Blue Cross

HOSPITAL SERVICE CORPORATION I Hospital Service Corporation d/b/a Blue Cross and Warehouse, Mail Order, Office, Technical and Pro- fessional Employees Union, Local 743, Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America.' Cases 13-CA-12745, 13-CA-12790, 13-CA-12966, and 13-RC-13072 July 3, 1975' DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On January 31, 1975, Administrative Law Judge Lowell Goerlich issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief,2 and Charging Party filed cross-exceptions 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 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.4 1. Contrary to the Administrative Law Judge, we do not find that Respondent violated Section 8(a)(1) of the Act by the following conduct: (a) the written statement by Respondent's president contained in an August 2, 1973, memo to employees: "We do not believe that our employees need a union"; and (b) Company Supervisor Joanne Walker's alleged inter- 1 The name of the Charging Party appears as amended at the hearing. 2 Respondent's request for oral argument is hereby denied since the re- cord, the exceptions, and the briefs adequately present the issues and the positions of the parties. 3 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 4 Member Fanning agrees that the Respondent prohibited distribution of union literature for discriminatory reasons. However, in his view, re- strictionc on the distribution of union literature in areas where employees are not working at the time are unlawful unless an employer can affirma- tively establish a legitimate justification . That money had disappeared dur- ing office collections is irrelevant to any need to restrict the distribution of union literature. Member Fanning, therefore, does not adopt the Adminis- trative Law Judge's recommended Order to the extent it can be read to permit restrictions on the distribution of union literature in any area where work is not being performed at the time of distribution . Stoddard-Quirk Manufacturing Co, 138 NLRB 615, 625-631 (1962), Member Fanning dis- senting. rogation of employees Barrie and Porter, and her use of the word "frozen" in connection with the possible status of benefits pending negotiation between the Union and the Company s With respect to President Redinger's August 2 memo to employees, we are satisfied that this state- ment was merely an expression of opinion of the type clearly permissible under the statute. Moreover, we disavow the Administrative Law Judge's conclusion that such a statement, inasmuch as it may have re- flected Respondent's attitude toward the Union, con- stituted an "affront" to the policies of the Act. We also disagree with the Administrative Law Judge's findings that so-called interrogations of em- ployees by Supervisor Walker were coercive and hence violative of the Act. In finding violations based on these incidents the Administrative Law Judge indicated that the discussions initiated by this supervisor were for the clear purpose of eliciting in- formation in aid of the Respondent's antiunion cam- paign and were conducted without company assur- ances against reprisal. Neither the circumstances under which these alleged interrogations took place nor the actual questions asked convince us, however, that there was a "clear purpose" of eliciting informa- tion behind them.6 Furthermore, the record supports a finding that at least some supervisors, including Joanne Walker, did inform employees that they were not required to take part in any discussion concern- ing the upcoming election. Thus Walker, whose cred- ibility the Administrative Law Judge characterized as "impressive," testified that she told employees that they were free to stay and listen or to leave. Walker also testified that she assured employees that she was not interested in their attitude toward the Union or in determining how they were going to vote, and that "nothing would be done to them." Finally, we disagree with the Administrative Law Judge's finding that Supervisor Walker's use of the word "frozen" in the course of her conversation with employees was unlawful. As indicated previously, the Administrative Law Judge generally credited Walker 3 Chairman Murphy would also reverse the Administrative Law Judge's finding of a violation of Sec . 8(a)(1) predicated on the alleged interrogation of employee Maxine Walker by Company Supervisor Rosemarie Frediam. The record shows at most a brief and isolated exchange during which Fre- diani allegedly asked Walker, who wore a union button almost daily, how she felt about the Union. Frediani's version of the incident is that she told Walker that she didn't care how she felt about the Union but she did not want the girls in her department talking in loud voices. Under these circum- stances, and particularly because the record fails to indicate that employee Walker was either threatened or given reason to believe that adverse conse- quences would ensue if she indicated support for the Union , Chairman Murphy would dismiss this allegation of the complaint . See Fairbanks Medi- cal & Surgical Clinic, Inc., 213 NLRB No. 93 (1974). 6 At most the record shows that Joanne Walker , after being told by one employee that she would vote for the Union and by another employee that she wanted the Union "for better pay," asked each employee if she thought a union was "necessary" to achieve her goals. 219 NLRB No. I 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whom he described as a "forthright, honest witness." At the hearing Walker testified that she used the word "frozen" to describe the status of benefits if the Union came in. However, Walker also testified that she carefully explained to employees that by using the word "frozen" she meant that "benefits would not be added to or taken away until negotiations" between the Union and the Company. Given these circumstances, we are unable to predicate a violation of Section 8(a)(1) on Walker's use of this word? 2. The Charging Party filed cross-exceptions to the Administrative Law Judge's failure to find cer- tain additional alleged violations of Section 8(a)(1). The Administrative Law Judge found a violation of the Act based on Company Supervisor Craig Schultz' coercive interrogation of employee Roland Howard concerning Howard's participation in union activi- ties. Schultz also informed Howard, who previously had declined to tell him what was going on at the union meetings, that he, Schultz, had other "sources" who could provide the information. We agree with the Charging Party's contention that by this state- ment Schultz, in violation of Section S(a)(1), sought to create the impression of company surveillance over its employees' union activities. The Charging Party also excepted to the Adminis- trative Law Judge's failure to find additional viola- tions of Section 8(a)(1) predicated on Respondent's alleged unlawful restrictions on the right of employ- ees to solicit for the Union. Inasmuch as the Admin- istrative -Law Judge's findings with respect to the Respondent's unlawful implementation and publica- tion of no-distribution and no-solicitation rules in August 1973 and April 1974 are sufficient to sustain the remedial provision of his Order, we find it unnec- essary to pass on the violative character of the addi- tional alleged restrictions set forth in the cross-excep- tions 8 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent Hospital Service Corporation d/b/a Blue Cross, Chicago, Illi- nois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph 1(e) and relet- ter existing paragraph 1(e) and subsequent para- graphs accordingly: "(e) Unlawfully creating among employees the im- pression of surveillance over union activities." 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the election held on September 7, 1973, in Case 13-RC-13072 be, and it hereby is, set aside. [Direction of Second Election and Excelsior foot- note omitted from publication.] 7 At the same time we note our agreement with the Administrative Law Judge's findings that the use of the term "frozen" by certain other supervi- sors was unlawful . In these instances, however, far from explaining that "frozen" meant only the employees would neither gain nor lose benefits pending negotiations , supervisors coupled their use of "frozen" with state- ments to employees that indicated that benefits would actually be lost if the Union won the election . Cf. Wagner Industrial Products Company, Inc., 170 NLRB 1413 (1968). t In view of our agreement with the Administrative Law Judge's conclu- sion that Respondent's violations of the Act during the critical period before the election of necessity interfered with the exercise of a free choice by employees and constitute sufficient grounds for setting aside the election, we also find it unnecessary to pass on the Charging Party's contention that the Decision herein should be amplified by a specific statement sustaining Charging Party's Objection 12 to the September 7, 1973, election or on its further contention in its brief that Objection 4, which was sustained by the Regional Director, is still before the Board for decision. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties were permitted to introduce evidence, it has been decided that we dis- charged Roberta L. Carter unlawfully and that by her discharge we discouraged our employees from engaging in concerted activities and from becoming or remaining members of Warehouse, Mail Order, Office, Technical, and Professional Employees Union, Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, and that we committed other unfair labor practices which in- terfered with the right of our employees to freely choose a bargaining agent. WE WILL offer Roberta L. Carter her former job or, if her job no longer exists, a substantially equivalent position and will restore her senior- ity. WE WILL pay her the backpay she has lost be- cause we discharged her, with interest at 6 per- cent. WE WILL NOT discharge any employee for the same reasons for which it was found that we discharged Roberta L. Carter. WE WILL NOT discharge employees for lawfully engaging in union or protected concerted activi- ties. HOSPITAL SERVICE CORPORATION WE WILL NOT maintain, give effect to, or en- force, any rule which prohibits any employee from soliciting any other employee during non- working time to participate in any protected concerted activity or in any activities for or on behalf of any labor organization. WE WILL NOT maintain, give effect to, or en- force, any rule which prohibits employees from distributing literature in nonworking areas on nonworking time on behalf of any labor organi- zation or other matters related to the exercise by employees of their Section 7 rights. WE WILL NOT unlawfully represent to our em- ployees that they do not need a union. WE WILL NOT unlawfully tell our employees that, if they choose the Union as their bargain- ing agent, negotiations will start from scratch and that all their present benefits will be lost subject to negotiations. WE WILL NOT unlawfully tell our employees that if they choose a union as their bargaining agent benefits which they have now will be held up; that when a contract is negotiated the nego- tiator will start with a blank piece of paper and start from scratch; that employees will lose all the benefits they had at the time; and that all benefits will have to be renegotiated. WE WILL NOT unlawfully ask our employees how they feel about the Union, why they are wearing union buttons, whether they are going to union meetings, or what is going on at union meetings. WE WILL NOT unlawfully tell our employees that it will pay them to tell us what goes on at union meetings. WE WILL NOT unlawfully tell our employees that, if the Union wins the election, our health plan and paid holidays will be suspended until negotiations are completed and promotions will be frozen and reviews suspended until the con- tract is settled. WE WILL NOT unlawfully tell our employees that if the Union wins the election benefits will freeze, scheduled raises will not be put in effect, and employees will have to pay more for their food. WE WILL NOT unlawfully tell our employees that if the Union wins the election that employ- ees would lose benefits and employees who did not want the Union will be forced to join the Union regardless. WE WILL NOT unlawfully tell our employees that if the Union wins an election employees' scheduled vacations will be canceled because all employee benefits will be frozen. 3 WE WILL NOT unlawfully seek to create among our employees the impression of our surveil- lance over their union activities. WE WILL NOT unlawfully grant our employees increased benefits in order to induce employees to desert or vote against the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce, any of our em- ployees in the exercise of the rights guaranteed them by Section 7 of the National Labor Rela- tions Act. HOSPITAL SERVICE CORPORATION d/b/a BLUE CROSS DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Administrative Law Judge: The charge filed by Local 743, Warehouse and Mail Order Em- ployees Union, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, here- in referred to as the Union, in Case 13-CA-12745 on Octo- ber 23, 1973, was served on Hospital Service Corporation d/b/a Blue Cross, the Respondent herein, by registered mail on the same date. The charge filed by the Union in Case 13-CA-12790 on November 7, 1973, was served on the Respondent by registered mail on November 8, 1973. An order consolidating cases and a consolidated complaint and notice of hearing was issued on February 28, 1974. The consolidated complaint alleged that the Respondent threatened its employees with loss of benefits, unlawfully interrogated employees, enforced an unlawful no-solicita- tion rule, and unlawfully threatened the discharge of cer- tain employees in violation of Section 8(a)(1) of the Na- tional Labor Relations Act, as amended, herein called the Act. The consolidated complaint also charged that the Re- spondent unlawfully placed employee Robert Finton on probation on July 17, 1973, and unlawfully discharged em- ployee Roberta Carter on July 13, 1973, in violation of Section 8(a)(3) of the Act. On June 24, 1974, in Case 13-RC-13072, the Board, on the consideration of the Employer's exceptions to the Re- gional Director's Report on Challenges and Objections,' ordered a hearing for the purpose of receiving evidence to resolve the issues raised by Objections 3 and 12. On July 1, 1974, Case 13-RC-13072 was consolidated with Cases 13-CA-12745 and 13-CA-12790 for the pur- pose of hearing, ruling, and preparation of a decision by an Administrative Law Judge as to the disposition of Objec- tions 3 and 12 filed by the Union to the election held in Case 13-RC-13072. On July 2, 1974, a complaint and notice of hearing was 1 An election had been held on September 7, 1973, in Case 13-RC-13072 against which the Union had lodged objections. The petition for the election was filed on June 19, 1973. 