Helena Laboratories Corp.

HELENA LABORATORIES CORPORATION 257 Helena Laboratories Corporation and Communica- tions Workers of America, AFL-CIO. Case 23- CA-5462 June 29, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On March 30, 1976, Administrative Law Judge Walter H. Maloney, Jr., issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and i In sec C,I , para 4 and 5 of the Decision , the Administrative Law Judge summarized the circumstances under which Resp Exh 8 was introduced into evidence, found that Production Manager Whitney's testimony in re- gard to when he placed a notation on that exhibit was "incredible," and concluded that "the giving of such testimony under oath in a Board pro- ceeding warrants further investigation ." On April 19, 1976, Respondent filed with the Board a motion to remand to which it attached an affidavit of its counsel and the July 2, 1975, decision of the appeal tribunal of the Texas Employment Commission regarding Lois J Acker in its motion . Respon- dent refers to the Administrative Law Judge's statement that this matter "warrants further investigation" and requests that the record be reopened and the case be remanded to an Administrative Law Judge for the purpose of investigating the circumstances under which Resp Exh 8 was introduced into evidence On April 22 , 1976, the General Counsel filed an opposition to respondent's motion to remand and motion to strike affidavit and exhibit It is the General Counsel's position that the Administrative Law Judge was not suggesting that further Board proceedings be conducted , but that this matter be referred to the United States Department of Justice for an investi- gation to determine whether perjury was committed Accordingly, the Gen- eral Counsel requests that the Board deny Respondent 's motion to remand and that the Board strike the affidavit of Respondent 's attorney and the decision of the Texas Employment Commission Thereafter, the Charging Party filed a letter with the Board stating that it joins with the General Counsel in its statement of opposition and motion to strike We presume that by his reference to "further investigation " the Administrative Law Judge was recommending referral to the Attorney General of the United States, as this would be the appropriate procedural course to follow rather than reopening the record for further proceedings After careful consider- ation, we hereby deny Respondent 's motion to remand and the General Counsel's motion to strike 2 The Respondent in its brief attacks certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty 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 Respondent in its brief asserts that with respect to several issues in the instant case the Administrative Law Judge was an advocate , not an unbi- ased factfinder, and failed to impartially consider the record evidence as a whole After a careful examination of the entire record , we are satisfied that this allegation is without merit There is no basis for finding that bias and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified herein? 1. Relying solely on the Board's factual findings in a related representation case 4 which he regarded as binding upon him, the Administrative Law Judge found that certain acts, established as objectionable conduct in that proceeding, also constituted indepen- dent violations of Section 8(a)(l).5 We find merit in Respondent's exceptions to these findings. For the following two reasons, the Administrative Law Judge erred in considering himself bound by, and relying upon, the Board's findings in the prior representation proceeding as the sole basis for find- ing certain conduct to be violative of Section 8(a)(1). First, "[i]t is well settled that the Board's findings and conclusions with respect to conduct alleged as objec- tionable in a representation proceeding are not bind- ing upon the [Administrative Law Judge] in a subse- quent hearing where such conduct is alleged as an unfair labor practice, since the issues are different in the two types of proceedings." 6 Second, aside from the Administrative Law Judge's reliance on the Board's decision in the repre- sentation case, there is no other evidence in the rec- ord to support these 8(a)(1) findings. In this regard, the instant case can be profitably compared with Thomas Products Company, supra, where the unfair labor practice findings were not predicated solely upon the Board's decision in the representation pro- ceeding. Thus, here, unlike the situation in Thomas Products Company, the parties did not stipulate to the facts found in the prior representation decision. In- deed, not all of the relevant portions of the transcript partiality existed merely because the Administrative Law Judge resolved important factual conflicts in favor of the General Counsel's witnesses As the Supreme Court stated in N L R B v Pittsburgh Steamship Company, 337 U S 656, 659 (1949), "[T]otal rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact " Furthermore, our examination of the record convinces us that the Administrative Law Judge's factual findings are supported by a preponderance of the evidence. We note that in sec B, par 30 of his Decision, the Administrative Law Judge states that Mrs Dennis conversed with Whitney about Mrs Carter on or about February 27, 1975, whereas the record reveals that the conversa- tion in question was between Whitney and Mrs Acker, not Mrs Dennis. This apparently inadvertent error, however, does not affect our decision herein In par 1(i) of his recommended Order, the Administrative Law Judge provides that Respondent shall cease and desist from "by any means or in any manner" infringing upon employee rights guaranteed in Sec 7 of the Act However, in cases of this kind, involving violations of Sec 8 (a)(3), it is the Board's established policy to use the injunctive language "in any other manner " See N L R B v Entwistle Mfg. Co, 120 F 2d 532, 536 (C A. 4, 1941), Centeno Super Markets, Inc, 220 NLRB 1151 (1975) Accordingly, we find no merit in Respondent's exception to a broad cease-and-desist order, but we shall modify the Administrative Law Judge 's recommended Order and notice to conform his injunctive language to that customarily used by the Board 4 Helena Laboratories Corporation, 219 NLRB 686 (1975) 5 See sec C,2 ,a,b,c, and d of the attached Decision 6 McEwen Manufacturing Company, 172 NLRB 990, In 6 (1968), enfd 419 F 2d 1207 (CAD C , 1969), cert denied 397 U S 988 (1970) Accord Thomas Products Company, Division of Thomas Industries, Inc, 175 NLRB 776 (1969), enfd 432 F.2d 1217 (C A 6, 1970) 225 NLRB No. 36 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the representation case were introduced into evi- dence in this proceeding. Furthermore, in Thomas Products Company, the alleged unlawful statements were contained in letters and other documentary evi- dence which were authenticated and made a part of the record, while in the instant case the complaint allegations "are of a type which would turn on an assessment of oral testimony." I Under these circum- stances, we conclude that there is insufficient evi- dence in the record to support those 8(a)(1) findings of the Administrative Law Judge which are based on the Board's representation decision and we shall dis- miss the complaint insofar as it alleges violations in that regard. 2. The Administrative Law Judge found that "lead person" Betty Carter was a supervisor within the meaning of the Act and that therefore Respondent was responsible for her coercive statements and ques- tions to employees prior to the November 14, 1974, election. While we agree with the Administrative Law Judge that Mrs. Carter's statements are attribut- able to Respondent, we so find on the ground that Mrs. Carter was Respondent's agent during the peri- od in question and did not become a supervisor until after the election. In reaching this conclusion, we particularly rely on the fact that when Mrs. Carter was hired in Septem- ber 1974, she was personally introduced as a "lead person trainee" to the employees by Production Manager Whitney. At that time, Whitney informed the employees that Mrs. Carter was experienced in electronics and that at the end of her training period she would become a "lead person" with the authority to see that all work assignments were carried out. If the work was not done to her satisfaction, Whitney stated that Mrs. Carter had the authority to tell em- ployees to "hit the clock." When Whitney was asked whether this meant that Mrs. Carter had the right to fire employees, he replied affirmatively. Beginning approximately a month after this introduction and continuing to the time of the election, the Adminis- trative Law Judge found that Mrs. Carter engaged in various acts of coercive conduct, including on several occasions threats of loss of jobs and free hospitaliza- tion benefits in the event the Union was successful. In view of the foregoing, we find that Respondent, through the announcement of its production manag- er, placed Mrs. Carter in a position where employees could reasonably believe that she spoke on behalf of management and therefore her subsequent state- ments to employees involving company policy are imputable to Respondent.8 For this reason, we adopt the Administrative Law Judge's 8(a)(1) findings based on Mrs. Carter's conduct? 'Shop Rite Foods, Inc, 216 NLRB 256, AUD, sec 111,B,4, par.2 (1975) 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, Hele- na Laboratories Corporation, Beaumont, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 1(i): "(I) In any other manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act." 2. Delete paragraph 1(c) and reletter remaining paragraphs accordingly. 3. Substitute the attached notice for that of the Administrative Law Judge. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations not found herein. 