Bandag, Inc.

72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bandag, Incorporated and Local 1016, International Union of Electrical, Radio and Machine Workers, AFL-CIO. Cases 16-CA-5847, 16-CA-5932, and 16-RC-6809 June 24, 1976 DECISION , ORDER, AND CERTIFICATION OF RESULTS On August 29, 1975, Administrative Law Judge Walter H. Maloney, Jr., issued the attached Decision in this proceeding. Thereafter, Respondent and the Charging Party filed exceptions and supporting briefs. Respondent filed a motion to reopen the rec- ord and the General Counsel filed an opposition thereto. 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 2 of the Administrative Law Judge only to the extent consistent herewith and to adopt his recommended Order, as modified herein.' - We agree with the Administrative Law Judge's 8(a)(1) and (3) findings. We find merit, however, in Respondent's exception to the issuance of a bargain- ing order as part of the remedy. Having lost a representation election on January 23-24, 1975, Charging Party filed objections on Jan- uary 31 which the Regional Director found to be timely served on the parties.4 In the course of his postelection investigation, the Regional Director dis- covered additional evidence of preelection miscon- duct-election day threats of discharge and promises of benefits by various supervisors of Respondent- not included in Charging Party's objections. On March 13, 1975, Charging Party filed an 8(a)(1) charge alleging postelection misconduct by Respon- dent. Before the Regional Director issued his Report on Objections, Charging Party, on March 19, 1975, requested in writing that its objections be withdrawn. On March 25, the Regional Director issued his Re- ' The Respondent has excepted to certain credibility findings made by the Administra tive 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 2 A typographical error appearing in the fourth sentence of In 29 of the Administrative Law Judge's Decision is hereby corrected by deleting "Gis- sel" and inserting "Steel-Fab " 3 Respondent's motion to reopen the record is hereby denied since, in view of our disposition of the case , the evidence sought to be admitted is irrelevant Charging Party filed its first set of objections on January 29 However, having failed to serve Respondent, it withdrew the objections on January 31 and filed the present set of objections on the same day port on Objections, in which he approved Charging Party's withdrawal request and also directed a hearing on the newly discovered evidence of Respondent's preelection misconduct. Such evi- dence, together with the allegations contained in Charging Party's aforementioned 8(a)(1) charge, formed the basis of a subsequently issued order con- solidating cases, consolidated complaint, hearing on objections, and notice of hearing on April 1.5 The instant hearing followed. The Administrative Law Judge found most of the allegations in the consoli- dated complaint, including those derived from the Regional Director's postelection investigation of ob- jections, to be proven, and recommended the is- suance of a remedial Gissel bargaining order 6 In Irving Air Chute Company, Inc., Marathon Divi- sion, 149 NLRB 627 (1964), enfd. 350 F.2d 176 (C.A. 2, 1965), the Board concluded that a union which loses an election may still seek bargaining relief un- der Section 8(a)(5) or (1) if the employer's conduct was such that the election must be set aside. It was emphasized, however, that a bargaining order would not be granted in such cases: [u]nless the election be set aside upon meritori- ous objections filed in the representation case. Were the election not set aside on the basis of objections in the present representation case, we would not now direct a bargaining order even though the unfair labor practice phrase of this pro- ceeding itself established the employer's interfer- ence with the election. [149 NLRB at 630.] [Em- phasis supplied.] In the absence of meritorious objections, an election is deemed valid; and the union, having failed to dem- onstrate its majority status, is obviously not entitled to a Board order compelling the employer to bargain with it. In the case at bar, this crucial precondition to a bargaining order-the existence of meritorious ob- jections justifying a setting aside of the election-is missing. While the Charging Party had originally filed timely objections which, in turn, placed the va- lidity of the election in issue and triggered a postelec- tion representation investigation by the Regional Di- rector, the subsequent withdrawal of the objections, approved by the Regional Director, has effectively removed any question as to the election's finality. As the Charging Party has, by its actions, chosen not to contest the election any longer, the election must stand. Accordingly, we shall certify the results of the election. Furthermore, we shall not issue a Gissel bar- e An original complaint, alleging numerous other preelection violations of Sec 8(a)(1) and (3) of the Act by Respondent, had issued on January 13, 1975 6 N L R B v Gissel Packing Co, Inc, 395 U S 575 (1969) 225 NLRB No. I l BANDAG, INCORPORATED 73 gaining order to remedy Respondent's unfair labor practices, since such an order would, in effect, force Respondent to bargain with a union which has failed to show its majority status. As our dissenting colleagues aptly point out, all the cases that they cite are ones in which the objections to the election were overruled rather than withdrawn as here. The key difference between these cases is that in the former a party was still contesting the outcome of the election despite the fact that its ob- jections had been overruled, while, in the instant case, the Charging Party at the time it withdrew its objections had by all appearances renounced any in- terest in disputing the election. The fact that the Charging Party has continued to take an active role in the litigation of this case does not negate this point, nor is it relevant. The correct test for determin- ing interest is whether there are objections on file, as it is during this period that the Regional Director must make the decision whether to institute a post- election representation investigation or to continue one already begun. For with no objections on file, the Regional Director has no reason to assume that a party is interested in challenging the election any longer and, therefore, he has no reason for expending the Board's valuable time and resources in order to see if any conduct possibly interfered with the elec- tion. Naturally any party which has lost an election would be only too glad, after it has withdrawn its objections, to make use of any conduct which the Regional Director might have uncovered on his own. That is not the point. The point is whether given the withdrawal of objections the Board wants its Region- al Directors to continue to use the Board's limited resources in order to try to unearth all employer or union misconduct. Our dissenting colleagues argue that the essential question is "whether the employees' ballots were cast in an atmosphere of fear and coercion, not . . . the technical status of specific objections." However, by their logic, a Regional Director would be compelled to investigate any election, absent any objections, where he has reason to suspect that employee rights may have been violated. There would be no need for an objections procedure at all. Moreover, their view is at odds with the Board's pronouncement in Irving Air Chute, supra, that, even if the employer's interfer- ence with the election was "established," a bargain- ing order would not be issued in the absence of meri- torious objections. AMENDED CONCLUSIONS OF LAW Delete Conclusion of Law 6 and renumber the subsequent paragraph accordingly. 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, Bandag, Incorporated, Abilene, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except as modified herein: 1. Delete paragraph 2(c) and renumber the subse- quent paragraphs accordingly. 2. Delete the second sentence in the last unlettered paragraph in the recommended Order. 3. Substitute the attached notice for that of the Administrative Law Judge. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid votes have not been cast for Local 1016, Internation- al Union of Electrical, Radio and Machine Workers, AFL-CIO, and that the said labor organization is not the exclusive representative of all the employees, in the unit herein involved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. CHAIRMAN MURPHY, concurring: I agree with my colleagues' conclusion that a bar- gaining order is not appropriate under the circum- stances of this case. It may appear to be a "technical- ity" to have the grant of a bargaining order depend on the pendency of "objections" to the election- even though the specific allegations have been found to be without merit. However, the fact is that so long as such objections are on file and have not been dis- posed of the election results are not final. Therefore, if the Employer's unfair labor practices demonstrate that the cards are likely to be a more reliable indica- tion of the employees' desires than a new election, it is proper to rely on the cards. But, where the election results are final and they show that a majority of the employees have voted against representation by the union, there is no way to overcome that lack of ma- jority status.' I emphasize, again, that the objections here were withdrawn by the Union. In accordance with the above findings, we adopt the Administrative Law Judge's Conclusions of Law, with the following modification: 7 As the Supreme Court noted in G,ssel, there may be some situations in which the employer's unfair labor practices are so severe that a bargaining order may be appropriate notwithstanding the absence of a showing of Continued 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MEMBERS FANNING and JENKINS, dissenting in part: According to the unfair labor practice findings of our majority colleagues, with which we completely agree, Respondent, in the critical period preceding the election, interrogated employees regarding their union sentiments, threatened employees with various reprisals for engaging in union activities, promised employees benefits for voting against union represen- tation, and maintained in effect an unlawful no-dis- tribution and no-solicitation rule. Also, shortly after the election but while objections were pending, Re- spondent discharged Charging Party's prime in- house organizer because of his union activities. Yet, our majority colleagues have declined to issue the usual Gissel bargaining order to remedy such egre- gious misconduct solely because Charging Party withdrew its objections subsequent to the initiation of the Regional Director's postelection investigation. Unlike our majority colleagues, we feel a bargaining order is clearly called for here. The denial of such a remedy on the questionable grounds outlined in the majority opinion compels us to dissent. The lone authority cited by our majority col- leagues for their refusal to issue a bargaining order is Irving Air Chute Company, Inc., 149 NLRB 627 (1964), which holds that before a bargaining order can issue the election must be set aside based on mer- itorious objections. As we understand the majority opinion, since Charging Party had earlier withdrawn its objections, the requirement of Irving Air Chute, pendency of meritorious objections, had not been complied with, and no bargaining order could there- fore be issued. However, Board cases issued subse- quent to Irving Air Chute indicate that the issuance of a bargaining order does not turn on the narrow ques- tion of existence of "meritorious objections," but rather on the broader question of whether the Board is faced with the results of a valid election.' This con- cept is illustrated most clearly in our recent decision in Pure Chem Corporation, 192 NLRB 681 (1971). In Pure Chem, as in the instant case, the petitioning union filed objections to the election and the Region- al Director conducted a postelection investigation which uncovered other evidence of the employer's preelection misconduct which, if substantiated, would warrant setting aside the election and thus form the basis of violations of Section 8(a)(1) of the Act. After a consolidated representation and com-' plaint hearing was held, the Board set the election aside and issued a remedial bargaining order not, sig- majority status This is not such a case, however, and the Board has not yet found a bargaining order warranted in the absence of a majority 8 Morris Novelty Co, Inc, 157 NLRB 1471 (1966), Dawson Metal Prod- ucts, Inc, 183 NLRB 191 (1970) nificantly, on the basis of the petitioner's objections, which were overruled, but on the basis of the evi- dence uncovered in the Regional Director's investi- gation, which also formed the basis of the unfair la- bor practice findings. The majority opinion in that case specifically noted that the Irving Air Chute re- quirements for a bargaining order were met there, stating that . . . an election may be set aside and a bargain- ing order