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issued in Case 13-CA-12966 . The charge in said case was filed by the Union on January 30, 1974, and served on the Respondent by registered mail on January 31, 1974. The complaint alleged that the Respondent had violated Sec- tion 8(a)(1) of the Act by granting certain benefits during the pending of an unresolved question concerning repre- sentation. On July 3, 1974, Case 13-CA-12966 was consolidated with Cases 13-CA-12745, 13-CA-12790, and 13-RC- 13072. On July 19, 1974, an amendment to the complaint in Case 13-CA-12966 was issued. On August 7, 1974, the Board ordered that the Union's motion to remand Objections 6, 9, and 10 for hearing be granted and the Board further ordered that "the scope of the hearing scheduled in Cases 12-CA-12745, 13-CA- 12790 and 13-RC-13072 be enlarged to include the issues raised by Petitioner's Objections Nos. 6, 9, and 10." 2 The Respondent filed timely answers to each of the com- plaints. The cases came on for trial at Chicago, Illinois, on Au- gust 12, 13, 14, 15, October 7, 8, 9, 10, and November 6, 7, 8, 1974. Each party was afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs 3 have been carefully considered. FINDINGS OF FACT,4 CONCLUSIONS, AND REASONS THEREFOR 1. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all material times herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Illinois.5 At all times material herein, Respondent maintained several facilities in the Chicago metropolitan area, its prin- cipal office and place of business being located at 233 North Michigan Avenue, Chicago, Illinois, where it is en- gaged in the sale of medical and surgical insurance cover- age. During the past calendar year, a representative period, Respondent, in the course and conduct of its business op- erations, received an annual gross revenue in excess of $500,000. During the last calendar year, a representative period, Respondent, in the course and conduct of its business op- erations, received premiums from, and performed services for, customers outside the State of Illinois valued in excess of $50,000. Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Cases 13-CA-12966, 12745, and 12790 A. Setting and the Alleged 8(a)(1) Violations The Respondent's principal office and location where approximately 1,100 eligible employee voters are employed is located at 233 North Michigan Avenue, Chicago, Illi- nois. The remainder of the eligible voters, except for about 15 who work at 310 W. Polk Street, Chicago, Illinois, work at the Sun-Times Building, 401 North Wabash, Chicago, Illinois. About 1,500 eligible employee voters composed 2 Objections 3, 6, 9, 10, and 12, which were remanded for hearing in the Board's orders of June 24 and August 7, 1974, are as follows: 3. At various times from the filing of the Petition herein , up to and including the closing of the polls, the Employer, through its Supervisors and Agents, did interrogate employees concerning their protected and/ or union activities. 6. At various times from the filing of the Petition herein, up to and including the closing of Petition herein, up to and including the clos- ing of the polls, the Employer, through its Supervisors and Agents, did permit and actively participate in solicitation of employees and/or dis- tribution of literature, on working time and in working areas, against the Petitioner and in favor of either the Employer or Intervenor, while denying Petitioner the opportunity to solicit employees and/or distrib- ute literature at similar times and in similar locations. 9. At various times from the filing of the Petition herein, up to and including the closing of the polls, the Employer, through its Supervisors and Agents, threatened employees with reprisals because of their sup- port or assistance to the Petitioner and threatened loss of benefits if the Petitioner were selected as bargaining agent. 10. At various times from the filing of the Petition herein, up to and including the closing of the polls , the Employer, through its Supervisors and Agents, discriminated against its employees in terms and condi- tions of employment because of their support or assistance to the Peti- tioner. 12. At various times from the filing of the Petition herein, up to and including the closing of the polls, the Employer, through its Supervisors and Agents, called employees to the locus of management authority to discourage support or assistance to the Petitioner. 3 The Respondent submitted a 127-page brief; the General Counsel, a 72-page brief; and the Charging Party, a 12-page brief. 4 The facts found herein are based on the record as a whole and the observation of the witnesses . The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses, and the teachings of N.L.R.B. v. Walton Manufacturing Company & Loganville Pants Co., 369 U.S. 404, 408 (1962). As to those witnesses testifying in contradic- tion to the findings herein , their testimony has been discredited , either as having been in conflict with the testimony of credible witnesses or because it was in and of itself incredible and unworthy of belief. All testimony has been reviewed and weighed in the light of the entire record. No testimony has been pretermitted 3 Hospital Service Corporation is a legal corporation for the purpose of providing prepaid health insurance for primary hospital care. It also is affili- ated with Illinois Medical Service which is a corporation to provide prepaid health care primarily for physicians' services. This insurance coverage is popularly referred to as Blue Cross and Blue Shield. Hospital Service Corporation's board of directors is composed of hospital administrators, some labor representatives, and certain members of the public. HOSPITAL SERVICE CORPORATION the appropriate unit. These employees were engaged in clerical tasks of various kinds. Robert D. Finton, a computer programmer, commenced working for the Respondent July 8, 1968, in the program- ming systems department. In May 1972, Finton contacted the Union whose representatives had been passing out lit- erature in front of the building located at 233 North Michi- gan Avenue. Finton offered to act on the organizing com- mittee. He was told to meet a couple of organizers at the Sherman House coffee shop. Thereafter Finton, another employee, Judy Grace, and Union Representative Mar- shall Arrington and Charles Ware met as arranged. Meth- ods of organizing were discussed and it was decided to make the computer room the target. Upon Finton's suggestion it was agreed that Finton ad- dress a letter to the employees in the computer room. In the meantime, on June 13, 1972, Finton addressed a tele- gram to the Respondent advising it that he was "cooperat- ing with Teamsters Local 743 in an effort to form a labor union of Blue Cross Blue Shield employees." On June 19, 1972, Finton distributed the contemplated letter to operators in the computer room and to various supervisors, including his boss, Paul Nowakowski. Finton also informed Operations Manager Leonard Pietrusiewicz that he was distributing the letter. Among other things in the letter, Finton urged employees to sign and return the enclosed union authorization cards. Employee response to Finton's letter was so favorable that the Union decided not to confine its organizing to the computer room but to - expand it to include the Respondent's entire establishment. Thus, on July 20, 1972, Finton composed a letter similar to the June 19 letter which was addressed to all employees and distributed to the employees in front of the building occupied by the Re- spondent. Finton handed his boss, Nowakowski, a copy of the letter. Several days after the letter was distributed, Nowakow- ski called Finton to his desk and informed him that he had a complaint from one of the operators that Finton had been talking about the Union "during company hours, working hours." Nowakowski "pointed out that [he, Fin- ton] was not supposed to." On September 1, 1972, a telegram from the Hospital Ser- vice Corp. In-Plant Committee, Teamster Local 743, I.B. of T., was addressed to the Respondent naming the Union's in-plant committee. Finton's name was the first listed. Thereafter, the Union's organizational campaign contin- ued. A representation demand letter was addressed to the Respondent on June 10, 1973. The Respondent, by its pres- ident, Robert M. Redinger, acknowledged by letter dated June 13, 1973, that it had been aware "for some time" that the Union had "solicited signed authorization cards from its employees," but doubted "in good faith" that the Union represented a majority of the Respondent's employees. Redinger suggested that the Union file a petition with the Board. His letter ended with the paragraph: Meanwhile, Hospital Service Corporation will con- tinue to conduct its business as before. We will contin- ue to safeguard the rights of our employees against interference as we have always done... . 5 On the same date, the Respondent distributed Redinger's letter to its employees with a written communi- cation entitled "Talking It Over." In the communication, Redinger advised employees that "[n]o employee has to sign a union authorization card to work here," and that if any employees should have questions "please bring them to the attention of your supervisors." On June 19, 1973, the Union filed a representation peti- tion with the Board. On August 2, 1973, Redinger issued a memo to all em- ployees in which he wrote, "Our employees want to know how the management of your company stands on the issue of union organization." After advising the employees that "We have read the union literature as you have. We are well acquainted with the union movement. They are some of our oldest and best customers," Redinger asserted, "We do not believe that our employees need a union."6 As a representative of top management, Vice President Francis S. Malloy appeared as a witness for the Respon- dent. Malloy is "responsible for the subscriber services di- vision which generally contains the claims processing func- tions and the subscriber relations functions of telephones and letters and includes the membership records func- tions." Of the approximately 1,500 employees in the collective- bargaining unit, Malloy supervised around 800 to 900. Malloy participated in the "company policy decisions which affected the company attitude and policy and its statements during the period between the filing of the peti- tion in June of 1973 and the date of the election [on] Sep- tember 7, 1973." Others who participated were vice presi- dents, senior vice presidents, and the president. In this regard a four-man committee also functioned, of which Malloy was a member, whose purpose was to implement the policy laid down by the president and senior staff. Per- sons present at this committee's meetings (five in all) were Malloy; Executive Vice-President Martin Hickman; Vice- President Personnel William A. Murray; in-house legal counsel, Brian Van Vlierbergen; Respondent's attorney, John W. Noble; and assistant legal counsel, Donald A. Pebworth. Malloy spelled out the Respondent's policy as -being "one of neutrality 7 based on factual analysis" which antic- ipated an "informed solution" which Malloy defined as "I think that informed is people are given factual data per- taining to any issue which they then in their own mind can evaluate as to their own individual concerns and interest as to which way they want to use that data as to which course of action they want." To create an informed electorate the Respondent chose the distribution of written "Fact Sheets" and the transmis- sion of management's information by word of mouth 6 The Respondent's position as articulated by President Redinger, and as imposed upon its employees by the memo, affronts the Act's'purposes and cued the tone of the Respondent's antiunion campaign. "An employer inter- feres with the right of self-organization when he emphasizes to his employ- ees that there is no necessity for a collective bargaining agent ." N.L.R.B. v. Bailey Company (Cart Side Branch), 180 F.2d 278, 279 (C.A. 6, 1950). 7 In the light of the record herein , the Respondent's claim of "neutrality" as precisely explained by Malloy was little less than a subterfuge employed to offset a finding of union animus. 