6 Broyhill Company, 2I0 NLRB 288, 294 (1974), enfd 514 F 2d 655 (C.A. 8, 1975) 9 We agree with Respondent that the Administrative Law Judge erred in stating that Mrs Carter testified that she regarded herself as being in charge of 6 to 10 employees However, concerning the period of time subsequent to the election when Respondent commenced production in the new building, we conclude that the record supports the Administrative Law Judge 's find- ing of supervisory status, particularly in view of Mrs Carter's increased job responsibilities which included the authority to make effective recommen- dations regarding whether employees should receive wage increases 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 and senti- ments and the union activities and sentiments of other employees. WE WILL NOT threaten employees with loss of benefits, loss of employment, or other reprisals because they give support to the Union. WE WILL NOT offer financial inducements to employees to secure the withdrawal of chal- lenges or objections to an election or in order to influence their testimony at Board hearings. WE WILL NOT state that profit-sharing plans provide no benefits for unior?represented em- ployees. WE WILL NOT promise or grant benefits to em- HELENA LABORATORIES CORPORATION 259 ployees in order to dissuade them from giving support to the Union. WE WILL NOT institute a grievance committee and adjust grievances with it in order to dis- suade employees from giving support to the Union. WE WILL NOT, by refusing to give periodic wage increases, by discharge, or by any other means, discriminate against employees because of their membership in, or support of, Commu- nications Workers of America , AFL-CIO, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of rights guaranteed to them by Section 7 of the National Labor Relations Act. WE WILL offer Michael Lee Coody, Carol Ann Dennis, and Lois J. Acker full and immediate reinstatement to their former jobs or , if such jobs no longer exist , to substantially equivalent positions without prejudice to their seniority or other rights and privileges, and WE WILL make whole Michael Lee Coody, Carol Ann Dennis, Lois J. Acker, James I. Herod, and Peggy Du- plissey Herod for any loss of pay which they have suffered by reason of the illegal discrimina- tion which has been practiced against them, with interest thereon computed at 6 percent per an- num. HELENA LABORATORIES CORPORATION DECISION FINDINGS OF FACT STATEMENT OF THE CASE WALTER H. MALONEY, JR., Administrative Law Judge: This case came on for hearing before me at Beaumont, Texas, upon a complaint, issued by the Regional Director for Region 23 and amended at the heanng, which alleges i The principal formal entnes in the docket are as follows Charge filed herein by Communications Workers of Amenca, AFL-CIO (herein called CWA or Union) on February 13, 1975, amended charges filed on February 25, March 4, and April 22, complaint issued by Regional Director on April 29, Respondent's answer filed May 10 and amended at the hearing Hearing held in Beaumont , Texas, on January 12, 13, and 14, 1976; bnefs filed by the General Counsel and Respondent with me on March 5, 1976. A related representation case (Case 23-RC-4151) contains, inter aha, the following formal docket entries Petition for election filed by Union on October 11, 1974, stipulated elec- tion agreement approved by Regional Director on October 25; election held on November 14, at which 40 votes were cast for the Union and 39 were cast against it, while 8 ballots were challenged , objections filed by Union on November 20; hearing on objections and challenges held January 13-15, 1975, Hearing Officer's report issued on March 17, Board decision (219 NLRB 686 (1975) ), sustaining certain challenges , overruling other chal- lenges, and sustaining objections , conditioned upon outcome of revised tally that the Respondent Helena Laboratories Corporation 2 violated Section 8(a)(1) and (3) of the Act. Specifically, the complaint alleges that the Respondent interrogated em- ployees concerning union sympathies and activities; threat- ened to discontinue benefits if the Union won the election; engaged in surveillance of union activities; promised em- ployees sums of money for withdrawing objections or limit- ing their testimony at a representation case hearing; with- held periodic wage increases from five union activists and discharged four individuals-Michael Lee Coody, Carol Ann Dennis, Lois J. Acker, and Peggy Duplissey-because of their union activities. Because she no longer lives in the Beaumont area and did not care to participate in the hear- ing, the General Counsel presented no evidence concerning the discharge of Peggy Duplissey. The Respondent con- tends that each of the three contested discharges were ef- fectuated because of attitude, abrasive actions, or deficien- cies in work performance of the individuals in question. Respondent either denies the allegations of independent violations of Section 8(a)(1) of the Act or asserts that they were committed by nonsupervisory personnel for whose actions the Respondent bears no vicarious responsibility. Upon these contentions the issues herein were drawn .3 A. The Unfair Labor Practices Alleged Respondent is a closely held family corporation which operates a factory in Beaumont, Texas, where it manufac- tures densitometers and other machines designed to assist in the laboratory analysis of body protein content. Respon- dent also repairs these machines both at its factory and on location. The founder and president of the Company is Tipton Golias. His wife, Ann, is secretary-treasurer, and his father-in-law, Ovay H. Mayes, is vice president. In ad- dition to serving as corporate officers, these individuals take an active day-to-day role in the management of the business. The Union began an organizing drive among the Respondent's production and maintenance employees in the fall of 1974. The facts found herein concerning that drive are in addition to those found by the Board when it affirmed the Hearing Officer's Report on Objections and Challenges in Case 23-RC-4l51 (219 NLRB 686). I regard the findings of fact in that case to be binding upon me but of ballots, issued on July 29, revised tally of ballots, showing 40 votes for the Union and 43 against Union issued August 8 , second election held on September 11, at which Union received 48 votes, while 46 votes were cast against representation and 8 ballots were challenged ; objections to second election filed by Respondent herein on September 16, report on challenges to second election and objections issued on December 4, 1975, and is now pending before the Board on exceptions 2 The Respondent admits, and I find, that it is a Texas corporation which maintains its principal place of business in Beaumont, Texas, where it man- ufactures and sells laboratory equipment Dunng the past 12 months in the course and conduct of this operation, the Respondent purchased goods and materials at it Beaumont, Texas, factory directly from points and places located outside the State of Texas which are valued in excess of $50,000. Respondent is an employer within the meaning of Sec 2 (2), (6), and (7) of the Act The Union is a labor organization within the meaning of Sec. 2(5) of the Act 3 The ruling made by me in the transcript excluding certain testimony of Michael Lee Coody is reversed and the testimony is hereby admitted into evidence The ruling made rejecting G C. Exh I I is hereby reversed and the document is admitted into evidence. 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD will not repeat them here except as they serve to illuminate and place in context the alleged unfair labor practices which are the subject of this litigation. Michael Lee Coody was hired by the Respondent early in the summer of 1974 as a technician in the electronics department. During these 8 months of employment, he also worked in the customer service department. According to Respondent Vice President Mayes, Coody "seemed to be carrying the ball" in regard to pressing an organization campaign of the CWA which began in October, 1974. Coody initiated the contact between Respondent's employ- ees and the Union, signed a union card on October 1, solic- ited cards from other employees, and distributed union lit- erature at the plant to other employees. This drive produced a petition for election which was filed on Octo- ber 11. A consent agreement was approved on October 25 and an election took place on November 14, 1974. Shortly before the representation petition was filed, Mayes encountered Coody as he was returning from lunch and asked him to come to Mayes' office. Once in the office, Mayes told Coody to sit down and then began a 4-hour discussion with him concerning unionization, Coody's complaints, and other related matters. During this discus- sion, other management personnel sat in from time to time. Mayes opened the conversation by saying that he had heard that the employees were trying to form a union and went on from there to ask Coody which union was in- volved, whom it represented elsewhere, and why Coody thought that Helena employees needed a union. Coody re- plied to the latter question that he felt that employees were dissatisfied over wage rates and various other conditions which existed at the plant. The two men also discussed Coody's ongoing difficulties with his supervisor, Gregory Thames, the service department manager. During the course of this conversation, Ralph Whitney, the production manager, came into the room and in effect repeated to Coody the same questions which had been asked by Mayes. Toward the end of the afternoon, Secretary-Trea- surer Ann Golias joined the discussion, and, with Thames, continued it with Coody at another location in the plant until 8 or 9 o'clock in the evening. During this portion of the ongoing discussion with Coody, either Mrs. Golias or Thames asked Coody why he was trying to start the union drive and why he thought the employees needed represen- tation. I credit Coody's testimony that, on this occasion, Mrs. Golias also asked Coody if he was aware of a clause in the Company's existing profit-sharing plan which ex- cluded from participation any employees who were repre- sented by a collective-bargaining agent. Coody said that he was not aware of this provision. Shortly thereafter, an evening meeting, described by one participant as a "stand-up cocktail party," was held at the home of employee Gem Bordages for the purpose of ac- quainting those in attendance with the Union's position. Coody invited Mrs. Golias, Mayes, and other management personnel to this party and they attended, along with vari- ous representatives of the CWA and a number of the Respondent's employees. During this meeting, Russell Irv- ing, vice president of the Beaumont Local of the CWA, outlined various benefits of union membership. During Irving's presentation, Coody prompted him with a number of questions concerning unionization which had been posed to him dunng his earlier conversation with Mayes which he had been unable to answer. Many of the individ- ual conversations which took place at this meeting related to the wage rate at Helena. Mrs. Golias responded to criti- cism of the Company's wage scale by stating that some employees had apparently been