issued where objections to the election were found to be without merit but where the em- ployer had engaged in various unfair labor practic- es which were discovered during the postelection investigation. In this case, the complaint con- tained specific allegations of unlawful conduct which occurred during the critical period. To al- low Respondent to avoid the ramifications of this conduct simply because the Petitioner failed to frame the scope of such conduct within [its] objections would frustrate the rights of employ- ees which are of paramount importance.' [Em- phasis supplied.] Pure Chem has been cited with approval by the Board in a similarly consolidated representation and complaint case, American Electro Finishing Company, Inc., 212 NLRB 654 (1974), where again the Board issued a remedial Gissel bargaining order predicated solely upon preelection misconduct not alleged in the petitioner's objections rather than upon the objec- tions themselves which were found nonmeritorious. Significantly, this emphasis on the general nature and extent of an employer's preelection misconduct, as opposed to the technical existence of meritorious objections, in evaluating the validity of an election is not limited to cases involving the issuance of a remedial order, but rather is characteristic of all cases where the Board is faced with the question of whether or not to set aside an election. In Domino of California, Inc., 205 NLRB 1083 (1973), for instance, the Board set aside one election and directed another on the strength of the preelection discharge of a union adherent even though such action was not spe- cifically alleged to be objectionable misconduct. The Board took similar action in North Adams Inn Corpo- ration, 223 NLRB 807 (1976), even though it found all of the objections filed by the petitioner to be non- meritorious. In so doing, the Board specifically re- versed the Administrative Law Judge's recommend- ed certification of election results, and ordered a second election. Citing Pure Chem, the Board based its decision solely on the existence of 8(a)(1) miscon- duct within the "critical period." It is thus evident 9 192 NLRB at 681 BANDAG, INCORPORATED 75 that the Irving Air Chute "meritorious objections" prerequisite for a bargaining order has never played the key role now ascribed to it by our colleagues. The only aspect in which this case differs from Pure Chem and related cases is that here the objec- tions to the election were withdrawn by the Charging Party rather than overruled. It is upon this difference that our majority colleagues have focused in finding the instant election valid and refusing to issue a bar- gaining order. As we understand the thrust of the majority opinion, by withdrawing its objections, Charging Party renounced any interest in contesting the election; there being no outstanding objections, the entire issue of the validity of the election results was rendered "moot" and the election results should have been certified. Why Charging Party chose to withdraw its objections after the initiation of the Re- gional Director's postelection investigation is not known. Whatever the reason, however, actions subse- quent to the withdrawal reveal anything but indiffer- ence to the outcome of the representation case. Charging Party was a party to the consolidated representation and complaint case. Its counsel was present throughout the hearing and examined and cross-examined witnesses. It filed a brief to the Ad- ministrative Law Judge and exceptions to the Administrative Law Judge's Decision and a support- ing brief to the Board. A large portion of both briefs was devoted to arguing the invalidity of the election and why a remedial bargaining order should issue in its favor. Even if, for the sake of argument, Charging Party did not continue to take such an active role in the litigation of this case, we would still question the weight our majority colleagues have attached to Charging Party's withdrawal of objections. Our col- leagues take too mechanistic a view of the Board's proper role in resolving representational disputes. Once our postelection investigative machinery has been set in motion through the filing of postelection objections, as was done here, we have the statutory responsibility to find employer misconduct where it exists and take the appropriate remedial action, even if it means going beyond the four corners of the orig- inal objections.10 By denying the employees victim- ized by such misconduct the relief ordinarily due them on the basis of Charging Party's later withdraw- al of objections, our majority colleagues have turned their backs on the overriding policy considerations expressed in the recent line of cases set forth above, namely, that when determining the validity of elec- tions we look at whether the employees' ballots were cast in an atmosphere of fear and coercion, not at the technical status of specific objections. Respondent, throughout the critical period to the election, and continuing thereafter committed many unfair labor practices, including, but not limited to, interrogations, threats of reprisal, promise of bene- fits, and discharge of a union adherent. These num- erous and flagrant unfair labor practices dissipated Charging Party's majority status and destroyed the laboratory conditions necessary for the holding of a fair and proper election. Respondent's misconduct has also rendered impossible the holding of a fair and proper second election. A remedial bargaining order is clearly called for and we would grant it. 10 International Shoe Company, i23 NLRB 682 (1959) APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate employ- ees concerning their union activities or the union activities of other employees. WE WILL NOT threaten to discharge or to take legal action against employees because of their union activities. WE WILL NOT threaten to withhold raises or benefits or to reduce benefits in reprisal against employees for voting for union representation, and WE WILL NOT promise employees increases in wages and benefits in exchange for voting against union representation. WE WILL NOT maintain or enforce our present rule against soliciting for union purposes and distributing union literature on company prem- ises (rule 13 and its amendment), and WE WILL NOT maintain or enforce any rule which prohib- its union solicitation and distribution of union literature but permits solicitations and distribu- tions on company premises for nonwork -related purposes. WE WILL NOT threaten to close the plant or to curtail plant operations in reprisal for union ac- tivities on the part of employees. WE WILL NOT, by any means or in any manner, interfere with, restrain, or coerce employees in the exercise of rights guaranteed to them by Sec- tion 7 of the Act. These rights include the right to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for their mutual aid and protec- tion. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT, by discharge, suspension, or other means, discriminate against employees in order to discourage membership in Local 1016, International Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other la- bor organization. All of our members are free to become or to remain members of that Union or any other union. WE WILL offer to Carlos Rodriguez full and immediate reinstatement to his former or sub- stantially equivalent position and WE WILL make whole Carlos Rodriguez and Orville Scott Hayes for any loss of pay which they have suffered by reason of the discrimination practiced against them, with interest thereon at 6 percent per year. BANDAG, INCORPORATED DECISION FINDINGS OF FACT Statement of the Case WALTER H . MALONEY, JR., Administrative Law Judge: This case came on for hearing before me at Abilene, Texas, upon a complaint,' issued by the Regional Director for Region 16 , and amended at the hearing, which alleges that the Respondent, Bandag, Incorporated, violated Section 8(a)(1) and (3) of the Act. The complaint is consolidated with objections to the conduct of an election which took place at the Respondent's Abilene, Texas, plant on January 23 and 24, 1975. The Petitioner and Charging Union herein lost the election by a vote of 28 to 15. More particularly, the consolidated complaint alleges that the Respondent has i The principal docket entries in Cases 16-CA-5847 and 16-CA-5932 are as follows Charge in Case 16-CA-5847 filed by Local 1016, International Union of Electrical, Radio, and Machine Workers, AFL-CIO (herein called Union), on November 19, 1974, complaint issued therein on January 13, 1975, Respondent's answer filed therein on January 14, 1975, charge in Case 16- CA-5932 filed on January 11, 1975, and amended charge filed on March 13, 1975, order consolidating both complaint cases with Case 16-RC-6809 and consolidated complaint issued April 1, 1975, Respondent's answer to con- solidated complaint filed April 9, 1975, hearing held in consolidated cases in Abilene, Texas, on May 27-30, 1975 The principal docket entries in Case 16-RC-6809 are as follows Stipula- tion for Certification Upon Consent Election, approved by Regional Direc- tor on December 18, 1975, election conducted at Abilene, Texas, on Janu- ary 23 and 24, 1975, in a unit composed of all of Respondent's production and maintenance employees at the Abilene plant, with certain stated exclu- sions, objections to the election filed by the Union on January 31, 1975 1 find that the Respondent, at all times material hereto , is and has been an Iowa corporation, which operates a plant at Abilene, Texas, where it is engaged in the manufacture of rubber tread for automobile and truck tires During the preceding year, it has manufactured and shipped from its Abi- lene, Texas, plant directly to points and places outside the State of Texas goods and merchandise valued in excess of $50,000 Accordingly , it is an employer within the meaning of Sec 2(2), (6), and (7) of the Act I also find that Local 1016, International Union of Electrical, Radio, and Machine Workers, AFL-CIO (herein called Union or IUE), is a labor organization within the meaning of Sec 2(5) of the Act 2 National Labor Relations Act, as amended (29 U S C § 151, et seq) maintained and enforced an illegal no-solicitation and no- distribution rule; threatened an employee by suggesting he get a lawyer to protect himself regarding his union activi- ties; threatened to close the plant; threatened a reduction in pay and fringe benefits; threatened retaliation for voting for the Union; promised an increase in company benefits if the Union should lose an election and threatened to with- hold pay raises if the Union should continue its activity; and promised an employee a better job and removal of a reprimand in his personnel file if he voted against the Union. The General Counsel also contends that the Re- spondent discharged employee Carlos Rodriguez and sus- pended employees Myrl Hill and Scott Hayes for union activities. He seeks a Gissel remedy. The Respondent de- mes the commission of any independent violations of Sec- tion 8(a)(1) of the Act, asserts that Rodriguez was dis- charged for insubordination, and requests that the election results of January 23 and 24 be allowed to stand. It also contends that Hill and Hayes were suspended for cause. On January 31, 1975, the Union filed five objections to the conduct of the election relating to the contents of preelec- tion literature distributed by the Respondent. The Region- al Office, in investigating these objections, uncovered addi- tional information indicating that certain preelection threats and promises were made by the Respondent to var- ious employees in order to influence the outcome of the election. It approved the Union's request to withdraw the five objections aimed at the Respondent's preelection liter- ature, and referred the additional objectionable conduct which was brought to its attention during the investigation to me for a determination. Such conduct was alleged by the Regional Director in the consolidated complaint to be vio- lations of Section 8(a)(1) of the Act. Upon these various contentions, the issues herein were drawn.3 A The Unfair Labor Practices Alleged Respondent produces tire tread for use on automobile and truck tires. Its headquarters is in Muscatine, Iowa, and it has plants at various locations throughout the United States, Canada, and abroad. Involved in this case is its Abilene, Texas, facility, where it employs approximately 50 production and maintenance employees. In 1972, the Rub- ber Workers began an organizing drive at the Abilene plant. One of the principal in-house organizers during this campaign was discriminatee Carlos Rodriguez. His efforts on behalf of the Rubber Workers were well known to Respondent's management. This drive did not result in an election or in the recognition of that union, and eventually the Rubber Workers discontinued their drive. In the fall of 1974, Rodriguez began again to organize the Respondent's Abilene employees, this time on behalf of the IUE. He contacted Tony Rodriguez (no relation), an employee of the C. G. Conn Company, a musical instru- ment plant in Abilene, and