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD through the levels of management hierarchy (many times in petto) with the actual communication with the employee occurring at the first level, the unit supervisor. In order that the supervisors might be made aware of their responsibili- ties in this regard, meetings were held in early July. At these meetings, according to Malloy, supervisors were told by Hickman "about the corporate posture and about the corporate policy of taking neither a pro nor anti-union stand, but in fact the corporate posture of educating the subscrib [sic] or employee in factual data so they can make an informed decision whether to vote yes or no on the union." Hickman also "identified the corporate posture of asking the supervisors to respond to questions of employ- ees to make sure that they kept their responses factual and also their role in distributing factual handouts to employ- ees." Hickman told supervisors that he wanted no anti- union activity. Noble discussed the do's and don'ts. He said supervisors were "not allowed to threaten or coerce employees, they were not allowed to give their personal opinion to employees whether they should vote for union or not union" nor were they "allowed to promise awards." At some of the supervisors' meetings questionnaires were distributed to which oral answers were given.9 After these priming sessions, about 200 unit supervisors and about 80 managers and assistant managers were au- thorized "[i]f they chose to talk to their employees in small- er groups or [on an] individual basis." Supervisors passed out the "Fact Sheets" and a publica- tion entitled "Briefly," to employees during working hours at work stations. Union representatives were not permitted this privilege but were "free to pass out their material in the lobby of 233 North Michigan." 10 The credible record does not support Malloy's claim of neutrality. That word was seized upon to becloud the Respondent's antiunion stance. While the Act's policy is dedicated to "encouraging the practice and procedure of collective bargaining," a salutary benefit of the Act enuring to all employees covered thereby (including the Respondent's employees), nothing was published in the Respondent's leaflets which was apt to persuade employees to choose collective bargaining ; all was programmed to ob- tain the opposite result. Only the disadvantage of union representation as it specifically pertained to Respondent's establishment was detailed. All advantages were pretermit- ted. The Respondent's publications were carefully laun- dered so that they appeared clean of any implication of economic reprisals or promises of benefits. Nevertheless, there was a studied effort prevailing throughout these pub- lications to clinch Redinger's announced thesis, i.e., "We do not believe that our employees need a union," and to 8 The levels in the management hierarchy in order of descending rank are as follows: president, executive vice president, senior vice president, vice president, assistant vice president, manager, assistant manager, section su- pervisor, and unit supervisor. The departments' staffs range in number from 30 to 200 employees. 9 These meetings and questionnaires will be dealt with in greater detail when the specific unfair labor practice allegation against a named supervi- sor is considered. 10 Malloy testified that if employees distributed union materials at the employees' work stations supervisors were "to report it to the legal area." Supervisors were not to take "unilateral action." depict bad times to come if the Union were chosen because of the Respondent's antagonistic and uncompromising atti- tude toward the Union. tt That the employees might receive lesser benefits with the Union was a recurring theme. In the publication "Contract Talk: Promise or Fact?" of August 9, 1973, Bill Murray wrote, "The union handbills talk about a contract as if it were an accomplished fact. ... [t]he union can promise you anything. But the prom- ises cannot become a part of any contract without the ap- proval of the employer. . . . not the union, not the compa- ny-can guarantee that any single benefit will be part of the contract." On August 13, 1973, Murray, through a publication enti- tled "The Cost of Union Membership," referring to union dues, wrote, "This is money that comes from the union member's pay check [initiation fees, monthly dues, special assessments, fines, and emergency assessments without member's approval]-money the union member could have taken home." Murray on August 15, 1973, again com- municated to the employees. On the seniority system advo- cated by the Union he commented, pointing out that salary increases for promotion averaged 8.9 percent, "A promo- tion system based primarily on seniority favors those who are content with mediocrity. It works to the disadvantage of those who want to move ahead as fast as their abilities and interests allow." After noting certain employee bene- fits, including a 31-percent subsidy for the cafeteria, he declared, "All wages and benefits including those listed here are subject to negotiation if you choose to be repre- sented by a union." 12 In a "Fact Sheet," dated August 23, 1973, Murray again considered what would happen to the Blue Cross employee benefits when the employees chose the Union: "They stay the same only until a contract is signed between your employer and a union. When the con- tract is signed you could obtain more benefits, fewer bene- fits, or the same benefits you now have. The point is, ALL benefits are subject to negotiation." On August 28, 1973, to the "Fact Sheet" question: "If a union wins the election and I am scheduled for a salary increase after September 7, but before a contract is signed, will I get the raise," Murray answered, "Not necessarily.... " On August 29, 1973, in "Fact Sheet No. 11" Murray pointed out the hazards of collective bargaining, observing that- "Unions cannot force any employer to sign a contract that the employer is un- willing or unable to accept." On August 30, 1973, Murray advised the employees that they did not need a written contract because "your benefits ARE Now IN wtuTiIG," and pointed - out the disadvantages of a written contract and that " jo]nly the employer can guarantee your job." In a "Briefly" publication, the Respondent informed employees that "In these discussions it is just as possible for present wages and benefits-to be reduced by collective bargainjng as it is for them to be increased." On August 24, 1973, Murray distributed, with a cover 11 The Supreme Court teaches that "interference must be determined by careful scrutiny of all the factors, often subtle, which restrain the employees' choice...... International Association of Machinists, Tool and Die Makers Lode No 35 v N L.R.B, 311 U S. 72, 80 (1940). 1 This statement, of course, must be evaluated in the context of certain supervisors' statements that, if the Union won, bargaining would start from scratch (see infra). - HOSPITAL SERVICE CORPORATION 7 letter, a letter which the employer had received from em- ployees Karen McDonald, Judy Britton, and Susan Visser. The letter contained the following paragraph : "Will our benefits increase under a union? It is our understanding that All benefits will be subject to negotiation between the union and management starting from point zero . In other words, what we have today is lost subject to negotiation. Other offices that have accepted the union have fewer ben- efits now than we do. Take a careful look at All the bene- fits we have today and ask if we can afford to lose any." In an atmosphere permeated with supervisory propagan- da to employees as taught by the Respondent and flavored by the publications above mentioned, the following specif- ic incidents of supervisory activity occurred which are con- sidered under the heading of each supervisor's name. 1. Noreen Kratz Noreen Kratz was a section supervisor in department 762. Kratz attended a meeting at which Attorney Noble gave his presentation , and she received information from John Ryan of the training department at two meetings. Ryan gave her a list of questions in mimeographed form.13 The questions were deemed to be those which employees might ask. Ryan orally supplied the answers which were to be passed on to the employees on "a one-and-one basis" in a "closed area." Kratz took notes of the answers which were offered in evidence . Kratz' notes reveal, inter alia, "there is no guarantee that the benefits we have now will be the same . All benefits are frozen until a contract is rene- gotiated starting from 0 ." In answer to question 8, Kratz' notes reveal: "Benefits we have now held up when contract is negotiated, they start with a blank piece of paper, start from scratch." In answer to "If due for an increase during negotiation will it be suspended," Kratz' notes indicate, "It is up to the company, decision most likely made after elec- tion." 13 The questions are as follows and are the same as distributed to other supervisors: I What obligations will you have as a Union member? 2. Can the Union guarantee an increase in benefits? 3. Will every member of the bargaining unit have to join the Union? 4. How long will the contract they negotiate last? 5. What will you be able to do if you are dissatisfied with the Union? 6. Do you realize the importance of everyone eligible getting out to vote in this election? 7. What happens during a strike : (a) to wages? (b) to benefits? 8. What happens to benefits between the union election and negoti- ating a contract? 9. How can employees determine his/her eligibility to vote in this election? 10. In a union shop, what criteria are used for determining raises and promotions? 11. What problems can the Union solve? a. What can the Union provide that you don't already have? 12. How do our benefits compare with other local white collar un- ionized organizations? 13. What do you already know about each of these unions? 14. Will the union/company penalize employees who actively sup- port the union/company? 15. How would grievances be handled in a union shop? 16. Will anyone know how you voted in this election? 17. Can a Union negotiate wages that exceed Phase IV guidelines? The answers to the list of questions were reviewed by Kratz with employees in the assistant manager's office where Kratz gave performance appraisals and counseling. The office was enclosed. She met individually with 35-40 employees. Kratz testified that she told employees, after asking them if they knew what would happen between the time of the union election and the negotiation of a contract, that "ben- efits we have now hold up. When a contract is negotiated they start with a blank piece of paper. They start from scratch." Employee Joyce Andrews who testified in this proceed- ing was one of the 35-40 employees called to the assistant manager's office for a discussion with Kratz. Kratz asked her whether she knew anything about unions. Among other things, Kratz told Andrews that "an employee would lose all the benefits that they had at that time, that all the bene- fits you had would have to be renegotiated such as your free hospital insurance as an employee, your discount in the cafeteria, your free life insurance that the company gives you." Kratz indicated that the Union dealt with "truck drivers and chicken pluckers" and that Local 28 had experience with white and blue collar workers and that the "better choice would be to have someone that had experi- ence with the type of worker that [Andrews] was." 14 2. Joanne Walker Joanne Walker 15 was unit supervisor in the Federal em- ployee program department. She attended a meeting at which Attorneys Noble and Pebworth discussed matters pertaining to the election. After the meetings, Walker con- ducted one-on-one discussions, at her desk, with 18 em- ployees touching on the union campaign. Walker's desk was used for "coaching sessions" in regard to performance. Walker said that she first told employees that she was going to discuss "the issue with the union versus Blue Cross and that none of them had to stay and listen to the conver- sation if they didn't want to." Five did not stay. Walker testified that at the meeting at which Noble and Pebworth appeared supervisors were told to "talk to [their] employees either in a group or one-on-one basis and dis- cuss the issues. . . . not to brow-beat the employees but make them aware of Blue Cross' stand." After this meeting, Walker was given the questionnaire and met with Training Instructor Walter Wills. Wills gave her the answers to the questions in the questionnaire and instructed -her to take notes. Walker used the notes when she -talked to employ- ees. Linda Sue Barrie and Patricia Porter, who testified, were two employees with whom Walker reviewed the election issues. Of her discussion with Barrie, Walker testified as follows: Barrie was told that the discussion was voluntary and that Walker was not interested in how she was voting.'She 14 Kratz believed she mentioned the Union organized "trucking people" and Local 28 "had experience with office workers." (Office and Professional Employees International Union, Local #28, AFL-CIO, was the competing union in the representation election in Case l3-RC-13072.) 13 Joanne Walker's credibility was impressive. She was a forthright, hon- est witness. 