overlooked during recent wage evaluations but that this problem would be taken care of immediately. She also suggested the possibility of forming an inhouse grievance committee that would under- take to adjust grievances. As outlined in the earlier representation case, the Re- spondent held a captive audience discussion of the cam- paign on October 25 with all of its employees. During the course of this discussion, Golias told them that, in the event of unionization, the negotiation of all terms and con- ditions of employment would start at zero and that this procedure included the Company's profit-sharing plan. Golias further stated that employees would be lucky to end up with what they had. He also stated that the profit-shar- ing plan, as then written, excluded from participation any employees who were represented by a collective-bargaining agent. During the course of this talk, Union Representative T. O. Parsons was standing outside the plant. Apparently Golias and Parsons were challenging each other to a de- bate concerning the issues which had arisen in the repre- sentation election campaign, and Coody left the plant tem- porarily during Golias' talk to relay a message to Parsons regarding the proposed debate. The debate never took place. In the next few weeks charges and countercharges were made as to why the debate never occurred. Parsons appar- ently wanted to debate Golias on the spot at the factory, while Golias insisted upon a discussion at a neutral loca- tion which would not take place on company time. In the letter to employees disseminated just before the election, Golias explained his position relative to the proposed de- bate and impliedly criticized Coody by name for suggest- ing that no neutral locations were available. The question of Coody's role as an intermediary in attempting to ar- range the debate which never took place was also the sub- ject of some acrimonious cross-examination at a Board hearing on objections which took place a couple of months later. During the last week of the campaign, Supervisors Thames and Joe Sims attended a union-sponsored organi- zational meeting at the Ramada Inn. When asked to leave, they refused to do so. At this meeting, Sims told the assem- bled employees that, if the Union came in, the Respondent would contract out a large portion of its work and gradu- ally phase out certain employees. On the night before the election, confidential employee Angie Thorne attended an- other organizational meeting at the Ramada Inn and like- wise refused to leave when she was requested to do so.' In the earlier representation case , the Hearing Officer found, with Board approval, that Mrs Thorne was a confidential employee She is salaried and described herself as "Assistant to the President and the Executive Secre- tary" of the Respondent In addition to performing clerical functions for Golfas, she advises him on matters of importance which have occurred dur- ing his absence , handles customer relations work , and arranges for sales demonstrations She performs clerical functions for the company offical HELENA LABORATORIES CORPORATION 261 On November 12, the Union wrote Golias advising him of a partial listing of employees who constituted the in- plant organizing committee. The letter mentioned Coody as chairman, James I. Herod as cochairman, and Sam Hampton, Ronald W. Hext, and Gem Bordages as mem- bers. Sometime during the month of November 1974, and be- fore the election, Coody suggested to Golias that the Re- spondent permit the formation of an in-house committee of employees for the purpose of attempting to resolve grievances which might arise in the factory. Mrs. Golias had also made the suggestion on one occasion and the pro- posal was brought to the attention of Golias, and he ap- proved it. Golias came around to the electronics depart- ment and explained to employees what the solutions committee was and why he thought it was a good idea. Sometime late in November, an election was held, utilizing ballots printed at the Respondent's print shop, for the pur- pose of selecting employee representatives from various de- partments at the plant to the so-called solutions committee. Those elected were Coody, Herod, Brenda Brister, Sara Burney, and Lea McWhorter. During the course of the next few months, the committee, or members thereof, brought to the attention of Respondent's management sev- eral on-the-job complaints which had been registered by various employees. It was able to resolve certain of these complaints. However, the committee was accorded no au- thority to discuss or negotiate concerning any economic matters. The bulk of its activities were conducted after quitting time at 5 p.m., although Coody and Herod were occasionally given small amounts of company time at the end of the day to attend to any solutions committee mat- ters which might be pending. Carol Ann Dennis, another union sympathizer, signed a union card on October 1 and wore a union button to work every day. On one occasion, her supervisor, Betty Carter,5 spotted her while she was reading a union pamphlet and asked her about it. Mrs. Carter then volunteered to Mrs. Dennis that unions were not what they pretended to be, that Helena Laboratories was too small a plant to need a union, and that unions brought with them strikes and re- placement of workers. She also asked Mrs. Dennis if the latter was really interested in the union and asked if her interest was what prompted her to wear a union button. Mrs. Dennis replied, "Yes." Mrs. Carter then went on to say that if the union came into the plant the employees would lose their hospitalization, and that she knew this to be true because her husband was in the Pipefitters' Union and she had knowledge of how labor organizations operat- ed. On another occasion in October, Mrs. Carter told Mrs. Dennis that, if the employees voted the Union in, everyone could lose their jobs or be fired. Two days before the elec- tion she repeated this theme to a small group of employees who formulates, determines, and effectuates the Respondent's labor rela- lions matters In my judgment, this is sufficient to warrant the conclusion that she is and was a nonsupervisory agent of the Respondent and was so regarded by the Respondent's employees As discussed infra, I have concluded that Mrs Carter was and is a supervisor within the meaning of the Act which included Mrs. Dennis. Employee Lucy Kirkwood was saying to Mrs. Dennis that a union had come in at Rogers Brothers, a plant where Mrs. Kirkwood formerly worked, and that a lot of people had been fired because of their interest in the union. Mrs. Carter then interjected into the conversation the remark that this was what she was trying to tell employees about unionism in a small compa- ny; namely, that a lot of people could lose their jobs if a union became the bargaining agent. She also stated that unionization could mean the loss of free hospitalization benefits which were then being enjoyed by the Respondent's employees. Shortly thereafter, Golias held another preelection meeting of all employees, at which time Mrs. Carter made the statement, "The girls said that they couldn't be fired if there was a union." Golias an- swered her implied question by saying that he could fire anyone he wanted to fire at any time. Thereafter, Mrs. Carter and Mrs. Dennis were no longer on good terms. In a private conversation, Mrs. Dennis objected to the ques- tion posed at the open meeting by Mrs. Carter. The latter replied defensively that she did not mention any names when she did so, but Mrs. Dennis replied that all the em- ployees knew to whom she was referring when she made the remark to Golias. On the day of the election, Mrs. Dennis again encountered Mrs. Carter who asked Mrs. Dennis if anything she had said to Mrs. Dennis respecting the union had "sunk in." Mrs. Dennis replied that it had but that she was still going to vote for the union. Lois J. Acker was another union activist. She signed a union card on October 3, passed out four or five cards in her department, and participated in leafletting at the plant entrance. She also wore a union button during the cam- paign. On November 15, the Union wrote Golias a letter alleging that the Respondent was violating the Fair Labor Standards Act by underpaying six employees. Among those named in the letter was Mrs. Acker, whom the Union complained was being paid at 15 cents an hour less than the Federal minimum wage. The complaint was adjusted without a formal proceeding and the employees, including Mrs. Acker, were paid the backpay due and owing to them. On November 14, 1974, a representation election took place among the Respondent's production and mainte- nance employees. The initial tally of ballots showed 40 votes for the Union, 39 against the Union, and 8 ballots challenged. The objections and challenges were resolved in a formal proceeding that consumed the next 9 months. A hearing on objections and challenges was held in Beau- mont, Texas, on January 13 through 15, 1975. Three em- ployees-Herod, Coody, and Mrs. Acker-testified on be- half of the Union at the hearing. On the Friday before the hearing began, Golias called Coody into his office to discuss the case in the presence of company counsel. The three of them discussed the chal- lenges and objections. Golias requested Coody to drop all but one challenge and one objection. Coody declined but did agree to drop one objection which was pending involv- ing a statement by Foreman Rusty Sonwall. The meeting broke up but, as Coody was returning to his work station, he was called back into Golias' office. Herod was there at this time. Tipton asked Coody and Herod if the Union was going to pay for their time at the hearing the 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD following week.6 Coody replied that he had not given it any thought, but he imagined that something would be worked out so they would not get paid twice. Golias said that, if the employees kept their testimony short and sweet, the Re- spondent could afford to pay them for 2 or 3 hours of their time as well as their mileage. Instead of lasting 2 or 3 hours, the hearing lasted 3 days. It was neither short nor sweet During much of the hearing, Golias acted as his own attorney and personally cross-ex- amined adverse witnesses, supplementing the cross-exami- nation conducted by company counsel. The portion of Golias's cross-examination of Coody to which the General Counsel invites attention constituted more of a wrangle between witness and interrogator than cross-examination. Coody testified on direct