himself, the president of IUE Local 1016. C. Rodriguez obtained from T. Rodriguez a number of IUE cards to be distributed to Bandag employ- ees. He also assisted International Representative Ray Mendez, who works out of San Antonio, in organizing 7 Certain errors in the transcript are hereby noted and corrected BANDAG, INCORPORATED 77 meetings of Bandag employees to discuss the pros and cons of union organization. In October and November, he ob- tained signatures from about nine Bandag employees on IUE designation cards. Rodriguez was one of six members of the Bandag IUE organizing committee, all of whom pro- claimed their leadership in the organizing effort through- out the campaign by wearing special organizing committee buttons which were different in legend and design from buttons worn by other union partisans. Rodriguez himself is illiterate. His native language is Tex-Mex, a Spanish dialect spoken in the Southwest. Ro- driguez both speaks and understands English, but not very well. It was apparent to me from listening to Rodriguez' testimony, given at the hearing through an interpreter, that he also has difficulty in understanding Spanish. He began his employment at Bandag in the fall of 1971 and occupied the semiskilled job of banbury operator until his discharge on February 4, 1975. Rodriguez, as well as all of the other employees at the plant who testified, had an informal and open relationship with Plant Manager Ron McGlothin and all other supervisors.4 Early in October 1974, McGlothin was confined to the hospital with a painful leg ailment. Rodriguez visited him at the hospital and told McGlothin that he was going to bring in a Union again. McGlothin said that the Company did not need the Union before and did not need it now, and asked Rodriguez if he really knew what he was doing. He told Rodriguez that he would have to oppose this effort. He also told Rodriguez that this time, things were going to be different than they were during the Rubber Workers' campaign and this time Rodriguez was going to get into trouble. Rodriguez told McGlothin that he placed a job application with C. G. Conn, to which McGlothin replied that he knew he had done so, adding that he would tell Conn that Rodriguez was a troublemak- er and that Rodriguez would not be able to get a job any- where in Abilene.b'McGlothm's wife arrived at the hospital room and Rodriguez was promptly asked to leave. During his confinement, McGlothin was also visited by employees Myrl Hill and Orville Scott Hayes. Hill and Hayes complained to McGlothin about alleged favoritism at the plant. They also discussed the forthcoming union drive and Rodriguez' role in it. McGlothin tried to discour- age Hayes and Hill from participating in the effort, telling them that the IUE was mostly Mexican and suggesting that they would not want to be members of it on that account. Later, in October, after McGlothin had returned to duty, he summoned Rodriguez into his office and had a lengthy conversation with him in the presence of Bill Wright, the office manager. McGlothin complained to Rodriguez that the latter was spreading a false rumor throughout the plant to the effect that McGlothin really did not care whether 4 Rodriguez was on a first name basis with McGlothm, visited McGlothin at his home several times, and, as noted in the text, visited him when he was confined to the hospital 5 McGlothm admits making a statement to Rodriguez that "this time things were going to be different" but believes that he made the statement at a later meeting with Rodriguez in his office He was under sedation at the time and admits that his recollection of the hospital visit is unclear I credit Rodriguez 6 McGlothm denies making this statement, but I credit Rodriguez' testi- mony on this point the Union did or did not come into the plant and was merely making a show of opposition in order to impress the home office in Muscatine. McGlothin stated flatly these remarks were untrue, that he was personally opposed to the unionization of the Abilene plant, and that, if Rodriguez did not stop spreading false rumors, Rodriguez would need a lawyer. The implication of this remark was that Rodri- guez' alleged remarks to employees were libellous. Rodri- guez said that he did not think that he needed a lawyer. As McGlothin put it, "I was really trying to scare him." Rodriguez questioned McGlothin and tried to get him to admit that he favored unionization of the plant. McGloth- in replied that he had worked previously in a unionized plant 7 and could do so again, but he much preferred not to do so. He also confronted Rodriguez with a rumor attribut- ed to him to the effect that Office Manager Wright had offered him $2,000 to quit the plant. Wright asked Rodri- guez where he thought he could get that kind of money. Rodriguez referred to the Rubber Workers' campaign in 1972 and said that he was repeatedly asked by fellow em- ployees to start up another campaign He told Wright and McGlothin that, at first he declined, but after employee pressure on him began to mount, he decided that he would do so and that this time he would take it "all the way." McGlothin mentioned that he had a lawyer and that this time things would be handled differently. The vast bulk of the designation cards collected by the IUE were signed in late October or early November. They obtained a total of 27 cards in a unit of 48 employees.8 During this period of time, and indeed up to and beyond the time of the election, rumors both favorable and inimi- cal to the unionization effort ran rampant throughout the plant. During an evening meal or rest break on November 14, several employees were discussing the organizing drive then in progress. Employee Myrl Hill, a member of the organizing committee, recalls some employees saying that they would get union benefits but would pay no union dues, and admits saying in response to this remark that he had heard people who did not pay union dues but received union benefits would have poor running cars. The refer- ence was to putting sugar in gas tanks. Ramon "Butch" Roach, an in-law of Plant Manager McGlothin, stated that he did not want to join a union because he had been in one before and did not care for it. To the "poor running cars" remark he replied that, if any employee sugared his car, he would "whip their ass and sugar up their car " Hayes asked Roach if he knew what a scab was and whether he would belong to the scab membership at the plant if it went union. Roach replied in the affirmative to both questions. Employee John Lomax chimed in to say that he wished someone would do something to his car so he could collect insurance on it. Douglas Gray, another participant in the breaktime con- versation, had occasion later in the evening to speak with 7 Dayton Tire and Rubber Company B The Respondent does not seriously contest the fact that the Union had a card majority at one point in the campaign The General Counsel prof- fered a total of 28 cards in making the above-noted finding, I do not count the card of George Saucedo since his name does not appear on the Excelsior list which was introduced into evidence to show the identity of unit employ- ees on January 23 and 24 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Scott Hayes, an organizing committee member. As Hayes was getting off a forklift in Hayes' working area near the festoon or wigwag machine, Hayes asked Gray to sign a union card and Gray declined, saying that he wanted to find out both sides of the question before committing him- self. At this point, Hayes asked Gray if he knew what a scab was. When Gray said that he did not, Hayes asked him if he would like to know When Gray professed indif- ference, Hayes then defined a scab to him as a "low-life, -, s.o.b." On the same evening, Gray, Roach, and a third employee, Fred Williams, reported to Supervisor Virgil Thomas that Hill had threatened to sweeten the gas tanks of employees who did not sign union cards, and Gray also reported the conversation he had with Hayes. Thomas phoned McGlothin and in turn reported these conversa- tions, or versions thereof, to McGlothin. McGlothin told Thomas to watch the parking lot to see that no vandalism took place to employees cars and, later on in the evening, came to the plant himself. By that time, Hayes and Hill, who were day-shift employees, had left. He talked to Roach, Gray, and Williams in the conference room. Roach reported that Hill had threatened damage to cars of per- sons who did not sign union cards. Two employees asked McGlothin if the Company had insurance which would compensate employees for damage of this kind. McGlothin replied that he did not know but he would try to prevent such damage and would try to pay for such damage if in fact it occurred. Gray then reported his conversation with Hayes, and, according to McGlothin, added that Hayes had not only defined "skag" (this was Gray's under- standing of Hayes' term), as noted above, but had applied the term to him. McGlothin also met with employees John Lomax, Gary Tyler, and Leslie Lipham to obtain their ver- sions of the lunchroom incident. Various employees report- ed various versions of Hill's remark about rough running cars and had differing reactions to the remark, ranging from anger to fear to indifference 9 The next morning, McGlothin met with Hill, Hayes, and several supervisors in his office . He asked Hill what he had said at the break, and Hill replied that he said in the course of a discussion of the union drive that he had heard that those who received union benefits without paying dues would have poor running cars because of sugar in the gas tank. He denied saying that he had threatened to take any such action himself . McGlothin admonished him for this remark, saying that he could not understand how Hill, who was an adept auto mechanic , would make such a remark since some people took him seriously . He further told Hill that he had gotten himself in real trouble by his remark because everyone in the plant had heard about it and, as plant manager, McGlothin could not have that kind of thing happening . He asked Hill if he was proud of himself for having made the remark , and Hill said no. 9 Various versions of Hill's breaktime remark place different nuances on what he said One witness indicated that Hill threatened to sugar gas tanks of those who did not sign cards and another said that Hill had "heard" that such might take place A third said that the conversation was a normal breaktime conversation and that no threats were uttered A fourth said that remarks concerning sweetening of gas tanks and other vandalism to cars took place in the context of a conversation about what had transpired at other plants McGlothin then began to reprimand Hayes. He told Hayes that he was in trouble for talking to employees about the Union on company time . He asked Hayes if he had called Gray a scab and inquired how he had defined the term. Hayes denied calling Gray a scab, but told Mc- Glothin that he had defined the term to Gray as a "low- life, -, s.o.b." McGlothin asked him if he liked to hear that kind of language. Hayes replied that he did not but that it was nothing unusual. McGlothin asked Hayes if he was proud of himself for using such language , and Hayes said that he was not but that he heard it everywhere and repeated that it was not unusual . McGlothin told Hayes that his definition was not a true definition of a scab as far as McGlothin was concerned , and went on to redefine the term to Hayes as a person who has the courage of his convictions to cross a picket line and earn money for his family. At the conclusion of these remarks, McGlothin asked both Hill and Hayes to leave the room for a few minutes. When they returned, he informed them that they were being suspended for 3 days without pay. He told Hill he was being suspended for making a threat to employees about damaging their cars and that Hayes was being sus- pended for badgering Gray about the Union, calling him a scab, talking to employees on company time, and defining scab in the manner in which he did. At this time , the Respondent maintained a no-solicita- tion rule in its employee handbook which , in rule 13, de- fined as a breach of company regulations: Circulating petitions, distributing any written or print- ed matter, or posting same such matter of any descrip- tion on Company premises, including parking lots, without prior approval of Plant Manager. In the course of the evening of November 14, while trying to sort out the facts of the incidents involving Hill and Hayes, McGlothin phoned Company Attorney Parker to discuss both these events and other matters relating to the attempted unionization of the plant. Among other things, they discussed the above -quoted rule Parker told Mc- Glothin it was unduly broad and advised him to amend it. The following day, after the suspension of Hayes and Hill, McGlothin caused to be posted on the bulletin board a revised rule 13, which read as follows: Below is a clarification of rule # 13 in the employees handbook. Please read it carefully , if you do not un- derstand it, ask your supervisor. Circulating petitions , distributing any written or print- ed matter, soliciting, or posting same such matter of any description during working time in plant without prior approval of Plant Manager. On November 21, 1974, at 3 p.m. McGlothin spoke to an assembly of employees in the breakroom . He told them that the fact that the plant might go union would not auto- matically mean that employees would get raises and stated that employees could lose wages and benefits in that event. He noted that, in negotiating with a union , the Company was not obligated to go half way or agree with every union proposal and stated that it might take I or 2 years for a union to get a contract. Meanwhile, all wages and benefits BANDAG, INCORPORATED would be frozen. In recounting his version of the speech, McGlothin said he told employees that bargaining would start from scratch. By way of illustration, he read to the employees an excerpt from the LRRM report of Midwest- ern Instruments, which found in heavy print at 48 LRRM 1795 [133 NLRB 1132], to the effect that an employer who was not going to eliminate breaks could refuse to incorpo- rate existing rest breaks in a proposed union contract and the Board would uphold him.10 He went on to say that employees did not need outside protection, claiming that the Company's track record indicated that many people had been given second, third, and fourth chances without being fired and that others who no longer work there were trying to get their jobs back. He also referred to the recent- ly posted revision of rule 13, read the text of it aloud, and asserted that the rule was for the benefit of employees as well as the Company. He told them that "the main reason for it is I'm not going to tolerate people circumventing rules and situations just to gain favor for something they want when it's not something the company wants. We're just not going to tolerate it" He went on to say that the rule did not mean that employees could not talk on the job As long as employees kept up their pace and the quality level of their fob and were working safely and not disrupt- ing anything, it would be permissible for them to talk with each other, but he would not tolerate employees interrupt- ing the work of others. Any employee who wanted to sell something could ask permission from McGlothin to post an ad on the bulletin board and permission to do so would be granted About this same time, McGlothin also spoke to an over- lapping meeting of the night and day shifts which took place early in the morning About 15 employees were pres- ent at that speech. McGlothin told them that the Company should be hiring men at present to go into full production but this plan was up in the air because the Union had messed it up. He described the process of collective bar- gaining to the assembled employees, saying that pay and benefits could be reduced before negotiations and that em- ployees might lose their two 5-minute breaks McGlothin further stated that, in an earlier campaign, no one had been fired but that this time some people had gone too far. He said that Hayes had been suspended because he had been seen talking to five people about the Union and three of the five did not want to hear about it. He also said that Hill had been suspended for telling employees that their cars would run poorly. Both before and after the promulgation of revised rule 13, the Company permitted solicitations of employees dur- ing working time for various purposes. Weekly football pools were commonplace. One employee sold oranges to other employees for the benefit of a worthy cause and placed the oranges at the front office to be picked up at the 10 The excerpt reads as follows Employer did not violate LMRA by telling union during contract nego- tiations that he did not think matter of rest periods should be included in contract, which was merely statement of position and not refusal to discuss issue Employer is not obliged to continue all existing practices and benefits that union considers beneficial, since terms and conditions of employment are subject to negotiation 79 end of the shift. On one occasion employees were solicited for money to buy a Christmas gift for a supervisor. A solic- itation for the United Fund was regularly made. Any em- ployee who did not care to contribute to the United Fund was required to report personally to McGlothin's office to explain to the plant manager his reason for declining to participate During the course of the organizational drive, company foremen and employees had frequent occasion to discuss the organizational drive in individual conversations. About November 1, Shipping and Receiving Department Fore- man Ovid C. "Jerry" Ward was driving from the Bandag factory to its warehouse on a company errand with Scott Hayes. He told Hayes that he did not think Hayes knew what he was getting into with Carlos and Tony Rodriguez He suggested that Hayes read the union contract at C. G. Conn, an organized shop, and Hayes said he would. Ward told Hayes he did not think he would like to pay union dues since he did not like to contribute to the United Fund, and said that he did not think that the Union would help Bandag in any way. Late in February, after the election and at or about the time that a hearing in this case was originally scheduled, Ward, who by then had become pro- duction supervisor, discussed the matter of going to court with Hayes, telling Hayes that employees would not get a raise in wages or any increase in benefits until this union activity was over. Without specifically mentioning the late February conversation with Hayes, Ward confirmed that the remark was of the kind and character which he had made to Hayes on several occasions. On another occasion, early in December, Ward saw Hill in the shipping and re- ceiving area. Hill had adorned his shirt with about 20 union buttons, and Ward ventured the remark that the but- tons "looked like shit" and that his little boy used to wear buttons in this fashion. Hill replied that his shirt was just as clean then as when he first put the buttons on. Ward did not deny this latter statement. On the morning of the day on which the second session of the representation election was held, Production Super- visor Jerry White saw maintenance mechanic J. H. Chap- man near the timeclock as Chapman was getting ready to punch out. White told Chapman that if the Union lost the election the mill operators would get immediate raises and that the Company would be negotiating with the home of- fices for more money for the finish line and the press. He said that McGlothin would be in a better bargaining posi- tion with the home office in Muscatine if the Union got voted out. Chapman repeated these remarks to employee Hollis Wimberly. White testified that he discussed with Chapman and other employees the question of raises be- fore election day but did not do so on election day. He admitted to employees that he had heard rumors that mill operators and press helpers would get raises, but claims he declined comment on the truth or falsity of the rumors. He admitted hearing commentary by other employees of the nature indicated by Chapman but denies making such re- marks himself. He denies the specific comments attributed to him by Chapman on January 24. He told employees he thought Ron McGlothin could do better for them than the Union I credit Chapman. Dewayne Dodson testified credibly that, in the course of 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a conversation in early November with Delano "Sonny" Campbell, a production supervisor on the late night shift (the so-called A Shift), Campbell told him that if the com- pany went union, they might close the Abilene shop and send the tire moulds back to the home office in Muscatine. Campbell admits making this statement , but insists that he was only voicing his personal opinion. In the course of the same conversation which took place in the breakroom, Campbell reportedly asked Dodson how many union cards Dodson had obtained. Dodson replied that he could not answer that question. Campbell denies this aspect of Dodson's testimony. I credit Dodson. Just before Dodson left the employ of Bandag in mid-February," Campbell, who apparently felt badly that a number of immediate sub- ordinates had supported the Union, asked Dodson how he could improve his supervision in the future. About this same time, when the original complaint in this proceeding issued had named Campbell as one of the supervisors who had committed a violation of Section 8(a)(1), Campbell also asked Dodson if he was the one who made the allega- tion against him . Dodson admitted that he was. On the second day of the two-part election, Foreman Gene Sumner reportedly met Rodriguez in the plant short- ly before the resumption of voting and asked him if he was going to vote "no." Rodriguez replied that he was going to vote "yes," whereupon Sumner asked him if he knew that the Company had enough money to fire him. Sumner ad- mits that on various occasions Rodriguez told him that he was going to vote for the Union and that he (Sumner) had made an effort to change his mind. He denies making the statement attributed to him by Rodriguez that the Compa- ny had enough money to fire him. I credit Rodriguez.i2 As noted before, Carlos Rodriguez was employed as a helper or loader on the banbury machine. A banbury ma- chine transforms raw rubber , which is purchased in large blocks, into a lengthy ribbon of a processed rubber suitable for fabrication into tire treads. Under normal operations, it is manned by four men-the banbury helper (or loader), the banbury operator, the mill operator, and the festoon (or wigwag) operator. It is not contested, and I find, that the job of banbury helper is the most arduous and physi- cally taxing of the four positions The helper obtains from a storage area rectangular blocks of rubber, each weighing about 85-90 pounds which are loaded on skids. The skids are transported by a forklift to the banbury. These blocks are stored about 50 to 100 yards from the conveyor. The loader cuts the blocks to conform to the specifications of the formula used in processing as they are placed on the 11 Dodson resigned voluntarily in mid-February 1975, and is no longer an employee of Bandag 1 Respondent argues that , in determining the credibility of conflicting witnesses, the trier of fact should assess the probabilities involved in varying statements From that premise , he argues that Sumner should be credited over Rodriguez in this factual collision because it is improbable that Sum- ner, who knew Rodriguez to be a union leader , would have asked him whether he was going to vote "no " If the statement attributed to Sumner is treated solely as an interrogatory designed to elicit information, this argu- ment carries weight If the statement is considered as a needle and a threat couched in the form of question , this contention loses impact The adden- dum to the question-that the Company had enough money to fire Rodri- guez-negates any suggestion that Sumner was merely looking for informa- tion from Rodriguez conveyor. Each batch that is processed contains about 450 pounds; the banbury itself can handle five batches at a time. During the course of the day, the helper is called on to lift in excess of 40,000 pounds of rubber. After preparing a batch on the conveyor, the helper climbs an 8-foot ladder and goes along a catwalk to 10 different hoppers which hold the various chemicals which are mixed with the rub- ber. In addition to keeping the conveyor loaded with rub- ber blocks cut to prescribed weights, the banbury helper is responsible for seeing to it that the bins remain loaded with steric acid, Chement zinc, Santocure, Dowgard, and vari- ous other chemicals used in the process, and that the area around the bins is swept clean. 