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,.only wanted to present Blue Cross' issues." Thereupon Walker reviewed the questions on the questionnaire elic- iting Barrie's response to each question, to which Walker added her response from the information in her notes. Bar- rie told Walker that she was voting for the Uniion, at which point Walker asked her "did she feel that the union was necessary." Barrie answered that she felt the Union would "better her working atmosphere." Walker also told Barrie that "benefits at the time that the union got in would be frozen until such time that the union and the company negotiated." Walker also explained to Barrie that "if the Union got in and she was not a participant in the union meetings that it is possible that she could have a fine imposed upon her for not going." Barrie remembered that Walker had said that "if the Union got in that the cost of living and promotions would be frozen until they come to a contract." Of her discussion with Porter, Walker testified as fol- lows: Porter indicated to her that she didn't know what was going on as far as the Union was concerned. She felt that some changes were needed and that "people who were rep- resenting the union in [her] department had her go to some of the meetings." Porter said "she wanted the union for better pay and better merit system for equal promotions." As she had Barrie, Walker asked Porter if she felt a union were necessary; thereupon Porter indicated that she would be satisfied if the benefits were increased. Walker told her that "she had no guarantee that if the union got in that the benefits would possibly increase more than what they were." She continued, "[T]he benefits would be frozen and whatever benefits came out of that it would be negotiated on with the company" and there was "a possibility that the benefits could decrease depending upon the negotiations." Walker advised Porter that she was "here to explain the corporation's issue on the union." Porter remembered that Walker then asked her whether she was going to vote for the Union, to which she an- swered, "yes." Walker said that benefits the employees al- ready had would be "frozen" and that a contract could not be negotiated for 2 or 3 years. Walker asked why Porter thought she needed a union. with Walker she had heard "very loud boisterous conversa- tion going on in the area" among her employees. Frediani questioned the two employees involved at-her desk. One employee, Froma Goldberg, replied that they were discuss- ing "the pro's and con's regarding the election." Frediani then told the girls "seeing as they could not discuss it quiet- ly [she] felt they should no longer discuss it in the area but that they should do it after work or during their lunch or breaks." Frediani said that she later called Walker to her desk and said that "she could no longer discuss it in the area during working time because they could not keep their voices down and it was distracting." On cross-examination, Frediani agreed that she had told Walker that "everybody does have a right to their own opinion"; that the rule against talking at employees' desks was, as expressed by Frediani, to "Just sort of discourage it let's say"; that she had followed an employee from another department who was in the group to the elevator where she asked her "what the problem was"; that the employee an- swered that she had "questioned Linda regarding the daisy that Linda was wearing on her dress";18 that she returned to Froma Goldberg's desk and asked her what the loud discussion was about; that Goldberg answered that they were discussing the union pro's and con's; that the unit supervisor was informed of the incident; that thereafter Frediani talked to a group of five or six employees to dis- cuss the problem, telling them "as long as they couldn't discuss it in a more mannerly way that I felt we should discontinue discussing it in the area during working hours"; and that Walker was not in the group and later was asked to come to Frediani's desk. A credibility issue exists between Frediani's and Walker's testimony. It is resolved in favor of Walker. Fre- diani disclosed her interest in her employees' union discus- sion and admitted interrogating one employee on the sub- ject after she knew that the Union had been discussed. Thus it is reasonable to conclude that Frediani's interest continued after the incident related above and at the time she interviewed Walker individually. The fact that she may have known Walker was a union sympathizer is not incom- patible to this conclusion since wearing a union button does not necessarily reveal how an employee really feels about a union. 3. Rosemarie Frediani About the middle of June 1973, employee Maxine E. Walker was called to Supervisor Rosemarie Frediani's desk, at which time Frediani said, "I know that a person has a right to his own opinion, but I would like to know how you feel about the Union." Walker answered, "I didn't think I was supposed to talk about that during com- pany time." 16 Prior to the conversation, Frediani had seen Walker wearing a union button.17 Frediani denied the interrogation. Frediani admitted that a conversation took place at her desk. On direct exam- ination, Frediani testified that prior to the conversation 16 Walker's testimony. 17 As to wearing the button on the day of the interrogation , Walker testi- fied, " I can't remember, honestly. I mean, I more than likely did, but to be honest, I really can't remember." 4. Craig R. Schultz Craig R. Schultz was the assistant manager of .the office services department. On August 1, 1973, employee Roland Howard adorned himself with a union button. When Schultz observed the button, he called Howard into the manager's office, an enclosed office. Schultz laughed and snickered at the button and said, "I never thought I would expect you to wear one" and inquired why he was wearing it. Howard responded that he thought the Union was nec- essary. Schultz commented that Howard was a "dummy" and "stupid" and that all the Union wanted was dues and that it was corrupt. Later in the ;day, in the mailroom, IB The daisy, which will be referred to again in this Decision; was around 7 inches in diameter with eight blue petals and a yellow center--measuring 3 inches in diameter. On the center in black type was printed "Vote Yes Local 743 Teamsters." Under the word "Yes" appeared a box with an "X" in it. HOSPITAL SERVICE CORPORATION Schultz told Howard to "grow up" and that he was acting like a "little kid." He also asked, "You are going to Union meetings?" 19 Howard indicated that it was none of Schultz business. Schultz answered, "It would pay for you to tell me because things will be better for you." On August 17, 1973, Schultz again spoke to Howard in the mailroom. He asked Howard what was going on at the union meetings, whereupon Howard invited Schultz to join him at the union meeting where they would be served sup- per. Schultz replied, "You had better enjoy that supper because that is going to be the last supper you are going to have." Schultz added, "You won' t tell me what is going on at the Union meetings, well, I have got my sources." On August 10, 1973, Schultz remarked to Howard that the Union didn't have a chance and that they were a "bunch of phonies." Schultz said, "If the Union wins, I'll buy you a drink, and if the Union loses, you will have to buy me a drink." Howard agreed. After the Union lost the election, Schultz remarked, "Let's forget about the bet." Schultz admitted that he had talked to Howard about the Union once but denied that the conversation took place in the manager's office. He admitted seeing Howard adorned with the union button. During the conversation, Schultz said, he asked Howard how things were going with the campaign. Howard responded that the Union was going to win, whereupon Schultz made the bet above re- ferred to. Schultz referred to Howard as the "vocal spokes- man" for the Union in the mailroom and that it was "com- mon knowledge" that Howard attended union meetings. Schultz, on cross-examination, testified that he said "some- thing" about going to union meetings. "I said that I had heard there were union meetings and I assumed he was a participant." Schultz denied other parts of Howard' s testi- mony as to the content of the conversation. In view of Howard's contemporaneous notes, Schultz' admissions, the probability that Schultz talked to other employees as did other supervisors, and the demeanor, Howard's version of the conversation is credited. 5. Jamal Jahangani Unit Supervisor Jamal Jahangani had attended one of the meetings referred to above and remembered that Attor- ney Noble had said, ". . . if union win the benefits [are] going to stay the same." On July 25, 1973, Jahangani re- quested that employee Willie Jackson come to his desk for a discussion. Jahangani explained to Jackson "some of the consequences of having a union." Jahangani said that "family health plans, paid holidays . . . would be suspend- ed until negotiations were done with the union"; that "pro- motions would be held until negotiations were finished"; that "promotions would be frozen until a contract can be signed";20 and that "reviews 21 would be suspended until the contract was settled." Jahangani spoke to about 20 em- 19 An entry in Howard's notebook reveals "Craig Schultz 2 p .m. Wednes- da,° , August 1? Asked me to be stoollel" At that time Jackson was "about" due for a promotion. 21 The Respondent's policy was to review each employee's work accom- plishments every 6 months, at which time if the employee qualified he was granted a merit increase. 9 ployees individually. Jahangani denied specifically Jackson's testimony but admitted that he told Jackson that "all going to stay same until between the Union and Blue Cross negotiations." In view of Jahangani's admission and what he remembered as Attorney Noble's comments, de- meanor having also been considered, Jahangani is found not be a credible witness. 6. Robert Majerus Robert Majerus was the section supervisor in part B, claims and examination section of Medicare. About 3 or 4 weeks before the election, Majerus called a meeting of 10 employees in the conference room. The conference room was used for supervisory meetings, for interviewing new employees, and for performance reviews. All employees present attended the meeting. It was the first time employ- ee Gayle Millicent Knazzie, who related the discourse at the meeting, had visited the conference room. At the meet- ing Majerus was asked what would happen to employee benefits if the Union won the election. He responded that "all employee benefits, such as salary reviews and holidays and sick days would be frozen and put on the bargaining table." He also said that "everything would be frozen .. . we wouldn't get no money, and that Blue Cross won't be agreeing to everything that the Union said." He added "when the Union came in that there would be a strike"; that new employees would receive "about $20 a week, and that Blue Cross could bring other people in to take [the striker's] place if [they] went on strike." He said that if the "Union got in that all the employees would receive a blan- ket raise, there won't be merit raises anymore" and "pro- motions would be according to seniority." He said that it would take the Union and the Respondent "an indefinite period of time . . . to come to an agreement" and the em- ployees could "lose" through negotiations. He also said that "everybody would have to join the Union if it came in." Majerus had attended meetings at which Attorney Noble had addressed the supervisors. Thereafter, Majerus met in eight meetings with small groups of 8 or 9 employees of his 65 or 70 employees. According to Majerus he said the same things at each meeting; he spoke extemporaneously. Prior to these meetings Majerus had been given- a copy of the questionnaire. According to Majerus, he told employees that benefits would "stay the same until such time as an agreement was reached." 22 In view of the record as a whole and the demeanor of the witnesses the probabilities are that Majerus made the remarks attributed to him. 7. Dana (Bodin) Edell Dana Bodin Edell was a unit supervisor in the claims department. About the middle of August Edell joined two female employees who she heard discussing the Union. Later employee Shirley Senter also joined the employees 23 The discussion between the two girls had commenced in u Employees in Majerus' department were on a merit system entitling them from date of hire to a performance review every 6 months until they reached a certain level and then they were entitled to a yearly review. 23 Shirley Senter testified in these proceedings. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the morning after a "Fact Sheet" had been distributed to the employees. After Edell joined the two employees, 10 or 12 other employees gathered in the group. When Senter joined the group, Edell said, "Here comes the expert for the other side." Among other things Edell said that "if the Union gets in then all benefits would be frozen and that we would have to start from a blank sheet of paper and start there" and that the employees "would have to lose some- thing to gain." The discussion lasted at least an hour. Edell had attended five informal meetings 24 and had heard Attorney Noble's presentation. She had been given the questionnaire which she identified, stating, "These are the questions that the Training Department gave to us to ask our employees if they knew these facts or were aware of the situation." The questions were discussed and an- swers were given by training department personnel. Edell took notes. Edell said that the "idea was to talk to our employees individually and ask them if they were aware of these situations of facts." She testified, "I felt that that was contrived to call the employee up to my desk and said do you know, do you know this, do you know that?" Edell was told the objective of these conferences was "[t]o inform the employee of for example certain benefits that they have they may not realize their benefits such as the subsidized cafeteria and to inform them the facts of the company." In response to an employee's question during the above-men- tioned employee gathering as to what would happen to existing benefits which, according to Edell, "was always the question," Edell replied that "benefits would be main- tained exactly as they are until if the union won the elec- tion then benefits would be negotiated. If they didn't bene- fits would be maintained until a decision was maintained one way or the other." 25 During the employee gathering, Senter advanced the union position which was rebutted by Edell with information received from the training depart- ment. For example, the employees were under the impres- sion that the Union could guarantee an increase of bene- fits; Edell responded that it was "not true. It was negotiable." Edell admitted that she said that negotiations would start with a "blank piece of paper." She further said that she probably used the word "frozen." "It was a common phrase at that time." She testified, "the word frozen caused some concern among the employees and I took great pain to explain frozen does not mean taken away, frozen means will be maintained until others are negotiated or other- wise." As to what would happen to merit increases due if the Union won the election Edell said, "That if between the time that say the Union had won the election and the time that new benefits were negotiated everything would be maintained as status quo." 8. Mary Ann Smilak Mary Ann Smilak was a supervisor in department 560. As were other supervisors, Smilak was exposed to the 24 Edell testified, "The whole basics of the meeting of the supervisors was to make sure that the Blue Cross employees were informed on both sides of the issue. . 25 Edell said this was a training department answer. Respondent's indoctrination program. From Walter Wills in the training department Smilak received answers to the questionnaire above referred to which, committed to notes, she used in addressing employees. She convened 4 groups of employees in groups of 8 to 10 about the middle of August. Employees Mulvenia Powell, Helen Landers, and Regina Boyd, all of whom testified, attended such a meet- ing on August 20, 1973, in the mailroom. Smilak told the employees that she had called the meeting to tell them the "advantages and disadvantages of having a Union." She said that, if the Union prevailed, timeclocks would be in- stalled, food in the cafeteria would "go higher," and all benefits "would freeze." Landers asked Smilak "if the Union got in would she still get a raise in October. Smilak replied, "No, because all her benefits would be frozen." Smilak also said if the Union won there would be no more "open posting," that the Respondent probably wouldn't pay for insurance benefits, and that the employees would "have to pay" for their own food. 9. Jean Atkins Jean Atkins was employee Freddie M. Simmons' section chief in subscriber relations. About 1-1/2 weeks before the election Atkins asked Simmons to come to her desk. Atkins told Simmons that "they had been advised" to inform the employees to vote on election day and that she had a list of questions which most employees were asking and a copy of the rules and bylaws of the Union. She asked Simmons to look over the questions and if Simmons had any questions she would try to answer them. Atkins said that "the union should not promise us raises and benefits and that just like Blue Cross couldn't promise us raises and benefits and if the union did get in, we'd lose our benefits and those per- sons that did not want the union would be forced to join the union regardless and that we would have to pay $7 union dues." 16 Simmons had never been called to Atkins' desk before. 10. James Pritchett and Consuela Branch Employee Jamie Delta Williams, who testified herein, was employed in the records and management department. Her unit supervisor was Consuela Branch, her section su- pervisor, Sandra Brown, and her assistant- manager, James Pritchett. On September 5, 1973, Williams was summoned to an employee meeting in a departmental work area at- tended by about 10 employees. Brown explained the voting procedures and solicited questions. Employees then posed questions about the Union. Pritchett "took over." Pritchett said that if the Union "got in" there "probably would be a strike"; employees' "present benefits would be frozen, that all the benefits that [employees] now have would-be like all would have to be negotiated from the beginning, from the start, as if there were none at all"; that "he knowed`that the Blue Cross and Blue Shield may give a nominal pay raise, but the employees would lose some other benefits, their gain would actually result in a loss"; and that he would not 26 Jean Atkins was not called by the Respondent. According to Attorney Pebworth she now lives in Atlanta , Georgia. No unfavorable inference against the Respondent is drawn by reason of her absence. HOSPITAL SERVICE CORPORATION be "Mr. Nice Guy" anymore.27 At the meeting, employee Henry Bird asked Branch whether he could go on his vacation which was scheduled for about a month after the election if the negotiations between the Union and the Respondent were still in pro- gress. Branch said, "No, because all the employee benefits would be frozen." 28 Pritchett had attended the meeting at which Attorney Noble had spoken. 11. Jim Stevens Employee Daryl G. Shaw who was employed in depart- ment 751 and testified herein was supervised by Jim Ste- vens. John Kos was his assistant manager. While Stevens and another employee, Tony Kelly, were in conversation, Stevens approached and said, "You know, if Local 743 gets in, it is possible that we could lose all our benefits." Shaw responded, ". . . the Company just can't take the benefits away from you." Stevens answered, "Yes, they can." Ste- vens also said that he preferred Local 28.29 12. John Kos Manager John Kos, while employee Daryl G. Shaw was proceeding to a smoke break, remarked, " . . . if the Union gets in you won't be allowed to do that anymore." Kos added, "A lot of things will be stopped." Smoking was not permitted in the computer room where Shaw worked. There was no limitation on smoke breaks, however.30 In the light of the entire record and in the context used,31 it is found that the Respondent interfered with , restrained, and coerced , its employees in the exercise of rights guaran- teed by Section 7 of the Act in violation of Section 8(a)(1) of the Act by the following misconduct ; to wit:32 27 Pritchett remembered the mention of "Nice Guy" but not in the con- text; where Pritchett's testimony conflicts with that of Williams , an honest, forthright witness, it is discredited. 28 Consuela Branch was not called as a witness by the Respondent. Ac- cording to Attorney Pebworth, Branch has left the Respondent's employ and the Respondent received no response from her . No unfavorable infer- ence against the Respondent is drawn by reason of her absence. 29 Jim Stevens was not called as a witness by the Respondent . According to Attorney Pebworth, Stevens has left the Respondent's employ and Re- spondent received no response from him . No unfavorable inference is drawn by reason of his absence. 30 Kos denied the incident. Kos' denial is not credited. 31 "It is not the effect of any one of the objectionable acts standing alone, however, but the combined effect of all of them, which must be considered." Home Town Foods, Inc. d/b/a Foremost Dairies of the South v. N.L.R B., 379 F.2d 241, 244 (C.A. 5, 1967). Accord: Home Town Foods, Inc. d/b/a Fore- most Dairies of the South v. N. L. R. B., 416 F.2d 392, 397 (C.A. 5, 1969). 32 The briefs of the parties have been carefully considered and all cita- tions reviewed. The test of unlawful conduct under Section 8(axl) of the Act is whether it may reasonably be said" that the conduct engaged in by the employer "tends to interfere with the free exercise of employee rights under the Act" Time-O-Matic, Inc. v. N.L.R.B., 264 F.2d 96, 99 (C.A. 7, 1959). As was said in Joy Silk Mills, Inc. v. N.LR.B., 185 F.2d 732, 743-744 (C.A D.C., 1950): ... it has been consistently held that the question is not whether an employee actually felt intimidated but whether the employer engaged in conduct which may reasonably be said to tend to interfere with the free exercise of employee rights under the Act. Moreover, "It is well established that illegal interference ... need not be II 1. President Robert M. Redinger's assertion to employ- ees included in his memo of August 2, 1973, outlining management's stand on the Union, "We do not believe that our employees need a union. " 33 2. Vice President Personnel William A. Murray's com- munication dated August 24, 1973, informing employees that negotiations will start at "zero" and that all present benefits are "lost subject to negotiation" if the Union were chosen as bargaining representative.34 3. Section Supervisor Noreen Kratz' statements to em- ployees that "benefits we have now hold up. When a con- tract is negotiated they start with a blank piece of paper. They start from scratch," and "an employee would lose all the benefits that they had at the time, that all benefits [they] had would have to be renegotiated." 4. Supervisor Joanne Walker's interrogations of employ- ees Linda Sue Barrie and Patricia Porter as to why they thought a union was necessary.35 successful to be accountable." General Electric Company v N L R.B, 400 F.2d 713, 717 (C.A 5, 1968). The 8(a)(1) findings herein meet the test . In applying the test, of course, it must be reckoned that the employees, as workers, are dependent to a great extent on the employer's sufferance and that the employees ' response to the words spoken and action taken is that of a worker bound by his station in life, and circumscribed by his fears, hopes, and aspirations. "[W]ords must be judged by their likely import to [an employer's] employees " Wausau Steel Corporation v NL.R.B, 377 F2d 369, 372 (C.A 7, 1967 ). See also N.L.R.B. v Trojan Powder Company, 135 F.2d 337, 339 (C.A 3, 1943), where coercive effect was given to the employer's statement as it was "capable of being understood [by the employees] .. even though the words are chosen with a fine sense of Victorian delicacy " 33 "An employer interferes with the right of self-organization when he emphasizes to his employees that there is no necessity for a collective bar- gaining agent." N.L R B v Bailey Co, 180 F 2d 278,279 (C.A 6, 1950). See also Mendel Manufacturing Company, Incorporated, 197 NLRB 1093, 1100 (1972). The clear implication in Redinger's memo, as well as other employer propaganda, was that a union was not needed because the Employer would deal with its employees more beneficially without the Union than with the Union and for this reason it would be to the employees ' disadvantage to choose the Union 34 "Employer statements to employees, after a collective-bargaining re- quest, that he will bargain 'from scratch,' carrying as they do the implication that employees may wind up with less than what they already have, in the event they exercise their lawful right to bargain collectively , have repeatedly been held to be coercive and in violation of the Act " Preston Products Company, Inc, 158 NLRB 322, 346, fn. 76 (1966): Federal Envelope Compa- ny, Omaha, Nebraska, a Division of Nationwide Papers Incorporated, 147 NLRB 1030, 1040, in. 25 (1964), Gooch Packing Company, 162 NLRB 1, 3 (1966). 35 The interrogations which herein have been found to be unlawful gener- ally occurred in the context of other unfair labor practices and were for the clear purpose of eliciting information in aid of the Respondent 's antiunion campaign Moreover, the Respondent has shown no proof that such ques- tioning was pursuant to the Employer's legitimate business interests. Cf. Winchester Spinning Corporation v. N.L R. B., 402 F.2d 299 (C.A 4, 1968). Apropos is the language of the court in N.L R B v. Builders Supply Co. of Houston, 410 F.2d 606, 609 (C.A 5, 1969), enfg as modified 168 NLRB 163 (1967): [The] interrogation was coercive since it took place in an atmosphere of active opposition to the union, Bourne v. N L R B., 332 F 2d 47, 48 (2d Cir, 1964), without explanation to the employees of the purpose of the questioning and under circumstances indicating that it had no legiti- mate purpose, Edward Fields, inc v N L.R B., 325 F.2d 754, 758-759 (2d Cir., 1963), and was unaccompanied by any assurances against reprisals, see N.LR B v. Lorben Corp, 345 F.2d 346, 348 (2d Cir., 1965). [F]or the test of interference , restraint, and coercion does not turn on the success of the conduct directed against an employee. It is a violation of the Act if the questioning takes place under circumstances which impart Continued 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. Supervisor Joanne Walker's statement to employees that benefits at the time the Union got in would be frozen until such time as the Union and Company negotiated.36 6. Supervisor Rosemarie Frediani's interrogation of em- ployee Maxine E. Walker as to how she felt about the Union. 7. Assistant Manager Craig R. Schultz' interrogation of employee Roland Howard as to why he was wearing a union button, whether he was going to union meetings, and what was going on at union meetings. 8. Assistant Manager Craig R. Schultz' remarks to em- ployee Howard that it would pay for him to tell Schultz whether he was going to union meetings. 9. Unit Supervisor Jamal Jahangani's remarks to em- ployee Willie Jackson that the family health plan 37 and paid holidays would be suspended until negotiations were completed with the Union and that promotions would be frozen and reviews suspended until the contract was set- tled. 10. Robert W. Majerus' remarks to employees that all employee benefits, such as salary reviews, holidays, and sick leave, would be frozen and put on the bargaining table if the Union won, and the employees "wouldn't get no money." 11. Unit Supervisor Dana (Bodin) Edell's remarks to employees that if the Union got in all benefits would be frozen; that the parties would have to start from a blank piece of paper; that employees would have to lose some- thing to gain something; and that merit increases would remain in status quo. 12. Supervisor Mary Ann Smilak's remarks to employ- ees that if the Union won benefits would freeze, scheduled raises would not be honored, and employees would have to pay more for their food. 13. Supervisor Jean Atkins' remarks to employee Fred- die M. Simmons that "if the union did get in, we'd lose our benefits and those persons that did not want the union would be forced to join the union regardless." 14. Assistant Manager James Pritchett's remarks to em- ployees that present benefits would be frozen; that negotia- tions would start as if there were no benefits at all; and that the employees' gain would actually result in a loss. to it a tendency to interfere with the free exercise of rights under the Act." Murray Ohio Manufacturing Company, 155 NLRB 239, 240 (1965). More- over, the questioning "must be viewed and interpreted as the employee must have understood the questioning and its ramifications." Hughes & Hatcher, Inc v. N.L.R.B., 393 F.2d 557, 563 (C. A. 6, 1968). Thus the interrogations were clearly unlawful . See also Koch Engineering Company, Inc., 155 NLRB 1272, 1273 (1965). Such interrogation as to union sympathy and affiliation has been held to violate the Act because of its natural tendency to instill in the minds of employees fear of discrimination on the basis of the information the employer has obtained . N.L.R.B. v. West Coast Casket Company, Inc., 205 F.2d 902, 904 (C.A. 9, 1953). The interrogations herein found unlawful had a tendency to interfere with the free exercise of employees' Section 7 rights. 76 The use of the word "frozen," which apparently was used often, con- veyed the idea that it would be the Employer who would institute a freeze if the Union prevailed, and that by reason thereof employees would lose bene- fits which would normally have accrued during the period of negotiation. The odium for this result was attributed to the Union. 37 The suspension of the family health plan would obviously have been a substantial detriment to employees. 15. Supervisor Consuela Branch's remarks to employees that an employee's scheduled vacation would be canceled if the Union won the election because all employee bene- fits would be frozen. 16. Supervisor Jim Stevens' remarks to employee Daryl G. Shaw that the Employer could take benefits away from the employees and that if the Union won the election it was possible that the employees would lose their benefits. 17. Supervisor John Kos' remarks to employee Daryl G. Shaw that if the Union got in smoke breaks would be end- ed and a "lot of things will be stopped." B. Superviosr Hurley's No-Distribution and No-Solicitation Rules On August 17, 1973, employee Judith Irene Musial, who works in group membership, department 530, arrived for work between 8:30 and 8:35 a.m. She immediately distrib- uted approximately 12 union information leaflets on each desk in her unit and 12 or 13 leaflets on desks in another unit. She finished the distribution at 8:40 a.m. She saw no one observing her distribute the leaflets. Employee Thelma Lewis received some of the leaflets from Musial and dis- tributed them in her unit. Jerry Hurley, the department manager, appeared and, stopping to talk with employee Jacobs, picked up a leaflet. After a few words with Jacobs, Hurley proceeded to his office where he talked to Section Supervisors Rossman and Peterson. Hurley said, "Who put this crap on the desks? Get it off into the garbage right away." Rossman proceed- ed to pick up the leaflets and dispose of them in the gar- bage can. While the collection was occurring, some em- ployees were seated at their desks; others were approaching their desks. While employee Lewis was distributing the same leaflet in the correspondence and suspense area before 8:45 a.m., the starting time, Unit Supervisor Lynn Glass said to her, "Oh, no. No. Don't do that. Mr. Hurley does not want that." Lewis replied, "It is not 8:45 yet." Nevertheless Glass insisted and Lewis ceased the distribution. Glass was observed throwing some of the leaflets in the wastebasket. About 8:55 a.m., Hurley appeared at Lewis' desk and said, "If you do that again I will have to fire you, about the leaflets. . . . " 38 Employee Christine Miller also distributed around 35 leaflets on desks near where she worked in the direct area before 8:45 a.m., the starting time. Supervisor Glass and employee Genevieve Wikowski appeared and after Glass had read the leaflet, which had been placed on her desk, the two persons picked up the leaflets from the desks and threw them in the garbage. The incident occurred at about 8:55 a.m. Hurley testified that "we do not pass out any media at all as a rule." He said that supervisors were told to refrain from passing out media although company publications were passed out toward the end of the day, around 4:30 p.m. (4:45 p.m. is the quitting time), "so as not to interfere with our work." Employees were not informed of any such 3s Employer Miller also heard this threat . Hurley's testimony was sub- stantially the same. HOSPITAL SERVICE CORPORATION policy. In contradiction of the alleged policy, several of Respondent's publications on the election issues were passed out immediately after they were received in the de- partment. On August 17, there was no written or oral no-solicita- tion or no-distribution rule in existence . Solicitation had been permitted for birthday presents, funeral contribu- tions, sale of Avon products , sale of mail order clothes, and Girl Scout cookies. Avon products were delivered to em- ployees' desks. Supervisors have participated in such solici- tation. According to Hurley the alleged no-solicitation policy was committed to writing April 11, 1974, i.e., We have once again encountered a problem with of- fice solicitations where money has disappeared from an envelope being circulated for a present to one of our employees.39 Effective immediately, there will be no further solicita- tions of any kind in the Membership Department for any reason. If any individual wants to personally give a gift to an employee for a birthday or on a retirement they may do so, however, there is to be no solicitation by anybody. It is the General Counsel's claim that Hurley's proscrip- tion against the employees' distribution of union leaflets before work was discriminatory and was in violation of the Act. In this respect it is clear from the credible record that the precipitous advent of the rule was triggered by Hurley's desire to keep union "crap" away from his employees and to thwart his employees' distribution of union campaign materials. Indeed, such rule was instituted even though other types of distribution had been allowed and were not banned by the rule. That the rule was imposed in order to prevent disrup- tions of production and discipline is not sustained by the credible record. There is no credible proof that distribu- tions of the nature banned by Hurley caused disruptions of production and discipline. Indeed it does not appear that the Respondent's own distribution of campaign propagan- da to its employees at their desks during working hours adversely affected production or discipline. In fact, the Respondent's violation of its own rule, as it occurred here, emphasizes its discriminatory purpose. Thus the language used in Ward Manufacturing, Inc., 152 NLRB 1270, 1271 (1965), is apposite: "the rule was posted solely to stifle the Union's organizing campaign." See also Quality Production Company, 162 NLRB 1459 (1967), and Gooch Packing Company, 162 NLRB 1, 6 (1966), and cases therein cited. Accordingly, it is found that the Respondent's promul- gation and utilization of the rule was for a discriminatory purpose and the rule is therefore violative of Section 8(a)(1) of the Act. Likewise, Hurley's threat to discharge Thelma Lewis for future violations of the rule was in violation of Section 8(a)(1) of the Act. Since the no-solicitation rule issued by Hurley on April 11, 1974, prohibits "solicitation of any kind in the Mem- bership Department" it is also violative of Section 8(a)(1) 39 From this language it would appear that solicitations were permitted. 13 of the Act. See T.B.C. Graphics, Inc., 214 NLRB No. 156 (1974), and cases cited therein. C. The Probation of Robert D. Finton In the computer operations department where Robert D. Finton was employed, Jack Grzelak was his unit supervi- sor; Paul Walter Nowakowski, his section supervisor; John Kos, his assistant manager; and Leonard Z. Pietrusiewicz, his manager. On July 17, 1973, a letter was addressed to Finton from John Grzelak 40 placing Finton on probation for 45 days. The General Counsel claims the probation was unlawful discrimination 41 Pietrusiewicz considered Finton "essentially" a "very good man;" his "problem was attendance on the job." Ac- cording to Nowakowski, Finton's attendance was the only factor which contributed to his probation. Nowakowski testified that he instructed Grzelak to prepare the proba- tion memo. Nowakowski said that he talked to John Kos 42 and Jack Grzelak several times about the memo. Nowa- kowski did not remember whether he or Grzelak brought up the subject of Finton's poor attendance, but he remem- bered the matter initiated with him. Nowakowski said that he effected Finton's probation without discussing it with any of his supervisors; nor did he request permission of Assistant Manager Kos. On the other hand, Pietrusiewicz testified that Kos in- formed him that Finton's "attendance was very questiona- ble," and stated that he was going to put Finton on proba- tion.43 Kos did not have the memo with him. A couple of days before July 17, 1973, Pietrusiewicz said that he spoke to Finton about his attendance, stating, "Bob, you are in trouble again and hopefully you can cor- rect the problem." 44 In Case 13-RC-13072, a notice of representation hear- ing was issued on July 9, 1973, setting the date for hearing 40 Grzelak was not called for testimony by the Respondent 41 The letter read as follows: Thus far, since your last appraisal your attendance has left something to be desired . You have been ill twelve days, personal three days and late nine days. Combined you were either late or not here at all 22% of the time. Since memos have been previously written on your attendance and no improvement shown, we have no alternative but to place you on proba- tion. For the next 45 days you must show immediate and definite im- provement. Only such improvement will prevent further action from being taken. Only your fullest cooperation can rectify this situation and it will be fully appreciated. 42 Kos testified but not on this subject. 43 Pietrusiewicz testified that Kos said : "Finton has an attendance prob- lem; he has been warned repeatedly to correct that problem. And in view of him not improving that attendance we are going to put him on probation," and that Grzelak initiated the probation. 44 Pietrusiewicz testified. "I have known Bob Finton since the first day he was employed, and I think had a very good relationship with the employee I know his background [Fenton was given to excess dunking] ; we had a rapport between us, essentially a good rapport. And I just felt-it was not necessarily my duty for me to speak to him about his attendance because he had the necessary supervision to do that-but I just thought I would say, `Bob, you have a problem. I hope that you can correct the problem before I am forced to take further action: " 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as July 17, 1973. This was amended on July 13 by an order rescheduling the hearing to July 23. After receiving a tele- phone call from a union representative, Finton advised Nowakowski, Grzelak, and Kos of the hearing and that he would not be working on July 23. According to Finton, the notification arrived prior to the date he was placed on pro- bation. Nowakowski remembered the notification but fixed the date as either July 19 or 20, 1973, at a time when Fin- ton was already on probation. He said that he told Finton that he did not know whether he could pay him and that he would be marked for personal absence. About an hour lat- er after contacting Kos he told Finton that if he brought in a subpena he could pay him. After Finton returned from the hearing with a subpena, Finton was paid for the lost time as jury duty. On November 11, 1970, Finton was discharged for "al- coholism." His poor attendance was cited. Finton was re- turned to work 45 at the request of Pietrusiewicz in 1971. After Finton's return, Pietrusiewicz was aware of the prob- lem Finton had with regard to attendance. On January 16, 1971, Finton was rated "B," with the rating of "A" in job knowledge, quality of work, and initia- tive. The comment was made, "He has the knowledge and ability but his personal problems are detrimental to his performance." On August 2, 1972, by written memoran- dum it was brought to Finton's attention by Nowakowski that Finton's attendance had not shown improvement. On February 19, 1974, Finton was absent because of his drink- ing problem. On March 14, 1974, Nowakowski by a written memorandum reminded Finton that although in January 1974 he was "requested to show definite signs of improve- ment in [his] dependability" he had not done so. Finton's obligation "to receive the necessary medical attention re- quired to solve [his] problem" was noted. While it may not be free from doubt, the General Counsel's claim that Finton's probation was discriminatory is not sustained by a preponderance of the evidence. Finton's past performance warranted a period of probation as a corrective measure. Moreover, the testimony is unclear as to whether Finton's probation occurred after he had informed the Respondent of his intent to attend the repre- sentation hearing. Accordingly, in respect to Finton's al- leged discriminatory probation it is found that the General Counsel has not sustained his burden. D. The Discharge of Roberta L. Carter on July 13, 1973 At the time of her discharge on July 13, 1973, Roberta L. Carter was employed as a keypunch operator on a Hon- eywell Key-tape machine in department 761. She had been first employed in 1968. On April 9, 1973, she was trans- ferred to department 761 from department 762 because of a cutback in personnel. In department 762 she had operat- ed a CMC Key-tape machine. Her supervisors in depart- ment 761 were: Unit Supervisor Jerry Wilkins, Section Su- pervisor Sally Allen, Assistant Manager Eleanor Payne, and Manager Tony Frigilli. Cynthia Miller was also a su- pervisor in the department. 