examination as to interrogation, surveillance, and statements by Respondent's supervisors concerning the exclusion of represented employees from profit-sharing plans. He also testified in support of the Union's position concerning supervisors whose status was in issue. Golias attempted to obtain admissions by Coody that he left the company premises without permission dur- ing the October 25 general meeting in order to relay to CWA Representative Parsons a message concerning Par- sons' challenge to debate Golias. During Golias' efforts at cross-examination, he attempted to show that alleged state- ments by company supervisors concerning discharge of employees for union activities were not actually made and took the tack that, since no employees had been fired, this fact gave the lie to assertions that any such threats had ever been uttered. To establish this point he asked Coody if he, a leading figure in the union effort, had been fired. Coody's reply was, "Not yet." Mrs. Acker testified on behalf of the Union and provid- ed the record in the representation case with a considerable amount of testimony supporting union positions. One such position related to the challenged ballot of Earlene Whit- ney, Ralph Whitney's wife. She also recounted Golias' statements at massed assemblies concerning threats of loss of jobs and benefits. Much of Golias' cross-examination of this witness amounted to an argument between Mrs. Acker and himself. He suggested that she was contradicting her- self in much of her testimony and personally controverted statements she gave in response to his questions. During a recess on the third day of the hearing, Golias again asked Coody, Herod, and Mrs Acker who was paying for the time of the union witnesses. He told Coody that, if he had done as Golias had requested, the Company would have paid for their time. On the final day of the representation case hearing, Coody learned upon returning to the plant that Ronald Hext, a union member employed in his department, had been fired. He sought to contact Hext in order to ascertain whether Hext wanted him, as the department representa- tive on the solutions committee, to press a possible com- plaint on Hext's behalf. After obtaining permission from his foreman, Joe Adams, Coody went to the accounting department to obtain Hext's phone number from his per- sonnel records and there encountered Golias. Golias did 6 I discredit Gohas' statement that Coody asked him to pay employees while they were in attendance at the hearing not speak to him, but when Coody returned to his work station, he was called into Whitney's office and given a written reprimand by Whitney for personal use of compa- ny time. Coody asked Whitney what the reprimand was all about. Whitney replied that he did not know but that Goli- as had called him on the telephone and instructed him to give it to Coody. Coody balked at signing an acknowledg- ment on the reprimand but was told by Whitney that a refusal to sign the reprimand would weight heavily against him at his next wage review. Coody signed the reprimand "under duress." The reprimand contained a notation that Coody had secured permission from his supervisor, Joe Adams, to go up front. It was the first written reprimand he had received since coming to work at Helena. Respondent gives its employees a wage review every 6 months. The review is normally accomplished in July and in January. Each employee is given a performance apprais- al by his supervisor, who uses a prepared form with squares to be checked indicating a level of a performance for vari- ous traits, such as job attitude, dependability, and quality of work. Normally a supervisor discusses the performance appraisal with each employee. After these appraisals are completed, supervisors then forward to Golias a separate salary increase review form which contains a recommenda- tion for a specific increase in the hourly rate. Golias re- views these recommendations and either accepts or rejects them. If approval is given, the raise is normally put into effect shortly after Golias has noted his agreement. This procedure was followed in regard to about 80-100 employees who received wage increases early in 1975. Only five did not-Herod, Coody, Mrs. Acker, Mrs. Dennis, and Peggy Duplissey.7 All were active union adherents.8 Coody received an evaluation from Joe Adams in which he got "fair" marks on work quality, dependability, job knowl- edge, and job attitude, and "good" marks on quantity of work and personal contacts. Adams recommended him for a 20-cent-an-hour raise Golias disapproved the recom- mendation for an increase, stating on the salary increase review form "Hold pending Coody's general attitude [sic] and his personal use of company time." When Coody was informed of this disapproval, there was written on his per- formance review sheet, under the heading of what an em- ployee could do to become more effective, the notation "Change attitude toward work and become a team worker. Employee has been instructed that his attitude should change, that by April 1 he will be reevaluated. Otherwise he will be terminated." 9 i Herod and Duplissey are now married and have moved to California, where Herod is employed by the Respondent as an outside service techni- cian repairing Respondent's products at customers' places of business in California Both notified the General Counsel prior to the beginning of the hearing that they did not care to return to Texas to participate in this case BThere is some testimony that Lucy Kirkwood was also refused a raise at this time She was told she was not going to get a raise because she talked too much However, she actually got a raise during the week in which she was told it was being denied There is direct testimony in the record as to Mrs Kirkwood's union activities in that she wore a union button to work She was also one of the employees mentioned in the Union's letter of No- vember 15 which protested violations by the Respondent of the minimum wage law From that statement, I infer union affiliation and find company knowledge of such affiliation 9 Some question arose during the hearing as to whether Coody was evalu- ated early in January or late in January The document initialed by Coody HELENA LABORATORIES CORPORATION 263 Carol Ann Dennis was given a review during this same period by Whitney. He gave her "fair" marks on quantity of work, dependability, and job knowledge, and "poor" mark on job attitude. Whitney wrote that she was "a little disinterested in work to show good performance. Resentful toward lead worker and cooperating to have the group more productive." On her salary increase review sheet he recommended no increase, stating that she left work early too often. He recommended another review after a "con- stant change in attitude. If no change in 30 days, termina- tion will follow." The review given Lois Acker at this time is not in evidence. However, as noted above, she too did not receive an increase. When she was reviewed by Whit- ney, he told her that she would not receive an increase because of her attitude. She asked Whitney to define what he meant by attitude, and Whitney replied that she talked too much. At or about this time, the Respondent was in the process of installing a new system of inventory control over check- ing out of tools and parts from the toolroom. Before this time, employees were at liberty to go to the toolroom and obtain whatever special tools or parts their work might re- quire. In the middle of January, the Respondent hired Ber- is Singleton and Maeve Rutherford to take charge of the toolroom to straighten it out. Each employee who wanted parts or tools was then required to apply to the toolroom attendant for the item desired and to sign for it on a sheet which was kept for this purpose. Coody and Mrs. Singleton did not hit it off well. Mrs Singleton regarded Coody's manner of asking for tools a form of harassment. Coody felt that Mrs. Singleton and her associate were incompetent in filling his orders, so he generally asked them for one item at a time rather than asking for a series of items as a part of a single request. On Wednesday, February 5, Coody came to the tool- room and checked out a Number II Exacto Knife blade. Instead of placing his name on the signout sheet, he wrote "No. 13," the inspection number he used to identify his products for quality control purposes. Mrs. Singleton called to him and told him that the new procedure required him to write his name, not merely his inspection number, on the signout sheet. He did so, scribbling his name in large letters over the No 13. Mrs. Singleton took offense at his action and reported it to her supervisor, who in turn report- ed it to Whitney. Whitney was in Houston when this mat- ter arose, so it was brought to his attention by long-dis- tance telephone. When Whitney returned to the plant the indicates that he was notified on January 3 that he was not going to receive a raise However, Coody testified positively that he was evaluated at the end of January and notified on February 3, the Monday of the week in which he was terminated, that he was in effect placed on probation He said that he entered the date January 3 by mistake Joe Adams, who evaluated him, had no positive recollection on this point Most evaluations took place at or about the same time and all wage reviews were passed upon by Golias within a short span of time Golias noted his disapproval of the recommen- dation for a 20-cent raise for Coody on February 2, and it was not until after this took place that Coody was notified and asked to initial the notifi- cation Based upon this sequence of events, as well as Coody's own recollec- tion, I conclude that Coody was notified on February 3 of the disapproval of his raise, and that the entry on the form of "January 3" was merely a mistake absentmindedly made by him at the time he initialed the perfor- mance review sheet following day, he directed an investigation of the matter, talking both with Mrs. Singleton and Coody. After he talked with Coody, Coody went to Mrs. Singleton, apolo- gized for any inconvenience he might have caused her, and returned to his work station. Coody has no recollection of a second contretemps with Mrs. Singleton which assertedly occurred at the end of the day on Thursday, February 6. Without giving any details, Mrs. Singleton testified that Coody again checked out a tool at that time by signing only his inspection number and not his name on the signout list. Mrs. Singleton reported to Whitney that Coody was again giving her a "hard time" without spelling