13 The banbury operator pushes various buttons which cause the rubber and the chemicals to be dumped into the banbury machine in prop- er proportions. It takes about 3 minutes to mix a batch of rubber in the banbury machine. When the batch is com- pleted, it is dropped onto a mill and run through the mill under the direction of the mill operator. At this point, the rubber is being processed in a long ribbon which is about 2 feet wide. It is processed through a dip tank where the rubber is cooled. Then it moves to a bar-type conveyor where the ribbon of rubber hangs in loops. This location, referred to as the batch-off conveyor, is where the rubber continues to cool. When the mill is empty, the mill operator stops the batch-off conveyor until another batch is ready. The ribbon of rubber is then processed to a point about 16 feet above the level of the plant floor on roller bars where the fourth crewmember, the festoon (or wigwag) machine operator, stands on a platform above the plant floor, pulls the ribbon off of bars, and sticks it on a belt conveyor where the ribbon goes under a tension roller. The ribbon normally emerges from the wigwag at the rate of about 20 feet per minute. The ribbon drops to the plant floor and goes through a flapping apparatus which makes the ribbon of rubber easier to fold when it reaches the skids. The wig- wag operator goes downstairs to watch the rubber and to fold it onto the skids It is folded on the skids in 5 or 6-foot folds and then is taken to a storage area. The entire ban- bury process takes between 13 and 17 minutes for five batches to be processed. The distance from the conveyor, where blocks are initially loaded, to the end point of the process is about 50 yards. As noted previously, it requires a four-man crew to oper- ate this process without interruption. Because the Respon- dent experiences a great deal of absenteeism, it has become necessary on occasion to operate this process with two or three employees. In such instances, the machine cannot be operated on an uninterrupted basis but must be stopped periodically in process so that the reduced crew can per- form the functions of the missing man and then resume their normal duties. The effect on overall production need not be elaborated. On the morning of February 4, 1975, Respondent was short handed on the banbury machine during the day shift. u For a long period of time, Rodriguez was permitted to come to work I hour in advance of the beginning of his shift in order to get raw materials in the bins and also to arrange blocks in position to feed to the conveyor when the shift began In the fall of 1974, this practice was discontinued when Rodriguez was found talking to other employees during this preshift period, presumably about unionization BANDAG, INCORPORATED 81 Rodriguez was present to fill the block loader (or helper) position but others were missing, so his foreman , Sumner, got help from O. T. Reeves and Don Foy to operate the machine. Sumner desired to have three men work the wig- wag machine during this operation and told Rodriguez to help them at this position in addition to his regular loading job. At the time, Rodriguez was sweeping the platform near the chemical bins. Rodriguez told Sumner that the wigwag was not his job, that he had work to do loading and keeping the chemical bins full, and that he could not keep up with his regular job and assist on the wigwag as well. He suggested to Sumner that he be left to do this work so that he would not fall behind loading, while the others finished the processing of the rubber at that end of the procedure. Sumner told Rodriguez that, if he was refus- ing to do what he was assigned to do, he would have to go to the office and talk with McGlothin. Rodriguez protested that he was not refusing to do an assignment but was mere- ly trying to suggest an alternative procedure which would work out better to everyone's benefit. 14 At this point, they both went into McGlothin's office. Rodriguez waited out- side while Sumner spoke to McGlothin. When Rodriguez entered the office, McGlothin told him to do what Sumner ordered him to do. Rodriguez replied by asking which job on the banbury McGlothin wanted him to do, the loading or the wigwag. At this point, McGlothin told Rodriguez that if he was not going to do what his supervisor told him, he would have to resign. Rodriguez protested that he was not refusing to do what his supervisor told him, refused to resign , and claimed that McGlothin was trying to fire him because of his union activities. McGlothin denied this charge. McGlothin was writing down the dialogue between Rodriguez and himself as the discussion progressed. (He later had it transcribed.) McGlothin then said he had no alternative but to fire him for three things-refusing a di- rect order, saying he would do it again, and refusing to resign when given the choice . Rodriguez left, and ultimate- ly went to work for C. G. Conn. B. Analysis and Conclusions 1. Independent evidence of union animus The record contains a multitude of examples of union animus on the part of this Respondent and its supervisors which are not alleged as independent violations of Section 8(a)(1) of the Act, but which are relevant in assessing the Respondent's words and conduct which are the subject of this litigation . The Respondent conducted a "hard-sell" an- tiunion campaign in the weeks and months which preceded 14 Sumner testified that Rodriguez told him , "No, Gene, I'm not going to help you," and repeated that sentiment to him and later to McGlothin in the manner of a flat confrontation I discredit his testimony and the testimony of McGlothin on this point , all of which appears to be from a contrived script Rodriguez denies telling McGlothin in McGlothin's office that, if Sumner again told him to work the wigwag, he would again refuse . I credit this denial In this connection I note the statement of Rodriguez' previous foreman , Jerry White, to the effect that, in the 2 years Rodriguez worked for him, he never refused an order I am also mindful of McGlothm's and Wright's statements to the effect that Rodriguez frequently had problems expressing himself in English the January 23 and 24 election . One of its campaign tactics was the distribution of coupon books to drive home its argument that union promises could not be believed but company promises could . In its coupon book, the Compa- ny guaranteed that, without a union , it would continue to give pay raises in the future as it did in the past without the necessity of employees paying union dues and initiation fees, and that a "no" vote at the election meant that em- ployees would never have to strike so they could continue to pay their bills. In the coupon book, Respondent also promised that if there was a strike it would keep the plant open , even if it meant replacing strikers , and noted that union bosses would continue to receive full pay even if strikers did not. In another coupon book, Respondent challenged the Union to guarantee in writing that the Union would be able to obtain specified pay increases within specified time periods , that it would be able to in- crease the sales and profits of Bandag so that employees would not have to be laid off, that union members would never have to pay dues, assessments , and initiation fees, and that the Union would continue to pay strikers their paychecks if called out on strike . Another of Respondent's leaflets portrayed a disconcerted individual standing be- side an empty grocery cart and urged the employees to protect their security by voting "no," since union promises would not fill their grocery basket while union strikes, picket lines, dues, fees, and assessments would surely keep it empty. In a letter, dated January 17, 1975, Respondent's presi- dent, G. E. Edwards, urged all employees to vote "no." Among the reasons stated in support of this request was a description of collective bargaining in which Edwards ar- gued: As you have been told collective bargaining is a two- way street . The company has just as much right under the law to make demands on the Union as the Union has to make demands on the company . For this rea- son, it sometimes takes a year or longer-if ever-for the parties to reach a contract. In the meantime, all wages and benefits are frozen .15 The only way in which a union can try to force any company to agree to its demands is to take the employees out on strike. During an economic strike, a company has the right under the law to operate the business with replace- ment employees or to simply stay closed . Either way, you would be the loser . You would be out of work and your earnings would be discontinued . You cannot even draw unemployment compensation in Texas . . . . Aside from your economic welfare, I feel that, should you elect a union to represent your interests, you have even more to lose. I am referring to your freedom and individuality. Unions have virtually un- limited control over the personal interest of the indi- viduals in a bargaining unit. Once employees have voted to be represented by a union, they will have given up practically all of their rights to be treated as individuals. 15 The Respondent had a practice of reviewing all employees for purposes of a pay raise each July New employees were apparently reviewed for this purpose more frequently during the initial stages of their employment 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Another piece of preelection literature was handed out to employees by their individual supervisors and personally signed by those supervisors prior to distribution. It dispar- aged the leadership of Union Representative Ray Mendez at another organized plant located in Kyle, Texas, implied that union leaders sold out their members during negotia- tions, detailed the financial difficulties of the IUE Interna- tional, argued that employees could not trust a union which could not keep its own house in order, talked about strikes and the replacement of strikers, argued that union- ization meant additional bosses over employees who would attempt to control employees' actions off the job, and urged those and other reasons as a basis for voting "no." Another preelection letter from McGlothin reminded em- ployees that they could revoke their union designation card if they had signed one, and provided in the letter a form by which an employee could request Mendez to return his card. Another letter from McGlothin informed employees that the Company opposed unionization of the plant be- cause "we know they can wreck a company and reduce the number of jobs." 2. The no-solicitation rule Prior to November 15, 1974, Respondent maintained a no-solicitation and no-distribution rule, printed as rule 13 in its employee handbook, which the Respondent concedes is invalid on its face. Rule 13 forbade the circulation, distri- bution, or posting of any printed matter on company prem- ises without prior permission of the plant manager and drew no distinction between working time and company time. On November 15, 1974, immediately following the Hill and Hayes incidents, the Respondent, upon advice of counsel, amended this rule by inserting into its language the phrase "during working time," and by inserting the words "in plant" in place of "on company premises, in- cluding parking lots " Respondent contends that these al- terations immunize it from the finding of a violation. The complaint alleges violation of this score beginning May 19, 1974, makes specific reference to the employees handbook (which is dated July 1, 1974), and impliedly charges that the violation continues to date. It has long been held that an overly broad no-solicitation rule is an unlawful interference with employee rights guaranteed un- der Section 7 of the Act.16 It is also well-established that the discontinuance of an unfair labor practice is normally not a defense to a Board order, especially where other un- fair labor practices clearly indicate that the coercive effect of discontinued conduct has not been dissipated.'7 Such is certainly the case here. Accordingly, I find that the provi- sions of rule 13, as stated in the employee handbook, vio- late Section 8(a)(1) of the Act, and will recommend an order designed to suppress the violation. By inserting the phrase "during working time" into the 16 Republic Aviation Corporation v N L R B, 324 U S 793 (1945), N L R B v The Babcock & Wilcox Company, 351 U S 105 (1956), N L R B v United Steelworkers of America [NuTone], 357 U S 357 (1958) 17 N L R B v Mexia Textile Mills, 339 U S 563 (1950), Ferro Manufactur- ing Corporation, 166 NLRB 878 (1967), Kinter Brothers, Inc, 167 NLRB 57 (1967), N L R B v United States Rubber Company, 384 F 2d 660 (C A 5, 1967), NLRB v P R Mallory & Co, Inc, 389 F 2d 704 (C A 7, 1967) body of the illegal rule, the Respondent herein hopes to reverse the presumption of invalidity which attaches to such a rule and to bring it into conformity with a line of Board cases which hold that limitations on such activity during working time are presumptively valid.'s In explain- ing the newly amended rule to company employees in speeches delivered a few days after it was posted, Plant Manager McGlothin stated that they could still continue to talk to each other on the job provided their work was caught up and they were not creating a safety hazard. He offered them the use of the bulletin board to sell personal automobiles or other items provided that they got advance permission. Respondent's management has not only toler- ated but actively participated in on-the-job interruptions for nonwork matters, such as solicitations for football pools, selling of oranges for the benefit of the Future Farmers of America, soliciting money for Christmas pres- ents for a supervisor, and collections for the United Fund.19 Such activities continued after the promulgation of the November 15 amendment to rule 13. McGlothin said that the key to conformity with the amended rule was ob- taining advance permission from management to engage in such activities. He also stated that the purpose of the rule was to "prevent people circumventing rules and situations just to gain favor for something they want when its not something the company wants. We're just not going to to- lerate it." The timing of the change in the rule, taken together with the above-recited union animus, the honoring of the rule in the breach rather than in the observance for a whole host of solicitations not related to work, and McGlothin's state- ment above in which he says in effect that the new rule is designed to prevent union solicitation while permitting other forms of work interruptions to continue, make it abundantly clear that the amendment to the rule did not change its legal character and that it is still designed to thwart Section 7 activity. His statements to employees at the November 21 speeches make it clear that, while gaining advance approval from management to solicit is the key to conformity with the new rule, advance approval to solicit for union purposes would be denied.20 Accordingly, any presumption of regularity attaching to such rules, when viewed in the abstract, is overcome in this case by the facts surrounding its promulgation. Accordingly, I conclude that the amended rule also violates Section 8(a)(1) of the Act. 3. Threats by McGlothin to Rodriguez and others I credit McGlothin's version of a conversation with Ro- driguez to the effect that, in McGlothm's office, he accused 18 Essex International, Inc, 211 NLRB 749 (1974), John H Swisher & Son, Inc, 211 NLRB 777 (1974), Pepsi-Cola Bottling Co of Los Angeles, 211 NLRB 870 (1974), Groendyke Transport, Inc, 211 NLRB 921 (1974), Litho Press of San Antonio, 211 NLRB 1014 (1974), Leon Ferenback, Inc, 213 NLRB 373, Alberts, Inc, 213 NLRB 686 (1974), Florida Steel Corporation, 215 NLRB 704 (1974), Keller Columbus, Inc, 215 NLRB 723 (1974), Robo- iron Corporation, 216 NLRB 396 (1974), Gould, Inc, 216 NLRB 1031 (1975) 19 See Imco Container Company, 208 NLRB 874 (1974), Empire Corpora- tion, 212 NLRB 623 (1974) 20 In this respect, the validity of the amended rule herein differs from the one involved in Gooch Packing, Inc, 187 NLRB 351 (1970), on which the Respondent relies BANDAG, INCORPORATED Rodriguez of spreading a false rumor about him in the plant to the effect that he secretly approved of the organiz- ing drive. McGlothin regarded such a remark as libelous, a fact which in and of itself displays a certain amount of animus, informed Rodriguez that there were laws against spreading such rumors, and threatened legal action against Rodriguez by telling him he should get himself a lawyer. As McGlothin explained it, he was only trying to scare Rodriguez. I find that trying to scare Rodriguez under these circumstances violates Section 8(a)(1) of the Act McGlothin's statements to assembled employees in his November 21 speeches contain various statements which could be construed to be threats. Some views expressed at that time were later echoed by Company President Ed- wards when he wrote employees a preelection letter on January 17. While McGlothin touched upon various sub- jects during these speeches, he summarized his remarks on the subject of collective bargaining by saying that, if the Union came in, bargaining would start from scratch. The legality of such a statement depends on the context in which it is uttered In some instances, it has been regarded as an illegal threat; in other contexts, it has been construed to be merely a description of management's bargaining strategy. Wagner Industrial Products, Inc., 170 NLRB 1413 (1968).1 The animus noted above from other statements of the Respondent, as well as other violations of Section 8(a)(1) of the Act found herein, taken together with other aspects of this speech, make it clear that McGlothin's ad- mitted statement-that bargaining would start from scratch-was not merely the description of a strategy but a threat to reduce benefits in the event of unionization. Other witnesses to this speech whom I credit testified that McGlothin informed them that negotiations could drag on for a year or more, during which time no improvements in wages or fringes would take place This clearly meant that the Company would not perform its annual salary review if the Union won the election. McGlothin also stated that a union victory could result in a discontinuance of breaks. The fact that he read from a Board decision in imparting this information does not save him from a violation, since the message conveyed was that a union victory meant a loss of an important fringe benefit. Any quibble about what McGlothin might have meant is removed by an ex- amination of similar and forcefully stated opinions in Ed- wards' letter. McGlothin also said that the advent of the Union drive brought on a change of policy at the Abilene plant. Bandag had planned to expand the work force, but with a Union organizing effort underway, everything was "up in the air." Like the "bargaining starts from scratch" statement, these remarks have an intimidating effect and 2i For cases holding a violation, see Famco, Inc, 158 NLRB 111 (1966), Federal Envelope Company, 147 NLRB 1030 (1964), Marsh Supermarkets, Inc, 140 NLRB 899 (1963), Astronautics Corporation of America, 164 NLRB 623 (1967); Ashland Oil Company, 199 NLRB 231, 235 (1972), Aerovox Cor- poration of Myrtle Beach, South Carolina, 172 NLRB 1011 (1968), enfd 435 F 2d 1208 (C A 4, 1970), Surprenant Mfg Co, 144 NLRB 507 at 517 (1963), enfd 341 F 2d 756 (C A 6, 1965), Little Rock Downtowner, Inc, 143 NLRB 887 (1963), enfd in part 341 F 2d 1020 (C A 8, 1965) For cases holding no violation or unobjectionable conduct, see Nutrena Mills, Division of Cargill, Inc, 172 NLRB 183 (1968), Host International, Inc, 195 NLRB 348 (1972), TRW Inc, 173 NLRB 1425 (1969), Trent Tube Co, 147 NLRB 538 (1964) 83 constitute an illegal interference with the Section 7 rights of employees. As such, they violate Section 8(a)(1) of the Ac t.22 During Rodriguez' visit to McGlothin in the hospital, McGlothin stated that no one was fired during the Rubber Workers drive in 1972, but this time he would get into trouble. He also announced in his November 21 speech a comparison with the Rubber Workers campaign and the fact that this time the employees had "gone too far." These remarks constitute threats in violation of Section 8(a)(1) of the Act, and provide illumination in determining the mo- tive behind the later discharge of the employee to whom they were made. McGlothin's threat on that occasion that Rodriguez would not be able to find other employment in the Abilene area was a threat to blacklist and is a violation of Section 8(a)(1) of the Act. 4 Interrogations and threats Foreman Delano "Sonny" Campbell admits saying that, if the Union came in, he thought that the plant would close and the Company would transfer its tire moulds back to the home office in Muscatine. Transferring tire moulds in the other direction during the strike at the Muscatine plant was exactly what took place shortly after Campbell's re- mark. Campbell's excuse for these remarks was that he was just expressing his opinion and that he felt that his opinion ought to be worth something. It was worth a good deal. The fact that such a statement was Campbell's genuinely held opinion does not prevent the expression from being a violation of Section 8(a)(1) of the Act. Shortly after making this statement, Campbell asked employee Dodson how many cards Dodson had collected. The context of this question illustrates that it was not isolated and that the question was not a casual inquiry. Campbell was inquiring into how an effort was going which, in his previously ex- pressed opinion, meant the end of his own job and those of his subordinates, including the man he was talking to. Ac- cordingly, the interrogation violates Section 8(a)(1) of the Act. Gene Sumner's statement to Rodriguez on election day about whether he was going to vote "no" took the form of an interrogatory but was actually a veiled threat which was coupled with the further statement that the Company had sufficient funds to discharge Rodriguez. The statement also bears remembering in evaluating the discharge of Rodri- guez, which took place less than 2 weeks thereafter. Ac- cordingly, I conclude that Sumner's statement constitutes a threat in violation of Section 8(a)(1) of the Act. Foreman Jerry White's statement that certain classes of employees would receive pay increases if the Union lost is a standard violation of Section 8(a)(1) of the Act. N L.R B. v. Exchange Parts, Inc, 375 U.S. 405 (1964). I so find and conclude. Foreman Jerry Ward's postelection statement to the effect that there would be no raises as long as union activity continued mirrored the company president's earli- 22 For reasons which are apparent from the record, the testimony of J D Jones concerning promises of a promotion and removal of adverse materials from his personnel file in exchange for a "no" vote was stricken According- ly, so much of the consolidated amended complaint which alleges a viola- tion based on these remarks is dismissed 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD er printed remarks about the adverse effect of collective bargaining. It constitutes a violation of Section 8(a)(1). Ludlum Industries, Inc., 213 NLRB 189 (1974). 5. The suspensions of Myrl Hill and Scott Hayes The record contains several different versions of what Myrl Hill, a member of the IUE organizing committee, said to various employees during an evening break on No- vember 14 . Some say that he threatened to sugar the gas tanks of antiunion employees. Others say that he only said that he heard that such might take place. Hill admits saying to employees in the course of breaktime conversation that he heard that those who accepted union benefits but failed to pay union dues would have "poor running cars," the clear implication being that there would be sugar in their gas tanks. He admitted to McGlothin on the following morning that he had made this statement the night before. Taking Hill's remarks as he related them, rather than any elaborations which may have been made by others, they constitute an implied threat of harm to the property of persons who were opposed to the organizing drive. The fact that an implication of harm is conveyed in the context of what Hill heard had happened in other locations does not remove the notion of impending harm which might occur at Bandag. As such, the utterance of such remarks consti- tutes unprotected activity and is, in my judgment, the rea- son why McGlothin imposed upon him a 3-day suspension on November 15. The suspension was not a discrimination in hire or tenure because of union membership , nor was it an interference with protected activities. Rather, it was an imposition of discipline in order to stem the flow of intimi- dating and unprotected remarks Accordingly, I will rec- ommend the dismissal of so much of the complaint which alleges a violation relative to the 3-day suspension of Hill. While McGlothin told Hayes that he was in deeper trou- ble than Hill because of Hayes' X-rated definition of the word "scab," the legal consequences of such a remark are by no means the same. The use of the word "scab" in the context of a labor dispute is protected activity.23 Indeed, it is not the term "scab" per se that provoked McGlothin's reaction . Gray, to whom the remark was made, reported it to McGlothin as "skag," indicating his own unfamiliarity with the term and the consequent fact that the word missed its mark in having any pejorative effect in his mind. It was Hayes' definition which aroused McGlothm's ire. Hayes told McGlothin that the use of the language he employed in defining "scab" was commonplace at Bandag , and from that premise he argued that no disciplinary action against him was warranted. The record is devoid of any suggestion that such language was not used at the plant, a fact which makes disciplinary action for obscene speech subject to particular scrutiny.24 Board cases vary on the question of 23 See Old Dominion Branch, No 496, National Association of Letter Car- riers v Austin, 418 U S 264 (1974), and cases cited therein For a more literary definition of "scab ," reference is made to Jack London's description reprinted in the Board report of The Maryland Drydock Company, 88 NLRB 1305, 1311, 1312 (1950) See also N L R B v B D Holt Company, 516 F 2d 505 (C A 5, 1975) 24 The Supreme Court has recently granted constitutional protection to the use of language every bit as opprobrious as that used by Hayes See the use of foul language as a basis for discharge or other disciplinary action .15 Normally, an element of insubordina- tion accompanies the use of profane or obscene language when the Board finds it to be the basis for discipline, at least in those circumstances where the discipline is meted out in the context of a labor relations dispute and it ap- pears that obscene language is used or tolerated in the dai- ly life of a plant. Though Hayes' remarks to Gray were enlarged upon as they were passed on, Gray in his testimo- ny did not say that Hayes had applied to him the epithets in question. Gray's testimony of the incident itself corrobo- rates Hayes' own version and makes of this exchange noth- ing more pretentious than another remark passed between two employees during an evening's work. On the other hand, McGlothin seized on this occasion to lecture Hayes, not only about the use of obscene language in the plant, but to redefine to him the term "scab" and not in a manner conforming to the Respondent 's own views on labor rela- tions. It appears clearly that McGlothin was not, in the case of Hayes, moving to eliminate the use of obscene, or profane or provocative language among his employees but rather to counter Hayes' "hard-sell" approach to union or- ganization, which was implicit in the use of the terms in question . Any suggestion that the discipline was justified because the conversation took place on company time would run squarely into uncontradicted evidence, noted above, that employees frequently spoke to each other on nonwork related matters during working hours. According- ly, the 3-day suspension of Hayes constituted a violation of Section 8(a)(1) and (3) of the Act. I so find and conclude. 