45 Finton testified that he hadn't had a drink for 6 months and was pres- ently under medical care. In November 1972 Carter attended a union organiza- tional meeting at the Executive House. At this meeting Carter was given blank union authorization cards which she used at the Respondent's offices to solicit employees' signatures. Carter obtained about 30 or 40 signatures prior to the filing of the Union's petition on June 19, 1973. Sev- eral supervisors saw Carter soliciting employees' signa- tures. Carter attended a substantial number of union meet- ings and at one meeting observed Carolyn Ball, a supervisor, in the lobby. While working in department 761, Carter aided the Union by passing out leaflets at the entrance to the Company's offices. On one occasion, she handed a leaflet to Assistant Manager Eleanor Payne. Carter was on the union telephone committee. Carter also wore a union but- ton every day after the petition was filed. She placed union leaflets on her desk. She also adorned her machine with the union daisy described above. Of the 40 employees in the department, she was the only one who displayed a daisy or wore a union button. Early in May 1973, Carter received a long-distance tele- phone call, but Payne did not call her to the phone. Carter spoke to a couple of employees about this oversight and declared that she would go to the personnel department and lodge a complaint. The next day she saw the benefits counselor, Louis Carter. Carter related her complaint con- cerning Payne's failure to summon her to the phone, after which Louise Carter suggested that Roberta Carter take up the matter with her department manager. As Roberta Car- ter was on this journey, she met Payne, who inquired whether she could help her. Carter then inquired about the phone policy, pointing out that it was "unfair" for employ- ees to be denied the right to receive incoming phone calls. Payne indicated there were too many employees involved to permit such a privilege. Carter then said, "Why can't we all have a mass meeting to discuss phone call policy and other things we would like to discuss." Payne's response was negative. Supervisor Sarah Allen was present. Payne did not recall the incident. Allen remembered that Carter spoke to her about the phone policy. Carter mentioned that phone calls were allowed in the Medicare department. Al- len told her that the phones were for "business purposes and emergency phone calls." Payne admitted that she knew Carter supported the Union. On June 18, 1973, Carter was given an off-cycle review46 While the signature of Jerry Wilkins appears on the "Merit Consideration Performance Appraisal," Payne said she did not recall speaking to either Wilkins or Cynthia Miller, unit supervisors, prior to Carter's rating on June 18, 1973, or telling them that she had given Carter an off-cycle review. 7 Comments attached to the review indicate that Carter, af- 46 According to Payne the off-cycle review was given to Carter because she was "not performing properly " She testified that this circumstance was brought to her attention, "Through the percentages that we keep, probably through supervisors. I don't recall exactly " Payne was unable to recall the names of any employees to whom she had given off-cycle reviews. The Respondent had established specific times for periodic reviews. An off-cycle review did not fit this scheme. 47 Payne supervised about 150 employees and had under her 3 full-time and I part-time unit supervisors and I section supervisor, Sara Jean Allen. Cynthia Miller and Jerry Wilkins were the unit supervisors over Carter. HOSPITAL SERVICE CORPORATION ter 47 days in department 761, had been ill 4 times, off 1 day for personal leave, and tardy 3 times. It was noted that while in department 762 her production average was 90 to 100 percent in 1971, and January through March 1973 in the 80-percent bracket, as compared to the present 54 per- cent. Excessive talking was referred to and Carter's claim that "she couldn't see the work too well" 48 was discounted. The comments ended: "With this memo, I'm submitting a performance appraisal of 'D.' On July 13th, I shall ap- praise Roberta again. If it is still a 'D,' she shall be termi- nated on that date." The memo was shown to Carter. At the time the June 18 rating was given to Carter, Payne told Carter she was giving her a rating of "D," that her production was low; that she should "cut out the talking so much;" that she felt Carter could do better considering how long she had been key punching; that she had Carter's record back to 1968; that Carter's doctor had said she had no restrictions on her eye;49 and that she was giving her until July 13, 1973, "to bring up her percentage only." Payne did not indicate what amount would be satisfactory in this respect. Carter told Payne that she would "guaran- tee her" that she would stop talking and do her best to bring up her percentage. When Carter asked Payne why she was giving the rating early rather than in October, Payne replied that her "production was low and that [she] should cut out the talking so much." Carter was wearing her union button at the time, a circumstance which Payne noticed. On July 13, 1973, Carter again was given an appraisal by Payne which bears only the signatures of Payne and Frigil- li. Written on the appraisal are these comments: "Roberta did improve on her percentage for the ten days she was here the average was 77. If you average in the days off we are receiving 64 percent productivity. Also in the 13 work- ing days since I last appraised Roberta she has taken 2 personal days or 15 percent of the time and been tardy 3 times or 27 percent of the time." A profile sheet identified by the employee counselor, Louise Helen Carter, revealed that Roberta Carter's per- formance rating was "C" on November 15, 1971, "B" on November 13, 1972, and "C" on May 14, 1973. On April 4, 1973, just before Carter transferred to department 761 an appraisal contained the comments: "Less talking and more concentration on her work. She has an eye problem which she tends to use as a crutch when she performs poorly. However, she will always have this physical problem and must learn to make due with what she has left. She can be an excellent operator if she wants to be." After Carter was transferred to department 761 her first week's production average (week ending April 7, 1973) was 24 percent. By the week ending May 5, 1973, it had in- creased to 57 percent, although it had been the lowest or close to the lowest percentage of the employees. On that date, there were two employees lower than Carter. On May 10, 1973, Wilkins reviewed Carter's progress and wrote in a "black book," 50 "Told Roberta about talking so much. She 48 Carter's employment history reveals that she suffered eye difficulties. 49 Carter informed her that she had problems with her other eye. 50 This was a book in which Wilkins entered comments in respect to her reviews with employees which they were asked to sign . The black book 15 said she would cut it down some. Her percentage is due to the fact that she can't see the work too well. Attendance is good." At the interview Wilkins told Carter not to worry about the production percentage, but "to concentrate more and cut down on talking." Miller handled Carter's June review and wrote, "April 7-May 25, percentage 50 percent. It's understood Roberta has difficulty reading the claims, but she should try to cut down on the talking also. Next review in July. Good atten- dance." At this time, Miller told Carter that she "under- stood that [she] had a little problem" and not to "worry about the percentage." The last entry in the "black book" was made by Miller on July 11, 1973. It noted Carter's production percentage as being 52 percent for the week ending 6/2/73; 52 percent for the week ending 6/9/73; 55 percent for the week end- ing 6/17/73; and 78 percent for the week ending 6/23/73; June average-59 percent. It was commented: Roberta's average has improved slightly. It should be noted that the last week of June Roberta' s machine was down and she was at another key station away from Pat White and able to concentrate more on her work 51 Miller told Carter that she had cut down on her talking, that her attendance was good, and her percentage had gone up. As of June 23, 1973, 20 employees' averages were less than Carter's average. Payne testified that she discharged 52 Carter because she did not produce "the right amount of work." Payne testi- fied that a "satisfactory level for any one should be at least 70." 53 During the week ending 6/23/73, 9 employees' aver- ages were under 70, and 20 employees' averages were un- der Carter's average of 78; during the week ending 6/30/73, 10 employees' averages were under 70, and 14 employees were under Carter's average of 74. Carter 's aver- age for the week ending 7/14/73 was-85 percent; 28 em- ployees had worse production percentages than Carter.54 Payne was not aware of the percentage figures until they were returned from the computer room after the unit su- pervisors had submitted the data which occurred on a weekly basis. Payne in her reviews of Carter did not review the "black book" nor did she confer with Wilkins or Miller concerning the June 18 review or Carter's actual discharge. Ratings were usually initiated by the unit supervisor who submitted rating recommendations to Payne. Payne dis- cussed these ratings with unit supervisor "after they had rated the person." Payne said she did "not recall" whether Carter's perfor- mance improved after the June 18 warning. On the day of Carter's discharge, Payne called her into review was to serve as a guideline for rating an employee's performance, and also to give the employees some indication of what rating they could expect. Williams testified, ''l am the one who rates the employees " Pat White had been away from Carter for about "a day-and-a half." 52 When Payne was asked if the manager participated in the discharge of Carter, she testified, "I can't recall. I would say he did." 53 Payne testified that a "C" rating was between 70 and 90 and a "D" rating was below 70. 54 Carter was on vacation the week ending 7/7/73. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her office. Carter described the incident as follows: She told me that today was the day and she was letting me go. I asked her, "Why? I brought up my percentage like she said." And she said, "Yes, you brought your percentage up but it just shows me that you were not interested and that you could have done it all along." And she said, "Besides, you weren't here most of the time." She told me I was on vacation and I was off twice and late three times. And I told her that I was only late twice due to the transportation, and she said it didn't make any difference. And I asked her, "Well, you told me my vacation doesn't count against me." She didn't have too much to say about that. So I said, "Well, thank you." And she asked me if I wanted to sign it, and I said-told her, "No, I am not going to sign it." She said, "Well, you don't have to sign it and you can go up to Benefits and Counseling. You can feel free to go up there." So I just got up and left. According to Section Supervisor Allen, when Carter first came to department 761 she told her not to "worry about the percentage, get used to the forms they are punching from and then speed would automatically pick up." Allen had no connection with Carter's discharge; she did not initiate it nor did she recommend it. According to Unit Supervisor Jerry Wilkins, she did not discuss Carter's probation with Payne nor did she recom- mend it, and although Payne knew about the "black book" she did not review it nor did Payne consult with her when Carter was fired. Wilkins also testified that Payne infre- quently visited her section. Carter's desk was located a "few feet away" from Wilkins' desk. Unit Supervisor Miller also supervised Carter. Miller tes- tified that Payne never looked at the "black book" al- though it was "always available to her." Miller was not consulted by Payne in regard to either Carter's off-cycle review or her discharge . Miller knew of no other employee who had been given an off-cycle review. Miller noticed Carter wearing a union button every day.55 In contrast to Carter's discharge, employee Carolyn Mc- Kinney was given a warning on October 22, 1972, that if she was tardy more than twice in a given month she would be fired. Although she was tardy six times in April 1973, five times in May 1973, eight times in June 1973, and four times in July 1973 (the period during which Carter was evaluated and fired), she was not discharged . Moreover, during these 4 months, her weekly production average ex- cept for 3 weeks was less than 70 percent. During the week of July 7, it was 64 percent. "The mere existence of valid grounds for a discharge is no defense to a charge that the discharge was unlawful, unless the discharge was predicated solely on those grounds, and not by a desire to discourage union activity." N. L R. B. v. Symons Manufacturing Co., 328 F.2d 835, 837 (C.A. 7, 1964). "A justifiable ground for dismissal is no defense if it is a 55 Payne was an unresponsive, evasive witness . To a substantial number of questions she answered that she could not recall . She is not considered a credible witness. pretext and not the moving cause." N.L.R.B. v. Solo Cup Company, 237 F.2d 521, 525 (C.A. 8, 1956). Payne's assigned reason for Carter's discharge was that she did not produce "the right amount of work." The dis- charge followed from a warning rendered on June 18, 1973, to the effect that if she didn't bring her percentage up by July 13, 1973, she would be fired. However, incongruously she was fired although she brought her percentage up to 85 percent and exceeded 28 employees in her department in production. No valid explanation has been offered for what appears to be an unnatural and unwarranted act in discharging her after she had favorably responded to the warning. Thus, it is clear that the alleged cause of the dis- charge does not withstand scrutiny.5 Not only does this incongruity sound pretextual but other factors as well con- vince me beyond doubt that the cause for Carter's dis- charge, as recited by the Respondent, was pretextual and that the Respondent's "real motive" 57 for Carter's dis- charge was to discourage membership in a labor organiza- tion and to interfere with the right of employees "to self- organization and to form, join, or assist labor organiza- tions." Carter was the most vocal and persistent union activist and the only employee in the department who wore a union button and displayed a union daisy.58 Indeed, she had revealed her disposition as an activist when she sug- gested a "mass meeting" of employees to air complaints. Moreover, Carter was subjected to disparate treatment. She was the only employee in the memory of Payne who had been rated in an off-cycle review. Of about 150 em- ployees under Payne's supervision, Carter was singled out for Payne's personal rating although, had the normal pro- cedure been followed, the rating would have originated with the unit supervisor. She was rated by Payne who nei- ther conferred with Carter's immediate supervisors nor re- viewed their ratings entered in the "black book"; no other employee had been subject to such procedure. While it is obvious that Carter's discharge and the refus- al to reinstate her gratified the stance 59 assumed by the Employer during the election campaign, union animus is implicit in the essence of the discharge itself. Moreover, even though there was proof of a lack of prior union ani- mus, such circumstance is not controlling. See N.LR.B. v. Mrak Coal Company, Inc.. 322 F.2d 311, 313 (C.A. 9, 1963). This court said, "Nor can we accept the respondent's theo- ry that proof or lack of proof or prior anti-union animus is controlling. Such a rule would automatically always insu- late the first unfair labor practice charged against an em- 56 See N.L R B. v. Griggs Equipment, Inc., 307 F.2d 275, 278 (C.A, 5, 1962); N LR.B v. Thomas W Dant, Robert E Dant, et al., d/b/a Dant i Russell, Ltd., 207 F.2d 165, 167 (C.A. 9, 1953) 57 "[Tlhe 'real motive' of the employer in an alleged 8(a)(3) violation is decisive. . " N.L R.B. v. Brown, et al. d/b/a Brown Food Stores, et al., 380 U.S. 278 ( 1965) See also Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America [Los Angeles-Seattle Mo- tor Express] v. N L.R.B., 365 U.S. 667, 675 (1961). 58 "[W]here the discharge in question involves the 'key' employee in an organizational drive, it may supply shape and substance to otherwise equi- vocal circumstances." N L.R.B. v. Davidson Rubber Company, 305 F.2d 166, 169 (C.A 1, 1962). 59 The very first letters addressed to employees by President Redinger left the unmistakable impression that the Respondent did not welcome the ad- vent of the Teamsters Union. HOSPITAL SERVICE CORPORATION ployer." See also Stoffel Seals Corporation, 199 NLRB 1084 (1972); Terry Industries of Virginia, Inc., 164 NLRB 872, 874 (1967). The reason advanced for Carter's discharge is unbelieva- ble in the light of the entire record in this case and as noted does not bear scrutiny. The inference of discriminatory motivation "is sustained and buttressed by the fact that the [explanation offered by the employer] failed to stand under scrutiny." N.L.R.B. v. Griggs Equipment, Inc., supra at 278; N.L.R.B. v. Dant & Russell, Ltd., supra at 167. The timing of the discharge, upon the genesis of union organizational movement, strengthens this inference and strongly supports the con- clusions that the real motive of the Respondent was unlaw- ful and discriminatory. As was observed in L. J. "Lee" Folkins, d/b/a Standard Oil Distributors v. N.L.R.B., 500 F.2d 52, 53 (C.A. 9, 1974): "Circumstantial evidence, in- cluding the timing of [the] discharge, coupled with [the em- ployer's] apparently fabricated business justifications, is sufficient to support the . . . findings" of discriminatory motivation. Timing, knowledge, and unusual actions of the Respondent support this conclusion. "Illegal motive has been held supported by a combina- tion of factors, such as `coincidence in union activity and discharge' . . . `general bias hostility toward the union' ... variance from the employer's `normal employment routine' . . . and 'an implausible explanation by the em- ployer for its action. . . ."' McGraw-Edison Company v. N.L.R.B., 419 F.2d 67, 75 (C.A. 8, 1969). All these factors are present in the instant case. Accordingly, it is found that the discharge of Roberta L. Carter on July 13, 1973, was in violation of Section 8(a)(3) and (1) of the Act. E. Wage Raises and Increased Fringe Benefits During the Pending of a Question Concerning Representation On September 13, 1973, the Union filed timely objec- tions to the election held on September 7, 1973. Thereafter, in November and December 1973, the Respondent an- nounced and granted increases in the minimums, mid- points, and maximums of employees' salary ranges; addi- tional health and welfare benefits; overall across-the-board cost-of-living wage increases of $4 per week per employ- ee;60 and additional holidays. These increases in employee benefits were granted not only in the teeth of pending ob- jections to the election but in contradiction to the Respondent's past wage policy 61 and in juxtaposition to an 60 In announcing this raise , President Redinger did not use the words cost-of-living. He wrote, "We are making this adjustment to somewhat ease the pressures of the extremely high rate of inflation we have all had to face in 1973 and will continue to face in 1974." In the same announcement employees were informed that minimums , midpoints, and maximums were raised. 61 Vice President Murray wrote in the publication "Briefly" of February 1, 1973: ". . . we do not give so-called cost-of-living raises . We believe that they are inequitable because everyone gets the same raise at the same time regardless of performance . This system is unfair because better performance certainly warrants more money than good performance . Rewarding perfor- mance is the essence of a merit wage and salary system-the kind we have." In the same "Briefly" issue, in answer to a question of an employee as to why the employees do not "receive a cost of living raise which would be 17 extant representation that employee benefits would be fro- zen if the Union won the election. The Respondent, after the defeat of the Union, moved rapidly to dispel any idea that a freeze would be continued in the absence of a union victory. It effected an obvious demonstration of its beneficence. Indeed, it granted the increased employee benefits without proof of employee pressure or demands, business necessity, or accommoda- tion to past practices. Thus the increased benefits (the un- freezing of employee benefits) must be construed as a re- ward to the employees for their antiunion vote and as proof positive of President Redinger's representation that the employees did not need a union. This language in Triangle Plastics, Inc., 166 NLRB 768, 775 (1967), fits the picture here: On the basis of the entire record, I am convinced that the postelection announcement of the general wage increase which was made at a time when the election "`was clearly subject to invalidation if the ob- jections were meritorious," was "an attempt to gain [employee] support and to assure a continued majority against the union representation in the event a second election was directed by the Board." I also find that the amount of the increase was intended as a further inducement to employees to vote against the Union should the Board direct a second election. See also N.L.R.B. v. Exchange Parts Co., 375 U.S. 405 (1964); N.L.R.B. v. Gruber's Super Market, Inc., 501 F.2d 697 (C.A. 7, 1974). The Respondent has failed by way of justification to show any past practice or compelling business reason for the granting of the increased employee benefits during the pending of a question concerning representation. Accord- ingly, it is found that the Respondent's announcement and grant of increased employee benefits interfered with the Board's election procedures and made a fair election im- possible and therefore constituted a violation of Section 8(a)(1) of the Act. Case 13-RC-13072 In that the Respondent engaged in violation of Section 8(a)(1) of the Act during the critical period before the elec- tion, it is found that the Respondent unlawfully interfered with the employees' exercise of free choice for or against a bargaining representative. "Conduct violative of Section 8(a)(l) is, a fortiori, conduct which interferes with the exer- cise of a free and untrammeled choice in an election." Dal- Tex Optical Company, Inc., 137 NLRB 1782, 1786 (1962); Leas & McVitty, Incorporated, 155 NLRB 389, 390, 391 (1965). Had the misconduct of the Respondent detailed above been less than violative of Section 8(a)(1) of the Act the finding would be the same because the tactics of the Re- spondent destroyed the laboratory conditions representa- separate from [their] regular raises," it was responded, "our objective is to pay for performance not simple [sic] to give across-the-board salary in- crease." Moreover, the thrust of the Respondent's argument captioned, "cost of living raise : why or why not?" was against the granting of a cost-of- living increase 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion elections demand and deprived employees of a free and untrammeled choice for or against a bargaining agent. See General Shoe Corporation, 77 NLRB 124 (1948); Veed- er-Root, Incorporated, Altoona Branch, 120 NLRB 967 (1958); NVF Company, Hartwell Division, 210 NLRB 663 (1974); Plochman and Harrison-Cherry Lane Foods, Inc., 140 NLRB 130, 134 (1962). Accordingly, it is found that by reason of unlawful inter- ference the election conducted on September 7, 1973, should be set aside and held for naught. ?2 CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effec- tuate the purposes of the Act for jurisdiction to be exer- cised herein. 3. By interfering with, restraining, and coercing employ- ees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By unlawfully discharging Roberta L. Carter on July 13, 1973, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The Respondent unlawfully interfered with the elec- tion held on September 7, 1973, and said election is void and of no effect. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the policies of the Act. It having been found that the Respondent unlawfully discharged Roberta L. Carter, it is recommended that the Respondent remedy such unlawful conduct. It is recom- mended, in accordance with the Board's policy,63 that the Respondent offer Roberta L. Carter immediate and full reinstatement to her former position or, if such position no longer exists, to a substantially equivalent position without prejudice to her seniority or other rights or privileges, and make her whole for any loss of earnings she may have suffered as a result of the discrimination against her by payment to her of a sum of money equal to the amount she would have earned from the date of her discriminatory discharge to the date of an offer of reinstatement, less net earnings during said period, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and include in- 62 "If an election were won by the employer through illegal conduct and in violation of law, the Union was wronged and it had a right to have such an election set aside." N L. R. B v. Plaskolite, Inc, 309 F.2d 788, 790 (C.A. 6, 1962. 63 ) See The Rushton Company, 158 NLRB 1730, 1740 (1966). terest at the rate of 6 percent per annum in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER 64 The Respondent, Hospital Service Corporation, d/b/a Blue Cross, Chicago, Illinois, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership and affection for Local 743, Warehouse and Mail Order Employees Union, Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or any other union, by unlawfully discriminatorily discharging any of its employ- ees or discriminating in any other manner with respect to their hire or tenure of employment or any term or condi- tion of employment in violation of Section 8(a)(3) of the Act. (b) Unlawfully interrogating its employees regarding their union or other concerted activities. (c) Unlawfully threatening its employees with reprisals, or the withdrawal or freezing of employee benefits, if the Union wins an election as bargaining representative. (d) Unlawfully granting employees increased benefits in order to induce employees to desert or vote against the Union as bargaining representative. (e) In any manner maintaining, giving effect to, or en- forcing any rule prohibiting any of its employees from soli- citing any other employees on its premises during non- working time to participate in any protected concerted activity, or in any activities for or on behalf of any labor organization. (f) In any manner maintaining, giving effect to, or en- forcing any rule prohibiting employees from distributing literature in nonworking areas on nonworking time on be- half of any labor organization or other matters related to the exercise by employees of their Section 7 rights. (g) In any like or related manner interfering with, re- straining, or coercing any employees in the exercise of the rights granted them by Section 7 of the National Labor Relations Act to engage in self-organization, to bargain collectively through a representative of their own choosing, to act together for collective bargaining or other mutual aid or protection, or to refrain from any and all these things. 2. Take the following affirmative action which will ef- fectuate the purposes of the Act: (a) Offer Roberta L. Carter immediate and full rein- statement to her former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, 64 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 See. 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. HOSPITAL SERVICE CORPORATION discharging if necessary any employee hired to replace her, and make her whole for any loss of pay she may have suffered by reason of the Respondent's discrimination against her, in accordance with the recommendations set forth in the section of this Decision entitled "The Reme- dy" (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying , all pay- roll records, social security payment records , timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at all of its offices in Chicago, Illinois, copies of the attached notice marked "Appendix." 65 Copies of said 65 In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 19 notice, on forms provided by the Regional Director for Region 13, after being duly signed by the Respondent's representative, shall be posted by it 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. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 13, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be dis- missed insofar as it alleges violations of the Act other than those found in this Decision. IT IS FURTHER RECOMMENDED that the election conducted on September 7, 1973, in Case 13-RC-13072, be set aside and held for naught and that a second election be directed.