out to Whitney just what that hard time consisted of. She did tell him that she was so upset she could hardly work. Whitney considered the matter over- night. At the end of the day on February 7, he called Coody in to his office and discharged him. In doing so, he read the following to Coody from a handwritten page. The document was placed in evidence, though it was not shown to Coody on that occasion: Grounds for dismissal: 1. Negative company attitude 2. Rude and disrespectful to co-workers 3. Non-cooperative to fellow workers and new sys- tems being tried to improve the Company E depart- ment 4. Spontaneous working routine A Works when he feels like it B. Gets sidetracked to treviel [sic] projects not as- signed to him 5. Contributes to a uncomfortable working atmo- sphere to other employees [sic] trying to get some pro- duction accomplished. To this page there was added one item bearing the initials of Tipton Golias: 6. Frequently used company time for personal use. About 2 weeks later, Peggy Duplissey was discharged after having a run-in with her supervisor, Betty Carter, un- der circumstances not set forth in the record in any detail. A week thereafter, on February 27, Whitney discharged both Mrs. Acker and Mrs. Dennis. In the case of Mrs. Dennis, she was called aside by her supervisor, Mrs. Car- ter, on the day of her discharge to discuss her attitude. It should be noted that when the two employees first came to know each other early in the fall of 1974, they got along well. However, after a series of discussions about the union and Mrs. Carter's question to Golias during a preelection massed assembly as to whether unionization prevented the Respondent from discharging employees, they were not at all on good terms. During the discussion between them on the day of Mrs. Dennis' discharge, Mrs. Carter asked Mrs. Dennis whether she thought her attitude had changed since she had been given an unfavorable wage review late in January, volunteering the statement that she felt that Mrs. Dennis had been mad at the world since her friend, Peggy Duplissey, had been fired a week before. Mrs. Carter ac- cused Mrs. Dennis of telling a new employee Judy Watson 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that she was going to be fired if she did not work rapidly.10 Mrs. Dennis denied making any such statement. Mrs. Den- nis asked Mrs. Carter whether she was going to get a raise, to which Mrs. Carter replied that it was up to Whitney to make that decision. On or about February 25, an event occurred involving employees Oma Norris and Brenda Haynes which loomed large in the discharge of Mrs Acker. Both Mrs. Norris and Mrs. Haynes had been informed by their supervisor, Linda Simon, that they were getting a 20-cent-an-hour raise. When this fact became known to employee Claudia Rich- ards, Mrs. Richards ventured the gratuitous comment that she did not know why these individuals were getting a raise since they were going to be fired. Mrs. Richards' remarks were extremely upsetting to Mrs. Haynes, who was preg- nant at the time and in particular need of a job. During that same day, Whitney had mentioned to Mrs. Acker that Mrs. Haynes and Mrs. Norris were going to be "taken off the boards," meaning transferred to another assignment. Mrs. Acker in turn mentioned this fact to Mrs. Norris us- ingjust those words. Mrs. Haynes and Mrs. Norris went in to see Whitney and asked if they were going to be fired. He asked who had told them so. They gave no direct reply but Mrs. Norris replied that Lois Acker said that they were going to be "taken off the boards." Whitney ceased his inquiry as to whose remarks had upset Mrs. Haynes and asked them to sign a paper relating to what Mrs. Acker had told them. Whitney did not ask Mrs. Haynes who had made the remark which had upset her and she did not volunteer Mrs. Richards' name. Mrs. Norris stated that Mrs. Acker did not say they were going to be fired. Whit- ney replied that if it was not true they had nothing to worry about. On February 26, Whitney had asked Mrs. Carter for a written evaluation of Mrs. Acker. She supplied the follow- ing note: Re-Lois Acker Lois has a netive [sic] attitude towards co-workers, lead and Helena Lab. She is what I call a roamer. She is up and down, out of her seat, quite frequently. She talks entirely too much, and in loud voice, which dis- turbs others around her. I have given her two oral reprimands. Once for roaming around, talking and not working, and once for walking off with a technical to drill holes for him, I sent the technicial [sic] to the mechanical room, where we have people who drill holes. She was angry with me both times. The second time she moved her work on the other side of the table from me, so I couldn't see what she was doing I definately [sic] do not recommend a raise for her. On February 27, Whitney also asked Adams for a "backing letter" on Lois Acker, although Mrs. Acker did not work directly under his supervision. Adams supplied the following note: 10 The alleged statement by Mrs Dennis to Mrs . Watson may have oc- curred several weeks or months before this conversation on Mrs Dennis' final day. The record is unclear as to whether Mrs Carter was present when these remarks were made by Mrs Dennis to Mrs Watson or whether she merely was giving a hearsay report. Mrs Watson did not testify to verify either the Carter accusation or the Dennis denial I credit Mrs Dennis Lois Acker- Constant talking. Has been told to stop on several occasions. Have [sic] the potential to work but seem to do just enough to get by. When told to do something or to cease whatever she doing [sic] always has a com- ment or a gesture. A general bad working relationship amongst employees. On or about this same day, Mrs Dennis went in to see Whitney to complain about Mrs. Carter. She told Whitney that Mrs. Carter was pressuring her and that she felt Mrs. Carter was not doing so on her own initiative but was being put up to it. Whitney replied that Mrs. Dennis was just trying to cause trouble and accused her of being an "instigator." Mrs. Dennis accused Whitney of going back on his word to her and said she could not work with her job "hanging over her head." Whitney then told her not to worry, noting that she produced a good volume of work, and stated that if she kept the amount of talking down she would be okay. He told her to go home and not to worry, and added that he would talk with her the next morning. Whitney asked Mrs. Carter for a written statement con- cerning Carol Dennis. Mrs. Carter supplied the following: 2/26/75 Re-Carol Dennis I can't say anything about Carol's work. She does good work. I dust can't trust her. She has gone behind my back, to a new girl, and told her what bad work the girl was doing, and if she didn't improve that I would get her fired. She has told two people that she didn't get along with me. Actually, we were working well together. This kind of attitude is negative and underhanded. I can't really recommend a raise for her. On February 27, 1975, at 5 p.m., Whitney called Mrs. Dennis and Mrs. Acker into his office and fired them. A written statement of reasons was shown to Mrs. Dennis and was placed in the personnel file of each employee. The statement in Mrs. Dennis' file made by Whitney stated as follows: You have been terminated of employment at Helena Labs as of 5:00 p.m. for the following reason(s): 1. Negative attitude: A. Untrustworthy to lead worker B. Disrespect for the rights of fellow employees C. Causing an uncomfortable working atmo- sphere for lead and fellow workers. Work is good quality and quantity but without change in attitude we cannot keep Carol employed at Helena. A similar entry was made in Mrs. Acker's file by Whit- ney. It read: You have been terminated of employment at Helena Labs as of 5 p.m. for the following reason(s). 1. Causing unrest and uncomfortable working at- mosphere for fellow workers, lead workers, superviso- ry personnel and the manager of electronics. Suriness [sic] and disrespect for other employees is felt more so than is allowable for the department as a whole to operate as a group with maximum efficiency. HELENA LABORATORIES CORPORATION 265 Productivity is ok but contribution to the depart- ment concerning causing irritation and turmoil is un- tolerable and cannot be continued. On her way out of the plant, Mrs. Dennis stopped into Supervisor Gene Butt's office and told Whitney she felt he was discriminating against her. B. Analysis and Conclusions 1. The supervisory status of Betty Carter In the initial answer filed in this case by Company Presi- dent Tipton Golias, the Respondent admitted that Betty Carter was a supervisor within the meaning of the Act. Later, when counsel came into the proceeding, the Respon- dent, over the objection of the General Counsel, changed its position in this regard and claimed that Mrs. Carter was merely a lead lady or lead lady trainee for whose acts and words the Respondent should not be held responsible. Mrs. Carter was hired about September 1, 1974. She had 3 years of experience in California in electronics work so the Respondent hired her with a view toward giving her responsibilities not normally associated with rank-and-file employees. I credit Mrs. Dennis' testimony to the effect that when Mrs. Carter was hired and introduced by Whit- ney to the employees on the production line, Whitney in- formed them that Mrs. Carter was empowered to see that all work assignments were carried out and that, if work was not done to her satisfaction, she had the right to tell em- ployees to "hit the clock." When Whitney was asked whether this meant that Mrs. Carter had the right to fire employees, he replied affirmatively. As she began to become more familiar with the Respondent's operations, Mrs. Carter's exercise of authon- ty increased. She regularly handed out work assignments to employees and saw to it that such assignments were com- pleted. She regarded herself as being in charge of about 6- 10 employees on the production line. She participated in the periodic evaluations of employees' work. These reviews are an integral part of the semiannual wage review. She made recommendations regarding the quality and quantity of the work, as well as the on-the-job behavior, of each employee under her jurisdiction. She also attends periodic supervisory meetings with other management employees. Whitney testified that she could bring infractions of com- pany rules to the attention of employees in her section and enforce company rules. I credit Mrs. Dennis' testimony to the effect that Mrs. Carter once gave her permission to leave the plant early on an occasion when Mrs. Dennis' husband came to the plant toward the end of the shift to pick her up. Mrs. Carter repeatedly criticized and, in the judgment of some, reprimanded employees for being away from their workbenches. In the case of Mrs. Dennis and Mrs. Acker, she made adverse recommendations at the end of their tenure of employment concerning whether they should get raises. These recommendations were used by the Respondent as a justification for the termination of both employees. In light of the foregoing facts, I conclude that Mrs. Carter was a supervisor within the meaning of the Act and was held out to employees by the Respondent as such, so her acts and words should be held attributable to the Respondent. Marsellus Vault and Sales Inc., 170 NLRB 898 (1968). It should be noted at this puncture that the Respondent proffered as its Exhibit 3 a handwritten recommendation from Mrs. Carter to Whitney, dated February 26, in which Mrs. Carter recommended against a raise for Mrs. Acker. During Mrs. Carter's testimony on January 13, 1976, the General Counsel brought out on cross-examination the fact that Mrs. Carter had made a written recommendation on February 26, 1975, against a wage increase for Mrs. Acker. The implication behind the question and the answer was that a recommendation concerning such a matter amounts to an indicia of supervisory authority in Carter. This document was a xeroxed or otherwise duplicated copy of the original and was devoid of any written comments by anyone else. On the following day of the hearing, in order to counter the contention of the General Counsel that Mrs. Carter should be accorded supervisory status by virtue of the fact that her February 26 recommendation contained an ad- verse recommendation for a wage increase , the Respon- dent proffered Respondent's Exhibit 8. This document is the original Carter recommendation document of February 26 relating to Mrs. Acker and contains a handwritten nota- tion by Whitney not found on Exhibit 3. His notation cir- cled the final sentence of Mrs. Carter's recommendation and stated, "Betty, this is out of your job definition." Al- though the duplicate already in evidence (Exh. 3) was de- void of this writing by Whitney, Whitney testified that he wrote the notation in question on the original on February 27, the date of Mrs. Acker's discharge, and placed the orig- inal in Mrs. Acker's file at that time. He did not say that he showed the notation to Mrs. Carter. I believe that Whitney's testimony in regard to when he placed his nota- tion on the original recommendation form is incredible and that the giving of such testimony under oath in a Board proceeding warrants further investigation. 2. Certain independent violations of Section 8(a)(1) of the Act by the Respondent In the above-mentioned representation case decision, the Board found as a fact that certain objectionable conduct occurred prior to the November 14 election which affected the result of the election that was held on that date. I con- clude herein that the following acts, established as objec- tionable conduct in the previous decision, also constitute unfair labor practices: a. Golias' statement to employees at a massed assembly on October 25, 1974, that if the Union came into the plant, the negotiation of all wages and benefits would start from zero and employees would be lucky to end up with what they were then enjoying." 1' Famco, Inc, 158 NLRB 111 (1966), Federal Envelope Company, 147 NLRB 1030 (1964), Marsh Supermarkets, Inc, 140 NLRB 899 (1963); Astro- nautics Corporation of America, 164 NLRB 623 (1967), Ashland Oil Compa- ny, 199 NLRB 231, 235 (1972), Aerovox Corporation of Myrtle Beach, 172 NLRB 1011 (1968), enfd 435 F.2d 1208 (C A 4, 1970), Suprenant Manufac- turing Co, 144 NLRB 507, 517 (1963), enfd 341 F 2d 756 (CA. 6, 1965), Continued 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. Golias' statement at the same meeting , that the Company's profit-sharing plan was so drawn that it exclud- ed from participation employees who are represented by collective-bargaining agents. Quaker Tool and Die, Inc., 169 NLRB 1148 (1968). c. The surveillance of a union meeting on November 7 at the Ramada Inn by Supervisors Thames and Sims, who refused to leave when requested. d. The surveillance of a union meeting on November 13 by nonsupervisory agent Thorne, who refused to leave when requested. I conclude that the following acts and conduct of the Respondent outlined in the testimony of this record consti- tute independent violations of Section 8(a)(1) of the Act: a. Mrs. Golias' statement at the party given by Gem Bordages shortly before the election that certain employees might have been overlooked at the wage review and that such oversight would be promptly corrected constitutes a promise of benefit designed to dissuade employees from supporting the Union and as such violates Section 8(a)(1) of the Act. b. The action of Ovay H. Mayes on October 9, 1974, during a lengthy private conversation with Coody in Mayes' office, in asking Coody if employees were trying to join a union, which union was involved, and why employ- ees wanted to loin a union, constitutes coercive interroga- tion and violates Section 8(a)(1) of the Act. c. Whitney's questions of the same kind and character to Coody during the course of the same lengthy conversa- tion in Mayes' office constitute illegal interrogation. d. The questions asked of Coody later in the afternoon by Thames and Mrs. Golias as to why Coody was trying to start a union and why the Company needed a union consti- tute further coercive and illegal interrogation. e. Mrs. Golias' statement to Coody to the effect that employees represented by unions were excluded from par- ticipating in the Company's profit-sharing plan constituted a threat of loss of benefits and an interference with Section 7 rights in violation of Section 8(a)(1) of the Act. Quaker Tool and Die, Inc., supra. f. The formation of an in-plant grievance committee during the pendency of a representation petition and the implementation of this action by meetings and resolution of grievances during the period when objections to the election were pending constitutes the grant of a benefit growing out of expressions of employee dissatisfaction and was designed to discourage union membership and con- tinued support of the organizing effort. As such, Respondent's action in this regard violates Section 8(a)(1) of the Act. See Rupp Industries, Inc., 217 NLRB 385 (1975); Victor M. Sprys d/b/a Eastern Industries, 217 NLRB 712 (1975); House of Mosaics, Inc., 215 NLRB 704 (1974); Gold Circle Department Stores, 207 NLRB 1005 (1973); Hilton Nursing Home, 204 NLRB 107 (1973); Lowen Company, Inc., 203 NLRB 449 (1973); Beyerl Chevrolet, Inc., 199 NLRB 120 (1972). g. Goltas' statements to Coody on the Friday before the Little Rock Downtowner, Inc, 143 NLRB 887 (1963), enfd in part 341 F 2d 1020 (CA 8, 1965) hearing in the representation case, to the effect that the Respondent could afford to pay employee witnesses for their time and mileage if their testimony was short and his request in the course of this conversation that the Union drop all objections and challenges except a challenge to Ward's ballot and an objection relating to statements con- cerning the profit-sharing plant, amount to an offer of ben- efit to employees in order to induce the withdrawal of ob- jections and challenges. These sentiments were confirmed by further and similar statements made to three employee witnesses on the third day of the R case hearing. As such, these statements are a serious invasion of Section 7 rights and amount to tampering with witnesses in a Board pro- ceeding. Such an offer violates Section 8(a)(1) of the Act. h. Mrs. Carter's statement and questions to Mrs. Dennis immediately before the election contained numerous viola- tions of Section 8(a)(1) of the Act. Mrs. Carter persisted during this period of time in trying to dissuade Mrs. Den- nis from voting for the Union. Such persistence is an ele- ment in determining the coercive character of interroga- tions. On one occasion in October, Mrs. Carter asked Mrs. Dennis why she was reading a pamphlet about the Union. She then proceeded to berate unionism as the cause of strikes and replacement and claimed that unions were not all that they pretended to be. Accordingly, her questioning in this context was not casual but was coercive. i. Later questions to Mrs. Dennis as to whether she was really interested in unionism and what the reasons were that prompted her to wear a union button were designed to probe into the depth and intensity of Mrs. Dennis' convic- tions and as such were illegal. Her further statement on this occasion that, if the Union came in, the employees would lose their hospitalization benefits adds an additional coer- cive element to this interrogation and also amounts to a clear threat of loss of benefits in violation of Section 8(a)(1) of the Act. j. Mrs. Carter's statement to Mrs. Dennis on another occasion that, if enough people voted for the Union, "we could all lose ourjobs or be fired" is a classic and conven- tional threat of reprisal for supporting an organizing drive and as such violates Section 8(a)(1) of the Act. Likewise, Mrs. Carter's statement to Mrs. Dennis and other employ- ees on November 12 that the success of the Union could cause employees to lose their jobs and their free hospitali- zation constitutes additional threats of reprisal or loss of benefits which violate Section 8(a)(1) of the Act. k. Supervisor Joe Sims made a statement on November 7 at the union meeting at the Ramada Inn which he attend- ed as an unwanted guest. He told several employees on this occasion that if the Union won the Company would sub- contract out much of its work and would gradually phase out certain employees. Quite apart from Sims' undesired presence on this occasion, his statement in this respect to several assembled employees amounts to a serious viola- tion of Section 8(a)(1). Mrs. Golias, her father-in-law, and others high in the supervisory ranks of the Company attended a meeting or cocktail party in October 1974 at the home of Gem Bord- ages in order to listen to the Union's position during the organizing drive. They came with permission of the Union and at the express invitation of Coody, the Union's princi- HELENA LABORATORIES CORPORATION 267 pal in-house organizer. The General Counsel alleges in sec- tion 11(a) of the complaint that their presence at this meet- ing constitutes surveillance of union activities and violates Section 8(a)(1) of the Act. It is difficult to understand how the Union could extend an invitation to employer repre- sentatives to be present at this meeting and then contend that their presence interfered with either the statutory rights of employees generally, or of those employees who were also in attendance . Accordingly, I dismiss so much of the complaint that alleges a violation of the Act based on surveillance by Respondent's hierarchy of union activity at the Bordages' party. Cheese Barn, Inc., 209 NLRB 502 (1974); Thermo Electric Co., Inc., 222 NLRB 358 (1976). The General Counsel produced no evidence to support the allegations of violations of Section 8(a)(1) of the Act which are found in sections 14 and 15 of the complaint. Accord- ingly, those sections of the complaint are also dismissed. 