6. The discharge of Carlos Rodriguez Carlos Rodriguez was discharged on February 4, 1975, for insubordination. He was the leader of two organizing drives at the Abilene plant. The Respondent was well aware of his activity and his leadership on both occasions. Rodriguez was active in the abortive Rubber Workers cam- paign in 1972 and initiated the IUE campaign in 1974. During the early stages of the IUE campaign, he told Mc- Glothin that he was going to bring the Union to the plant. Respondent's witness Wright testified that Rodriguez told both McGlothin and himself that this time he was going to go "all the way." Rodriguez was a member of the organiz- ing committee, wore an organizing committee button to work, and signed up about nine Bandag employees on IUE designation cards. Company knowledge of his leadership role is acknowledged by the Respondent. His discharge took place against a background of strong union animus which is detailed above. Some animus was Cohen v California, 403 U S 15 (1971), Papish v University of Missouri Board of Curators, 410 U S 667 (1973) 25 Cases upholding a discharge for use of foul language Martin Theatres of Georgia, Inc, 169 NLRB 108 (1968), Steve Aloi Ford, Inc, 179 NLRB 229 at 237-238 (1969), Calmos Combining Co, 184 NLRB 914 (1970), Hunter Division, Robbins and Myers, Inc, 173 NLRB 710 (1968), Southwestern Bell Telephone Company, 190 N LRB 427 (1971), American Beef Packers, Inc, 196 NLRB 875 (1972), Packer Sales Corporation, 199 NLRB 912 (1972) Cases disallowing a discharge for use of foul language Hugh H Wilson Corpora- tion, 171 NLRB 1040, 1047 (1968), William L Bonnell Co, Inc 170 NLRB 204 at 216 (1968), C W F Corporation, 188 NLRB 554 (1971), Coronet Casu- als, Inc, 190 NLRB 685, Garner Tool and Die Manufacturing Corporation, 198 NLRB 640 (1972), Rowe Furniture Corporation of Missouri, Inc, 200 NLRB 155 (1972) BANDAG, INCORPORATED 85 expressed in statements which are permissible under Sec- tion 8(c) of the Act; other statements lapsed over into vio- lations of Section 8(a)(1). Rodriguez was warned about his activities as the campaign progressed. McGlothin told him no one was fired during the Rubber Workers campaign but this time things would be different. Sumner told Rodriguez on the day of the election, and less than 2 weeks before the discharge, that the Company had plenty of money to dis- charge him. The timing of the discharge suggests antiunion motivation as well. The discharge of a leading union adher- ent-one who had promised this time to go "all the way"-while union objections to a lost election were pend- ing bears careful scrutiny and itself suggests antiunion mo- tivation behind the discharge. Shorewood Manor Nursing Home, 217 NLRB 331 (1975). In the face of these circumstances, the Respondent con- tends that an incident which occurred on February 4 be- tween Rodriguez and his foreman Sumner, involving the asserted disobedience of an order, was the true and only precipitating cause for Rodriguez' removal. Rodriguez had worked for the Respondent about 4 years. McGlothin de- scribed him as a friendly fellow with a big grin. They were personally acquainted to the extent that Rodriguez visited McGlothin both in the hospital and at his home. Rodri- guez' former supervisor, White, testified that during the 2 years he worked for White, Rodriguez always did what he was told to do. Rodriguez had two reprimands from Sum- ner, one for leaving his job on September 5 without permis- sion and another which took place late in December. On that occasion, Rodriguez was summoned from his home at 3 a.m on a Saturday morning to fill in on the banbury machine for an employee who was missing from the night shift. Rodriquez wanted to leave at noon after completing 8 hours of work but was told by Sumner that he had to stay on until the completion of the day shift at 3:30 p.m. Rodri- guez left anyway and was given a written reprimand. Ro- driguez frequently accommodated the Respondent by coming in before his shift, either to help the night shift or to get blocks and chemicals loaded for his own shift. How- ever, in this instance, the Respondent did not see fit to reciprocate Rodriguez' accommodation by acceding to Ro- driguez' desires. On February 4, Respondent was again short handed in the operation of the banbury machine on the day shift Contrary to the suggestion in the Respondent's brief, Ro- driguez was not assigned to assist on the wigwag machine in place of his regular duties but was given the assignment in addition to his regular duties, which were the most ardu- ous in the operation of the banbury process. In the opera- tion of the machine with a three-man crew, Sumner saw fit to assign all three men to the wigwag machine to perform what, in normal processing with a full crew, is a one-man job The obvious effect of giving Rodriguez extra work was to cause him to fall behind in his regular duties which were performed some distance from the wigwag operation. Ro- driguez brought this fact to Sumner's attention and argued that it would be preferable in getting the work done to permit him to continue performing the duties he was cur- rently engaged in and to leave the wigwag operation at the end of the processing cycle to the two other available em- ployees who were closer at hand. It is clear not only from listening to Rodriguez at the hearing but from the testimony of Respondent' s witnesses that Rodriguez does not communicate well in English. Mc- Glothin testified that he once told Rodriguez to be careful in what he said because he (Rodriguez) did not speak Eng- lish in the same way McGlothin did. As an example, Mc- Glothin recalled one mistake which Rodriguez made in pronunciation in which Rodriguez, in discussing the orga- nizational drive, insisted that he too had "eagle" rights, meaning legal rights. In light of these factors, it appears that Sumner took the poorly expressed suggestions of an illiterate and semiarticulate workman as insubordination and was glad enough to do so. He reported the matter to McGlothin as insubordination. McGlothin, in going over the matter with Rodriquez, was equally eager to impress the argument between Sumner and Rodriguez over doing double duty with the same stamp in order to justify the discharge. It is indeed most peculiar that a plant manager, in discussing a minor argument with an employee with whom he was long acquainted over the most expeditious manner to operate a machine when the plant was short handed, should have taken a running written account of the terminal interview, if his aim was merely to straighten out an on-the-job misunderstanding rather than to prepare a case for future litigation. I credit Rodriguez in saying that he did not refuse to work the wigwag but that he wanted to know which position in the banbury process he was as- signed to fill, since he could not cover both of them and keep the operation going. Such a statement is not insubor- dination but an objection to being placed by his supervisor in an impossible working arrangement, and one which he was unable to fulfill. That such a request by a longtime employee should be treated as insubordination indicates that the Respondent, who had given ample warning of its feeling towards union organization, was simply looking for an excuse to remove its most effective and energetic labor relations adversary. In light of these circumstances, I con- cede that the discharge of Carlos Rodriguez fulfilled Mc- Glothin's earlier promise and was accomplished under pre- textual reasons because of Rodriguez' union activities. As such, it violated Section 8(a)(1) and (3) of the Act. Upon the foregoing findings of fact, and upon the entire record herein considered as a whole, I make the following- CONCLUSIONS OF LAW 1. Respondent Bandag, Incorporated, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 1016, International Union of Electrical, Radio, and Machine Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Carlos Rodriguez and suspending Or- ville Scott Hayes because of their membership in or activi- ties on behalf of Local 1016, International Union of Elec- trical, Radio, and Machine Workers, AFL-CIO, the Respondent herein violated Section 8(a)(3) of the Act. 4. By the acts and conduct set forth above in Conclusion of Law 3, by threatening to blacklist employees because of their union activities; by promising wage increases for vot- 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ing against union representation ; by threatening to reduce wages and benefits and to withhold increases in wages and fringe benefits in reprisal for voting for union representa- tion ; by threatening to discharge employees for engaging in union activities ; by threatening to close the plant if em- ployees voted for union representation; by threatening le- gal action against employees for engaging in union activi- ties; by threatening to curtail plant expansion and the hiring of new employees because of the union activities of plant employees; by coercively interrogating employees concerning their union activities ; and by publishing and maintaining an illegal rule against union solicitation and distribution of union literature, the Respondent herein vio- lated Section 8(a)(1) of the Act. 5. All production and maintenance employees at the Respondent's Abilene, Texas, plant, excluding laboratory and quality control employees, office clerical employees, over-the-road truckdrivers, guards, supervisors as defined in the Act, and all other employees, constitute a unit ap- propriate for collective bargaining within the meaning of Section 9(b) of the Act. 6. Since on or about December 19, 1974, Local 1016, International Union of Electrical , Radio and Machine Workers, AFL-CIO, has been the exclusive bargaining representative of all employees of the Respondent in the unit found appropriate herein in Conclusion of Law 5, within the meaning of Section 9(a) of the Act. 7. The unfair labor practices recited above in Conclu- sions of Law 3 and 4 have a close , intimate, and substantial effect on the free flow of commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has committed cer- tain unfair labor practices, I will recommend that it be ordered to cease and desist therefrom and to take other actions designed to effectuate the purposes and policies of the Act. With respect to the violations of Section 8(a)(1) which have been alleged and proved in this case , it clearly appears that they have been repeated and pervasive More- over, the violation of Section 8(a)(3) goes to the very heart of the Act. Accordingly, I will recommend a so-called broad cease-and-desist order, designed to suppress any and all violations of Section 8(a)(1). J. C. Penney Co., Inc, 172 NLRB 1279, fn. 1 (1968); Adam & Eve Cosmetics, Inc, 218 NLRB 1317 (1975). With regard to the violations of Sec- tion 8(a)(3), I will recommend that Carlos Rodriguez be reinstated and that both he and Scott Hayes be made whole for any loss of pay which they have suffered by reason of the discrimination practices against them, to be computed in accordance with the Woolworth formula, and with interest thereon at 6 percent per annum.26 The principal issue in this case is whether or not the Board should order a Gissel remedy,27 by the terms of which the Respondent would be obligated to recognize and bargain with the Charging Party as the collective-bargain- Ing representative of its Abilene employees , notwithstand- ing the fact that Local 1016 lost a representation election on January 23 and 24, 1975, by a vote of 28 to 15. At one time not long before the election, the Charging Party was in possession of designation cards signed by a majority of the members of the bargaining unit , and no significant at- tack has been leveled upon the validity of these cards, so a necessary predicate for a Gissel remedy exists in this case. Respondent resists the imposition of a Gissel remedy, inter alia, on the ground that the Union failed to file and serve on it timely objections to the conduct of the January 23-24 election, and, since in its view there is no basis under the Board's Rules and Regulations for setting aside that election, the results thereof and the consequences of those results should govern the disposition of this case. Section 102.69 of the Board's Rules and Regulations provides that, within 5 days after the tally of ballots has been furnished, any party may file with the Regional Director an original and three copies of objections to the conduct of the elec- tion or conduct affecting the results of the election, togeth- er with a short statement of the reasons therefor . Copies of the objections "shall immediately be served on the other parties." The election at Bandag concluded on Friday, Jan- uary 24, and presumably the count of ballots and tally were prepared and served immediately after the close of the balloting Hence, the Charging Party had until the close of business on Friday, January 31, to file and serve objec- tions thereto , as it had 5 business days, and not 5 calendar days, in which to exercise this right. Rio de Oro Uranium Mines, 119 NLRB 153, 154.28 There appears to be no dis- pute that certain objections to the conduct of this election were filed with Region 16 on January 31, thus indicating that these objections were timely filed. The report on ob- jections states that the Union presented, and the Regional Office files contain , a certificate of service showing service of the January 31 objections upon the Respondent and upon its attorney, and that receipts for certified mail, dated January 31, and addressed to the Respondent's plant man- ager and to its attorney, respectively, have been filed. The validity of the receipts for certified mail was not ques- tioned . Section 102 . 113 (a) provides that "the date of ser- vice shall be the day when the matter served is deposited in the United States mail . .." Accordingly, it appears from the Board's records and the record herein that the January 31 objections were deposited in the mail, and hence served, on that day and that, by so doing, the Charging Party com- plied with the time limit established for service by the Board's Rules. 28 With respect to the computation of time under the Board's Rules, Sec 102 114 provides, in pertinent part (a) In computing any period of time prescribed or allowed by these rules, the day of the act, event, or default after which the designated period of time begins to run is not to be included The last day of the period so computed is to be included , unless it is a Sunday or a legal holiday, in which event the period runs until the end of the next day, which is neither a Sunday nor a legal holiday When the period of time prescribed or allowed is less than 7 days, intermediate Sundays and holidays shall be excluded in the computation For the purpose of this section a Saturday on which the Board 's offices are not open for busi- ness shall be considered as a holiday 26 F W Woolworth Company, 90 NLRB 289 ( 1950), Isis Plumbing & I take administrative notice that the office of the Board 's Region 16 is Heating Co, 138 NLRB 716 (1962) officially open for the transaction of business Monday through Friday, 9 15 27 N L R B v Gissel Packing Co, Inc, 395 U S 575 (1969) a in to 5 45 p in , and is not open on Saturdays BANDAG, INCORPORATED The Charging Party filed but did not serve certain other objections to the conduct of the election 2 days before the filing of the January 31 objections. The Regional Director permitted the Union to withdraw these earlier objections when it filed its January 31 objections. The Respondent complains that the Regional Director had no authority to permit the withdrawal of the January 29 objections, that these earlier objections should not have been withdrawn but that they should not be recognized because they were not served, and that the January 31 objections should be treated as amendments to the earlier invalid objections and thus be invalidated in and of themselves. There is no war- rant in the Board's Rules and Regulations for requiring later timely objections to be treated as amendments to ear- lier timely but unserved objections, and there is no reason in logic or ordinary fairness for doing so. The filing of timely new or additional objections is not contingent on the validity of other objections which are on file. As the objections which the Respondent, in the representation proceeding, was called on to face were timely filed and timely served, it is immaterial what was filed or served (or not served) before this event took place. The Respondent can hardly claim prejudice because it is not called on to answer objections which are no longer lodged, and it can- not claim foul because the Union herein took the maxi- mum, but no more than the maximum, time allowed by the Rules to perfect its original filing. In the investigation of the timely filed objections, the Regional Office uncovered additional objectionable conduct on the part of the Re- spondent affecting the results of the election which went beyond the specific conduct alleged in the January 31 ob- jections. The Regional Office is entitled to enlarge its in- quiry beyond the scope of objections which have been filed, since the investigation of objections is an administra- tive and not a litigated proceeding. International Shoe Com- pany, 123 NLRB 682 (1959). It did so in this case and referred to me a hearing upon all questionable elements of the Respondent's preelection conduct which it uncovered. As to each of these matters, the Respondent had in this hearing notice and opportunity to present evidence and argument in its defense, and was thereby afforded full re- quirements of due process. The preelection misconduct of the Respondent which was alleged, proved, and found herein is more than ample to justify the setting aside of the election and the direction of a second election, even if such matters were not consolidated with an unfair labor practice complaint. The nub of the issue is whether the Board should, in the light of the Respondent's conduct during the election campaign, refrain from directing a second election in the representation proceeding and instead direct the Re- spondent to bargain with the Union on the basis of the designation cards submitted in evidence. The Gissel decision calls on the Board to look both retro- spectively at the Respondent's conduct which has de- stroyed laboratory conditions necessary to conduct a prop- er representation election, and prospectively at the likelihood of undoing the damage so that a rerun election can take place in the foreseeable future under circum- stances which would guarantee the electoral process to be a true gauge of employee sentiment. In making this assess- ment, the Board looks at both preelection and postelection 87 misconduct. Steel-Fab, Inc., 212 NLRB 363 (1974) 29 In the present case, an inspection of the entire scope of the Respondent's activities reveals a threat to close the factory, coercive interrogation, threats to discharge the leader of the Union's organizing drive, a discriminatory suspension of a member of the organizing committee for using strong language, threats to reduce or withhold benefits if the Union won an election, a promise to grant a wage increase if it lost, a threat to blacklist the Union's principal organiz- er, a threat to curtail plant expansion because of union activities, maintenance of a discriminatory no-solicitation and no-distribution rule, and, most important, the dis- charge of the Union's principal in-house organizer within 2 weeks after the date of the representation election Such conduct by the Respondent makes it highly unlikely that a rerun election can be utilized in the foreseeable future as an accurate indicator of employee sentiment. By this con- duct the Respondent has forfeited a right which it might otherwise have to insist that the question concerning repre- sentation herein be resolved by use of ballots rather than designation cards. Linden Lumber Division, Sumner & Co v. N.L.R B., 419 U.S. 301 (1974). Accordingly, to remedy this situation, I will recommend to the Board a Gissel reme- dy which will require the Respondent to bargain collec- tively with the Union as the representative of its Abilene production and maintenance employees.30 Upon the foregoing findings of fact, conclusions of law, and upon the entire record herein considered as a whole, and pursuant to Section 10(c) of the Act, I make the fol- lowing recommended- ORDER 31 The Respondent, Bandag, Incorporated, Abilene, Texas, and its officers , agents, successors , and assigns , shall: 29 In its recent Trading Port, Inc, decision (219 NLRB 298 (1975)), the Board reversed one aspect of the earlier Steel-Fab decision, relating to the point in time when a refusal to bargain occurs which violates Sec 8(a)(5) No demand or refusal was alleged or proved in this case Moreover, the complaint in this case was issued at a time when the doctrine in Steel-Fab was controlling Board policy, so no violation of Sec 8(a)(5) was alleged by the General Counsel Hence, this case must proceed, as did Gissel, on the issue of whether a bargaining order is an appropriate remedy for an 8(a)(I) and (3) violation In reversing part of Steel-Fab, Trading Port did not trench on a policy which the Board announced in the earlier case of examining both preelection and postelection conduct in making a judgment on the propriety of a rerun election as opposed to a bargaining order On this point, all Board members who participated in the Steel-Fab decision ap- peared to be in agreement 30 See Howard Creations, inc, 212 NLRB 179 (1974), Ruby Concrete, Inc, 213 NLRB 762 (1974), Vada of Oklahoma, Inc, 216 NLRB 750 (1975), see also N L R B v White Knight Manufacturing Company, 474 F 2d 1064 (C A 5, 1973), N L R B v Kaiser Aluminum & Chemical Corporation, 473 F 2d 374 (C A 5, 1973), N L R B v Berlin Coat Manufacturing Company, 396 F 2d 131 (C A 5, 1968), NLRB v J P Stevens & Co, 441 F 2d 514 (C A 5, 1971), cert denied 404 U S 830, N L R B v A W Thompson, Inc, 449 F 2d 1333 (C A 5, 1971), cert denied 405 U S 1065 31 In the event no exceptions are filed as provided by Sec 10246 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 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Coercively interrogating employees concerning their union sentiments and activities and the union sentiments and activities of other employees. (b) Threatening to close the plant in reprisal for union activities. (c) Threatening to discharge employees for engaging in union activities. (d) Threatening to curtail plant expansion and the hir- ing of new employees in reprisal for union activities. (e) Threatening to take legal action against employees for engaging in union activities. (f) Maintaining, giving effect to, or enforcing Rule 13 in its employee handbook and the amendment thereto pro- mulgated on or about November 15, 1974, and any other rule which limits or forbids employees from distributing union literature and discussing unionization on company premises, while permitting solicitations and distributions to be conducted on company premises for nonwork related purposes. (g) Promising employees increases in wages and benefits for voting against union representation. (h) Promising to eliminate wage increases or to reduce or,discontinue benefits in reprisal for voting for union rep- resentation. (i) Discouraging membership in, or activities on behalf of, Local 1016, International Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor orga- nization, by discharging or suspending employees or other- wise discriminating against them in regard to their hire or tenure of employment or any term or condition of employ- ment. (I) By any means or in any manner interfering with, coercing, or restraining employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act: (a) Offer to Carlos Rodriguez full and immediate rein- statement to his former position or, in the event that his former position no longer exists, to substantially equivalent employment, without prejudice to his seniority or to other rights which he formerly enjoyed (b) Make whole Carlos Rodriguez and Orville Scott Hayes for any loss of pay suffered by them by reason of the discrimination found herein, in the manner described in the section entitled "The Remedy." (c) Recognize and, upon request, bargain collectively with Local 1016, International Union of Electrical, Radio and Machine Workers, AFL-CIO, as the exclusive collec- tive-bargaining representative of its production and main- tenance employees at its Abilene, Texas, plant, excluding all other employees, laboratory employees and quality con- trol employees, office clerical employees, over-the-road truckdrivers, guards and supervisors as defined in the Act. (d) Post at its Abilene, Texas, plant, copies of the at- tached notice, in English and Spanish, marked "Appen- dix." 32 Copies of said notice on forms provided by the Regional Director for Region 16, after being duly signed by a representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll and other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (f) Notify the Regional Director for Region 16, in writ- ing, within 20 days from the date of this Decision, what steps it has taken to comply herewith. IT IS HEREBY FURTHER RECOMMENDED that, insofar as the consolidated complaint alleges matters not found herein to be violations of the Act, the complaint is hereby dismissed. The objections to the conduct of the election conducted in Case 16-RC-6809 are sustained, the election therein is hereby set aside, and the proceedings therein are hereby vacated 32 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "