporated, 147 NLRB 43 (1964). 22 It is Respondent's "No Talking" rule that is challenged. No question is presented that involves distribution of literature or other material Respondent. Robert Smith's unchallenged testimony was particularly revealing. He credibly testified that talking was a problem during the campaign; that union matters were largely responsible for the increase in talking; and that he had been instructed to be on the alert for nonwork conversations and to break them up. Based upon the record thus made, it is clear that increased enforcement of Respondent's no-solicitation rule was occa- sioned by union activity and was designed to curtail that activity. It is so found. Increased enforcement, in and of itself, would not neces- sarily be a violation of the Act. However, in this case, the increase was discriminatory in nature, and the record clearly establishes Respondent's opposition to the Union. Under such circumstances, Respondent's actions violated the Act, and it is so found. [ Walton Manufacturing Company, 126 NLRB 697 (1960), enfd. 289 F.2d 177 (C.A. 5, 1961).] This objection is well supported by the record. The question then arises as to whether these findings rela- tive to the no-solicitation rule affect the discharge of Lyman. It is found that they do not. In the first place, Lyman was not fired for talking about the Union. He was fired for "standing around talking," among other things. It is clear from the record that Lyman was a loafer and disliked following his employer's instructions. There is no evidence that Respondent knew what Lyman was talking about when he was warned about loafing and talking, and the evidence does show that he frequently engaged in nonwork conversations under circumstances that impel the conclusion that his conversations were neither work nor union related. (See Nancy Ledoux testimony.) In the second place, Robert Smith, whose testimony largely is the basis for finding that the no-solicitation rule was dis- criminatively enforced, testified that he was not instructed to watch Lyman more closely than others. In the third place, loafing and talking was, only one among other reasons that Lyman was fired. Finally, Lyman told others that he had been fired "for smoking in the can." He said nothing about union conversa- tions. - It is noted, furthermore, that. Amos was warned about talking, but was not disciplined; employees other than Lyman and Amos talked on the job but were not disciplined; Durfee was warned about talking, but he was not disciplined. Clearly, Lyman's talking was linked with loafing and gener- ally unsatisfactory conduct when he was fired, rather than being linked with union activity. He was a new employee and not a key union activist or organizer. His discharge clearly was not the result of general, plantwide enforcement of Re- sponent's "No Talking" rule. 4. The fourth objection to election is as follows: The Employer has interfered with a fair election by changing working conditions to include close surveil- lance of union supporters in their work, enforcement of much stricter standards of production and general harassment of employees for signing union authorization cards. So far as this objection relates to standards of production and harassment for signing union authorization cards, it is without any support in the record. There is no testimony that TERRY INDUSTRIES OF OREGON, INC. work standards were increased, and the only harrassment shown was that related to talking, as discussed above. Testimony concerning "close surveillance of union sup- porters" is limited to that of Robert Smith, who testified that he had been instructed to break up conversations during worktime because they probably involved unions, and Amos, who testified that employees were watched more closely dur- ing the campaign than prior thereto. However, that tes- timony, considered with the findings relative to the third objection, is adequate to support this objection, and it is so found. 5. The fifth objection to election is as follows: The Employer has interfered with a fair election by threatening employees with loss of their bonus plan and closure of the plant in the event the Union was desig- nated the exclusive collective-bargaining representative. Kenley Palmer testified that he never made the comment to employees during plant meetings that, if a union came in, there would be no bonus. He said when he spoke about bonuses, he remarked to employees that, generally speaking, unions prefer higher wages rather than bonuses. He said some employees stated to management during the union campaign that they had been told the Union wanted a higher wage and elimination of bonuses. Palmer also said he told employees that if the plant went union, the subject of bonuses would be negotiated, just as all other matters, and that there could be changes in wages and benefits then effective. The only testimony offered in support of this portion of the objection was that' of Ramon Loos, who said, "To my best recollection, he said if we would go union, that negotiations would start, and we'd go out on strike, and that also in comparison with our wages, there would be no bonus." ("He" referred to Palmer.) Loos' testimony is vague and ambiguous and, in any event, is not greatly different from that of Palmer. The latter was a firm and convincing witness, and his version of the statements made relative to bonuses is credited. Those statements were not coercive or objectionable, and it is so found. Orchard Corp. of America, 170 NLRB 129 (1968). Further, Palmer's testimony that employees related to management the Union's position on bonuses was not challenged or contradicted, and it is credited. The Union's position thus supports Palmer's testimony. General Electric Company, 161 NLRB 614 (1966). The only other evidence on this subject is Respondent's poster, Charging Party's Exhibit 4, reading, "Don't put your incentive program up for trade. Vote no union." That lan- guage is protected free speech, and is not objectionable. It is not coercive or threatening. Tyler Pipe & Foundry Company, 116 NLRB 1258 (1956). Testimony concerning the alleged threat to close Respon- dent's plant if the Union won the election was limited and uncertain." Lyman testified that Bob Smith told him that if the Union came in, ". . . likely, or probably the plant would close down." Lene testified that Pidcock told him in response to a question about the possibility of closing the plant in case of unionization, " ... maybe they can and then maybe they can't." After a pause of about 10 or 15 seconds, Pidock allegedly said, "in my opinion." 