3. The denial of wage increases to five employees on or about January 30, 1975 During the semiannual wage review that took place at or near the end of January 1975, between 80 and 100 employ- ees received wage increases. Only five employees did not. They were James Herod, his wife, Peggy Duplissey Herod, Lois Acker, Carol Dennis, and James Coody. Lucy Kirk- wood was initially told that she would not receive an in- crease but actually received one within a few days of per- formance review. Of those who did not receive increases, all were either union activists or were affiliated with the union effort. This latter categorization also applies to Mrs. Kirkwood. At the October 1974 election and later at the September 1974 election, the votes tallied showed that the bargaining unit was almost equally divided between union supporters and those who opposed union organization. The list of those denied wage increases in January 1974 does not reflect this division of opinion within the ranks of the Respondent's employees. Commenting upon the use of a percentage test which showed a distinct bias against union supporters in the selection of employees tabbed for layoff, the Eighth Circuit stated in N.L.R.B. v. Midwest Hanger Co., and Liberty Engineering Corp., 474 F.2d 1155 (1973): The General Counsel relied initially on a percentage test to show that the selection procedures had been used to discriminate against the union employees. Of the 18 discharged employees, all but one had signed authorization cards. This presented a telling percent- age of 95 percent discharge of union adherents while the percentage of union employees in the plant as a whole was 70 percent. This on its face would indicate a discriminatory discharge violative of the Act. [Citing Hamilton-Brown Shoe Co. v. N.L R.B, 104 F.2d 49, 53 (C.A. 8, 1939).] See also Radiadores Paragon de Puerto Rico, 206 NLRB 918 (1973). The application of a similar test to the facts of this case shows that an employer, who demonstrated animus by var- ious independent acts outlined above, denied wage increas- es in January 1975 only to five employees of its entire complement of employees, but all of these were union sup- porters. However, union sentiment in the entire employee complement was about equally divided. Such disparity be- tween the division of opinion on unionization and the deni- al of wage increases is no coincidence but is clear evidence that the several vague and generalized reasons advanced by the Respondent to justify withholding of increases to Herod, his wife, Coody, Mrs. Acker, and Mrs. Dennis were pretextual. Moreover, the three employees whose records are in evi- dence were all faulted on their performance review for hav- ing a bad "attitude." In the case of Mrs. Dennis, her review stated that the quantity and quality of her work perfor- mance was good but that she would be discharged in 30 days if her "attitude" did not improve. The Board has fre- quently found that the use of the word "attitude" by an antiunion employer to describe union activists in an ad- verse light is merely an oblique way of criticizing prounion sympathy, and, in such contexts, the word "attitude" is synonymous with prounion sentiment. L.S. Ayres and Com- pany, 221 NLRB 1344 (1976); Minnesota (3M) De Puerto Rico, Inc., 214 NLRB 468 (1974); Ram. Inc., 218 NLRB 430 (1975). Such an equation is certainly warranted in the January performance reviews of these individuals. Whether such language also appears in the January reviews of Her- od and his wife is a matter not disclosed by the record. In light of the above considerations, I conclude that all five employees named in paragraph sixteen of the complaint were denied wage increases because of their union senti- ments and activities, in violation of Section 8(a)(3) of the Act. 4. The discharge of Coody, Mrs. Acker, and Mrs. Dennis In considering the discharges of Coody, Mrs. Acker, and Mrs. Dennis, we are confronted with three personnel actions, taken by the Respondent against known union ac- tivists, which followed similar patterns and which were ef- fectuated within 3 weeks of each other. Coody was the acknowledged leader of the union effort in the eyes of the Respondent. Mrs. Acker passed out union literature at the plant gate, wore a union button to work, and testified on behalf of the union at the January 1975 representation hearing. Mrs. Dennis wore a union button to work, and had engaged in heated discussions with her forelady before the election concerning the organizing effort which led to a serious cooling of relations between them. The three dis- charges were made by a Respondent who, in the preceed- ing 3 months, had engaged in serious and repeated unfair labor practices aimed at defeating an organizing drive and who was faced with the distinct possibility that a rerun election would take place because of objections which were pending and which had just been litigated before a Board Hearing Officer. In the course of this litigation, the Respondent's president unsuccessfully attempted to buy off or minimize the testimony of two of the three discrimi- natees who nevertheless appeared as witnesses and gave lengthy and damaging testimony against him. All three dis- criminatees were denied wage increases discriminatonly at the January wage review and all were placed under proba- tion and threat of discharge pending improvement in their respective "attitudes." In light of this background and the 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD common threads which unite the three cases, the Respon- dent asserts as to each discriminatee a dragnet of reasons in support of the discharges which, in some respects, are vague and in other respects are either contradictory or fac- tually unsupported. During the course of an acrimonious cross-examination at the representation case hearing by Golias, Coody by inference suggested the likelihood of his discharge dust 3 weeks before it occurred. Gohas evidenced strong irritation at Coody during the representation case because of his tes- timony. No sooner had Coody returned to the plant than he was given the first and only written reprimand which he had ever received during his tenure at Helena. Coody had left his work station with permission of his foreman to go to the accounting office to obtain the phone number of Ron Hext, a fellow employee. At the time Coody was en- tertaining the possibility of pressing a grievance on behalf of Hext through the solutions committee, an organization to which Coody had been elected with knowledge of the Respondent. Accordingly, Coody was engaging in concert- ed, protected activity, not merely personal business, in the circumstances for which he was reprimanded.12 Moreover, Coody had specific approval of his foreman for being in the company office at the time. The denial of the wage increase recommended by his supervisors 2 weeks later was made by Golias on February 2 because of Coody' s "atti- tude," a matter previously discussed, and because of Coody's "use of company time for personal business," an obvious reference to the January 15 event. Both the Janu- ary 15 reprimand and the followup on February 2 were aimed at discouraging both union and protected activities on Coody's part and were part of the groundwork for the discharge which followed hard on the heels of these events. As of February 2, Coody had 2 months, or until April 1, to demonstrate to management an improvement in his atti- tude and a disposition not to use company time for person- al business. Five days later he was fired. Some six grounds for discharge were noted in writing by the Respondent in Coody's personnel file. They involve, for the most part, the same asserted shortcomings on Coody's part which in the Respondent's view had merely warranted probation at the beginning of the same week. The triggering event leading to the discharge was one-or possibly two-disagreements between Coody and toolroom personnel which occurred on Wednesday and Thursday of his final week. It is axiomatic that, in evaluating asserted grounds for a discharge, the Board may not second guess an employer and may not interpose its own independent judgment as to whether any bona fide ground for discharge is really of a sufficiently serious nature to warrant the action. The stan- dard refrain for expressing this limitation is that an em- ployer is legally free to fire an employee for good reason, bad reason, or no reason at all, so long as the reason is not one designed to discourage or punish union activities or concerted, protected activities. However, while working within this limitation, the Board is certainly free to see and call trivial what it is, and to judge whether a trivial excuse 12 Lenkurt Electric Co, 182 NLRB 510 (1970), enfd 459 F.2d 635 (C A 9, 1972) is in fact the precipitating cause of a serious personnel ac- tion which an employer has taken. Whitney testified that "the thing that really did it," as far as Coody was concerned, was a complaint which he had received from Bens Singleton regarding Coody's reluctant compliance with the new procedure for checking out tools from the toolroom. On Wednesday, Coody signed out a Number 11 Exacto knife blade. Instead of signing his full name on the checkout sheet, he signed his inspection num- ber. When Mrs. Singleton, the toolroom employee, told him he had to sign his name and not his number, he did so by writing his name on the sheet over his inspection num- ber. The evidence is quite vague about what occurred the following day, but apparently a repeat of this same ex- change took place. The Thursday signout sheet is not in evidence. I note from the Wednesday signout sheet in the record that certain other employees failed to sign their full names on this sheet and instead merely used their initials