Baker Machine & Gear, Inc.

194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Baker Machine & Gear, Inc. and District No. 99, In- ternational Association of Machinists and Aero- space Workers, AFL-CIO and Gene J. Gagnon, Dennis L. St. Pierre, Roy R. Mills, Sr., and Louis Bourgoin, Baker Machine and Gear, Inc. and District No. 99, International Association of Machinists and Aero- space Workers, AFL-CIO, Petitioner. Cases 1-CA-9561, 1-CA-9638, 1-CA-9564-1, 1-CA-9564-2, 1-CA-9564-3, 1-CA-9564-4, and 1-RC-13119 September 11, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING, JENKINS, AND PENELLO On September 24, 1974, Administrative Law Judge Benjamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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 to the extent consistent herewith and to adopt his recom- mended Order as modified herein. The record establishes that the Respondent be- came aware of union activity among its employees on January 15, 1974.2 The following day, the Respon- dent laid off four of its employees whom it knew to be active in the Petitioner's organizational campaign. On January 17, when the Respondent received the Petitioner's letter requesting recognition, the Respon- dent set about interrogating all of its employees in the plant regarding their union activities. On January 23, the Respondent was observed engaging in surveil- lance of a union meeting attended by most of its em- ployees. The Respondent received notice that the in- stant petition had been filed on January 28 and immediately thereafter called each of its employees i 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. We disavow the statements by the Administrative Law Judge that in the circumstances of their layoffs, it is a wonder that Bourgoin and Gagnon did not commit some greater breach of good manners than they did. 2 All dates are in 1974. into its president's office and interrogated them about their union activities. An election held on Feb- ruary 21 was lost by the Petitioner which thereafter filed the instant unfair labor practice charges and ob- jections. The Administrative Law Judge found, and we agree for the reasons stated by him, that the Respon- dent violated Section 8(a)(3) of the Act by discrimi- natorily laying off the four union adherents and Sec- tion 8(a)(1) of the Act by interrogating employees on two occasions and engaging in surveillance of the union meeting.3 The Administrative Law Judge also found, and we agree, that as of January 15 the Peti- tioner held valid authorization cards signed by 18 of the Respondent's 24 employees. In addition, we agree with the Administrative Law Judge's finding, for the reasons stated by him, that the Respondent's unfair labor practices created a climate of fear of such magnitude, "especially the loss of jobs or in- come in these uncertain times," that it dissipated the Union's majority and made a fair election improba- ble. We also agree with the Administrative Law Judge's conclusion setting aside the election held on February 21 and ordering the Respondent to recog- nize and bargain, upon request, with the Union. In so ordering the Respondent to bargain with the Union, the Administrative Law Judge relied on the Board's decision in Steel-Fab, Inc., 212 NLRB 363 (1974). However, in The Trading Port, Inc., 219 NLRB No. 76 (1975), we reexamined the policies set 7 We do not adopt the Administrative Law Judge 's findings that the Re- spondent violated Sec . 8(a)(1) of the Act by drafting and permitting the circulation of an antiunion petition in its plant . The record establishes that on January 23 one of the Respondent's employees, Oullette, retained the Respondent's attorney, Smith, a general practitioner who had performed legal work in the past for Oullette , to draft an antiunion petition which he could circulate in the Respondent's plant. Smith drafted the petition for which he billed and received payment from Oullette . Based on this evi- dence, the Administrative Law Judge found that Smith was acting as an agent of the Respondent in drafting the petition and was remiss in his duty to ascertain that Oullette was not sent to him by the Respondent. We dis- agree. The record is absolutely devoid of evidence that Oullette was sent to Smith by the Respondent or that Smith was acting on behalf of the Respon- dent when he drafted the petition. To the contrary . Oullette was a past client of Smith's and Smith, who was active only in the very early stages of the Union's organizational drive and, in any event, was not experienced in the law of labor relations, had no obligation to inquire into Oullette 's motiva- tion in seeking the petition . Accordingly, as there is nothing in the record which establishes that Smith was acting in his capacity as attorney for the Respondent when he drafted the petition for Oullette , we are unable to conclude that the Respondent bears the legal responsibility therefor. In addition, we find, contrary to the Administrative Law Judge, that there is no basis for finding that the Respondent violated Sec . 8(a)(1) of the Act by permitting the circulation of Oullette's petition in its plant Thus, the only evidence in the record concerning the circulation of the petition is that on one occasion Oullette asked a fellow employee to sign the petition at a time when Claude Levesque, the Respondent's president , was standing near- by. Levesque heard Oullette and immediately left the area . In the absence of more substantial evidence of the Respondent's knowledge and/or sponsor- ship of Oullette's petition, we cannot conclude that the Respondent demon- strated tacit approval of the petition or assisted in its circulation Therefore, we shall dismiss the 8(a)(I) allegation relating to the circulation of the peti- tion 220 NLRB No. 40 BAKER MACHINE & GEAR, INC. forth in Steel-Fab and in the Supreme Court's deci- sion in GisseL4 We noted therein that, in fashioning a bargaining order remedy, our main concern has been and is to correct and give redress for the employer's misconduct and to protect the employees from the effects of such misconduct. Thus, the bargaining or- der serves to protect the employee's rights in the se- lection of an exclusive bargaining representative. As the Supreme Court said in Gissel, when an employer's misconduct has rendered a fair election or rerun election impossible the Board is entitled to rely on the establishment of a union's majority by other means, most notably signed authorization cards, to enfranchise a union as an exclusive bargain- ing representative. Thus, an employer is required to recognize and bargain with a union whose represen- tative status has been established through means other than our traditional and preferred election pro- cedure. The legal basis for bypassing the election procedure and according the union representational status based on a showing of majority support among the employees in the appropriate unit is that the employer's misconduct has created conditions which preclude the conduct of a fair election. As stated in The Trading Port, Inc., supra, where an employer's misconduct gives rise to the bargaining obligation, that obligation commences as of the time the employer has embarked on a clear course of un- lawful conduct or has engaged in sufficient unfair labor practices which undermine the union's majori- ty status and subvert our election process. No element of retroactivity is present in imposing the bargaining obligation as of the time the employer began his subversion of the statute. No new law or rule is being enacted governing conduct or relations previously not subject to the law. Instead, the remedy we impose does no more than reach all the unlawful actions committed, whether early or late in the course of the misconduct. The only element of re- troactivity is that the misconduct being remedied oc- curred prior to issuance of the complaint and our consideration of the case ; but this is the situation in every civil or criminal case where a wrong is remed- ied, for the remedy can be applied only after the wrong has been committed. In the instant case, the Respondent's unfair labor practices began as soon as it learned that some of its employees had signed union authorization cards. From their inception, the Respondent's unfair labor practices were aimed at destroying whatever support the Union had achieved among employees. Thus, the Respondent's initial unfair labor practices on Janu- ary 16 had the desired effect of eliminating from the 4N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). 195 Respondent's plant all of those employees whom the Respondent knew to be union adherents or who were active in the Union's organizational effort. Subse- quently, the Respondent interrogated each and every one of its remaining employees concerning their union activities for the clear purpose of discouraging such activity and of decimating any support which the Union had gained. The Respondent's surveil- lance of the union meeting was also part of the Respondent's effort to prevent the Union from orga- nizing or representing its employees. These unfair la- bor practices clearly dissipated the Union's majority strength among the employees, which was estab- lished by valid authorization cards as of January 15, and were of such a nature as to prevent the holding of a fair rerun election. Under the principles enuncia- ted in Gissel, the authorization cards are now the most reliable measure of the employees' desires on the issue of representation and the policies of the Act require that the Respondent be ordered to bargain with the Petitioner as the exclusive representative of its employees. Accordingly, under the. principles set forth in The Trading Port, Inc., supra, while we agree with the Administrative Law Judge's conclusion or- dering the Respondent to bargain with the Petitioner, we shall, in accordance with our above findings, find that Respondent had a duty to bargain as of January 17, the date on which, as we have found, the Petitioner's demand for recognition was received by the Respondent and on which the Respondent's course of conduct might reasonably be deemed to have undermined the Petitioner's majority status and made the holding of a fair election improbable.' AMENDED CONCLUSIONS OF LAW Having made the above findings, we will substitute the following paragraph for Conclusion of Law 4: "4. By interrogating employees about their union activities, sympathies, and desires and by engaging in 51n the instant case, the Administrative Law Judge, relying on Steel-Fab, concluded that it was not necessary for him to find that the Respondent violated Sec. 8(a)(5) of the Act in order to issue the bargaining order. Al- though the complaint, which issued prior to Steel-Fab, alleged a violation of Sec. 8(a)(5) and ( 1) in the Respondent's failure to recognize and bargain with the Union, neither the General Counsel not the Charging Party except- ed to the Administrative Law Judge's failure to make an 8(a)(5) finding. Therefore, we do not reach or pass on whether in this case the bargaining order should be based on a violation of Sec 8(a)(5) However, we note that in the circumstances of this case, the prescribed remedy ordering the Re- spondent to cease and desist from committing the unfair labor practices found and to reinstate the laid-off employees and give them backpay, and setting aside the election and requiring the Respondent to bargain, upon request, with the Union, provides a full and complete remedy for the unfair labor practices on which the bargaining order is based and fully effectuates thereby the policies of the Act Member Fanning adheres to his dissenting position in Steel-Fab that an employer's refusal to recognize and bargain with the majority representative of its employees is a violation of Sec. 8(a)(5) and he would so find in this case. 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD surveillance of their union activities, Respondent has violated Section 8(a)(1) of the Act." 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 the Respondent, Baker Machine & Gear, Inc., Van Buren, Maine, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Delete paragraph 1(d), relettering paragraph 1(e) accordingly. 2. Substitute the attached notice for that of the Administrative Law Judge. interest, as a result of their layoff on January 16, 1974. WE WILL, upon request, bargain collectively with District No. 99, International Association of Machinists and Aerospace Workers, AFL- CIO, as the exclusive representative of all our employees in a unit of all full-time and regular part-time production and maintenance workers employed at our Van Buren, Maine, plant, ex- cluding office clerical employees, professional employees, guards, and supervisors as defined in Section 2(11) of the Act and, if an under- standing is reached, embody such understanding in a signed agreement. All our employees are free, if they choose, to join District No. 99, International Association of Ma- chinists and Aerospace Workers, AFL-CIO, or any other labor organization. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a hearing, that we violated Federal law by lay- ing off employees for engaging in union activities, we hereby notify you that: The National Labor Relations Act gives all em- ployees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a represen- tative of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things. WE WILL NOT lay you off for engaging in union activities. WE WILL NOT interrogate you about your union activities, sympathies, or desires. WE WILL NOT engage in surveillance of your union activities. WE WILL NOT in any manner interfere with you or attempt to restrain or coerce you in the exer- cise of the above rights. WE WILL offer Gene Gagnon and Louis Bour- goin immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privi- leges, and make them and Dennis St. Pierre and BAKER MACHINE & GEAR, INC. DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Administrative Law Judge: The petition in Case 1-RC-13119 was filed on January 25, 1974.1 The charge in Case 1-CA-9561 was filed the same day. The charges in Case I-CA-9564(1-4) were filed on January 28. A Stipulation for Certification Upon Consent Election was approved in Case 1 -RC-13119 on February 11. An order consolidating Cases 1-CA-9561 and 1-CA-9564(1-4), and a consolidated complaint were is- sued on February 19. An election was held in Case 1-RC-13119 on February 21. Out of approximately 31 per- sons eligible to vote, 9 cast their ballots for Petitioner, 14 cast their ballots against, and 8 cast challenged ballots. Pe- titioner filed Objections to Conduct Affecting the Results of Election on February 26. The charge in Case 1-CA-9638 was filed on February 28. A Report on Chal- lenged Ballots and Objections to Conduct of the Election was issued in Case 1-RC-13119 on March 26. An order consolidating Cases 1-CA-9561, 1-CA-9564(1-4), and 1-CA-9638, and an amended complaint were issued on April 10. An Order Directing Hearing was issued by the Board in Case 1-RC-13119 on April 12. An order consoli- dating Case 1-RC-13119 with Cases 1-CA-9561, 1-CA-9564(l-4), and 1-CA-9638 for hearing was issued on May 6. The hearing was held in Presque Isle, Maine, on July 16 and 17. The principal issues litigated were whether the four indi- vidual Charging Parties were laid off by Respondent on January 16 in violation of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, and, if so, whether Respondent should be ordered to bargain with District 99 under the Gissel principle (N.L.R.B. v. Gissel Roy Mills whole for any earnings they lost, plus 1 Dates are 1974 unless otherwise indicated. BAKER MACHINE & GEAR, INC. Packing Co., Inc., 395 U.S. 575 (1969) ). For the reasons set forth below, I find they were and it should. Upon the entire record,' including my observation of the demeanor of the witnesses, and after due consideration of briefs, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a Maine corporation, is engaged at Van Bu- ren, Maine, in the manufacture of gears and sprockets. It annually receives raw materials valued in excess of $50,000 which originate outside the State of Maine and ships fin- ished products valued in excess of $50,000 directly to points outside the State of Maine. II. THE UNFAIR LABOR PRACTICES A. Facts The following facts are either undisputed or uncontro- verted: On December 19, 1973, Respondent posted the following notice in its plant. TO ALL EMPLOYEES Due to the energy and steel shortage , we are forced to cut all overtime. Also we'll close December 21st and re-open December 26th. At the present, it looks like we might have to lay-off some men for a short time but we'll try to keep it at a minimum. These are circumstances beyond our control and we'll try our best to keep the men we feel that are working to their fullest to the benefit of the company. The situation right now stands that we are allocated oil and steel at the same rate as last year and unless it changes, there is nothing we can do. We will keep you advise [sic]! The Management Between December 19, 1973, and January 5, 1974, three employees, Roy Mills, Dennis St. Pierre, and Gene Gag- non, discussed among themselves and with other employ- ees the wisdom of bringing a union into the plant. On Jan- uary 5, Mills telephoned Edward Vinson, an IAM representative . On Monday, January 7, Vinson met with Mills, St. Pierre, and Gagnon in Caribou, Maine. The up- shot of their discussion was a decision to call a meeting of Respondent's employees. The meeting was held at the Yacht Club in Van Buren on Monday, January 14. Vinson and Dennis Martin, presi- dent of the IAM's District 99, were present for District 99. Mills, St. Pierre, Gagnon, and Louis Bourgoin, Respondent's oldest employee in point of service, were among the approximately 11 employees who attended. Mills, St. Pierre, Gagnon, Bourgoin, and seven other em- 2 The joint motion to amend the transcript filed by counsel for Respon- dent and the General Counsel is hereby granted. 197 ployees signed IAM authorization cards that evening and gave them to Vinson. St. Pierre, Gagnon, and Mills took away with them blank cards in order to solicit signatures from other employees. On January 15, they obtained cards from seven more employees. St. Pierre telephoned Vinson on January 15 and told Vinson he had the seven additional cards. On Vinson's instructions they were mailed to Vinson on January 15. Vinson prepared a letter dated January 15 in which he claimed District 99 of the IAM was the collective-bargain- ing representative of Respondent's production and mainte- nance employees and placed it in the mail at a time which caused it to be postmarked Wednesday, January 16, and delivered to Respondent on Thursday, January 17. The let- ter read, in part: You are further advised that we are prepared to fur- nish proof to you that we actually do, in fact, repre- sent a majority of the employees referred to above. Respondent is owned by Claude Levesque and his son, Nobel. Claude Levesque is president of the corporation. Nobel Levesque is vice president of the corporation and manager of the business. Nobel Levesque attended a Lions Club meeting in Van Buren on the evening of January 15. While he was there, Lionel Bouchard, one of his employ- ees, told him there was union activity among his employ- ees. He went immediately to the plant where he and his father met with William Smith, Respondent's attorney. The Levesques told Smith about the union activity in the plant. They asked him whether they could lay off Mills, St. Pierre, Gagnon, and Bourgoin. They told Smith they wanted to get rid of those particular employees for economic reasons due to the steel shortage referred to in their notice to em- ployees of December 19, 1973, because Mills, St. Pierre, Gagnon, and Bourgoin were Respondent's most expensive and least productive employees. Smith advised the Lev- esques that they could lay off Mills, St. Pierre, Gagnon, and Bourgoin without violating the law. Nobel Levesque laid off Mills, St. Pierre, Gagnon, and Bourgoin as each man arrived for work on the morning of January 16. He told each he was laid off for lack of work. He gave each a check for the wages due him. He sought to inspect each's personal toolbox before the man left to as- sure himself that the man was not taking any of Respondent's tools with him. He inspected the boxes of Mills, St. Pierre, and Bourgoin without incident. Gagnon locked the key to his toolbox inside the box. The inevitable quarrel developed between him and Nobel Levesque. Gag- non started to leave the box in the plant and fetch another key. He changed his mind, picked up the box, told Lev- esque he would have to come to Gagnon's home with a policeman if he wanted to see inside the box, and walked out. Inside the box were a log book and some tools which belonged to Respondent. Gagnon returned them to Re- spondent the following week. A quarrel also erupted between Bourgoin and Nobel Levesque. This one involved money Levesque owed Bour- goin. Respondent's plant was the locale of an adult educa- tion course in machine shop work sponsored by the North- em Maine Technical Vocational School. The course start- ed in October 1973 and ended in February 1974. Nobel 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Levesque had a contract with the school to teach in the course. He had hired Bourgoin to act as his assistant in- structor for half of the hourly fee Levesque was to receive from the school. (St. Pierre and Gagnon also taught in the course. Unlike Bourgoin, they expected to be paid by the school and not by Nobel Levesque.) Bourgoin demanded the money Levesque owed him under this arrangement. Levesque told him to return to the plant and pick it up on Friday, January 18. Levesque told Bourgoin to check on Friday, also, and each Friday thereafter to see if he still had a job with Respondent. Bourgoin took exception to the latter instruction. He told Levesque he would not return to the plant for that purpose. He did, in fact, return to the plant on January 18 to get his money. Levesque refused to give it to him. Bourgoin told Levesque he was not a man of his word. In the quarrel which followed, Bourgoin cursed Levesque. (I instructed both Bourgoin and Levesque to state, to the best of their recollections, exactly what Bour- goin said to Levesque . Both men were too reticent to do so. As a result, the record reveals only that Bourgoin used the words "Jesus Christ" and "tabernac." The latter, I was as- sured, is a mighty oath in French. Van Buren, Maine, lies near the French-speaking part of Canada. Many of the persons involved in this proceeding are bilingual. One wit- ness even testified in French , requiring the services of an interpreter. Some of the conversations during the events related here were conducted in French rather than Eng- lish.) When Nobel Levesque received Vinson's demand letter on the morning of Thursday, January 17, he turned it over to Smith. At the same time, he polled his employees in an effort to find out which of them had signed authorization cards. He wrote the names of the employees on a pad. He went to each man at his work station in turn and asked him whether he had signed a card for the IAM. When a man said he had, Levesque wrote "yes " next to his name on the pad. When a man said he had not, Levesque wrote "no." Because some of them lied to him, Levesque wound up with only 10 "yeses" on his pad, a fact which he relayed to Smith. Smith replied to Vinson's letter under date of January 17 as follows: I have been given your letter of January 15, 1974, concerning the claim of District 99 of International Association of Machinists and Aerospace Workers that it is collective bargaining representative of em- ployees of Baker Machine & Gear, Inc. In order to advise them on the question of recogni- tion, please provide me with whatever proof you have of your representation of a majority of the employees. Vinson received Smith's letter on Monday , January 21. He telephoned Smith. Vinson suggested a card check by an impartial third party . Smith suggested Vinson present his claimed proof of majority to Smith . They reached no un- derstanding. Each memoralized the conversation in a letter to the other. Smith's letter, dated January 21, reads: This letter will confirm our telephone conversation of today as to the position of Baker Machine & Gear with regard to recognition of your union. Baker Machine & Gear will not recognize your union unless it receives satisfactory evidence that a majority of the employees have accepted it as their representative. In the event that you do not wish to present this evidence, please be assured that an election may be conducted at your convenience to determine whether or not there is majority representation. Vinson's letter, dated January 25, reads: This is in answer to your letter dated January 21, 1974, pertaining to the above subject matter. Also, to reaffirm to you my position concerning the necessary evidence which would prove to you the Union's claim for recognition. As I informed you in our telephone conversation on Monday, January 21, 1974, if you would agree to se- lect an impartial person and furnish such person with a list of employees as referred to in my letter of Janu- ary 15, 1974, for the payroll period ending January 12, 1974, I would turn over to such person the cards signed by the Baker employees. The impartial person would make a determination of the Union's claim from such evidence presented by the parties. If the evidence proved the Union's claim, then the parties would sign a Recognition Agreement. I also discussed with you the layoff on January 16, 1974, of four (4) employees. Namely, Dennis St. Pier- re, Gene Gagnon, Roy Mills Sr. and Louis Bourgoin. Charges will be filed with the National Labor Rela- tions Board in their behalf. I would again like to state to you, that it may possible [sic] be to the best interest of the Company that these men be returned to their jobs immediately. On Wednesday, January 23, District 99 prepared and mailed to the Board's Regional Office in Boston the charge in Case 1-CA-9561 and the petition in Case 1-RC-13119. They were received and docketed on Friday, January 25. The Region mailed its usual notifications to Respondent in each case that same day. Also on January 23, Laurence Ouellette, an employee of Respondent, appeared at Smith's office. He asked Smith to draft for him an antiunion petition which he could circu- late among the employees. Smith did not ask whether the Levesques had sent Ouellette to him or had participated, in any way, in the events which led up to Ouellette's decision to spearhead an antiunion drive among Respondent's em- ployees. Smith drafted a petition and gave it to Ouellette. Ouellette subsequently circulated it in the plant with the knowledge of Claude Levesque. On the one occasion which is detailed in the record, Ouellette approached Rodney Deschaine at a time when Claude Levesque was in earshot. Ouellette asked Deschaine if he wanted to sign a petition against the Union. Levesque heard what Ouellette said and drew back. On the evening of January 23, District 99 held a meeting of Respondent's employees at the Knights of Columbus Hall in Van Buren. Nobel and Claude Levesque were in the vicinity of the hall in Nobel's automobile and were observed by employees. The following day, there was a BAKER MACHINE & GEAR, INC. 199 paper on Nobel Levesque's desk in the plant bearing a list of automobile license plate numbers and names , including the number from the car of Nelson Ouellette , an employee who was at the meeting and his name. Respondent received notification of the petition in Case 1-RC-13119 on Monday, January 28. The Region's form letter said, in pertinent part: It has been our experience that by the time a petition such as this one has been filed , employees may have questions about what is going on and what may hap- pen. At this point in the handling of this case, we of course do not know what disposition will be made of the petition, but experience tells us that an explana- tion of rights , responsibilities, and Board procedures can be helpful to your employees. The Board believes that employees should have readi- ly available information about their rights and the proper conduct of employee representation elections. At the same time employers and union should be ap- prised of their responsibilities to refrain from conduct which could impede employees' freedom of choice. Accordingly, you are requested to post the enclosed Notice to Employees in conspicuous places in areas where employees such as those described in the en- closed petition work, and to advise me whether they have been posted. Copies of this Notice are being made available to the labor organization(s) involved. In the event an election is not conducted pursuant to this petition you are requested to remove the posted Notice. On January 28 and 29, Nobel Levesque called each em- ployee into his office . He again asked each man whether he was for or against the Union. He reminded them of the steel shortage which had caused Respondent to post its notice on December 19, 1973. He reminded them of Respondent's policy, in effect for 2 years, of granting wag- es each June based on one-half of Respondent's profit for the preceding year. He said to at least one man that if he and his father could not keep half the profit from the busi- ness they would close the place up . He read to each man the rights set forth on the enclosure to the Region's letter which Respondent had been asked to post in the plant. He told each man there would be an election to determine whether the Union would come into the plant. He told each man it was up to him how he voted but to be sure to vote. B. Analysis and Conclusions 1. The layoff This proceeding is a good example of what can happen when an unsophisticated employer acts on the advice of counsel who is not experienced in labor relations. The re- sult is a violation of the Act on the basis of Respondent's version of the facts without even reaching such questions as whether Respondent knew St. Pierre , Gagnon, and Mills were the leaders of the organizing campaign or whether Respondent's stated reason for laying them and Bourgoin off was its real reason or a pretext masking a discriminato- ry motive. Nobel Levesque testified that his father had been advo- cating for some 3 weeks that Respondent get rid of St. Pierre, Gagnon, Mills, and Bourgoin because they were the most expensive employees, but that he had only come around to his father's way of thinking on Friday, January 11. He further testified that the decision reached at that time did not include when it would be implemented, thus: JUDGE BLACKBURN : Did you decide to lay off these four men before or after you conferred with Mr. Smith on the 15th? THE WITNESS : Before. JUDGE BLACKBURN : How long before? THE WITNESS : My father had been after me for the past three, four weeks. JUDGE BLACKBURN: I didn't ask you that. I asked you when you decided? When did you make the decision that you implemented on the morning of the loth? THE WITNESS: We had decided that the previous week. JUDGE BLACKBURN : When, the previous week. THE WITNESS: On the Friday, I believe. JUDGE BLACKBURN: And on that Friday you decided that you would lay them off on the morning of Janu- ary the 16th? THE WITNESS: No. JUDGE BLACKBURN: What did you decide on the Fri- day? THE WITNESS : We had decided, you know , these are the guys that should go. JUDGE BLACKBURN : All right. Now, I ask you again, when did you decide that you would lay them off on the 16th, before or after you conferred with Mr. Smith? THE WITNESS: After we conferred with Mr. Smith. JUDGE BLACKBURN : Then what you are telling me is that, before you learned about the union activity, you had selected these four men for lay-off, but had not decided on a date . After you learned about the union activity, and after conferring with your attorney and being advised that you could legally go ahead and do whatever you had in mind, you decided that you would lay them off the next morning . Have I got it right? THE WITNESS: No. JUDGE BLACKBURN : What have I got wrong? THE WITNESS: Even my knowing about the union ac- tivities, that did not change my mind. JUDGE BLACKBURN : I did not say that. I am just trying to get the sequence of events, laying aside the question of your motive and the legal effect , is that the way it went? THE WITNESS: Yes. Smith, the attorney, testified as follows: Q. (By Mr. Pratt) What was the company's ap- proach to the problem? A. The company's approach was that they wanted to reduce these certain people-their force by these 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certain people. And these are the four people sitting right here in this room. JUDGE BLACKBURN: They named the four names in this conference to you? THE WITNESS: They had decided that the people that had to be laid off, that were costing them the most money and being the least productive were these four. And were they going to be getting into a lot of hot water if they laid them off, having heard that there was a possibility of a union. Q. (By Mr. Pratt) Was anything said as to the tim- ing? A. Well, when they did finally make up their mind, you know, to finally lay them off, I assume they did it the next day. JUDGE BLACKBURN: I do not understand that answer, Mr. Smith. THE WITNESS: I do not think they had finally decided to lay them off or not until after they had talked to me, because, obviously, why would they call me in to talk to me. JUDGE BLACKBURN: Mr. Pratt? THE WITNESS: They may have been committed al- ready to laying them off, but they wanted to try to find out legally where would they stand. The decision to lay off on the morning of January 16 was only made after Respondent admittedly learned of union activity among its employees. The conference which result- ed in that decision was called because of that knowledge. Therefore, the layoffs on January 16 were triggered by the union activities of Respondent's employees. Even if it were to be found that the four individual Charging Parties would have been laid off on some later date as a result of a decision made on January 11, it could not change the inev- itable finding that Respondent was motivated to lay them off when it actually did lay them off by employees' union activities. A layoff for that reason, regardless of what was actually in the mind of the person who made the decision to lay off employees on January 16 and regardless of what he had been told about his legal rights and obligations, violates the Act. I so find. I do not find that Respondent would have laid off St. Pierre, Gagnon, Mills, and Bourgoin at some time subse- quent to January 16 as a result of a decision made on January 11. I do find that Respondent knew that St. Pierre, Gagnon, and Mills were the leaders of the organizing cam- paign and that the reason it advances for laying them and Bourgoin off is a pretext. With respect to the company knowledge issue, one of the most significant things in the record is Nobel Levesque's insistence that the report he received from Lionel Bouch- ard at the Lions Club meeting did not constitute knowl- edge in a legal sense, thus: Q. Did Mr. Bourgoin [on January 16] make any statement to you about steel, or did you make any statements to him about steel? A. Well, I told him in regards to the letter of De- cember 19th which meant due to the economy and the steel situation, I'm giving you a week off. Q. What was his response, if any? A. Well, his response was that-the way that I took it, anyways, at that time-was that there was some- thing going on. I wasn't aware of it. JUDGE BLACKBURN: I have trouble with that answer, Mr. Levesque. You told me a little while ago that you heard the day before that there was union activity going on in your plant. THE WITNESS: It was hearsay. Yes. JUDGE BLACKBURN: Those two answers strike me as inconsistent-the one you just gave about not know- ing what he was talking about on Wednesday, when somebody had told you the day before that there was union activity in your plant. I just cannot put those two answers together. What are you trying to tell me? THE WITNESS: Well, they are the same, aren't they? JUDGE BLACKBURN: I am not going to argue with you. I am just trying to understand your testimony, that's all. A witness who testifies in this manner is unworthy of be- lief. More importantly, it is clear from the unrefuted testimo- ny of St. Pierre that Nobel Levesque observed St. Pierre, Gagnon, and Mills on January 15 as they solicited employ- ees in the plant to sign authorization cards (Mills' activities on that day were somewhat less extensive than those of the other two) but did not overhear what was being said. I find that, when Bouchard warned Levesque that evening that union activities were underway, Levesque put that infor- mation together with what he had observed and leaped to the correct conclusion that St. Pierre, Gagnon, and Mills were the instigators. With respect to the pretext issue, one of the most signifi- cant things in this record is a discussion of words and their meanings, thus: Q. (By Mr. Pratt) Do you recall what happened with respect to any increase or reductions in the work force after December 19, 1973? A. Yes. Q. What do you recall? A. John Daigle, on January 4th. Q. What happened to him? A. He was laid off or suspended. Or he wanted- Q. Which was it? JUDGE BLACKBURN: It makes a difference, Mr. Lev- esque. THE WITNESS: I know it does make a difference now, but at the time I didn't. JUDGE BLACKBURN: Well , what happened with Mr. Daigle on the 4th? THE WITNESS: He came in, and he wanted an increase in pay. JUDGE BLACKBURN: Okay. THE WITNESS: And I told him the inavailability of the steel, and we give our salary increases in June-on June 1st every year. But I could not grant it to him then. So he said, I will give you 'till the end of Janu- ary. I said, you don't have to do that. You can be done today, if you want to. And he was done that day. JUDGE BLACKBURN: Okay. Q. (By Mr. Pratt) When you used the term "lay- BAKER MACHINE & GEAR, INC. off", Mr. Levesque, did that word have any signifi- cance to you at the time, back in December or Janu- ary? A. Q. A. Q. you? No, it didn't. And what did it signify to you? That he had quit. Did the term lay-off signify anything else to A. No. Q. Just that he had quit? A. He had asked for higher wages, and it was not granted to him- Q. Well, I am not asking you now with respect to Mr. Daigle, but your use of the term lay-off back at that time. A. To me lay-off was to suspend, to fire or do what have you. To me that is, you know, what a lay-off meant, as far as the terminology goes. Q. And having progressed to this stage, what now do you attach-what meaning do you now attach to the word lay-off? MR. MARROW: Objection. JUDGE BLACKBURN: Overruled. THE WITNESS: Lay-off now means that you let go the man for lack of work. Q. (By Mr. Pratt) And a suspension? A. Suspension is, he is corrected, disciplinary ac- tions, or what have you, you know, he will be suspend- ed for two weeks, for doing such and such. And so on. Q. Okay. And what about the word discharge? A. Fired. Q. Now- JUDGE BLACKBURN:Terminated permanently? THE WITNESS: Terminated permanently. JUDGE BLACKBURN : A man who is suspended is not going to work for you for a definite period of time, as a disciplinary act, and at the end of that time he comes back to work-is that what you are saying? THE WITNESS: You will have to repeat that. JUDGE BLACBURN : Okay. A man does something-I work for you and I do something that you do not like. I break a tool or something. To discipline me, you suspend me for three days. THE WITNESS : Right. JUDGE BLACKBURN : That means I am not going to work for three days, but at the end of three days I am going to come back to work. THE WITNESS : Right. JUDGE BLACKBURN: Lay-off, I understand you to be saying, I work for you, you do not have any work for me next week, and you say, Ben, I am laying you off next week . And if there is work at the end of that week. I'll call you to come back to work. A man on lay-off is not working because there is no work to be done. But, when work becomes available, he is going to be coming back to work? THE WITNESS : Right. JUDGE BLACKBURN: Okay. Now, let me ask you a question, Mr. Pratt. I hope you used the word lay-off in its technical sense in your answer. MR. PRATT: Yes, Sir. 201 Respondent's answer states, "All of the employees listed in paragraph 9 of the Amended Complaint [i.e., St. Pierre, Gagnon, Mills, and Bourgoin] were laid off as a direct re- sult in [sic] the shortage in the supply of steel to Respondent's Van Buren, Maine, plant and the steel short- age continued and worsened since the date of the Com- plaint, but that Respondent has since on or about January 16, 1974 to this date stood ready to recall any laid off employees including Dennis L. St. Pierre and Roy R. Mills, Sr., as soon as economic conditions permitted. At the time Louis Bourgoin and Gene J. Gagnon were laid off for lack of work they engaged in conduct which constitutes suffi- cient grounds for permanent discharge and Respondent has just cause for treating Louis Bourgoin and Gene J. Gagnon as being permanently discharged." Nobel Levesque stated his reason for laying off St. Pier- re, Gagnon, Mills, and Bourgoin on direct examination as follows: Q. (By Mr. Pratt) For what reason did you lay these people off on the 16th of January? A. It was economy. They were my highest paid peo- ple, and also for their work performance. It does not stand up under close scrutiny for the following reasons: 1. Data introduced by Respondent does not indicate any economic need to lay off employees on January 16. While it is true that Respondent learned in December the mills from which it was accustomed to purchase steel would not be able to fill its orders in 1974, this did not mean that steel was totally unavailable. Steel could still be obtained from middlemen who operate warehouses as dis- tinguished from directly from the manufacturer, i.e., the mill, albeit at a substantially higher price per pound. Since the major part of Respondent's production is for customers from whom Respondent has accepted open-ended orders at so much per unit, paying a higher price for the steel it needs would reduce, or possibly even eliminate, Respondent's margin of profit. Up to this point Respondent's economic defense makes sense and is sup- ported by the record.3 However, there is no indication that Respondent, either on January 16 or subsequently, can- celled or rejected orders from its customers or that it antici- pated, then or at the time of the hearing, its 1974 produc- tion would be substantially below what it turned out in 1973. 2. Even if an eventual production cutback had been in Respondent's mind on January 16, the record will not sup- port a finding that it was necessary or contemplated as of that time. There was plenty of steel, obtained from mills, in the plant that morning. Respondent considered 45 hours, the last 5 at time and a half, its regular workweek. On January 15, the entire plant, including the four men who 7 Respondent's December 19 notice and its concern that "we might have to lay-off some men for a short time but we'll try to keep it at a minimum" is part of that support. However, the fact that Respondent spoke in terms of "might" and "we'll try to keep it at a minimum" in the document which apparently triggered its employees' latent concerns about their jobs into union activity weighs as much against Respondent's defense as the entire document aids it If the notice had said layoffs were certain in the near future, its significance would be different. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were abruptly laid off the next morning , worked 9 .5 hours pursuant to that schedule. 3. The record does not sustain Respondent's contention that the layoff of St . Pierre, Gagnon, Mills, and Bourgoin was simply part of a pattern of layoffs for economic rea- sons which began with the December 19 notice . Each ex- ample but two offered by Respondent turned out , on closer examination, to be something other than a layoff in the sense developed in the discussion of what words mean set forth above . John Daigle quit on January 4. He asked No- bel Levesque for a raise . When Levesque turned him down, he gave notice . Levesque told him he might as well leave right away . He did. Read Levesque called in sick in the week after Christ- mas. He was told to take the rest of the week off. Gerald Sirois asked for a day off after Christmas. He was given a week. Reynold Pelletier asked for and was granted a week off in early January. Gerald Lagasse went home sick one night and never came back to work. A man named Voisine failed to show up for work one day and has not been seen since. Joseph Gendreau, who had worked for Respondent only 3 or 4 weeks, quit in order to seek work closer to his home. Ronald Johnson failed to return to work after Christmas. While each of these personnel actions did help reduce the total of Respondent's employees in the period between December 19 and January 16, it was normal attrition, not a reduction deliberately brought about by Respondent for economic reasons. The most the record establishes is that Respondent did not seek to replace the men it was losing through attrition during this period. Even the two exceptions to this pattern do not help Re- spondent much. Norman Fournier was laid off just before Christmas. However, he was taken back in less than a week when he begged Nobel Levesque to do so . Clayton Beau- lieu, a laborer who had worked for Respondent only 3 weeks, was laid off on January 11 and never recalled. Tak- ing Nobel Levesque's testimony on this whole subject at face value, one effective layoff does not establish a planned reduction in force of the magnitude Respondent sought to establish. In fact, Levesque's testimony even as to Beaulieu is rendered suspect by the following exchange a few min- utes later when he was on cross-examination: Q. But I am talking now about the situation where you in the past have laid somebody off for lack of work. Hasn't it been the company practice to wait un- til the end of the work week? A. I don't recall ever laying anybody off for lack of work. Q. Have you ever laid anybody off for any reason, prior to the-other than disciplinary reasons-prior to the 16th of January? A. No. 4. The record does not sustain the affirmative defense set forth in Respondent's answer that St. Pierre , Gagnon, Mills, and Bourgoin were "laid off [for lack of work] as a direct result [of] the shortage in the supply of steel." Here, too, the point involves the use of terms of art in the labor relations field as developed in the discussion above. Respondent's counsel stated that he had used "layoff" in his answer in the technical sense just discussed. I have no reason to think counsel drafted his pleading without first conferring with his client . Yet, after and despite this discus- sion while Nobel Levesque was on the witness stand, Lev- esque testified that in three of the four cases-St. Pierre, Gagnon, and Bourgoin-he had suspended on January 16 and not laid off at all . His explanation for the use of the word "layoff" on January 16 was that it was the only word he knew to cover termination of employment and he used it indiscriminately. When he answered "economy . . . and also for their work performance ," he expanded his motive from the purely economic one he gave his counsel to some- thing broader. At the same time, he shifted Respondent's defense, a sure indicium of pretext. (The reference in Respondent's answer to conduct of Bourgoin and Gagnon at the time of the layoff which con- verted their layoffs to discharges is to Bourgoin's intemper- ate language on January 18 and Gagnon's walking off with some of Respondent's tools on January 16. The gravamen of the complaint is that the layoff violated the Act. Since both men were laid off before either of these events oc- curred, the issue raised is not whether the man was discrim- inated against but whether he is entitled to reinstatement. Therefore, that question is discussed in the section entitled "The Remedy," below. However, there is additional evi- dence of pretext even in this part of the record. When the question of District 99's majority came up during the hear- ing [see the section entitled "The duty to bargain," below], Respondent shifted its position as to Bourgoin again, argu- ing that his refusal on January 16 to agree to check on Friday, January 18, as to whether there was any work for him constituted a quit, thus removing him from the unit as of January 16.) 5. In the case of Mills , the one discriminatee as to whom Nobel Levesque's testimony is arguably consistent with Respondent's pleading, the record will not sustain a find- ing that he was laid off for economic reasons . Levesque distinguished between St. Pierre, Gagnon, and Bourgoin on the one hand and Mills on the other in this manner (this testimony, like his generalized statement that he was moti- vated by "economy . . . and also for their work perfor- mance," came on direct examination): Q. Okay. What happened after that, returning to the 16th after Mr. Gagnon left with the tool box? A. Mr. Roy Mills walked in. Q. About what time? A. It was before 7:00. Q. What happened? A. I told him that, due to the economy right then, that he was laid off. He did not argue or anything. He asked me, he says, is Michael Lagasse still staying, and I said yes. And I gave him his check , and told him to go get his tool box . And he brought it up to the office, and he asked me if I wanted to check it , and I checked it. JUDGE BLACKBURN : Were you also suspending Mills? THE WITNESS: No. BAKER MACHINE & GEAR, INC. JUDGE BLACKBURN : He was different? THE WITNESS : He was different because there it was no work. This economic aspect in Mills' case grew not out of a short- age of steel but out of Respondent's efforts to live up to a specific commitment. Respondent has an informal contract with a Canadian firm named Thomas, Ltd., under which it machines gear housings sent to it by Thomas. Mills' job was to do this work on a boring mill. At the time in ques- tion, Thomas was expecting Respondent to turn out four gear housings a day . Mills' daily production was approxi- mately 2 .6 gear housings a day . Respondent, a short time before, had placed Michael Lagasse on the boring mill at night so that the daily production goal could be achieved after Mills had trained Lagasse on the operation of the machine. Lagasse was at work on the evening of January 15 when the Levesques , father and son, conferred with Smith, Respondent's attorney, at the plant . Lagasse report- ed for work on the morning of January 16 and took over Mills' day-shift job on the boring mill. Thus the facts belie Levesque's contention that there was no work. Mills worked on gear housings for Thomas , Ltd., on the day shift on January 15. Gear housings for Thomas, Ltd., continued to be worked on when the day shift began on January 16. If Nobel Levesque's "economy . . . and also for their work performance" is taken as a claim Mills was let go for poor work despite Levesque 's later answer "He was differ- ent, because there it was no work," it places in issue the question of whether Mills' failure to produce four gear housings on one shift was his fault, as Levesque claimed, or the boring mill's fault , as Mills claimed . In view of my low opinion of Levesque's testimony, I am not prepared to re- solve that question against Mills. In summary, the sequence of events which led up to the layoff by Respondent on the morning of January 16 of St. Pierre, Gagnon, Mills, and Bourgoig constitutes a violation of the Act regardless of what thoughts were in Nobel Levesque's mind when he laid them off. Levesque knew, when he laid them off, that St. Pierre, Gagnon, and Mills were the leaders of the organizing campaign then under- way among Respondent's employees. And the contradic- tory reasons advanced by Respondent to justify the layoffs are a pretext masking its real motive, a desire to thwart its employees in their attempt to exercise their right to orga- nize. I find, for all these reasons, that Respondent violated Section 8(a)(3) and ( 1) of the Act when it laid off Dennis St. Pierre, Gene Gagnon, Roy Mills, and Louis Bourgoin on January 16, 1974. 2. The independent violations of Section 8(a)(1) a. Interrogation At the conclusion of the General Counsel's case, I grant- ed Respondent's motion to dismiss two allegations of inde- pendent 8(a)(1) violations on the ground that the General Counsel had failed to make out a prima facie case. The first was an allegation that Respondent withdrew overtime on or about January 16 as a reprisal for its employees' having selected District 99 to represent them. The second was an 203 allegation that Nobel Levesque had interrogated employ- ees on or about January 21. Dismissing the latter left in the complaint two other allegations of illegal interrogation by Levesque, one predicated on the poll he took of Respondent's employees on January 17, the other on his lectures to individual employees on January 28 and 29. The January 17 incident was a poll pure and simple, conducted by Levesque to determine whether there was validity to the IAM's claim of majority status before the petition in Case 1-RC-13119 was filed. There is no real dispute about what happened that day since the General Counsel's witnesses corroborate Levesque's testimony in substance. According to Levesque: Q. What did you and Mr. Smith, your attorney, de- cide [when the IAM's letter arrived on January 17]? If anything. A. Mr. Smith decided that he would answer the let- ter, to show their hand, or something of that nature. And I still couldn't believe that there was a majority in the shop, so I went around and I asked the men, did you sign a union authorization card, whatever it is. Q. Who did you talk to in the plant? A. I talked with all the men. Q. And how long a period of time did it take you to go around and ask everybody? A. Fifteen minutes, at the most. Q. How long did you spend with each one employ- ee? A. Thirty seconds, a minute, fifteen seconds. Q. (By Mr. Pratt) Okay. What precisely did you say to each man as you walked up to him? A. I said, I don't care if you-I got a letter from the union saying that they had a majority of cards or something-I don't know what it means, but did any of you sign any union authorization cards. Some said yes. I asked-I don't care which way, you know, what you did, I'm just curious. "I don't know what it means-I don't care-I'm just curious" during the course of conversations that lasted as little as 15 seconds and a minute at the most is not suffi- cient communication of the purpose of the poll to the em- ployees nor is it the giving of sufficient assurances against reprisals. More importantly, talking to each man individu- ally and noting his answer on a pad next to his name is about the farthest thing possible from a poll conducted by secret ballot. Levesque clearly violated the Act on January 17. Struksnes Construction Co, Inc., 165 NLRB 1062 (1967). By January 28 the petition in Case 1-RC-13119 was pending. On that day and the next, Levesque translated the Board's simple request "to post the enclosed Notice to Em- ployees" into a duty imposed upon him personally to ex- plain to each employee his rights under the Act. Unfortu- nately, his lecture included further inquiries about the employees' sympathies and desires. Clearly, he violated the Act on those occasions also. Kay Corporation, d/b/a Holi- day Inn of Chicago-South, Harvey, 209 NLRB 11 (1974). I find Respondent violated Section 8(a)(1) of the Act on 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD January 17, 28, and 29, 1974, by interrogating its employ- ees about their union activities, sympathies, and desires. b. Surveillance Nobel Levesque did not deny being in the vicinity of the Knights of Columbus Hall in Van Buren on the evening of January 23. His explanation was that he and his father drove past twice, once on their way to and once on their way from the shop. However, the General Counsel's wit- nesses, whom I credit, testified that Claude Levesque's Chrysler Imperial was stopped on the lot of a Ford agency across the street from the hall with its headlights on and took off hurriedly when they spotted it and came to the door of the hall. One witness even identified Claude Lev- esque as one of the two men in the car. Moreover, Respon- dent made no effort to deny or explain the fact that Nelson Ouellette saw his license number and name on a list of such numbers and names in Nobel Levesque's office next morn- ing. I find Respondent violated Section 8(a)(1) of the Act on January 23, 1974, by engaging in surveillance of a union meeting attended by its employees. c. The antiunion petition The last two allegations of independent 8(a)(1) violations relate to the antiunion petition which was circulated by Laurence Ouellette. One, which names Attorney Smith as Respondent's agent, cites assistance in the drafting of the petition. The other, which names Claude Levesque as Respondent's agent, cites assistance in the cirulating. Smith contended that the legal service he rendered to Ouellette on January 23 was undertaken in his capacity as an attorney engaged in a general law practice to a client- Ouellette-having no connection with Respondent and was, therefore, not undertaken in his capacity as Respondent's attorney. While he recognized that the work Ouellette was asking him to do grew out of the situation in connection with which the Levesques were already utilizing his services, he saw no conflict, he said, because the inter- ests of Ouellette and the Levesques were identical. There- fore, it did not occur to him to inquire whether the Lev- esques had anything to do with Ouellette's coming to his office. Smith is, I think, wrong on both counts. While employer and antiunion employee may both want to keep a union out of a plant, their interests are not legally the same. The employer is a party in the action which has its genesis in the filing of a petition for a Board election. Employees, whether they be for or against the union seeking bargain- ing rights, are not. They are, in a sense, third-party benefi- ciaries since they are the persons for whose benefit the Board's representation procedure has been created. Em- ployers are not legally responsible for the acts of antiunion employees any more than they are responsible for the acts of prounion employees absent a common law agency rela- tionship or condonation or some such doctrine. More im- portantly, Smith was remiss in his duty to the Levesques when he failed even to inquire of Ouellette what, if any- thing, had transpired between him and the Levesques be- fore Ouellette came to Smith's office. I find, therefore, that Smith was acting in his capacity as Respondent's attorney when, on January 23, he drafted the antiunion petition which Ouellette subsequently circulated in Respondent's plant. As to what occurred in the plant, Respondent did not deny that Ouellette circulated the petition with its knowl- edge. The fact that at least one employee was asked to sign in the presence of Claude Levesque establishes that Ouellette's activities had at least Respondent's tacit ap- proval. I find Respondent violated Section 8(a)(1) of the Act by drafting and permitting the circulation of an an- tiunion petition in its plant. 3. The duty to bargain The complaint, which was issued before the change in policy recently announced by the Board in Steel-Fab, Inc., 212 NLRB 363 (1974), alleges a violation of Section 8(a)(5) and (1) of the Act in Respondent's failure to recognize and bargain with District 99 on and after January 17. This alle- gation is, of course, predicated on a Gissel theory. Because of Steel-Fab, I find Respondent has not violated Section 8(a)(5). However, as decreed by the Board in Steel-Fab, this finding has no substantial effect on the last remaining issue, whether Respondent should be ordered to recognize and bargain with District 99 as a remedy for its violations of Section 8(a)(1) and (3) under the guidelines laid down by the Supreme Court in Gissel. On January 17, the day Respondent received District 99's demand letter and the date singled out by the General Counsel as the start of Respondent's continuing refusal to grant recognition, there were 24 production and mainte- nance employees on Respondent's payroll. Even under Respondent's theory St. Pierre and Mills were on layoff status with a reasonable expectation of recall. Respondent contends that Gagnon and Bourgoin were not, Gagnon be- cause he had converted his status to that of a discharged employee the day before by walking out with some of Respondent's tools and Bourgoin because he had quit the day before by saying he would not return on Friday to check whether he still had a job. Respondent is wrong as to each. It did nothing affirmative about Gagnon's status af- ter he left the plant on January 16. Therefore, regardless of whether Respondent had grounds for discharging him that day, there is no evidence on which to base a finding that it did so. As to Bourgoin, a laid-off employee's refusal to come back to the plant periodically does not indicate a desire on his part to end the employment relationship by quitting. If an employer can legally impose such a require- ment as a condition of maintaining the employment rela- tionship in a laid-off status, failure of the employee to meet the requirement would, at most, give the employer grounds for discharge. As in the case of Gagnon, there is no evi- dence Respondent did anything to change Bourgoin's sta- tus from laid-off to discharged employee after he left the plant on January 16. I find, therefore, that Gagnon and Bourgoin were also laid-off employees with a reasonable expectation of recall as of January 17. The fact that St. Pierre, Mills, Gagnon, and Bourgoin were also, as of Janu- ary 17, victims of Respondent's unfair labor practices only enhances the conclusion that they were part of the unit on BAKER MACHINE & GEAR, INC. the crucial date . It follows that there were 28 employees in an admittedly appropriate unit when District 99 demanded recognition. On January 17, District 99 had in its possession authori- zation cards signed by 18 of these 28 employees . Eleven had been signed on January 14. Seven had been signed on January 15. They read, in pertinent part: I, the undersigned, an employee of Baker Machine & Gear, Inc., hereby authorize the International Associ- ation of Machinists and Aerospace Workers (IAM) to act as my collective bargaining agent with the compa- ny for wages, hours and working conditions . It is my understanding that I will be invited to join the IAM. Respondent sought to disprove District 99's majority by proving that the employees had been told the only purpose of the cards they signed was to get a Board election. (Re- spondent also fished for testimony that the employees were told card signers would not have to pay an initiation fee. The results in this area were so meager that the subject is not worth further discussion.) The 11 employees who signed authorization cards at the meeting held on the evening of January 14 all listened to the same pitch. As Dennis Martin, president of District 99, credibly testified, Edward Vinson told them the cards would be used either to seek voluntary recognition from Respondent or to petition the National Labor Relations Board to hold an election . As to the latter, Vinson ex- plained the IAM's national policy of not going to a Board election until it has in its possession cards signed by at least 60 percent of the employees in the unit for which it is seek- ing recognition. I find, therefore, that none of the January 14 cards is invalid because the signer was told that it would be used solely for the purpose of seeking a Board election. The seven employees who signed authorization cards on January 15 were approached individually. Reynold Pelleti- er and Gerald Emond were solicited by St. Pierre. Fred Voisine was solicited by Gagnon . None testified he was told the only purpose of the card was to get an election. Pelletier and Emond testified they read the card before signing it. Voisine, who speaks only French and had to testify through an interpreter, testified Gagnon "said it was a card for the union " and "explained the card, it was a card for the union." There is no basis for invalidating any of these three cards. The first witness whose testimony raised a possibility that the person who spoke to him had said the wrong words was Michael Sirois. On direct examination as a wit- ness for the General Counsel , he testified that he signed his card for Gagnon after reading it. On cross -examination came: Q. (By Mr. Pratt) Mr. Sirois, what did Mr. Gagnon tell you about the card? A. He told me if we wanted the union , he explained to me- Q. Isn't it true that Mr. Gagnon said to you that the only purpose for signing this card was so the union could get enough votes to win the election? A. Yes. On redirect came: 205• Q. (By Mr. Marrow) Did he say anything else to you at the time? A. No, I filled out the card and gave it back. Q. He handed you the card, and that is all he said to you? A. Yes, but I knew-we talked about, you know, the union. Q. What did you talk about? A. Oh, he said it would help us. It's one thing I wanted. Q. You wanted the union? A. Well, more or less, yes. Q. When you finally got together, what is it that he said that he wanted? What did he say to you? A. He asked me if I wanted to sign the card. So I said yes. Q. And did he say anything else? A. No. Q. Did he say what the card was for? A. Yes. I knew- JUDGE BLACKBURN: The question is did he say what the card was for. Q. (By Mr. Marrow) What did he say the card was for? A. Well, yes- MR. PRATT: I think he has already testified. JUDGE BLACKBURN: He has, but Mr. Marrow has a right to pursue it on redirect examination, to see if he cannot shake the answer you got on cross. Do you understand the question, Mr. Sirois? THE WITNESS: Yes. JUDGE BLACKBURN: The question is, what did Mr. Gagnon say to you about the card when he gave it to you. Now, can you tell me what he said? THE WITNESS: Well, he asked me if I wanted to sign the card, and I asked him what for, and he told me for the union. That's the only thing he told me. Q. (By Mr. Marrow) Just for the union? A. Yes, to get the union in, for our benefit. And better wages and that's it. Q. Anything else that was said? A. No. Q. In response to a question put to you by Mr. Pratt you said something about an election. You said something- MR. PRATT: I beg your pardon. I believe his answer is not quite that way. JUDGE BLACKBURN: All right. I am going to intervene at this point, gentlemen. Miss Reporter, please go back to the crucial question and answer on cross ex- amination, and read it out of the record to this wit- ness, please. THE REPORTER: Q. Isn't it true that Mr. Gagnon said to you that the only purpose for signing this card was so the union could get enough votes to win the elec- tion? A. Yes. JUDGE BLACKBURN: Go ahead, Mr. Marrow. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. (By Mr. Marrow) Is that your best recollection of everything that Mr. Gagnon said to you at the time about the- A. Well, I can't remember the exact words. Q. Could you give it to us again, your best recollec- tion as to what he said at the time? A. Well, he talked to me about-we talked about the union. And he asked me if I wanted to sign the card. So I said yes. So he mentioned about what the union was about, which the people of the union told him. That is the only thing I went by. Q. And you signed the card? A. I signed the card. MR. MARROW: I have no further questions. JUDGE BLACKBURN : Recross. RECROSS EXAMINATION Q. (By Mr. Pratt) Mr. Sirois, I am not clear on what your answer is. The lady played back my question to you, and your answer. Are you changing your testimo- ny now? A. No, I am not changing it, because-I don't know, it has been so far back that I cannot remember exact words that he-we talked about. MR. PRA17: I have no further questions. MR. MARROW: NO further questions. JUDGE BLACKBURN: Thank you. You are excused. On the basis of this testimony by Sirois, I find Gagnon did not tell him the only purpose of the authorization card he read and signed was to get a Board election. When the card of Sirois is added to the 14 already con- sidered, it is obvious that District 99 had a majority of at least 15 valid cards in a unit of 28 employees. I turn to the other three cards nonetheless in the interest of complete- ness. There were two employees named Ronald Lausier in the unit on January 17. One is identified in the record as plain Ronald, the other as Ronald E. Like Sirois ; Ronald was called as a witness by the General Counsel. Ronald E. failed to respond to the General Counsel's subpena. How- ever, he showed up as a witness called by Respondent after his card was authenticated by St. Pierre. Ronald Lausier was unsure who had solicited his card but allowed as how it might have been St. Pierre. Direct, cross-examination, redirect and recross-examination on the subject of what was said to him by the solicitor is similar to that set forth in detail above from the testimony of Sirois, especially in its vagueness and uncertainty. St. Pierre's tes- timony on this point was as follows: Q. Do you recall any other conversations with other employees that day about the Machinists Union? A. Well, after work I met with some of the employ- ees outside the shop, before they got in their cars to go home. Q. What time would this have been? A. After five o'clock. Q. And could you tell us who you met with? A. I met with Mr.-the two Lausiers. Q. They both- A. They both have the same name, both Ronalds, one Ronald E., and the other one Ronald. Q. And was anyone else present? A. There was a Mr. Pelletier-[Reynold] Pelletier- was present. Q. Could you tell us what happened on that occa- sion? A. Well, I asked them-and I told them that we were trying to organize a union, and I asked them to see if they were interested. And they didn't even ask me to explain it or anything. They just took the cards and they said, give us the cards, and we'll sign them. To the extent there is any conflict between the testimony of Ronald Lausier and St. Pierre (and I am not sure there really is any), I credit St. Pierre over Lausier. I find St. Pierre did not tell Ronald Lausier the only purpose of the authorization card he signed was to get a Board election. The card of Ronald E. Lausier presents a collateral problem. The date has been written over. The original date appears to be have been "1/12/74" with the "2" written over to make a "5." This Lausier testified that he signed for St. Pierre only after St. Pierre had badgered him for 3 days and that the change in the date on the card had not been made by him. However, the earliest St. Pierre had blank authorization cards in his possession was the evening of January 14 and the only day on which he was in the plant with cards was January 15. Therefore, Ronald E. Lausier's story that he only signed because St. Pierre pressured him for 3 days is false on its face. Regardless of what the rather illegible mark in the card's "Date" blank signifies, it is ob- vious that the card could only have been signed on January 15. On the more important question of what St. Pierre said to him, Ronald E. Lausier merely testified: Q. Do you recall anyone from the union ap- proaching you to sign an authorization card with re- spect to the union? A. Anyone from the union, or from the shop? Q. From the shop. A. Yes. Q. Who was that? A. Mr. Dennis St. Pierre. Q. And what happened at that time? A. He asked me to sign a card, a union card. Q. Did you sign? A. No, I refused. I told him I didn't want to sign any cards. Q. What happened then? A. He again asked me the day after, and everytime he seen me he'd ask me and I'd say no. I didn't want to sign a card. Q. What did Mr. St. Pierre say to you, if anything? A. He said it was just a card for the union, you know, for just a vote for the union. Q. All right. Did he say anything else to you? A. No. Q. Did you finally sign the card? A. The third day when he asked me, and when I was leaving that night, I just-I filled out the address, and I signed my name. BAKER MACHINE & GEAR, INC. Q. Did he say anything further to you at that time? A. No. As to the circumstances under which Ronald E. Lausier signed, I credit St. Pierre over Lausier. On the basis of the testimony of both as to what was said, I find St. Pierre did not tell Ronald E. Lausier the only purpose of the authori- zation card he signed was to get a Board election. Donald Gendreau also failed to honor the General Counsel's subpena but showed up as a witness for Respon- dent. He testified thus: Q. All right. Do you know who approached you and talked to you about it? A. Yes. Q. Who was it? A. Dennis St. Pierre. Q. What did he say to you about the card? A. We just talked about-well, the first time he was just talking about it. Then the second day he asked me if I wanted to sign. And I said I didn't know. Q. What further, if anything, did he say to you about the card? A. That's all. Q. Did he give you any reasons for why you should sign the card? A. He said we would hold an election. There would be an election for the union. Q. Did he state any other reasons? A. No. As with Ronald E. Lausier, the story that St. Pierre solic- ited Gendreau on 2 successive days before Gendreau signed is false on its face. For that reason, because a con- trary finding would require a strained reading of Gendreau's testimony, and because there is no reason to think that St. Pierre's approach to Gendreau was different from his approach to other employees, I find St. Pierre did not tell Donald Gendreau the only purpose of the authori- zation card he signed was to get a Board election. Adding these last 3 cards to the 15 already found to be valid gives District 99 a majority of 18 out of 28 employees. I find that, as of January 17, 1974, all the prerequisites to an order requiring Respondent to bargain with District 99 were in existence, namely, a demand for recognition and bargaining in an appropriate unit of employees, a majority of whom had expressed their desire to be represented by executing valid authorization cards. III. THE OBJECTIONS TO THE ELECTION The Report on Challenged Ballots and Objections to Conduct of the Election issued in Case 1-RC-13119 on March 26 by the Regional Director recommended that "Objection #2, and the matters related above not specifi- cally mentioned In the Objections . . . be consolidated for purpose of hearing." The Board's Order Directing Hearing, dated April 12, ordered "that a hearing be held for the purpose of receiving evidence to resolve the issues raised by Petitioner's Objection #2 and the matters related there- in [sic] not specifically mentioned in the Objections." Objection 2 reads "On January 16, 1974, the Employer 207 terminated the employment of Dennis L. St. Pierre, Gene J. Gagnon, Roy R. Mills, Sr., and Louis Gagnon [sic], em- ployed at the Van Buren, Maine plant." The Regional Director's report states, in pertinent part: This Objection relates to certain allegations of the Consolidated Complaint issued in Case Nos. 1- CA-9561 and 1-CA-9564 ( 1-4). The terminations in- volved occurred on January 16, 1974 and the Petition in the instant case was filed on January 23 [sic], 1974. Although in the ordinary course of events, conduct which precedes the filing of a petition cannot be made the basis of objectionable conduct ,4 the question to be answered is did the act of terminating these employees make a free election impossible ? This must be consid- ered in order to create an understaning as to whether the election should be set aside. See Willis Shaw Fro- zen Express, Inc., 209 NLRB No. 11, p. 2. "It is within the province of the Board to set an election aside in order to protect the basic values of the Act even though all the conduct occurred before the petition was filed." Weather Seal Incorporated, 161 NLRB 1226, 1228-29. These discharges of leading union ad- herents, if found to have violated Section 8 (a)(3), cer- tainly would have made impossible a free, untram- meled choice of bargaining representative . Therefore, this Objection will be consolidated for purposes of hearing with Case Nos. I-CA-9561 and 1-CA-CA-9564 (1-4). The Consolidated Complaint issued in Case Nos. 1-CA-9561 and 1-CA-9564 (1-4) alleges, as violation of Section 8(a)(1) of the Act, certain Employer con- duct which occurred subsequent to the filing of the Petition in the instant case , to wit, instances of interro- gation, assistance by Employer's agent in drafting a petition to reject the Union, and surveillance of a union meeting. That conduct, if found to have oc- curred, would constitute grounds for setting aside the election. Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786-1787; Playskool Manufacturing Company, 140 NLRB 1417, 1419 ; Leas and McVitty, Inc., 155 NLRB 389, 391 . Although this conduct was not specif- ically alleged in the Objections, it is the Board's estab- lished rule that in an investigation of conduct affect- ing the results of an election, "the Regional Director is not required to, nor can he properly ignore evidence relevant to the conduct of the election simply because such conduct was not specifically alleged in the Objec- tions". National Electric Coil Div., McGraw Edison Company, 184 NLRB No. 95 and cases cited therein; International Shoe Company, 123 NLRB 682, 684. Therefore, these matters will also be consolidated for purposes of hearing with Case Nos. 1-CA-9561 and 1-CA-9564 (1-4). I have found above that Respondent committed all the unfair labor practices alluded to by the Regional Director. I recommend below that Respondent be required to recog- nize and bargain with District 99 as part of the remedy for 4 Goodyear Tire & Rubber Company, 138 NLRB 453, 454, The Ideal Elec- tric and Manufacturing Company, 134 NLRB 1275, 1278 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD those unfair labor practices. Therefore, despite the fact that the only unfair labor practices found to have occurred after the petition in Case I-RC-13119 was filed on January 25 were the interrogations which took place on January 28 and 29, I recommend that the election held in Case 1-RC-13119 on February 21, 1974, be set aside and all proceedings connected therewith be vacated. In doing so, I rely on the reasons and cases cited by the Regional Direc- tor in his Report on Challenged Ballots and Objections to Conduct of the Election with the Board's tacit approval in its Order Directing Hearing. Upon the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Baker Machine & Gear, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District No. 99, International Association of Machin- ists and Aerospace Workers, AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. By laying off Gene Gagnon, Dennis St. Pierre, Roy Mills, and Louis Bourgoin on January 16, 1974, for engag- ing in union activities, Respondent has violated Section 8(a)(3) and (1) of the Act. 4. By interrogating employees about their union activi- ties, sympathies, and desires, by engaging in surveillance of their union activities, and by drafting and permitting the circulation of an antiunion petition in its plant, Respon- dent has violated Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 6. District 99 is the sole and exclusive bargaining repre- sentative of Respondent's employees in the following ap- propriate unit: All full time and regular part time production and maintenance employees of Respondent employed at its Van Buren, Maine, plant, excluding office clerical employees, professional employees, guards, and super- visors as defined in Section 2(11) of the Act. 7. The allegation of the complaint that Respondent vio- lated Section 8(a)(1) of the Act by withdrawing overtime on or about January 16 as a reprisal for its employees' having selected District 99 to represent them has not been sustained. 8. The allegation of the complaint that Respondent vio- lated Section 8(a)(5) of the Act has not been sustained. THE REMEDY In order to effectuate the policies of the Act, it is neces- sary that Respondent be ordered to cease and desist from the unfair labor practices found, remedy them, and post the usual notice. I will, therefore, recommend Respondent be ordered to reinstate Gene Gagnon and Louis Bourgoin and make them and Dennis St. Pierre and Roy Mills whole for any earnings lost as a result of their layoff on January 16, 1974, by the payment of backpay computed on a quar- terly basis, plus interest at 6 percent per annum, as pre- scribed in F. W. Woolwoth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). St. Pierre and Mills received unconditional offers of reinstate- ment from Respondent by letters dated April 18, 1974. Ad- ditional offers to them are not required to remedy the un- fair labor practices committed and their backpay tolls as of that date. Gagnon did not intend to steal Respondent's tools when he walked out of the plant with them in his locked toolbox on January 16, as evidenced by the fact he returned them within a few days. At most, he, like Bour- goin in the argument of January 18, was guilty of disre- spect to Nobel Levesque. Given the provocation each was subjected to, the wonder is that each did not commit some greater rather than lesser breach of good manners. Neither incident is of a nature to render the man unfit for further employment. Therefore, an offer of reinstatement to each is required to remedy the unfair labor practices committed and their backpay periods are still open. I will also recommend that Respondent be ordered to recognize and bargain with District 99. Such an order is necessary to remedy the violations of Section 8(a)(1) and (3) found because it is improbable that a fair election can be held in the foreseeable future where, as here, Respon- dent has laid off four employees, including the three lead- ers of the organizing drive, for engaging in union activities, interrogated employees, engaged in surveillance of their union activities, and participated in an antiunion campaign among its employees. The climate of fear caused by unfair labor practices of such magnitude, especially the loss of jobs and income in these uncertain times, will only be dissi- pated by a period of stable labor relations, the end for which the Act, the Board, and the concept of free collective bargaining exist. In such circumstances, the authorization cards executed by the employees are the more reliable indi- cator of their desire for representation. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS Baker Machine & Gear, Inc., its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Laying off employees for engaging in union activi- ties. (b) Interrogating employees about their union activities, sympathies, and desires. (c) Engaging in surveillance of employees' union activi- ties. (d) Drafting and permitting the circulation of antiunion petitions in its plant. ' 5 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes BAKER MACHINE & GEAR, INC. (e) In any manner interfering with, restraining, or coerc- ing employees in the exercise of rights guaranteed in Sec- tion 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer Gene Gagnon and Louis Bourgoin immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or other rights and privi- leges, and make them and Dennis St. Pierre and Roy Mills whole for any earnings they lost , plus interest, as a result of their layoff on January 16, 1974. (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) Upon request, bargain collectively with District No. 99, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of all its employees in a unit of all full-time and regular part-time production and maintenance workers employed at its Van Buren, Maine, plant, excluding office clerical employees, professional employees , guards, and supervisors as defined in Section 2(11) of the Act and, if an understanding is 209 reached, embody such understanding in a signed agree- ment. (d) Post at its plant in Van Buren, Maine, copies of the attached notice marked "Appendix." 6 Copies of said no- tice, on forms provided by the Regional Director for Re- gion 1, after being duly signed by Respondent's authorized 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. (e) Notify the Regional Director for Region 1, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges Respondent violated Section 8(a)(1) of the Act by withdrawing overtime on or about January 16, 1974, as a reprisal for its employees' having selected Dis- trict 99 to represent them and insofar as it alleges Respon- dent violated Section 8(a)(5) of the Act. 6 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"