23 The subject of strikes is considered elsewhere in this Decision. 141 Lyman's testimony is contradictory to his other testimony and simply is not credited. Lene's testimony on this point is ambiguous, but it seems to support the Respondent's position more than that of the Charging Party. It is found that this objection is without merit. D. Requested Bargaining Order General Counsel urges a remedial bargaining order pursu- ant to the law established by N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). Respondent contents that such a bargaining order is not appropriate, and in support thereof, relies upon two affirmative defenses: (a) allegation that the Union did not make a demand in a unit appropriate for collective bargaining and (b) allegation that the Union did not represent a majority of the employees in the unit for which it demanded recognition. (a) Respondent's basic argument relative to the unit is that the Union demanded recognition in a group that included four truckdrivers and six clerks;" these employees were not excluded when the demand was made. The exclusion is conceded by the General Counsel, but it is argued that the omission was inadvertent and immaterial. First, as pointed out in General Counsel's brief, the de- mand, essentially, is for the same unit agreed to between the parties in their agreement for consent election approved May 23, 1974, and for which the election was conducted. At no time did Respondent indicate any uncertainty about, or con- cern with, description of the unit, until its amended answer was filed. Second, the law on this point was aptly stated when the Board affirmed an Administrative Law Judge in Electric Wir- ing, Inc., 193 NLRB 1059 (1971): Ruff's failure to mention those magic words (Note: guards, office clericals and supervisors) as types of em- ployees who would obviously be excluded from a bar- gaining unit at Electric under common and well-known Board principles is a minor deviation from the unit de- scription found appropriate in fn. 5, above, and not sig- nificant enough to render the demand legally insuffi- cient. It is found that this affirmative defense is without merit. The demand herein was properly and legally made. (b) Respondent contends that the General Counsel failed to establish that the Union at any time obtained representa- tion cards from a majority of the employees in the unit for which it sought recognition. This is no more than setting up strawmen to knock down. Respondent attempts to enlarge the unit (from 125, which is the correct number, to 134, which is patently wrong), and then to show lack of a majority as of April 17, 1974, when the Union's demand letter was received by Respondent. The difference between 125 and 134 was created by including in the unit total nine employees inadvertently omitted from the unit description set forth in the Union's demand letter. It is found that this affirmative defense is without merit and that the Union did have a majority at the time it made 24 It is found that Kenley Palmer and Robert McMurphy are supervisors within the meaning of the Act 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its demand. The question of authenticity of the cards is dis- cussed below. - (c) General Counsel seeks a Gissel order primarily on the basis of allegedly illegal discharges of Pattee and Lyman. However, as found above, those discharges were not in viola- tion of the Act. As to employer unfair labor practices that warrant a refus- al-to-bargain finding (not sought herein) or a bargaining or- der, the criteria to be applied are set forth by the United States Supreme Court in Gissel. In that case, the high Court held that a bargaining order would be appropriate in two situations. The first is in the case of "outrageous" and "perva- sive" unfair labor practices where the employer's actions are so coercive that, even in the absence of an 8(a)(5) violation, a bargaining order is necessary to repair the unlawful effect of those actions. The unfair labor practice found above does not fall within that category . The second is: ". .. in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election process." In Ship Shape Maintenance Co., Inc„ 189 NLRB 395 (1971), enforcement denied in part 474 F.2d 434 (C.A.D.C., 1972), the Board expressed the test to be whether the lingering effects of the unfair labor practices render uncertain the possibility that traditional remedies can ensure a fair election , and whether the Union's majority card designations obtained before the unfair labor practices provide a more reliable test of the em- ployee's desires and better protect employee rights than would an election. As stated in Joseph J. Lachniet, d/bfa Honda ofHaslett, 201 NLRB (1973), where a coercive atmos- phere is created by the employer, which conventional Board remedies may not adequately dissipate so that a fair election can be held with reasonable certainty, a bargaining order is warranted. The Board often has refused to issue a bargaining order when an employer's unfair labor practices substantially ex- ceeded those of the Company's in the instant case. For exam- ple, in Motown Record Corp., 197 NLRB 1255 (1972), an employer was found to have engaged in seven separate viola- tions of Section 8(a)(1) of the Act, including coercive interro- gation. The Board refused to issue a bargaining order, point- ing out: ... none of (the seven instances) were directed at em- ployees in general, none of them seriously jeopardized the employees' job security, no specific benefits were promised, and, taken in their context, none could have so affected the employee or employees involved to such an extent that they could not cast a free and uncoerced ballot after the application of the Board's remedies. See also Gold Circle Department Stores, A Division ofFede- rated Department Stores Inc., 207 NLRB 1005 (1973); J. J. Newberry Company, 202 NLRB 420 (1973); Restaurant As- sociates Industries, Inc., 194 NLRB 1066 (1972); Central Soya of Canton, Inc., 180 NLRB 546 (1970). I find that, even though the Union represented a majority of the Company's employees in the bargaining unit at the time it demanded recognition, the Board's conventional remedies are adequate to neutralize the effect of Robert Smith's unlawful interrogation of an employee so that a fair election can be held, and that, therefore, a bargaining order is not warranted under the criteria enunciated in Gissel. E. Respondent's Additional Affirmative Defense Respondent attacks the Union's claimed majority as of the date of its demand on the basis of: (a) misrepresentation of the purpose of union authorization cards; (b) untimely execu- tion of cards; (c) revocation of cards by some employees; and (d) threat and coercion of employees. As discussed above, a Gissel order is not warranted under the facts of this case. the Union's majority status as of the date of its demand is not controlling, since Gissel primarily turns on the nature of the conduct involved, rather than majority status. Consideration of the above-listed affirmative defenses thus is not required for decision herein, since they are advanced solely for the purpose of attack_ng the Union's majority status. However, to complete the record, it is found, based on the credited testimony of Dorothy Lehman, supported by the credited testimony of card signers, that all signatures on cards in evidence are authentic, that all such cards were timely executed, and that no card authorizations were revoked. The testimony of Sean Harrigan and James Whitaker rela- tive to union meetings, organizational efforts, and instruc- tions to card solicitors is credited. Respondent offered no credible testimony in support of its allegations that cards were misrepresented, or that any union representative or agent threatened or coerced any employee. Respondent intro- duced no evidence that improper representations were made relative to waiver of initiation fees. It is found that the affirm- ative defenses based on allegations of misrepresentation, threat, and coercion were not proved. The final matter urged by Respondent as an affirmative defense is its allegation of union "unclean hands" in -violating Section 8(b)(1)(A) and 8(e) of the Act. This is no more than an untimely objection to the election, and is found not proved. IV, OBJECTIONS TO THE ELECTION , As discussed above, certain of Respondent's conduct, oc- curring during the critical preelection period, precluded em- ployees from exercising their freedom of choice in selecting or rejecting the Union, and constitutes substantial interfer- ence with the election.25 I shall, therefore, recommend that the election of July 23, in Case 36-RC-3283, be set aside and that the case be remanded to the Regional Director for Re- gion 19 for the purpose of conducting a new election at such time as he deems the circumstances permit the free choice of a bargaining representative. V THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The Respondent's activities set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among 25 Wilkinson Manufacturing Co. v N.LR.B, 456 F.2d 298 (C.A 8, 1972), VCA Sterling, Inc., 209 NLRB 127 (1974) TERRY INDUSTRIES OF OREGON, INC. the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI THE REMEDY Having found that Respondent has engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act, I shall recommend that Respondent be ordered to cease and desist therefrom, and from in any like or related manner, infringing on its employees' Section 7 rights, and to take certain affirma- tive action designed to effectuate policies of the Act. Upon the basis of the foregoing findings of fact and the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Terry Industries of Oregon, Inc., Respondent herein, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. - 2. Retail Clerks Union, Local No. 1612, Retail Clerks International Association, AFL-CIO, Charging Party herein, is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating an employee concerning his union activities, the Company interfered with, restrained, and coerced its employees in the exercise of their rights guaran- teed to them by Section 7 of the Act, in violation of Section 8(a)(1) of the Act 4. Respondent did not, through alleged conduct, violate Section 8(a)(3) of the Act by dischargmg its employees Pattee and Lyman for engaging in union activities as alleged in paragraph 8 of the complaint. 5. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law, pursuant to Section 10(c) of the Act, I hereby issue the fol- lowing recommended: ORDER 16 Terry Industries of Oregon, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning union activities on behalf of the Union. 26 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Baord, 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 deerried waived for all purposes. 143 (b) In any like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of their rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Post at its LaGrande, Oregon, facility copies of the attached notice marked "Appendix."27 Copies of the notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's authorized represen- tative, shall be posted by Respondent immediately upon re- ceipt 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. (b) Notify the Regional Director for Region -19, in writing, within 20 days from the date of this Order, what steps Re- spondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be dis- missed to the extent that it alleges violations of Section 8(a)(3) of the Act. IT IS FURTHER RECOMMENDED that the election conducted on July 23, 1974, in Case 36-RC-3283 be set aside and that said case be remanded to the Regional Director for Region 19 to conduct a new election at such time as he deems the circum- stances permit the free choice of a bargaining representative. 27 In the event the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate employees in or- der to discourage membership in or activities on behalf of Retail Clerks Union, Local No. 1612, Retail Clerks International Association, AFL-CIO, or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to form, ,loin, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. TERRY INDUSTRIES OF OREGON, INC