or a commonplace first name (Roy) or a nickname. This noncompliance with the strictures of the new toolroom procedure by employees other than Coody apparently caused no internal disturbances and certainly precipitated no other discharges. However, for some unexplained rea- son, Mrs. Singleton became gravely upset at Coody's ac- tion. Her excited state of mind caused her to report these events to Whitney, who got word of the first incident by long-distance telephone. As a result, Whitney became so upset that he fired Coody. If this sequence of events is to be believed, we would have to conclude that Coody was in fact fired for having illegible handwriting, because there is nothing else in this entire scenario that could possibly gen- erate the degree and kind of commotion which Whitney, Golias, and Mrs. Singleton attributed to it in their testimo- ny. I regard their testimony concerning Coody's discharge as overblown, contrived, and bordering on the absurd. The manner in which Coody checked out tools is as near to a nonevent as words could describe. That it should be report- ed to the production manager by long-distance phone, that it should have been the occasion for a formal investigation and formal apologies by Coody to toolroom personnel, and finally, that it should have resulted in a discharge because the production manager automatically took Mrs. Singleton's side of an insignificant issue rather than Coody's, strains credulity to the breaking point. It is quite obvious from events which preceded the toolroom problem that the Respondent was laying for Coody and that when these trivial matters occurred on Wednesday and Thursday of his final week they were seized upon by the Respondent as the excuse for ridding itself of a major irritant in the organizing campaign. Accordingly, I conclude that Coody was discharged for union activities in violation of Section 8(a)(3) of the Act. Lois J. Acker was also on probation at the time of her discharge. A day or two before this event, Whitney told her that certain employees in her section would be "taken off the boards," meaning transferred to another job, and she repeated this remark to the affected employees. At or about the same time another employee, Claudia Richards, made another remark to the effect that she felt that certain employees who had just received raises would be fired. It HELENA LABORATORIES CORPORATION 269 was Mrs. Richards' remark-not Mrs. Acker's-which caused fellow employees to be upset and to go to Whitney to seek clarification. However, Whitney ignored the maker of the remark which generated the employee unrest, and, upon hearing of another statement made by Mrs. Acker, zeroed in on her relatively innocuous words, which were in fact a repetition of what Whitney had previously told her. Whitney's eagerness to attribute the discomfitures of Mrs. Norris and Mrs. Haynes to Mrs. Acker, while ignoring the cause of the problem, is clear indication of bias on his part and substantial evidence that he was looking for any event or occurrence available to justify a discharge which, like Coody's, was in the making since the time Mrs. Acker ap- peared as a witness and testified before the Board's Hear- ing Officer in support of the Union's objections and chal- lenges. Accordingly, I conclude that she was discharged in violation of Section 8(a)(3) of the Act. In its recitation of the reasons prompting the discharge of Mrs. Dennis, the Respondent conceded that the quanti- ty and quality of her production was good. However, be- tween the time she was denied a wage increase and the date of her discharge, she had failed to undergo a desired "change of attitude," and this failure of conversion, not her job performance, is what proved fatal. Mrs. Dennis' dis- agreement with Mrs. Carter was based on a coolness aris- ing out of discussions before the election concerning the merits of union organization. The "uncomfortable working atmosphere" and "untrustworthiness to lead worker," not- ed in the same termination document, also relate to dis- agreements with Mrs. Carter over the organizing drive. Like Coody and Mrs. Acker, Mrs. Dennis was also marked for removal in order that the Respondent's narrow vote margin over the Union might be sustained or increased in the event of a rerun election. Accordingly, I conclude that she was discharged in violation of Section 8(a)(3) of the Act. No evidence was placed in the record concerning the discharge of Peggy Duplissey Herod, who did not choose to return to Beaumont, Texas, from California to testify in the proceeding . Accordingly, I dismiss so much of the com- plaint which alleges that she was discharged in violation 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 Helena Laboratories Corporation is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Communications Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Michael Lee Coody, Lois J. Acker, and Carol Ann Dennis, as found above, the Respondent violated Section 8(a)(1) and (3) of the Act. 4. By discriminatorily denying wage increases to James 1. Herod, Peggy Duplissey, Michael Lee Coody, Carol Ann Dennis, and Lois J. Acker, the Respondent herein violated Section 8(a)(3) of the Act. 5. By coercively interrogating employees concerning their union activities; by engaging in surveillance of the union activities of its employees; by promising employees benefits in order to dissuade them from engaging in union activities; by threatening employees with loss of employ- ment, withdrawal of benefits, and other reprisals for engag- ing in union activities; by announcing that a company- sponsored profit-sharing plan automatically excluded from participation those employees represented by a labor orga- nization; by offering employees financial inducements for withdrawing objections and challenges and in order to in- fluence their testimony in a Board proceeding; and by the formation of a grievance committee and the adjustment of grievances with it during the pendency of a representation election campaign in order to dissuade employees from giving support for the Union; and by the acts and conduct set forth in Conclusions of Law 3 and 4, the Respondent herein violated Section 8(a)(1) of the Act. 6. The unfair labor practices found herein affect com- merce between the several States within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent herein has commit- ted certain 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. Since the violations of Section 8(a)(1) which have been found herein are repeated and pervasive and involve discriminatory discharges , I will recommend the issuance of a so-called broad 8(a)(1) order designed to suppress any and all violations of that section. J. C. Penney Co., 172 NLRB 1279 (1968), fn. 1; Adam and Eve Cosmetics, Inc., 217 NLRB 1317 (1975); Thermo Electric Co. Inc., 222 NLRB 358 (1976). With respect to the discriminatory deni- al of wage increases which took place on or about January 31, 1975, I will recommend that the Respondent be re- quired to pay the five employees so deprived a sum equal to the difference between what they received and what they would have received had they been given routine periodic increases, with interest on the difference computed at 6 percent per annum. With respect to the three employees who were discriminatorily discharged, I will recommend that they be reinstated to their former or substantially equivalent positions, and that they be made whole for any loss of pay which they have suffered by reason of the dis- crimination practiced against them , with interest thereon computed at 6 percent per annum in accordance with the Woolworth and Isis formulas.13 I will also recommend that the Respondent be required to post the usual notice, noti- fying its employees of their rights and of the remedy in this case. 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: u F W Woolworth Company, 90 NLRB 289 (1950), Isis Plumbing & Heating Co , 138 NLRB 716 (1962) 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER 14 Respondent Helena Laboratories Corporation, Beau- mont, Texas, its officers, agents, successors, and assigns, shall: 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 employees with loss of employment and loss of benefits in reprisal for supporting the Union. (c) Engaging in surveillance of the union activities of its employees. (d) Promising employees benefits in order to dissuade them from giving support to the Union. (e) Announcing that a company-sponsored profit-shar- ing plan excluded union-represented employees from parti- cipating. (f) Offering employees financial inducements to secure the withdrawal of challenges and objections to an election and to influence their testimony at a Board proceeding. (g) Formulating a grievance committee and adjusting grievances with it for the purpose of influencing employees to cease giving support to the Union. (h) Discouraging membership in, or activities on behalf of, Communications Workers of America, AFL-CIO, or any other labor organization, by discharging employees or refusing to grant them periodic wage increases. (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. 14 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 2. Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act: (a) Offer to Michael Lee Coody, Carol Ann Dennis, and Lois J. Acker full and immediate reinstatement to their former positions or, in the event that their former positions no longer exist, to substantially equivalent employment, without prejudice to their seniority or other rights which they formerly enjoyed. (b) Make whole Michael Lee Coody, Carol Ann Dennis, Lois J. Acker, James I. Herod, and Peggy Duplissey Herod for any loss of pay they may have suffered by reasons of the discriminations found herein, in the manner described above in the section entitled "Remedy." (c) Post at its Beaumont, Texas, plant copies of the at- tached notice marked "Appendix." i Copies of said notice, to be provided by the Regional Director for Region 23 and duly signed by a representative of the Respondent, shall be posted by the Respondent immediately upon receipt there- of, and shall be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (d) 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 Order. (e) Notify the Regional Director for Region 23, in writ- ing, within 20 days from the date of this Order, what steps it has taken to comply herewith. Insofar as the complaint alleges matters not found here- in to be violative of the Act, said complaint is hereby dis- missed: 15 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "