Struthers-Dunn, Inc.

STRUTHERS-DUNN, INC. 49 Struthers-Dunn, Inc. and Local 1973, International Brotherhood of Electrical Workers, AFL-CIO- CLC. Cases 1-CA-10658, 1-CA-11049, and 1- RC-13745 February 9, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On June 21, 1976, Administrative Law Judge Irving M. Herman issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified herein.2 We agree with the Administrative Law Judge that a bargaining order is warranted here to remedy the unfair labor practices committed by Respondent. However, in accordance with our recent decision in Trading Port, Inc., 3 our remedy will require Respon- dent to bargain with the Union as of March 25, 1975, the date on which Respondent embarked on a clear course of unlawful conduct.4 Respondent contends that the Union lost its majority strength prior to the commission of any unfair labor practices and that therefore a bargaining order is not an appropriate remedy under N. L. R. B. v. Gissel Packing Co., Inc.5 We disagree. The record reveals that on March 19, 1975, 1 week after the Union had obtained a card majority and Respondent had refused its request for recognition, the Board's Regional Office in Boston, Massachu- setts, received the following statement, dated March ' The Respondent has excepted to 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 2 Although the Administrative Law Judge found that on two occasions Respondent violated Sec. 8(a)(1) by threatening employees with harsher working conditions in the event the Union were successful , he failed to provide in his recommended Order that Respondent shall cease and desist from such conduct. Accordingly, we shall modify the recommended Order and notice in this regard. 3 219NLRB298(1975). 4 Although the complaint alleged Respondent 's failure to recognize and bargain with the Union to be violative of Sec. 8(aX5), the Administrative 228 NLRB No. 9 14 and subscribed by 16 of the 46 employees who had previously signed authorization cards for the Union: 6 We the Undersigned have signed cards petition- ing a Union into Struthers-Dunn, Inc. We now feel that we would like to withdraw our names from any such Petition. The 16 employees who signed this document took no steps to advise the Union that they wished to withdraw their cards. Respondent had committed no unfair labor practices at the time the letter was submitted to the Regional Office. Respondent's contention that the Union's majority was lost as a result of the withdrawal letter is without merit in light of the well-established rule that an authorization card cannot be effectively revoked in the absence of notification to the Union prior to the demand of recognition.? In the instant case, it is clear that the 16 employees never communicated their change of mind to any union official. Accordingly, we find that the 16 employees who signed the withdrawal letter did not effectively revoke their cards and therefore conclude that that document did not deprive the Union of its status as majority representa- tive of Respondent's employees. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dent, Struthers-Dunn, Inc., Manchester, New Hamp- shire, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraphs 1(h) and (i), and renumber present paragraph 1(h) as 1(j): "(h) Threatening its employees with harsher work- ing conditions in the event they choose or retain the Union, or any other labor organization, as their collective-bargaining representative. Law Judge failed to pass on this allegation on the ground that it was "apparently abandoned in General Counsel's brief " See fn. 2 of the attached Decision. As the record establishes the validity of the 8(ax5) allegation of the complaint, we find, in accordance with Trading Port, that Respondent engaged in misconduct which violated not only Sec. 8(a)(1) of the Act, but Sec. 8(aX5) as well. Member Jenkins also finds the 8(a)(5) violation, because it has been alleged and proved, and would accordingly find that Respondent's bargain- ing obligation began on the date of the Union's demand, March 12, 1975 5 395 U.S. 575 (1969). 6 There are 64 employees in the unit. 7 Jas H Matthews & Co. v. N.L.R.B., 354 F.2d 432, 438 (C.A. 8,1965), cert. denied 384 U.S. 1002 ( 1966); Southbridge Sheet Metal Works, Inc., 158 NLRB 819, 829 (1966), enfd. 380 F 2d 851 (C A. 1, 1967); Priced-Less Discount Foods, Inc, d/b/a Payless, 157 NLRB 1143, 1150 (1966), enfd. 405 F.2d 67 (C.A. 6, 1968). 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "(i) Refusing to recognize and bargain with the Union as the exclusive bargaining representative of the employees in the bargaining unit described below." 2. Substitute the following for paragraph 2(a): "(a) Recognize, effective from the date beginning March 25, 1975, and, upon request, bargain collec- tively and in good faith with Local 1973, Internation- al Brotherhood of Electrical Workers, AFL-CIO- CLC, as the exclusive representative of all the employees in the following appropriate unit, and embody in a signed agreement any understanding reached: "All production and maintenance employees at the Manchester, New Hampshire plant of Struth- ers-Dunn, Inc., but excluding all office clerical employees, professional employees, guards and supervisors as defined in Section 2(11) of the Act." 3. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the election in Case 1- RC-13745 be, and the same hereby is, set aside, and that Case 1-RC-13745 be dismissed. IT IS ALSO FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations not found herein. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT grant wage increases to our employees to discourage their union activities. WE WILL NOT threaten our employees with loss of existing or prospective benefits in the event they choose or retain the Union, or any other labor organization, as their collective-bargaining repre- sentative. WE WILL NOT threaten to close down or move the plant in the event of a union victory in an election. WE WILL NOT state that any planned wage increase or other benefit will be withheld because of the pendency of a union campaign or of a proceeding before the National Labor Relations Board. WE WILL NOT coercively interrogate our em- ployees concerning their union activities, views, or sympathies. WE WILL NOT give our employees the impres- sion that we are maintaining surveillance over their union activities. WE WILL NOT threaten our employees for attending union meetings, or otherwise discourage such attendance except through views, argument, or opinion protected by Section 8(c) of the Act. WE WILL NOT threaten our employees with harsher working conditions in the event they choose or retain the Union, or any other labor organization, as their collective-bargaining repre- sentative. WE WILL NOT refuse to recognize or bargain with the Union as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act. WE WILL recognize, effective from the date beginning March 25, 1975, and, upon request, bargain collectively and in good faith with Local 1973, International Brotherhood of Electrical Workers, AFL-CIO-CLC, as the exclusive repre- sentative of our employees in the following appropriate unit, and embody in a signed agree- ment any understanding reached: All production and maintenance employ- ees at the Manchester, New Hampshire plant of Struthers-Dunn, Inc., but excluding all office clerical employees, professional em- ployees, guards, and supervisors as defined in Section 2(11) of the Act. STRUTHERS-DUNN, INC. DECISION STATEMENT OF THE CASE IRVING M. HERMAN, Administrative Law Judge: This consolidated case was heard before me on December 1-3, 1975,1 at Manchester, New Hampshire. The charges were filed by Local 1973, International Brotherhood of Electrical Workers, AFL-CIO-CLC (herein called the Union), and duly and timely served on Respondent. Complaint issued on July 8 and was amended on September 22. The primary issues are whether Respondent violated Section 8(axl) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act, by interrogating and threatening its employees, giving them the impression of surveillance, and granting them a wage increase; whether I All dates are in 1975 except as otherwise stated. STRUTHERS-DUNN, INC. Respondent should be ordered to bargain with the Union to remedy such violations; 2 and whether, absent a bargaining order, the result of the election conducted in Case I-RC- 13745 on April 25 should be set aside and a new election directed. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed on behalf of General Counsel and Respondent, I make the following: FINDINGS AND CONCLUSIONS 1. RESPONDENT'S BUSINESS The complaint alleges, the answer admits, and I find that Respondent is a New Jersey corporation maintaining its principal office and place of business at Lambs Road, Pitman, New Jersey, with a division headquarters at 5 Bedford Street, Manchester, New Hampshire, where it is engaged in the manufacture, sale, and distribution of electrical relays and controls; that Respondent annually receives goods at its Manchester plant valued at over $50,000 from points outside New Hampshire, and ships goods valued at over $50,000 from its Manchester plant to points outside New Hampshire; and that Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Charging Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts 1. Background Respondent's main plant, which has about 200 produc- tion employees, has been located in Pitman, New Jersey, for about 20 years after about 10 years in Philadelphia. These employees have been represented by the IUE throughout this period. The Manchester plant was purchased by Respondent at least 10 years ago and, according to Respondent's president and chief executive officer Pfeffer, is merely "a relocation of a department we would have in [Pitman]," with its sales, accounting, engineering, and quality control functions all directed from Pitman. Respon- dent's quality control manager, Jordan, has his office in Pitman where he supervises the work of the quality control department which consists in Pitman of five quality control inspectors, all of whom are in the bargaining unit there. 2 An 8(a)(5) allegation in the complaint is apparently abandoned in General Counsel's brief which mentions it nowhere and whose argument for a bargaining order is couched entirely in terms of the 8(a)(1) violations 3 He testified variously to "8 years," "4 to 5 years," "5 or 6 years," and "6 or 7 years " 4 One of them supervises two lines 5 The dip line consists of only about 3 employees, as compared with about 5 on another, 7 on a third, and 15-18 on each of the remaining lines 6 Grossman's testimony on direct examination in this respect was ... we must build the quality into this in the very beginning, and that 51 The Manchester plant maintains five production lines, each ending with a tester who insures that each relay functions properly by testing pickup voltage and dropout voltage. In addition, one quality control inspector directly responsible to Jordan in Pitman in respect to her quality control functions spot checks all outgoing orders to insure an adequate level of quality which involves voltages, components, coil resistance, and armature gap and over- travel. Grossman, a former foreman in Pitman, has been manager of the Manchester plant for 4 to 8 years.3 Reporting directly to him is Chretian, production manager, who in turn oversees three foremen who supervise all but one of the various production lines.4 According to Respon- dent's evidence, Grossman himself maintains direct super- vision over the dip line or dual-in line 5 because of the peculiar type of relay made on that line. Unlike the other relays which can be repaired and salvaged if made improperly, those coming off the dip line must be scrapped if they fail to operate properly.6 The testing and quality control of dip relays are preceded by microscopic checking of each unit by the girl who builds it. Grossman and Chretian have separate offices, as do Mason (engineer), the buyers, and Eve MacArthur, who is quality control inspector for the plant, and who General Counsel contends is the supervisor of the dip line. The foremen apparently have no offices. 2. The organization campaign a. Card-signing; bargaining demand and refusal; representation petition Robert Fisher, president of the Union, whose office is in Eliot, Maine, met with five of Respondent's employees (including Rachel Libby and Regina and Rhea Letares) in Manchester on the evening of March 6. He testified that he told them that cards would have to be signed on the basis of which the Union might obtain recognition but that such recognition was not often granted and he did not believe it would happen in this case; they would probably have to present the cards to the Board to invoke its processes, including an election. All the employees at the meeting signed cards and were given blank cards to distribute among their fellows,7 and they were specifically told that anyone who signed a card remained free to change his mind and withdraw it. A total of 43 signed cards were received by Fischer by the morning of March 12 when he telephoned Grossman from Kennebunk, Maine, introduced himself, and said he had a card majority8 and wanted recognition.9 He could not "recall exactly what Mr. is why I have personally kept this line under my jurisdiction from the time it has come into Manchester r All cards were single purpose authorization cards 8 A total of 64 employees are stipulated in the unit as of the time of the demand, to which Respondent would add Eve MacArthur who the General Counsel contends is a supervisor. 9 A 44th card stipulated as authentic (O'Leary) was not signed until March 12 Two additional cards (Murphy and Roy, respectively dated March I I and 12) were apparently received later. 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Grossman said," but Respondent's answer admits the refusal to bargain at that time.10 Fischer sent a representa- tion petition to the Regional Office the same day, followed on March 14 by transmittal of the 44 stipulated cards. b. Withdrawal of signatures On March 19 the Regional Office received the following statement, initiated by Denise Marion, dated March 14 and subscribed by Marion and 16 other employees: We the undersigned have signed cards petitioning a Union into Struthers-Dunn, Inc. We now feel that we would like to withdraw our names from any such petition." c. Details of the campaign (1) The conversations As Respondent asserts, "the campaign was hot and heavy," with considerable literature reaching the electorate from both sides. In addition, Grossman, Chretian, and MacArthur had certain conversations with various employ- ees, and (apart from the wage increase of August 4, infra,) it is in these conversations that the alleged misconduct occurred, all prior to the election held on April 25 pursuant to a Stipulation for Certification Upon Consent Election executed on March 25. The original complaint, issued on July 8, contained 20 Section 8(ax1) counts. The amended complaint, which issued on September 22, added another 26. The earliest date of alleged 8(axl) conduct appearing in the complaint up to the date of the hearing herein was March 25. On November 25, General Counsel issued a notice of intent to amend complaint at the hearing, specifying 12 additional counts. At the hearing, however, following objection by Respon- dent, General Counsel agreed to limit her motion to just one of these, an allegation that, on March 11, MacArthur had asked an employee who had contacted the Union. At the same time, General Counsel moved to amend an allegation already in the complaint that MacArthur had asked an employee if she had signed a union card, by changing the date of the alleged event from March 25 to March 11, General Counsel stating on the record that both questions occurred in the same conversation. I allowed the two amendments inasmuch as they both related to a conversation already alleged (albeit on a different date) and since Respondent would have time to prepare to meet the issues before the close of the hearing. Regina Letares, who resigned her employment immedi- ately after the election, testified to this conversation, stating on direct examination that MacArthur telephoned her on the evening of March 11 to say that she had heard about the union activity and asked what she (Regina) knew about it, whether she had signed a card, and whether certain other employees whom MacArthur named were involved; that 10 The unit, as defined in the pleadings, includes "all production and maintenance employees at the Manchester , New Hampshire plant of Struthers-Dunn, Inc., but excluding all office clerical employees , profession- al employees, guards and supervisors as defined in Section 2(11) of the Act." 11 One of the signers of this document (Santos) had not signed a card 12 It was this "significan[ce]" that fixed the date in her mind. Regina said they weren't; that MacArthur said Respondent "just couldn't afford a union. They would move back to Pitman if it, you know, got in there"; MacArthur said she was disappointed that Regina had not discussed the matter with her and was "really upset," that when Grossman learned of it "he was really going to be upset." Regina testified further, on cross, that she thereupon called Beverly Gingras, at whose house the March 6 meeting with Fischer had occurred, and that Gingras in turn called Fisher who then phoned Grossman the next morning. Although she testified that MacArthur's call was "significant" 12 because it precipitated Fischer's call to Grossman and that she "was very upset by the phone call," she admitted that she had failed to mention it to the Board agent investigating the charge, explaining that he was there "a very brief period of time and didn't really go into any detail." Regina, who had solicited other signatures after the March 6 meeting and who was known to be one of the Union's activists,13 testified to the following additional conversations on direct examination: March 25 - MacArthur, with whom she had always fared well,14 told her "it meant a lot to [MacArthur]" that Regina not attend the first postorganizational union meeting on March 25, so she did not attend. March 26 - MacArthur told her she had heard that Regina had not gone to the meeting, and thanked her. Early April - MacArthur asked her to accompany her to Grossman's office. MacArthur asked Grossman if it was true that the employees would lose their "benefits, vaca- tions and holidays" 15 if the Union got in, and Grossman said yes "because ... when it got to the table the bargaining would start with nothing and they would take it from there. You know, that he didn't have to accept what the Union would offer." He also said Respondent had the Manchester plant because that was a low-wage area where its products could be made cheaply and compete with nonunion shops, and "there wasn't much alternative but to go back to Pitman"; he read some figures on how long it would take to recoup wages lost in the event of a strike and said that the employees would be called out to support strikers in other IBEW plants. He asked her if she had attended the last union meeting; and she said no; and he said "he'd been good and kept everybody at work as long as he could even though things were really bad at the shop, and that he couldn't possibly give raises at this time because we were involved in this union business and we'd have to wait until later." April 23 - Grossman spoke to her and others in the cafeteria "and he again talked about manufacturing the relays in Manchester because it could be done at a profit here; but he didn't really want to be a manager of a union shop and they just couldn't afford a union, and eventually they would move to Pitman if the Union did get in." April 25 - On the morning of the election MacArthur said she was disappointed that Regina had attended the union meeting the night before and asked how she was 13 According to Rachel Libby, Regina wore a union button and there was "no doubt as to where she stood." 14 Her daughter Rhea characterized the relationship as that of"old" and "good friends." 15 The complaint confines this to "vacations" STRUTHERS-DUNN, INC. 53 going to vote, and she replied that she would vote "like I was from the beginning." 16 On cross-examination, Regina brought her account regarding Grossman's reference to Pitman in the early April conversation in line with her direct testimony to the similar reference in the April 23 conversation by testifying that Grossman had said that "if the Union were voted in the Company would no longer be able to produce here at a profit and they'd have to move back to Pitman." Pressed further by counsel, however, she admitted that what Grossman had said on both occasions was that "if [Respondent] had to pay more in wages, it couldn't compete." She added that these two statements, though put "in a different way," were of similar import. On redirect she testified as follows: Q. And on cross-examination you said that your understanding of what Mr. Grossman had said was that you would lose everything, they would start from nothing when they started bargaining? A. Right. That's right. Q. Did Mr. Grossman tell you what would happen from the time the Union was elected to the time they started bargaining with regard to these benefits? A. Well, we'd have no benefits. That when it got to the bargaining table, that's when they started dealing on what we would have for benefits, and that he didn't even have to accept, you know, what the Union had to offer. s s s s Q. Did he say what the effect of the Company's inability to compete would be if the Union was elected? A. Well, they couldn't operate in Manchester; they'd have to move back to Pitman. Libby testified on direct examination to the following conversations: End of March - Chretian 17 went around the floor speaking to small employee groups at various times. When he approached Libby's bench, employees Dumont and Ballard were also there. He said he wanted to point out a few things about the Union . He said that, if an IBEW plant struck, they could be asked or forced to join the strike or have money deducted from their pay to compensate the strikers. And he explained that the reason the plant was in Manchester was because production was cheaper there, but that if the Union got in Respondent would close that plant and move back to Pitman. April 22 or 23 - MacArthur invited her to her office and asked how she felt about the Union. She replied that she was "one of the very strongest on the floor for the Union" 18 because "it could do so much" for the employees. Asked to be more specific, she said they would have job security if the plant were taken over by another company. MacArthur then asked if she was willing to speak to Grossman about it, 16 Libby confirmed this conversation on her redirect examination , adding that on that occasion MacArthur also asked Libby how she was going to vote and that her response was similar to Regina's. The complaint alleges such interrogation of only one employee on that date. 17 The only allegations in the complaint of misconduct by Chretian relate to April 24, but two of such allegations involve subject matter similar to this and she agreed. They went to Grossman's office where MacArthur said they were there "to discuss different points on this union." She asked Grossman whether Libby was right about the job security and Grossman said yes. MacArthur then asked if it was true that if the Union got in the employees would lose their holiday pay and all their benefits. He said yes, they would start from nothing and "have absolutely nothing until they went to the bargaining table and reached an agreement," that even then the Union could not force Respondent to sign any papers; that if they went on strike it would take a long time to recover lost pay. He said Respondent was in Manchester because of the low wage scales and that if the Union got in production costs would be so great that it would not be able to afford to stay there but would go back to New Jersey where production would cost no more. He asked Libby if she "would be attending the [union] meetings" and she replied affirma- tively because she wanted to hear both sides in order to "make an honest decision." April 22 or 23 - Grossman told her and two other girls in the cafeteria whom she could not identify that if the Union got in they could be asked to join a strike at another company or that "the Union could deduct wages from our pay to pay for the other people on strike." He repeated that Respondent was in Manchester because of the low wages, and that "if the Union were to get in ... they would close the doors here and move back to Pitman ... because they couldn't afford to stay here in Manchester with the wages going up." On cross, Libby acknowledged she did not remember dates when Respondent's counsel pointed out that her statement to the Board agent during the investigation placed her conversation with Chretian at or about a week before the April 25 election. Her testimony of Grossman's statements about moving back to Pitman became: He said the plant was here in Manchester due to the fact that it was a low income bracket of people and that the Company could make the relays at a much lower price here, but if the Union were to get in that - not automatically - once they reached an agreement and it was signed that the income bracket for the people in the Company would go up and they wouldn't be gaining that much by having the plant here so that they would move back there to Pitman where they originally were in the first place. Q. In other words, if the Union got in and if an agreement were reached and if the wages got too high then the plant might have to move back to Pitman? A. He didn't say that it might. He did say that it would go back to Pitman. Q. If the wage level got too high? A. Right. She still insisted, however, that Chretian's reference to moving back to Pitman was hinged only on the Union's testimony. It should also be noted that another allegation involving similar subject matter, but relating to April 18, appeared in General Counsel's November 25 notice of intent to amend the complaint but was withdrawn, supra. 18 She wore a union pin and it "was well known" that she was an active campaigner. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coming in and that, unlike Grossman, he made no mention of higher wages or bargaining. Her testimony concerning the loss of benefits became: He said first that once the Union was in that we would start off with nothing; we would have absolutely nothing to begin with. Then they would go into bargaining and we would start from scratch and they would bargain until they came to an agreement and then the Company couldn't be forced to sign that. So, we would have absolutely nothing until an agreement had been signed. Q. Did you ask about the Fast Day holiday? A. I asked him if it meant the holiday that was coming up, and about the July vacation . And he told me, he says, "It means everything. Everything that you have right now will be gone." 19 After testifying that she quit on May 16 to avoid "hassles in [her ] work" starting right after the election, in that she "felt as though I was being treated as a complete outcast among the other workers," she admitted that she signed her resignation on April 29, giving as the reason that she was "seeking better employment," and testified further: Q. All right. Just another question or two about your resignation from the Company. Who was harass- ing you that resulted in your wanting to resign the Company? A. I felt as though I was being mistreated in many ways by Eve MacArthur herself. Q. Anyone else? A. No. I didn't come in contact with any of the other people in the plant that much. Q. Did you and Eve have trouble getting along prior to the election? A. Not really. It was - we had our bad days, but on the whole we got along. Q. The bad days were the days when the quality of your work wasn't up to standard? A. Yeah. Mainly; yeah. Rhea Letares, Regina's daughter, who resigned her employment on May 13, testified on direct to the following incidents: End of March - Chretian approached her workplace before her morning break and asked if he could talk to her. She agreed, and he said he was talking for Grossman who was too busy to talk to all the employees. He said he knew cards were being passed out. She volunteered that she had signed one. Chretian said Respondent couldn't possibly afford the Union, and that if it got in there was plenty of space and help available in Portsmouth where it could move from Manchester. He also said that , if the Union got 19 Regina Letares did not ask Grossman about that Fast Day but testified as follows on cross - Q The election was held on April 25, and Fast Day was the following Monday, April 28th. A Right Q Did you have any concern that you weren't going to get the Fast Day holiday? Did that ever cross your mind? A Yes, it did. Q Why' in and there was a strike , the employees would lose a lot of money and that if another company, like the telephone company, went on strike the Union would take money out of the employees' pay to compensate those strikers. April 18 - MacArthur asked her to bring something to her office, and when she got there, MacArthur invited her to sit down and they engaged in small talk until Rhea said she knew what she was there for and told MacArthur to ask her anything she wanted to. MacArthur then asked how she felt about the Union, and she replied that she did not really know, that while she might not benefit from it some of the older people would. MacArthur said that she once worked at a union plant and did not like it. Asked why, MacArthur responded that she could not smoke at the bench, and had to sign in and out when she went to the ladies' room. MacArthur said that the girls would have to meet work quotas and that "she definitely could not stay if the Union got in. Her life was really miserable when she had worked for one." And she added, "You know, Rhea, this will happen to you if the Union gets in. You'll start from scratch. It will take all your privileges away." She also said that Respondent could not afford a union and would have to close the shop and move to New Jersey. She asked whether Rhea had attended any union meetings, and Rhea said she had just "sat back and listened." MacArthur asked how Rhea was going to vote, and Rhea felt she could not tell her she would vote for the Union so she answered that she would cast a blank ballot. MacArthur said that would not "help us," and Rhea replied that she would vote "what I'm going to vote." MacArthur asked if she was going to attend "the big meeting" the following Thursday, April 24, and she said she did not know. MacArthur then said she would call Rhea Monday morning and asked her to reflect over the weekend on how the Union would benefit her. April 21 - MacArthur called her in to her office that morning and asked whether she had thought the matter over. Rhea said she had not. MacArthur asked if she was going to the Thursday meeting, and she said she did not know. April 22 - MacArthur approached her at her workplace in the morning and asked if she was going to the meeting. She said no, and MacArthur said, "You'd better not "20 April 22 or 23 - Grossman called her, Nancy Whipple, and Rita Pinard to the cafeteria, said this was his only chance to talk to them before the election, that there was no need for a union because the employees "had all the benefits [they] could possibly want," and that Respondent couldn't afford a union because it would not be able to compete and would close the doors and move to New Jersey. Her direct examination concluded: Q. Did he say anything about benefits? A. Yes. He said if the Union did get in that we'd have to start from nothing and we'd lose all of our A. Well, we earned it, you know. This was one of the days that had been posted as a holiday for employees. Q. Yes. But what made you think that you might lose it? A. Well, talk. Q. Talk. Rumor around the shop? A. Rumor, and also one conversation I had with Eve. She said that there was a question that, you know, on whether we would have the day. Eo The date of this conversation in the complaint is April 21. STRUTHERS-DUNN, INC. holidays, our benefits. We'd have to start from nothing and work our way up. And he said it would take just as much time for us to do that to gain that much back. And, you know, if we wanted more it would take just as much time; therefore, it would take double time. Q. Did he say when you would lose your benefits? A. If the Union got in. On cross, Rhea attributed her inability to be as specific concerning the date of her conversation with Chretian, supra, as she was with regard to the other conversations, to the fact that the latter were "closer to the election." She testified as follows about her conversation with MacArthur on April 18: Q. Did Eve say anything about bargaining? A. Well, to the effect that if the Union did get in we'd lose everything from then and we'd have to work our way up. Q. Did she say anything about a contract with the Union? A. Not that I know of. Q. An agreement with the Union? A. No. What type of an agreement? Q. Well, an agreement between the Company and the Union. A. No. And her testimony regarding Grossman's alleged statement about Respondent's inability to compete was as follows: Q. And he said, "We're making cheap relays and we can't compete with other companies."? A. Right. Well, yeah. Q. What did all of this have to do with the Union as you understood it? A. Okay. That if they're making cheap relays and they can't afford to - if they're making cheap relays and they can't afford to compete with other companies, you know - I don't know, the sales or something to that sort - how could they afford to let a union come in. Q. Did he say that if a union came in and they had to pay higher wages it would be harder to compete? A. I don't recall that. Q. How do you think he said it? A. Excuse me. I didn't hear you. Q. How do you think he said it? A. About paying higher wages? Q. Uh huh. A. Well, I understood that he couldn't afford to pay higher wages and that it wouldn't get to the point where he had to. Q. It wouldn't get to the point where he had to what? A. Pay higher wages. Q. Oh. Because he couldn't compete? A. Yes. And he couldn't afford to have a union come in. Nancy Whipple, who never signed a card and swore she voted against the Union in the election, testified under 55 subpena that she was present at the conversation with Grossman testified to by Rhea Letares, that Grossman said there was "no need of going to any union meetings because we just couldn't afford it, and that if the Union did get in we would have to lose-we would lose all of our benefits and we would have to start from scratch." On cross, she testified that Grossman did not say "anything about the plant closing or moving." Patricia McGuigan, who left Respondent's employ on June 27, testified that Chretian told her at her workplace during the week preceding the election that Respondent could not afford a union because it was a small company and it would probably close the shop if the Union got in and move to Portsmouth which was looking for industry and where it could get labor much cheaper. He also told her that if Anchor Electric went on strike Respondent's employees would be assessed for the strikers' wages. She also testified that around the same time Grossman told her, Denise Marion, and Monica Nichols in the cafeteria that the Company was small enough so that the employees did not need a union, and that Respondent couldn't afford it because it was a very competitive business, pointing out that it had just lost a contract because of 2 cents. He also said that if the Union got in the employees would lose all their benefits and would have to start from scratch; that he responded affirmatively to a question by Denise Marion whether there would be work quotas if the Union got in. She testified finally that the day before the election she asked MacArthur if the employees were going to lose the approaching Fast Day (Monday, April 28) "because of the Union," and MacArthur answered "that there was a possibility that we would lose everything. We might lose Monday, too." On cross, McGuigan testified she was "sure" that Chretian had said Portsmouth, "Because [she] thought it was odd that they'd go to Portsmouth instead of back to New Jersey." She admitted that Chretian had mentioned the competitive nature of the business and "probably" referred to prices charged by Respondent's competitors, but testified that she did not "think" that either he or Grossman had related their concern for the Company's ability to compete to higher costs. She also testified that Grossman's statement about loss of benefits was in direct response to her question. She testified further: Q. Did he say anything to you about bargaining? A. Bargaining? Yes, he did. He said that the Company didn't have to - I think this is what you mean by "bargaining" - that it wouldn't have to accept anything the Union proposed and they wouldn't have to sign anything even after they agreed. Something to that effect, if that's what you mean by "bargaining." Q. That is right. I mean talking between the Company and the Union. A. Right. Q. And did he say something about the Union might ask for one thing instead of another? A. I don't think he said anything like that. Q. Did he say anything about all of your present benefits being on the table or being subject to bargain- ing? . He could have, but I don't remember for sure. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. You don't remember that? A. Not for sure. Grossman testified on direct that when he first learned of the organizing campaign he called Respondent President Pfeffer in Pitman who instructed him to retain an attorney; that the attorney (a different firm from the one representing Respondent at the hearing) told him to be sure not to say anything to anyone until he had gone over "a set of rules" or "[g]uidelines so that we did not overstep laws of the Labor Board"; that the attorney reviewed the rules with him and he in turn went over them with Chretian and his other supervisors, but he did not review them with MacArthur because "she's not a supervisor." Grossman testified further that he also retained a consulting agency which helped him and his attorney prepare written material to disseminate among the employees as part of a "vigorous campaign against union representation"; and that he spoke to the employees from time to time. He first addressed them in groups of 25-30, then individually in groups of 3 or 4; he spoke to them in the cafeteria as well as in his office. The general thrust of his campaign, he testified, was that Respondent was in Manchester because of its ability to outbid its competitors ; that it would remain there as long as it could remain competitive and show a profit "because no company can afford to operate at a loss," but that its competitors were nonunion, and that if the Union came in and its demands were too high Respondent would no longer be able to compete. He also testified that he told the employees that if the Union won the election they would bargain over every demand the Union might make but that although he said nothing about losing current benefits or even "indicate[d] that there was a possibility that they might lose benefits," he did say all current benefits would go on the table. He testified that he never said anything about "bargaining from scratch or anything similar," that he "never heard the word" until its mention by the General Counsel's witnesses.21 He denied saying that work quotas would be introduced if the Union came in, testifying that what he said was that he believed Anchor Electric had work quotas and that they had the IBEW. He denied ever discussing with employees the signing of a collective agreement or who attended union meetings or what went on at the meetings. Although he could not "particularly" recall the substance of his conversation with Libby in his office he denied saying anything different from his state- ments to the employees generally, and he denied asking her if she would be attending a union meeting, testifying that he did "remember asking [her]," about 2 weeks before the election, "that if she does go to the next union meeting would she be sure and listen to both sides of the story." And he generally denied every allegation in the complaint "respecting [him]." Grossman acknowledged on cross that he had no prepared statement in front of him when he addressed the various groups or individuals and hence "said different things to different employees" although "along the same lines." Asked to restate what he had told the employees in the cafeteria, Grossman testified in part to having said that if the Union's demands became too great and "the Company did not show a profit then obviously we would possibly have to close the business"; and that, in response to employee questions as to whether they would lose their benefits while the bargaining was in progress , he said they would not lose their benefits . He testified that the written guidelines he had received from his first attorney were silent as to "what the employer could or could not say about losing benefits before or after the election " but that the attorney advised him as to that. Almost immediately thereafter, however, he testified as follows: Q. Were you ever told that you couldn't tell the employees that they would lose all their benefits after the election? A. After the election? Q. If the Union won. A. Lose all the benefits after the election? No. Q. That wasn't in the rules and regulations either? A. No. Q. Did it indicate that you couldn't tell employees that they would lose all their benefits before the election? A. I didn't say that. Q. I asked you if it said that in the rules. A. In the rules? No. Q. The rules didn't tell you that you couldn't tell employees that they were going to lose benefits? A. Not to my knowledge. Q. It said that you couldn't threaten to close the plant though; right? A. I said that before. I believe that - no, I don't think that's in there. I don't recall that being in there; no. I've changed my statement on that. Q. Then prior to the election you didn't know that you couldn't tell employees that you would close the plant and - A. Oh, yes. That's one thing Mr. Higgins when he got together with us in conversation - I don't recall whether - it was not in that - in conversation, it is one thing he made very clear; we could not tell the employees that. Q. And during these 5 or 10 meetings you held with small groups of employees you told them that if you couldn't remain competitive you would possibly close? A. And show a profit. Q. And show a profit you would close. A. It's an obvious answer. I think it's an obvious answer. There isn't any company that can stay in business if you don't show a profit. JUDGE HEI .v r : That you would possibly close? THE wrrxEss: Pardon? JUDGE imRMAN : Is it an obvious answer that you would possibly close? Tim wImEss: No, I don't think that - JUDGE HEituAN: Or that you would close? THE wimuss: No, I - really don't have that say. JUDGE HERMAN: What I am saying is you said it was an obvious answer that a company - you intimated 21 He repeated this denial on cross. STRUTHERS-DUNN, INC. that a company isn't going to stay in business if it is not profitable. THE wrrNEss: That's right. That's my answer. JUDGE HERMAN : My question to you was would you say that you would possibly close or that you would close in that event? THE WITNESS: No. I wouldn't say we would close. I don't have any authority to say that. I would say that it would be possibly that we would close. JUDGE HERMAN: Go on. Q. (By Ms. Timmins) If the Company is losing money, is it going to stay in business? A. That's not my decision. Q. Isn't it possible, Mr. Grossman, that during 5 or 10 of these meetings that you held that you might have forgotten to say "possibly" once? A. No; I don't think so. Q. Twice or three times? A. No. Q. Was it your opinion during the time when the Union was trying to organize your employees that the Company could not afford the Union? A. Was it my opinion? Q. (Shakes head.) A. No. I don't have any particular idea at the time whether - what the Union would be asking for. Q. So, you didn't have an opinion on it one way or the other? A. Everything would be on the bargaining table. I wouldn't know what they would bargain for. Q. But you knew that if the Union asked for anything more than you were giving now your product would cost more; is that not correct? A. I didn't say that. The product would cost more, yes. But that - that's right. Q. And if the product costs more, you are not going to be as competitive. Is that not also true? A. That's correct. Q. And if you are not as competitive, you are not going to maintain profitability? A. That's correct. : : * s s Q. So, you know that any demands the Union made would up those costs ; isn't that correct? A. Positively. Q. Any demands? A. I wouldn't say any demands. How great the demands maybe ; not any. Q. Well, anything the Union asked for is going to cost you money ; is that not correct? 22 MacArthur's testimony in this connection was as follows. Q. And it was you that called in other employees to see Mr. Grossman in his office when they had questions that you couldn't answer. A. No No. That's not so. If I was talking to an employee and we were discussing the union I would - if I didn't understand what I was saying and if they wanted some information that I couldn't give them or I - or anybody on the floor - usually we talked in a group, or individually - I can't say always in a group - can we take an example? 57 A. Yes. Q. So, any demands they make is going to increase your costs? A. That's right. Yes. Q. And you are in Manchester because it is competitive; is that correct? A. That's right. Q. So, you really know whether or not you can afford a union; isn't that correct? A. Yes. I guess the answer's correct. Q. Yet you had formed no opinion other than that you would have to wait and see what the Union put on the table? A. Yes. Grossman also testified that the girls with whom he discussed the Union in his office, including Libby and Regina Letares, were brought there by MacArthur because they had asked to come to see him.22 Interrogated about his conversation with Libby, he confessed to being, ... very vague on Rachel Libby as an individual. I've talked to, as I said before, many girls in my office who requested to come in and talk to me. I don't particularly know what pointed questions Rachel asked me or I answered. s s Q. So, you are not really sure whether or not you asked her if she was going to the union meeting or not; is that correct? A. That question was brought up and I particularly remember that - if you have other questions that Rachel Libby has said maybe it would refresh my memory. Each girl asked different questions. It's pretty hard for me to remember exactly what ones were asked and who asked them. He also testified that he remembered Regina's asking him in his office whether the employees would lose their benefits. Chretian testified that he asked employees to put to him any questions they had about the campaign; that one question that was raised repeatedly23 was whether Respon- dent would close down and move if the Union got in; and that his stock answer was that he "had no idea," which he thereafter enlarged upon as follows: A. I responded this way that - I explained the cost of relays, all right, that there are certain prices - a certain amount of money goes into making a relay. Now, should a union get in, in all probability a union will get more money for people, which increases the cost Q. Sure A Okay. Regina, I spent - I think I discussed the Union more with Regina than with anyone. She said that she was very confused about the union. She said that her sister had a lot of literature against the union and she was going to bring it in so I could read it, which she never did. She had her reasons . And she said that she wanted to know why the company is so against the union. And I asked her why she didn't go in and speak to Mr. Grossman. 23 The only employee he could identify in this connection was McGuigan. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the item we are manufacturing or any item that any company may manufacture. And at this point, by raising the price of the item, if it's too high we are no longer in competition with other people who are maintaining a lower cost of the item. In this case, if the Company starts losing money they are in no way obliged to remain in business when they are losing money. So, they may close the plant down. They may do whatever the Board decides to do or Directors or whoever. Myself or people in Manchester have no decision as to that matter. He denied ever mentioning Portsmouth in this connection. He recalled discussion of the subject of moving in such terms with Dumont and Ballard who were together in a group at the time but did not recall whether Libby was with them. He testified that he discussed the matter of strikes with employees but that he did not mention the telephone company in that connection. He recalled asking Rhea Letares if she had any questions about the Union but he could not recall her answering at all. He denied ever telling any employee that Respondent could not afford the Union or "that there was a chance the Company would close down." Frequently asked by employees whether they would lose the Fast Day, he testified he said that he "doubt[ed] it very much if they would lose this one, but the next Fast Day would have to be negotiated." According to Chretian, "A definite'no' " in the guideline of "don'ts" was "not to mention anything about moving the plant." He then testified: Q. And with regard to moving the plant, would you tell us again what your standard answer was to employees who asked that? A. Essentially, I mentioned the cost of the item. Q. Would you tell it to us as you would to an employee? A. All right. Let's say the Union did get in. We'd start getting pay raises that are out of proportion and the cost of the item increases to a point where we are no longer competitive with other competitors. That means we're out of the market and out of production for relays because we no longer have a market for them. At that point, if the Company is losing money there's no - there's no law or nothing that forces the Company to remain in business while they are losing money. So, that would be one item for them to think about. The employees asked Chretian no questions he was unable to answer himself, and in fact he told employees about assessments even though not asked. MacArthur testified that she considered herself a part of the bargaining unit, talked freely and openly about the Union with other employees, and never reported such discussions to anyone. She opposed the Union because of some prior experience she had had in a unionized shop and did not believe the Union could help the employees. She told the girls "that I didn't think that the Company could afford higher wages and make competitive relays." Her "basis for this opinion" was that she had "heard Mr. Grossman discussing union and I just took it from him." She admitted that in answer to McGuigan's question whether the employees would lose the approaching Fast Day she "told her I didn't know, but I wouldn't take a chance." She testified further, however, when asked "[w]hat would happen between the time the union got in and the time they started negotiations," that she "assumed we would have what we had." Dumont, the only employee (other than MacArthur) called to the stand by Respondent, testified on direct that Grossman said that, if the Union came in, "everything would be the same, you know - the holidays - and nothing would change." On cross, however, she testified in relevant part: Q. At that time in the cafeteria Mr. Grossman talked about holidays? A. Yeah. Q. And that was the only time that you can specifically remember you ever talked to Mr. Grossman A. Yeah. Q. - about the Union? A. Yeah. Q. And he talked about holidays. What else did he talk about at that time? A. That things would remain the same. Q. Did he say that things would remain the same if the union got in? A. He said - no - he said changes would be made. Q. What kind of changes did he say would be made? A. He didn't really talk about that. He just said - Q. He just said changes would be made if the Union got in? A. Changes; yeah. Q. Did he tell you that some of the changes that would be made would occur - when did he tell you that the changes would occur? A. I don't think he did. He didn't really talk about changes when we were in the cafeteria. Q. But when else did you talk to him when he talked about changes? A. I guess that was it, in the cafeteria. Q. But you just said he didn't talk about changes in the cafeteria. A. He didn't talk too much about changes. (2) MacArthur's status Libby testified that when she first reported for work Chretian, who had hired her, introduced her to Grossman and to MacArthur, identifying Grossman as plant manager and MacArthur as her supervisor on the dip line; that she "received all my work procedures from Mrs. MacArthur unless she was out sick or wasn't in the plant at that time and then we would speak to Mr. Grossman. And she's the one that would come out in the morning and she would tell STRUTHERS-DUNN, INC. us which relays she would like to have out first and in what order she would like to have them"; 24 that if she had any problems with her work she would call MacArthur in her office; that she once had to leave work because of family problems, and MacArthur allowed her to go home without checking with anyone else, and she also allowed her to leave when she got sick at work, and one evening she telephoned MacArthur at home for an indefinite amount of time off to help care for her father who had been injured in an accident, and MacArthur told her to take whatever time was needed; that about a week or two after starting work, MacArthur told her that she had gotten Grossman to give her a raise because she was pleased with the amount of work Libby had produced; 25 that on several subsequent occasions MacArthur criticized her for insufficient produc- tion as well as for poor quality, once threatening that if it continued she would turn the matter over to Grossman for further action, and that MacArthur once "chewed [her] out" for failing to report to work on a Saturday; that MacArthur also threatened to call Grossman's attention to certain disharmony among the girls on the dip line, after which some of the girls were transferred to another line. Libby also testified that the standard workday was 8 a.m.-4:30 p.m., with a half hour for lunch, but that MacArthur's day started at 6:30 and she took a longer lunch period as well as time off to go shopping; that when overtime was needed it was MacArthur who asked the girls if they could stay; and that apart from occasions when Grossman was escorting a visitor around the plant she didn't see him near the dip line for more than 5 minutes a week. Regina Letares testified that she never reported to anyone but MacArthur for her work assignments, that she asked MacArthur for time off which MacArthur granted "on her own," which was not unusual, and that she received her last pay raise in June 1974 after MacArthur told her she had recommended it to Grossman. 26 Regina knew her as quality control inspector who had trained her to be a tester. Rhea Letares testified that she had been hired by MacArthur, reported to her every day, and when she needed time off she asked MacArthur, who would grant it without consulting anyone; and that MacArthur spent most of her time in her office. Whipple testified that she and two other girls went to the Company for work, that after completing the application forms they were brought into MacArthur's office where she interviewed them; 27 that MacArthur told one of the girls she had the job and would start work in a couple of weeks, and told a friend who worked there and had advised them to apply that she would tell her if Whipple and the third girl got the jobs so she could pass the word to them. When they were informed they had the jobs they reported to MacAr- thur who told them their rate of pay and brought them to the line supervised by Rogers. Whipple thereafter moved to 24 According to Libby, no one else assigned work or gave instructions to the dip line except in MacArthur's absence. 25 She testified that she never asked MacArthur for a raise 26 She testified she never asked for a raise 27 They were not interviewed by anyone else 28 Libby testified on cross that she had never noticed MacArthur punch out in the evening When it was pointed out that she was not there when MacArthur left, she said she was usually there when there was overtime She 59 MacArthur's line. While on that line, she reported to no one but MacArthur; if she wanted time off she would ask MacArthur who granted it without checking with anyone else; if she called in sick and MacArthur answered the phone she so informed MacArthur, and if someone else answered the phone she asked that the message be relayed to MacArthur. Whipple testified further that her work is recorded on workcards which are passed on to her boss at the end of the week, and while she was working for MacArthur she turned the cards in to her. She also testified to the practice of having one's boss initial the employee's timecard on occasions when the employee has forgotten to punch in or out, which happened to her several times during lunch periods, and that she brought it to MacArthur once while she was working for MacArthur. According to Whipple, MacArthur parks her car in a "reserved" area near the main office, as do Grossman and Chretian. Finally, Whipple testified that, one time when she was testing some relays, Foreman Rogers gave her some to test and, while she was working on these, MacArthur came up and said, "I'm your boss," and that she was not to listen to Rogers; that while working overtime one night she and a friend from Rogers' line spent too much time talking in the ladies' room, and when they came out MacArthur called them into Grossman's office where he berated them and told Whipple's friend, "You stay on your side with your boss, Jack Rogers," and told Whipple, "You stay on your side with your boss, Eve [MacArthur]." But she had heard MacArthur described as quality control inspector and MacArthur spent about 3 hours a day at a bench actually inspecting relays herself. MacArthur punches a timecard 28 and receives time and a half for hours over 40, which she has worked routinely.29 Her weekly wage for the 40-hour regular workweek since the 12-percent general wage raise of August 4, 1975 (infra), has been $183.68. Between that date and her last previous raise on June 14, 1974, her basic weekly wage was $164. However, her average weekly earnings for weeks actually worked between the week ending June 23, 1974 (the first week following her June 14 raise), and the week ending March 23, 1975,30 were $255.63. William Maki, who has concededly been a supervisor at least since the general wage increase, receives a weekly salary of $162.40. He had been hired as a "group leader" 31 at a weekly salary of $120, apparently in June 1974. On August 5, 1974, his salary became $135 which was raised to $145 on November 4, 1974. Foreman Rogers' salary became $179.23 on June 17, 1974, $188.85 on December 16, 1974, and $211.51 on August 11, 1975. Foreman Albrechinski's salary became $179.62 on December 16, 1974, and $201.07 on August 11, 1975. Chretian's salary became $209.23 on June 17, 1974, $218.85 on December 16, 1974, and $238.08 on August 11, 1975. reappeared on rebuttal to testify that MacArthur did not punch her timecard at night but only in the morning, and that she learned this by checking her timecard when she "got very curious one morning." 28 She generally opens the plant at 6:30 and remains until 5 o'clock or later 30 The last week shown by the evidence in the record 31 A term used to indicate probationary status of a prospective foreman- supervlsor but whose duties were supervisory from the outset. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Grossman testified on direct examination as follows: Q. (By Mr. Cohen) Now, Mr. Grossman, you may have gone into this before, but to be a little neater, you mentioned that you supervised the dip line yourself. Now, can you tell us why? A. I stated before that the quality has to be built into the product in this particular stage before it is molded. There are certain inspection operations under a microscope to make sure that none of the glass is cracked on any of these switches because we could replace it in this particular position here, but once it's got molded it would not be replaceable. According to him, MacArthur's opening the plant in the morning is an "automatic" carryover from her early days with the Company antedating his tenure in Manchester since she "was always the first one there." He explained that MacArthur has an office because the plant has "an abundance of offices" and she needs a place to keep her quality control records which reflect every order shipped from Manchester ; 32 and that large companies who are potential customers, like Xerox and Univac, would not consider giving Respondent an order without first being able to examine its "quality control setup." He added that MacArthur spends about an hour or two a day in her office, and that the remainder of her time is spent at the production lines either checking quality after the testing or improving quality in the line before the testing. Asked whether MacArthur supervises any employees, he an- swered, "None that I know of." He denied that he ever told anyone she was a supervisor . He testified that she has no authority in respect to hiring, transfers, suspension, dis- charge, or discipline, although she has authority to criticize employees for poor work and to stop a production line until the problem is corrected. He also testified that decisions as to work assignments, wage increases, and requests for time off are made by him and Chretian ; that MacArthur's paycheck, like those of all hourly and office personnel, is made up in Manchester while supervisors ' paychecks come from Pitman ; that MacArthur's only function in the scheduling of work is to take schedules that he has prepared for the dip line and give them to the employees when he himself is not in the vicinity ofthe line; that she also brings questions to him that girls have asked her to; and that no parking place is assigned to MacArthur, that Respondent leases five spaces at the building, one of which is marked with his name and the other four just have the Company's name but they are available on a first come, first served basis. In addition to MacArthur, Grossman testified on cross, keys to the building are held by himself, Chretian, Mr. Marion (the buyer), and Mason (the maintenance engi- neer), who is not a supervisor. He testified about the dip line as follows: Q. And one of these duties that you testified about on direct examination was that you were in charge of the dip line ; is that correct? 32 Each form records "the pickup, dropout, coil resistance, overtravel, and armature gap, contact gap." A. I'm in charge of all lines, but I make it a specific point to, let's say, have my particular hands on that particular line, control of it. Q. And when you are not out on the dip line, which is the great preponderance of the day, who supervises the dip line? A. Supervises the dip line? Q. That is correct. It is my understanding - A. I don't understand why two or three girls would need a supervisor to - we don't have foremen standing over not letting girls go in the ladies ' room or things like that. We trust the girls. Q. You don't have anyone standing there supervis- ing the dip line? A. I don't think they need a supervisor to stand there and supervise them. Those girls are qualified girls, and all we have to do is make sure the quality is in the product. Q. We have a Mr. Rogers who supervises the reed line; is that correct? A. That's correct. Q. And he is out on the floor most of the day; is that correct? A. Between two floors; yeah. Q. And Mr. Albreschinski is on the 425 line? A. He has machines to take care of. Q. And he is out on the floor all day, isn't he? A. That's right. Q. And Mr. Maki on the 314 frame? A. Uh huh. Q. He is on the floor all day? A. Yes. Q. They are all out there watching what is happen- ing; isn't that correct? A. (No response.) Q. Who stands and watches what happens on the dip line? A. Nobody. Q. Nobody supervises the dip line . Are these exceptional employees on the dip line? A. No. I wouldn't say they're exceptional . I would think the quality, as I stated before, has to be built into the product and Mrs. MacArthur, who is the quality control, will see that the quality is there. Grossman admitted that it was "quite possible" that in preparation for his entering the hospital for 2 weeks in October 1973 he put a notice on the bulletin board to the effect that MacArthur would be in charge in his absence, and that it could "easily have been" MacArthur whom he left in charge.33 His testimony soon became more positive: "Mr. Marion took care of my duties while I was in the hospital. But as far as the production end of the units and the quality of the units , I left in Mrs. MacArthur's hands." According to the testimony of both Grossman and Chre- tian, MacArthur reports to no one in Manchester other than Grossman, while the line supervisors report to Chretian as well as Grossman. 33 Regina Letares testified on rebuttal that a notice had been posted STRUTHERS-DUNN, INC. Chretian testified that foremen have no authority to grant time off except for an emergency in his and Grossman's absence.34 He also testified that MacArthur spends 6-7 hours a day on the floor inspecting relays for shipment; and that raises are generally given on his recommendation to Grossman with no prior recommendation from a foreman. MacArthur testified that, in addition to checking quality at the end of the production process, she checks for faults during production and sometimes her attention is directed to some defect by one of the girls on a particular line. The results of her postproduction checks are written up as the basis for releasing the goods for shipment, and the paperwork is filed in her office where it is kept for an unspecified limited period, during which customers may examine it, and then it is sent to Jordan in Pitman . Besides reporting to Jordan concerning quality, she reports to Grossman concerning output generally. She testified she supervises no one although she instructs the testers in the use of their equipment, and while they report to her concerning quality they are also under their individual foremen on the respective production lines. While she does not review how a particular employee does her job, "If a line isn't running smooth [she ] scream[s] about it," and stops the line till the matter is corrected. She acknowledged interviewing job applicants in Chre- tian's absence as would Grossman's secretary or "anybody that happens to be there," but denied that she does any hiring, saying Chretian does that. She admitted interview- ing Whipple and another girl but testified (as to Whipple), "I don't think I'd even seen her application, in fact. I'm pretty sure I didn't see her application. I don't usually see anybody's application." She testified further that the "interview" consisted of "more or less just general talking to her about the job. You know, not - not `what school did you go to?' and `When did you get out?'and `why did you get out?' or anything of that kind .... I think I asked her what kind of a job she was looking for. And I truly don't remember what she said that she was interested in." And she testified that she told Whipple that Chretian would have to go over her application. She denied hiring Rhea Letares, stating that Rhea came back after having worked there one previous summer and asked if MacArthur thought she could have her job back, and she had Rhea fill out an application; and that although she instructed Rhea in her duties, she did not consider herself her supervisor. She acknowledged that people ask her for time off, but testified that she "usually" says she will take it up with Grossman, and that she never makes the decision herself. She could not remember Libby calling her at home but testified that, if she had, in view of the emergency nature of the incident she would have authorized the time off and would have told Libby she would report it to Grossman. She denied giving Libby time off on any other occasion. She testified that she has no function in connection with wages but that, if people tell her they would like a raise, she offers to ask Grossman about it, and that the only reason she could think why the girls would mention it to her is that she's a woman. She testified that she spends no more than an hour a day in her office. 61 MacArthur testified that Grossman schedules the work and she transmits a copy of his instructions to the various foremen; that she does the same with the employees on the dip line, denying that she has any authority over that line. She admitted that she may have criticized Libby for poor work but not for insufficient quantity. She denied ever reprimanding Libby for not calling in on a Saturday morning. She denied that she plays any role in transfers except insofar as she executes Grossman's directions; or that she has anything to do with scheduling overtime, although she might ask a girl whether she is going to work overtime on a particular night if she is looking for a specific item to be coming off the line for shipment to meet a production schedule or shipment schedule. She denied on cross-examination that any notice was posted in 1973 that she was to be in charge during Grossman's hospitalization, and her testimony continued as follows: Q. Do you know who was in charge during that period of time? A. Yes. We had foremen in charge. Q. Who was that? A. Well, on the 425 it was Ed Albreschinski. Q. This was October of'73? A. That's right. Q. Okay. Go ahead. A. On the reed line, it was Dave Waisman. Q. And do you know how long Dave Waisman had been with the Company in October of'73? A. He started before I did. Q. So, he had been there a long time? A. Yes, he had. Q. And do you recall which one of them was in charge while Mr. Grossman was in the hospital? A. Well, I would assume that it was Dave Wais- man. Q. But it was not you? A. No. Q. Did you have any authority at all while he was in the hospital? A. The same authority that I have now. Q. Your duties did not change at all? A. No. She admitted that she was never called to any meetings in the cafeteria by Grossman. She admitted that in her interview of Whipple and the others it was "very possible" she asked them if they were going on to college and that she thereafter informed Chretian she had talked with these girls, and her testimony continued as follows: Q. What did you tell him you had talked about? A. I really can't remember. I really can't remember. Q. Did he ask you any questions about the individ - uals? A. No. He had the application. He checked it and he talked with the girls. Q. He talked with the girls separately? 34 Libby testified in rebuttal that she and Rhea Letares once asked Chretian to be excused early in MacArthur's absence and that he said they would have to ask Grossman if MacArthur was not there. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. I don't know if he talked with them separately or not. He was the one that got in touch with them and hired them. Q. But you never gave him any information based on your interview with them? A. No. Q• Or your discussion with them? A. No. Q. You never said anything? A. No. Q. Do you remember telling him that Nancy Whipple had come in to talk to you? A. Very possible I told him that. Q. But you didn't have an application blank at that time; is that right? A. No; I did not. Q. So, what did you tell him you discussed? A. I really don't remember. Q. Would you have told him that she was available for work in a certain period of time? A. That's possible. Q. And did he ask you what you thought of her? A. Not necessarily; no. Q. You are sure about that? A. No; I'm not sure, but I doubt it. Q. But you are not sure? A. I'm not sure; no. After repeating on cross her denial on direct that except for Libby's emergency call about her father she "always" checks with Grossman before granting time off, she became less positive, stating she did not remember ever doing it but that she could not say that she hadn't. She denied that Grossman ever asks her for her opinion as to whether the request should be granted or that he asks her whether the scheduling is up to date. She testified that girls on lines other than the dip line have also asked her to talk to Grossman about raises in pay, and that when she takes the request to Grossman he does not ask her about the quality of the individual's work. According to Respondent's president, Pfeffer, MacAr- thur performs the same type of work in Manchester as that performed by the inspectors in Pitman.35 He also testified that he had told Grossman to supervise the dip line directly because they had had troubles with those relays and moved them up to Manchester on an experimental basis. Dumont testified on direct that when she wants a raise she asks Grossman. Her cross-examination in this connec- tion went as follows: Q. You testified that if you wanted a raise you would ask Mr . Grossman? A. Uh huh. Q. How many times have you asked Mr. Grossman for a raise? A. I think a couple of times. Q. And did you ask Mr. Grossman directly or did you ask Eve to ask Mr. Grossman for a raise? A. When the Company first moved over to Bedford Street a bunch of us went in and we talked to Eve and we asked her if she'd ask him because we was too scared to. Q. You were too scared to ask him yourself? A. Well, we weren't scared; you know, we just didn't want to go in there. Q. And you said you asked him twice. What about the second time? Did you again ask Eve to get the raise for you? A. Yeah. I asked her once and she said that we'd have to go in and ask; you know, she couldn't ask. Q. And when did you ask that she told you that? A. Oh, it was a long time ago. Q. Since the election? A. It was before that. Q. Before the election. And she told you that she could not go in? A. No. She said we'd have to ask. Q. Did she tell you why? A. No. She also testified that, following her hire by Grossman, she reported to MacArthur who showed her where and how to work and told her to report any problems to her. According to Dumont, neither Grossman nor MacArthur ever criticized the work of the dip line, although her testimony in this respect was more positive as to Grossman; and both Grossman and MacArthur questioned her con- cerning the progress of various orders. Grossman handed or sent notes by MacArthur or Chretian to individuals on the dip line to get certain products out for shipment. d. The election and objections The Union lost the election by a vote of 31 to 21 on April 25, and on May 1 it filed objections to conduct affecting the results of the election. On June 26, the Regional Director issued his report on objections directing a hearing, in consolidation with the instant complaint, on objections alleging (1) threats of "loss of holidays and other fringe benefits if [the employees] elected the Union," and (2) threats of "a shutdown or transfer of operations if [the employees ] elected the Union." Upon Respondent's excep- tions, the Board affirmed the Regional Director's report on September 3. e. The wage raise Meanwhile, on August 4, Pfeffer ordered a 12-percent general wage raise for Manchester . It was the first general raise in the history of that plant. Pfeffer explained his decision on direct examination as follows: This division, as I have just finished saying, has been actually an extension of one of the departments of our company, and I've left it up to the divisional manager to give raises when he saw fit over the past few years, and I've not got involved myself in this. 31 He described the Manchester operation as "just an extension of our home company in New Jersey." STRUTHERS-DUNN, INC. However, we were running a negotiation with our own union in New Jersey. I was getting complaints from George Grossman that the people were restless up here; they needed money. I heard the same complaints in New Jersey. I could see it throughout the country. There was only one way to take care of that as far as I could see and that was to give them an across-the-board so that everybody benefited; not from a merit basis, but from a cost-of-living increase basis. Q. I show you a list of employees and dates and wages, which I believe has been marked General Counsel's Exhibit No. 6(a). Do you recognize that document? A. Yes, I do. r s r Q. Can you tell us the origin of that document and the use you made of it? A. I requested a list of the employees in Manches- ter. I called George Grossman from Pitman and requested this list to be made up to show the history of wages and the people that were employed at that time. And I did this somewheres around the latter part of July. I wanted to see, because I had heard all of the complaints from - the fact that people were restless; that they needed money; that inflation was getting so high that they couldn't exist anymore; we were going to lose some people; they were going to have to quit - and I wanted to see when they had their last raises and what those raises consisted of. So, I requested this list from George Grossman. He sent it to me in Pitman, New Jersey. Q. And on the basis of that list you made your decision? A. On the basis of that list I made the decision. Q. Can you explain the basis for the timing of the increase? A. Yes. Because we had been negotiating with our union in Pitman. And up here, as far as this division is concerned, we had a bad condition, I thought. We had an election to take place for unionization. I had talked with Mr. Higgins, our lawyer here, about what I could do and could not do. I talked to Mr. Cohen, my Philadelphia attorney, of what I could do and could not do. And they informed me what I could and could not do. It was just as bad to not give an increase if it's normal business as it is to give an increase. And I considered these a business as usual. This is the type of thing I would normally do anyway under these conditions of inflation. So, therefore - I didn't want to do it - we had held off doing anything until after the election, but it was getting out of hand. I had been informed by both attorneys that since we were in - being questioned by the National Labor Relations Board and the Union that this could go on for anywheres up to a year. And these people just can't wait for money. What are you going to do? You cannot keep 63 these people from getting an increase . So, I made a business decision to give them an across-the-board.36 Q. There has been some testimony here that during the campaign questions were raised about what the Company could afford and couldn't afford. How do you reconcile that campaign talk with your decision? A. Well, that campaign talk, as far as I'm con- cerned, has nothing to do with my decision. My decision has to do with what I see has to be done within the Company. And these people, because of the cost of living, had to have money, and so did our people in Pitman. I also gave them an across-the-board. On cross-examination Pfeffer admitted that collective bargaining had occurred annually in Pitman for many years but maintained that although this was the first general increase in Manchester that fact had nothing to do with the Union's organizational drive. His testimony continued: Q. You testified that Mr. Grossman told you the employees were getting restless. A. He did that often. Q. But it wasn't until after the election that you decided that they warranted a wage increase? A. No. You see, Mr. Grossman would normally be giving the increases, but he didn't and wasn't allowed to. I told him not to because of the union election. So, everything was held off. Then when we got into the situation that it would go possibly for another six months to a year, my advice that I got - and the people were restless. He came to me and asked me what he should do. So, I finally decided to do business as usual and let this take care of itself. The people needed the money. Q. They indicated to you very strongly that they needed the money when they attempted to organize; isn't that correct? A. No; they didn't indicate that to me. Q. It was indicated to you indirectly in that they contacted the Union; isn't that correct? A. Not necessarily. Q. When you say the people were restless, what do you mean? A. Well, they wanted to - people are restless - they're discontented for lots of reasons. But what I meant by "restless" in this case was the fact that the people were seeing that the prices of what they had to buy and their power - everything was going up and they were - had no way to compensate for this increase of their cost to live. And, therefore, people get almost frantic under these conditions. Q. The cost of living has been going up for 10 or 20 years, has it not? A. It's been going up more rapidly lately. 36 This included supervisors and office personnel. 64 s s s DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. And it was while you were negotiating with the Union in Pitman that you decided - Mr. Grossman told you that the employees were getting restless - and you decided to grant the wage increase to employees in Manchester? A. I'd have made that increase in Manchester regardless because it had to be done. And I chose that time because it was convenient. I was doing it all at the same time. Q. You stated that you had been negotiating with the union in Pitman, and there was a bad condition up here because an election for unionization had just been had. A. I didn't mean a bad condition . I meant - if I said "bad condition," no. There was no bad condition because of unionization. We've got a union in Pitman. There's no bad condition. Q. Wasn't it - A. I'm talking monetary situation as far as the people are concerned. They - they needed an increase and it looked as though with the question of the union that it was going to take a long time. Q. I quote your testimony. "Up here there was a bad condition because an election for unionization had just been held." Now, aren't you saying that your decision to grant the wage increase was in some way affected by the prior election? A. No. Q. Not at all? A. Not at all. We would have done it anyway. On redirect, Pfeffer testified: Q. (By Mr. Cohen) Was there any reason for a change of method from the individual method to the general method at this time. A. Yes, because the Company was beginning to get larger up here. The growth of the Company is obviously in the last - ever since July it's gotten much larger, and it's still getting larger . And it's changing from a small company to a larger one . So, the pattern has to relate itself to our basic company policy. B. Analysis 1. Respondent's motions Respondent's brief in effect renews its motion to dismiss, made at the outset of the hearing, because of General Counsel's refusal to honor its request under the Freedom of Information Act for disclosure of the names of prospective witnesses and copies of their investigative statements. I do not believe Respondent is entitled to the information. See Goodfriend Western Corp. d/b/a Wrangler Wranch v. Robert S. Fuchs, 535 F.2d 145 (C.A. 1, 1976); Title Guarantee Co., Subsidiary of Pioneer National Title Insurance Co. v. N.LR.B., 534 F.2d 484 (C.A. 2, 1976); N.L.R.B. v. Biophysics Systems, Inc., 91 LRRM 3079 (S.D.N.Y., 1976). Nor do I see any injustice to Respondent from my denial of its motion to strike all evidence of alleged misconduct prior to March 28, the date specified in the amended charge in Case 1-CA-10,658 as the beginning of the misconduct. My ruling merely reaffirmed my earlier one, supra, of allowing the amendment of paragraph 8 of the complaint limited to the change of a date in certain interrogation already alleged and the addition of another related item of interrogation as part of the same conversa- tion.37 However, some of General Counsel's evidence (particu- larly in Rhea Letares' testimony) related to allegations covered in the notice of intent to amend complaint which General Counsel had agreed to withdraw at the outset of the hearing. I of course was not sufficiently familiar with the details of the complaint to be able to enforce this understanding by excluding such testimony as it was presented and without objection. While the Board may and frequently does consider evidence not objected to on issues litigated at the hearing though not formally incorporated in the complaint, I believe the peculiar facts of this case require a different result. First, the General Counsel specifically narrowed her request to the two amendments allowed. Second, she specifically requested that she nev- ertheless not be precluded from "allowing the witnesses to testify with regard to [the remaining] material," which request I specifically rejected. And finally, in my opinion, because of the frequent duplication of allegations here, and the proximity and uncertainty of the dates of numerous alleged incidents, even Respondent's counsel could not reasonably be expected always to know, in the absence of the discovery sought, whether particular evidence did or did not relate to issues covered by the complaint. Hence, his failure to object or to move to strike irrelevant evidence as it was adduced cannot properly be deemed a waiver, and I make no finding of unfair labor practices based on such evidence. If any instances where I find unfair labor practices appear to involve such evidence, those findings rest on other allegations in the complaint which are either identical or similar to those which I have excluded. 2. The merits a. Preliminary Although none of the written material issued by Respon dent during the campaign is a subject of any allegation in the complaint, some reference thereto is warranted, at least for a flavor of the case, by Respondent's assertion that this material "shows that the management representatives were `set up' and that they were then made easy targets for attack by misquotation." Respondent's first written communication to the employ- ees was a letter of March 19, signed by Grossman, evidently in reaction to "Union buttons and literature . . . distribut- ed throughout the shop" the day before. In its letter Respondent states: 37 Respondent has in no event been prejudiced by the amendment in light of my findings, infra STRUTHERS-DUNN, INC. 65 Any employee who feels that he or she does not want any part of the union may be assured that there are Federal laws protecting them. The Federal law guaran- tees you a free choice and protects you from any type of union coercion including threatening phone calls and the like. I want to personally assure you that this Company will do all it legally can to prevent such coercion. There is no evidence of any coercion on behalf of the Union either before or after this letter. Immediately prior to the letter's conclusion thanking those who had stood by Respondent so far, was the following: I WANT YOU ALL TO KNOW THAT THE COMPANY WILL DO ALL IT LEGALLY CAN TO RESIST THE ATTEMPT BY THIS UNION TO BRING ABOUT COMPULSORY UNION MEMBERSHIP IN OUR PLANT. The record reveals no evidence at any time of the Union's desire for "COMPULSORY UNION MEMBERSHIP." Nevertheless, 2 days later, Grossman followed up with another letter "to make . . . clear" that "It is not necessary and it is not going to be necessary for anyone to belong to this union or any other union in order to work for this company."38 Another point "ma[d ]e . . . clear" in the same letter, again reverting to a prior theme, was that "If anybody causes you any trouble at your work or puts you under any unlawful pressure to consider joining the Union, you should let us know and we will see that it is stopped." Also "ma[d]e . . . clear" was that "this matter is one of concern to your company. It is also a matter of serious concern to you and your family. It is my sincere belief that if this union were to get in here, it would not work to your benefit but to your serious harm." On March 31, predicting union efforts to convince the employees that it could improve existing benefits, Gross- man wrote, "what they probably won't tell you is that the company would not have to agree to any contract de- mands." This was repeated in his letter of April 4 as well as in his letter of April 7, where, for the first time, he stated, "In collective bargaining, everything is put on the bargain- ing table." This was expanded in his letter of April 14 as follows: In collective bargaining, everything would go on the bargaining table-including what you have now. There are no guarantees. Remember, the law would not require the Company to accept the union's demands. The law recognizes that irresponsible union demands could close a company that couldn't afford to continue to operate. Meanwhile, in his April 4 letter, Grossman again re- turned to his compulsory unionization theme, this time completely misstating the law by saying, "Theoretically, if only one person votes, and the vote is for the union, all employees in the unit will have to join the union-even though they didn't vote." And significantly, in his letter of April 23, his last prior to the election, he stated: If the Union were to win, it probably would press for a union shop. That would mean that everyone in the unit would have to join the union and pay monthly dues. Under a union shop, the union could force those who refused to join out of their jobs. Thus, after repeated warnings to the employees of how they might lose in the event of a union victory because Respondent did "not have to agree to any contract demands," and contrary to what earlier seemed an adamant opposition to union security, Grossman now virtually predicted Respondent's surrender to the one demand he speculated the Union would "probably" make if it won that would threaten the employees' jobs. In light of the foregoing, the Union's prediction of "scare tactics" by Respondent would seem not altogether unjusti- fied despite Respondent's contention to the contrary. These tactics, moreover, including Grossman's prediction of "serious harm,"-quite apart from any unfounded "ru- mors" the Union may have started-provided ample basis for concern among the employees to raise any of the questions they posed. Indeed, the "setup" suggested by Respondent would leave entirely unexplained (1) Chre- tian's testimony that he invited questions, (2) the fact that MacArthur admittedly initiated invitations to employees to put their questions to Grossman, and (3) the fact that the question concerning the imposition of work quotas was put by Denise Marion, the instigator of the defection move- ment. b. MacArthur's status Whatever the character of the employment status of the quality control inspectors in Pitman it is unlike that of MacArthur who represents quality control in her own person in Manchester. Hers is the first and last word in quality control as far as the employees are concerned. She has authority to stop the production lines and to criticize the work of those who fail to measure up. And she has exercised this authority in no uncertain terms, testifying herself to screaming at errant employees. She reports to no one in Manchester other than Grossman while the foremen report to Chretian as well as Grossman. She opens the plant most mornings and works longer hours than the employees. Her weekly earnings substantially exceed those of every foreman and even of Production Manager Chretian. She has her own office while the foremen have none. Grossman admitted that during his extended sick leave in October 1973 (before Chretian's employment) he left MacArthur in charge of "the production end of the units and the quality of the units." MacArthur has indicated a continuing interest in meeting production and shipment schedules. Unlike all other unit employees, she was never called to any cafeteria meeting by Grossman. Nor was she included in the list of unit employees prepared in Manchester at Pfeffer's request in August in connection with his consider- ation of the pay raise. Employees ask MacArthur for time 38 Although, as indicated, General Counsel has not attacked any of the written material, it is not irrelevant to note the suggestion in this statement of a closed mind as to a mandatory subject of bargaining in any future negotiations. 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD off and address requests for raises to her. And finally, her antiunion views mirrored those of management, with which indeed she identified herself by bringing employees to Grossman's office to discuss the matter. On these undisputed facts,39 I find MacArthur to be a statutory supervisor or at least that she has been accorded a position by management in which the employees may and do reasonably believe that she speaks for management, and hence she is an agent of Respondent within the meaning of the Act. Cf. Aircraft Plating Company, Inc., 213 NLRB 664 (1974); Oahu Refuse Collection Co., Inc., 212 NLRB 224, 229 (1974); Broyhill Company, 210 NLRB 288, 294 (1974); The Bama Company, 145 NLRB 1141, 1143 (1964).40 c. The unfair labor practices (1) The threats of loss of benefits It is the Board's position that "in the course of organiza- tional campaigns, statements are sometimes made of a kind that may or may not be coercive, depending on the context in which they are uttered. `Bargaining from scratch' is such a statement. In order to derive the true import of these remarks, it is necessary to view the context in which they were made." Wagner Industrial Products Company, Inc. 170 NLRB 1413 (1968); see also Stumpf Motor Company, Inc. 208 NLRB 431-432 (1974). If the oral statements of Respondent's agents here had gone no further than those contained in its written communications (supra) in respect to putting everything on the bargaining table, the absence of guarantees and no requirement that Respondent accept the Union's demands, I should find no violation in this connection. I would then view General Counsel's failure to attack the written material as a concession that any similar statements were nothing more than Respondent's "legitimate contention that the selection of the union would not automatically bring increased benefits" and that they "contain[ed] no veiled threat of a withdrawal of benefits should the employees choose a union"; (C & K Coal Company, 195 NLRB 1038, 1039 (1972)) and "no specific implication that Respondent intended to adopt a bargaining posture offer- ing the employees less than they were then receiving" (Wagner Industrial Products Company, supra). See also White Stag Mfg. Company, 219 NLRB 1246 (1975); Computer Peripherals, Inc., 215 NLRB 293 (1974). But the testimony recited above shows that the oral statements varied somewhat from the written, with a 39 One of these facts is disputed only in the sense that MacArthur contradicted Grossman's admission that he had left her in charge of production during his 1973 absence . I regard her testimony in this respect as undermining her general credibility. 40 In view of this finding it is unnecessary to resolve testimonial conflicts concerning additional factors relied on by General Counsel. 41 It does not necessarily follow from this, however, contrary to Respon- dent, that the words "cannot be remembered precisely and any attempt to quote them is bound either to fail or to suggest ex past facto re-creation." 42 This is illustrated as much by the confused testimony of Respondent's witness Dumont as by that of General Counsel 's witnesses. 43 In this connection I find no overstatement such as is indicated in testimony that Grossman said that even if agreement were reached Respondent could not be forced to sign any papers. The only witness for that bald a statement was Libby as to whose general credibility I have substantial misgivings (infra). The closest any other witness came to this was McGui- gan's testimony on cross-examination that on another occasion Grossman greater stress on loss of benefits and, of especial signifi- cance, on a loss pending the negotiations. As Respondent asserts, "In an active campaign such as this one, words are voluminous - and they are ephemeral." 41 Precisely because of this, they must be chosen with particular care. Civic Center Sports Inc., 206 NLRB 428, 433434 (1973). It is apparent that the employees here did not understand exactly what Respondent now contends it had in mind.42 That understanding is as essential to a determination of the legality of the statements as Respondent's intent in making them. N.L.R.B. v. Gissel Packing Co. Inc., 395 U.S. 575, 618, 619 (1969). And if "brinkmanship" results in overstate- ments which reasonably tend to mislead the employees, who are peculiarly sensitive thereto, the employer must answer therefor. Id. at 620. See also N.LR.B. v. Rollins Telecasting Inc., 494 F.2d 80, 82 (C.A. 2, 1974).43 The clearest example of such overstatements relates to holidays. Chretian testified that his stock answer to the frequent question whether the employees would lose the Fast Day immediately following the election was that he "doubt[ed] it very much." Not only was this a far less firm statement than should have been expected from one who knew that existing benefits would remain in effect pending the negotiations, but it also is significant because it illustrates the extent to which the oral statements may have departed from the written, for Grossman's letter of April 23 referred to the "return to work on Tuesday" rather than Monday, the Fast Day. Similarly, McGuigan testified that, when she posed the question to MacArthur, the reply was "that there was a possibility that we would lose everything. We might lose Monday too." This was in effect conceded by MacArthur who testified that in reply to McGuigan she "told her I didn't know but I wouldn't take a chance." 44 And Regina Letares testified similarly concerning MacAr- thur while Libby gave similar testimony against Gross- man.45 This evidence shows that Respondent's oral state- ments "could reasonably be taken by the employee[s ] as a threatened loss of benefits to be enacted unilaterally by the Employer as a reprisal for the employees having selected the Union" rather than being "traded away for others." Stumpf Motor Company, supra at 432. In addition, as will be discussed below, the remarks were "made in an atmosphere of coercion" with "accompanying unfair labor practices" (see C & K Coal Company, supra; Wagner Industrial Products Company, supra) both in the very conversations and in the surrounding context. Cf. Textron, Inc. (Talon said "something to [the I effect" that Respondent had no obligation to reach agreement or to sign. In an area like this, where precision of language is all- important, a finding of a violation should not rest on so vague a foundation, particularly since the statement in respect to not reaching agreement would be protected, Grossman had been advised by counsel, and the testimony did not emerge until cross-examination. 44 Even if MacArthur's subsequent testimony were credited, that she personally assumed that existing benefits would be retained pending negotiations, this would not undercut the contrary effect on the employees resulting from what she admittedly told McGuigan 45 I have grave doubts of the veracity of Grossman's denial that he had ever heard the common English expression , "from scratch." I certainly discredit his testimony that he never even said anything of "similar meaning" or "indicate[d I that there was a possibility that [the employees I might lose benefits" in view of his admission to having told the employees that "all present benefits ... would go on the bargaining table " STRUTHERS-DUNN, INC. 67 Division), 199 NLRB 131, 134-135 (1972); Saunders Leasing System Inc., 204 NLRB 448,454-455 (1973). (2) The threats to close down and move On the other hand, Respondent's agents made no bare threats to close down and move in the event of a union victory. Not only would such threats have been wholly inconsistent with the statements alleged and found con- cerning future negotiations46 but also such testimony as does appear in the record to that effect is also qualified by later testimony of General Counsel' s witnesses so as to make clear that the predicted move turned on Respondent's inability to compete as a result of increased production costs. The question nevertheless remains whether such higher costs were forecast as the inevitable consequence of a union victory or only as contingent upon the Union's forcing improved working conditions in the negotiations, the former constituting a violation and the latter not - if the eventuality were demonstrably probable. N.L.R.B. v. Gissel Packing Co., supra, 618-619. Respondent contends that not only did no one in Manchester lack authority to decide the matter of closing the plant but also that all its agents said about it was that "if the Union's demands became expensive ... the company's competitive position could be affected. And if a company is not competitive, then the responsible officers could reason- ably close it." The alleged lack of authority to decide on the move is of no moment. There was ample apparent authority in the speakers for the employees to be reasonably coerced if the statements were substantively unlawful. As to the latter, I do not credit any testimony by Grossman or Chretian of statements phrased in the potential rather than conditional mode, while MacArthur freely expressed her view, admittedly based on what she had heard from Grossman, that "the Company could [not] afford higher wages and make competitive relays." Indeed, analysis of the credibility of Grossman or Chretian is virtually ren- dered supererogatory by MacArthur's testimony for, even if she was not an agent of Respondent and her statements to the employees were not imputable to Respondent, if she, being much closer to Grossman than the employees generally, gained the impression from Grossman that the Company could not remain competitive with higher wages, then it was certainly reasonable for the employees to understand the message to be at least as McGuigan testified, that the plant "would probably" close. Moreover, as indicated, I do not credit Grossman or Chretian. Chretian even denied that he ever told an employee "that there was a chance the Company would close down," a clear inconsistency with both his earlier testimony that his stock answer to the employees' question whether the plant would close was that "in all probability a union could get more money for people" which could increase the production cost to the point where the 46 As they also would with alleged warnings in the same conversations that if the Union got in the employees would be obliged to support strikes in the other plants 47 This testimony went. Let's say the Union did get in Weil start getting pay raises that are out o/ proportion and the cost of the item increases to a point where we are no longer competitive . . At that point, if the Company is losing money - there's no law or nothing that forces the Company to remain in business while they are losing money [emphasis supplied ] Company suffers losses which "may close the plant down," and his later testimony restating his stock answer even more positively by assuming what had first been only "pro- babl[e ]."47 While Grossman's estimate of the Union's demands in the event of an election victory was more speculative, his conclusion as to the effect of exorbitant demands was perhaps even stranger than Chretian's for he testified to telling the employees that if because of those demands "the Company did not show a profit then obviously we would possibly have to close the business." This bizarre use of "possibly" where it was "obvious" even to Grossman that "there isn't any company that can stay in business if you don't show a profit" renders his account patently incredi- ble, particularly in light of his insistence that he never omitted the word "possibly" in this connection, his admis- sion that he really knew whether or not Respondent could afford a union, and his earlier testimony that what he said was that, if the Union's demands were too great, "We could no longer compete in the market any longer." It is impossible, moreover, to reconcile the doubt inherent in his "possibly" position with the certainty of his asserted statements of the converse "in simple words," to wit, that ,.as long as Struthers-Dunn can remain competitive in producing these relays and show a profit then we will be in Manchester, we will stay in Manchester, New Hamp- shire." 4s In any event, Respondent offered no evidence whatever of the amount of increase in wages or other benefits that would make the operation noncompetitive, which, by that token alone, reduced its position in effect to an assertion of the inevitability of a closedown if the Union won the election. Absent such evidence, Respondent's statements, even if sincere, "were not protected expressions of opinion but mere threats of retaliation in violation of Section 8(a)(1)." Oahu Refuse Collection Co., Inc., 212 NLRB 224, 226 (1974).49 A fortiori, the statements were violative in view of their insincerity manifested by the 12-percent wage increase given in August with no ill effect on Respondent's ability to continue the operation in Manchester. "[T ]he eventuality of closing" was thus specifically demonstrated as not "capable of proof," (Gissel, supra at 618-619), but was indeed acknowledged by Pfeffer himself to have been mere "campaign talk." (3) Other preelection misconduct I do not credit Regina Letares' testimony concerning the alleged phone call from MacArthur on March 11. Her explanation for failing to recall the date or one of the two items of interrogation until the eve of the hearing, a matter of over 4 months after issuance of the initial complaint and 2 months after issuance of the amended complaint, leaves too many questions unanswered. It is significant, I think, that the witness was not some casual union supporter but 48 This was variously restated as "as long as we got these orders and Struthers-Dunn could show a profit then we'd be in business here in Manchester, as long as we could show a profit", and "as long as we can remain competitive and show a profit then we would - we'd have the company here." 49 By the conclusion of his testimony Grossman virtually acknowledged that any increase would have made the plant noncompetitive. 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one of its stalwarts, a charter member of the group, an activist in the campaign from the outset, and the source of other evidence since the filing of the original charge. Nor was this a conversation that had been overlooked thereto- fore. It appeared in part in the amended complaint as having occurred 2 weeks later. Indeed, it was so important, according to her testimony, that it precipitated Fisher's telephonic demand to bargain. Yet despite its importance and the fact that she "was very upset by the phone call," and notwithstanding its greater proximity to the investiga- tion of the case, she failed to include this in her investigative statement because the Board agent "didn't really go into any detail" during the interview. That Ms. Timmins (hearing counsel for the General Counsel) "spent more time with us" hardly explains the failure to make the allegation until the hearing in the absence of evidence of when Ms. Timmins became involved in the case. Nor is the credibility of Mrs. Letares' testimony in this respect enhanced by the fact that it now also includes an allegation of a threat to move which is still not alleged in the complaint and was not included in the notice of intent to amend at the hearing. I also discredit the allegation as it stood initially in the amended complaint, that MacArthur asked her on March 25 if she had signed a card, because Letares' union activity was well known by that time and would have been particularly known by MacArthur, an old and good friend, herself active in the campaign. However, I credit Letares that MacArthur asked her not to attend the meeting of March 25 and thanked her the next day for honoring her request; 50 and that Grossman thereafter asked her whether she had attended that meet- ing 51 I also credit her testimony that Grossman said he could not give raises because of the Union, a position consistent with Pfeffer's testimony that he had ordered the usual merit raises withheld for that reason. This, of course, contravenes the established principle that "an employer, in deciding whether to grant benefits while a representation petition is pending, should decide that question as he would if a union were not in the picture." The Great Atlantic & Pacific Tea Company, Inc., 166 NLRB 27, 29, fn. 1 (1967); Sinclair & Rush, Inc., 185 NLRB 25 (1970). I also credit Letares that MacArthur expressed her disappointment on the morning of the election over Letares' attendance at the last union meeting and asked how she was going to vote. Although MacArthur still knew Letares as a unionist, I view this as a last-ditch appeal for old times sake. McGuigan testified that Grossman responded affirma- tively to Denise Marion's question whether there would be work quotas if the Union got in. Grossman's testimony was that he said he believed Anchor Electric had work quotas and that they had the IBEW. Marion, the leader of the defection movement from the Union, was not called to testify. In this state of the record, I credit McGuigan, noting also that Grossman's admitted statement left ample room for an inference equivalent to what McGuigan described as explicit. 50 If this did not evidence surveillance it at least gave the impression of surveillance. Sl It is noteworthy that Respondent's witnesses were generally vague at best in recalling specific conversations or any conversations with specific employees. I also credit Rhea Letares' testimony concerning a similar threat by MacArthur on April 18 made simultaneously with threats of harsher conditions in respect to smoking and restroom visits. And I credit her testimony that MacArthur asked on April 21 and 22 if she was going to attend a union meeting and warned her not to. I have not found Libby's testimony generally trustworthy and have not credited her except where she has been corroborated. Thus, her explanation on direct examination for leaving Respondent's employ almost sounds like a constructive discharge for her union activity by making her a pariah for some 3 weeks following the election. The true picture emerges only with her revelation on cross that she actually turned in her resignation the first working day after the election, that she quit because she was "seeking better employment," and that her only "hassle" in this brief period had been with MacArthur over her work rather than with "the other workers." Perhaps more telling was her rebuttal testimony concerning MacArthur's timecard. Ex- panding considerably on her initial testimony that she had never noticed MacArthur punch out in the evening, which invited the question as to how she knew this since MacArthur regularly remained at work after she had gone home and her somewhat lame answer that she occasionally also worked overtime, she now declared positively, based on her personal examination of MacArthur's timecard, that MacArthur did not punch out evenings. Absent some explanation from the General Counsel as to how, given this state of affairs, Respondent was able to compute overtime pay for MacArthur, which the record shows she earned every week she worked,52 I can only conclude that Libby's rebuttal testimony was made out of whole cloth. I specifically do not credit Libby's testimony that MacArthur asked her on April 22 or 23 how she felt about the Union. In my opinion this question would have been entirely superfluous at that point. For if MacArthur did not already know, only 2 or 3 days before the election, after an active and hectic campaign of some 6 weeks, how this "well known" union supporter felt, MacArthur must have been much less active than the complaint alleges or than I have found. By the same token, I do not credit her testimony that MacArthur asked her on the morning of the election how she was going to vote at the same time that she put the same question to Regina Letares. MacArthur did not have the same special relationship with Libby that she did with Letares; the complaint confined the allegation in this respect to only one employee; the evidence as to Libby's involvement in this did not come out until her redirect examination, nor was it corroborated by Letares who testified immediately after Libby. There evidently was a conversation, however, between Libby and Grossman in which her attendance at a union meeting did arise. Her testimony was that the conversation occurred only 2 or 3 days before the election, and that it consisted of his asking if she "would be attending the [union ] meetings" and her reply that she would because she wanted to hear both sides. According to him, he asked her 52 General Counsel relied on these pay records in comparing MacAr- thur's ea rungs with those of other company personnel. STRUTHERS-DUNN, INC. about 2 weeks before the election that if she attended the next union meeting she should "be sure and listen to both sides." Although this incident was not the subject of any allegation in the complaint (or even included in the notice of intent to amend) I have considered it since Grossman testified about it. I credit Grossman's account as the more likely of the two. The record discloses only one union meeting in the 2 or 3 days immediately before the election, and there is no reason to believe that more were contem- plated so as to explain why he would have asked about meetings in the plural. Moreover, her purported answer seems contrived in view of her known union activity53 if indeed such knowledge did not even prevent him from asking such an idle question. On the other hand, his knowledge of her union activity would be quite consistent with his assuming she would attend the upcoming meeting and asking her, as he testified, to consider the Company's side as well. (4) The wage raise The Board's test for determining the validity of a wage increase during the pendency of a representation petition is whether it is given "for thepurpose of inducing employees to vote against the union" (emphasis the Board's). Tonkawa Refining Co., 175 NLRB 619 (1969), enfd. 434 F.2d 1441 (C.A. 10, 1970). And the burden is on the employer to come forward with an explanation for the timing other than the election . The Singer Company, Friden Division, 199 NLRB 1195, 1196 (1972); Schwab Foods, Inc., d/b/a Seatts IGA Foodliner, 223 NLRB 394 (1976); Emery Air Freight Corporation, 207 NLRB 572, 575 (1973). Respondent, resting entirely on the testimony of its president, Pfeffer, has clearly failed to sustain this burden. Pfeffer's explanation was that from reports by Grossman he had become aware by July that the employees were restless from the effects of inflation; that he "had a bad condition" because of the pending election since he had ordered "normal" merit increases withheld on account of the election but had been advised by counsel that the instant proceeding might drag on for another year; that he was also informed by counsel that it "was just as bad to not give an increase if it's normal business as it is to give an increase"; and that he was in the midst of negotiations with the Pitman union; so he made "a business decision" which was "business as usual . This is the type of thing I would normally do anyway under these conditions of inflation," i.e., "give them an across-the-board so that everybody benefited; not from a merit basis, but from a cost-of-living increase basis." He reconciled the "campaign talk" about Respondent's inability to afford any raise with the decision to give a 12-percent one by testifying that the "campaign talk . . . ha[d ] nothing to do with my decision. My decision has to do with what I see has to be done within the company. And these people, because of the cost of living, had to have money, and so did our people in Pitman. I also gave them an across-the-board." This frank confession of deceit in the "campaign talk" raises questions, of course, as to what statements by 53 Such an answer would far better fit the question whether she would attend a company meeting. 54 1 do not rely, for purposes of this finding , on the retroactive unfair 69 Respondent are worthy of belief generally. But beyond that, Pfeffer's explanation fails on its own merits because no equation of the "people in Pitman" to the people in Manchester is possible on this record. The "people in Pitman" have been the beneficiaries of annual collective- bargaining agreements for many years. In the approximate- ly 10 years of the existence of the Manchester plant its employees had never before received a general wage raise. And contrary to Pfeffer's bare testimony that the rate of inflation in previous years was lower than in 1975, it may be noted judicially that the 1975 rate of inflation was lower than that in several years prior thereto during the period of Respondent's operation of the Manchester plant. Besides, this general "cost-of-living" increase was quite unrelated to the widely disparate dates of the various employees' last raises. Hence Pfeffer's statement that the raise was "the type of thing [he ] would normally do" is in conflict with the entire record, particularly when viewed in light of Gross- man's figures on which Pfeffer claims to have relied, which show a lapse of over a year between the dates of some employees' last raises and the appearance of the Union, as well as a spread of over a year among the last raise dates of various employees, some having received raises as recently as March 1975. Moreover, to the extent that Pfeffer claims to have been motivated by the advice that it is illegal to withhold a normal increase, the individual merit increases he admits withholding were certainly more "normal" than the general increase which he had never given before. His belated and novel explanation on redirect for the shift from the individual method to the general, that the company had grown larger, is not documented nor is the conclusion self- evident. The single obvious new element in Manchester - and the one which Pfeffer stubbornly refused to acknowledge as a possible cause of the employees' "restlessness" - was the Union's organizational campaign. I have no doubt whatev- er that the increase was intended as a reward for the favorable count in the first election and as an inducement to a like result in the expected second one. It thus violated Section 8(a)(1) Cf. Monarch Tape Duplicating, A Division of Monarch Record Manufacturing Corp., 205 NLRB 520, 525, 526 (1973); Tommy's Spanish Foods, Incorporated 187 NLRB 235, 236, 241 (1970); Sea Life, Incorporated, 175 NLRB 982, 985 (1969); Ambox, Incorporated 146 NLRB 1520,1521 (1964). Bargaining Order Although Respondent was clearly within its rights in refusing to recognize the Union when it did, its subsequent preelection conduct prevented the election from reflecting the free will of the employees, and the election must therefore be set aside.54 Moreover, those unfair labor practices together with the general wage increase of August 14 were so extensive and serious as to render unlikely a fair and free election in the future. Cf. Oahu Refuse Collection Co., Inc., 212 NLRB 224, 230 (1974); Tower Enterprises, Inc., d/b/a Tower Records, 182 NLRB 382, fn.2 (1970). In such circumstances, a bargaining order is warranted if the labor practice effect of the wage increase on the threats to close and move the plant 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union had card authorizations to bargain from a majority of employees in the unit. N.LRB. v. Gissel Packing Co., Inc., 395 U.S. 575, 600, 610-611, 614-615 (1969).55 The Union did in fact possess such cards from approximately two-thirds of the unit employees by the time of the bargaining demand and refusal.56 Respondent seeks to undermine the majority showing by the evidence that Fischer had indicated he would respect a change of heart by the employees and that just such a change occurred with the withdrawal petition prior to any unfair labor practices .57 However, Gissel requires only "a showing that at one point the union had a majority" in order to "effectuat[e] ascertainable employee free choice" (em- phasis supplied). 395 U.S. at 614. If Respondent had refrained from misconduct, it may well be that the voluntary defection from the Union would have been reflected to Respondent's advantage in an election which would have proved conclusive. But after choosing to engage in violative conduct to guarantee that result it may not now be heard to protest "negat[ion]" of the employees' "free selection" which it itself has "negated." 58 The Election Objections In view of my determination that the election held on April 25 should be set aside, and my recommendation for a bargaining order, a new election is not warranted herein, and I recommend that the Union's petition in Case 1-RC- 13745 be dismissed and all prior proceedings held thereun- der be vacated. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has violated Section 8 (axl) of the Act by coercing its employees in the exercise of their union activities. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent did not violate the Act except as specifically found above. REMEDY In order to remedy the unfair labor practices found herein my recommended Order will require Respondent to cease and desist therefrom, and, in view of their serious nature and variety, to cease and desist from infringing upon 55 While the complaint characterizes Respondent's conduct as "outra- geous" and "pervasive," which Gissel suggests might suffice to support a bargaining order "without need of inquiry into majority status" (395 U.S. at 613), the Board has not seen fit to grant this remedy even in such an `.exceptional" case where "the record does not at any point reveal a showing of majority status" (The Loray Corporation, 184 NLRB 557 (1970)); and the General Counsel's brief drops the operative adjectives, urging the order only in reliance on the majority showing. 58 Respondent's suggestion of the inadequacy of these single-purpose cards based on Fischer's statements that he expected an election rather than voluntary recognition runs head-on into Gissel 395 U.S. at 606-608. Montgomery Ward & Co., Incorporated, 220 NLRB 373 (1975). 57 Even if, contrary to my finding, supra, Regina Letares had received the the Section 7 rights of its employees in any other manner, and to post the usual notices . Moreover, in order to effectuate the policies of the Act, and more particularly for the reasons set forth in the section supra, entitled "Bargain- ing Order," my recommended Order will require that Respondent bargain collectively and in good faith with the Union upon the Union's request. Upon the foregoing fmdings of fact and conclusions of law, and the entire record herein , and pursuant to Section 10(c) of the Act, I hereby recommend the following: ORDER59 The Respondent, Struthers-Dunn, Inc., Manchester, New Hampshire, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Granting wage increases to its employees to discour- age their union activities. (b) Threatening its employees with loss of existing or prospective benefits in the event they choose or retain the Union or any other labor organization as their collective- bargaining representative. (c) Threatening to close down or move the plant in the event of a union victory in an election. (d) Stating that any planned wage increase or other benefit will be withheld because of the pendency of a union campaign or of a proceeding before the Board. (e) Coercively interrogating its employees concerning their union activities, views, or sympathies. (f) Giving its employees the impression that it has been maintaining surveillance over their union activities. (g) Threatening employees for attendance at union meetings, or otherwise discouraging such attendance except by expression of views, argument, or opinion protected by Section 8(c) of the Act. (h) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively and in good faith with Local 1973, International Brotherhood of Electrical Workers, AFL-CIO-CLC, as the exclusive representative of all the employees in the following appropriate unit, and embody in a signed agreement any understanding reached: All production and maintenance employees at the Manchester, New Hampshire plant of Struthers-Dunn, Inc., but excluding all office clerical employees, profes- telephone call from MacArthur on March 11 , as alleged, I would not find the two questions put to her on the occasion a cause for the withdrawal 3 days later by 16 others (but not herself or the other employee to whom she allegedly mentioned the call), absent at least some evidence that the substance of the call had been communicated to those employees. 5e See concurring opinion of Judge Sobeloff in N.LR.B. v. Sehon Stevenson & Co., Inc., 386 F.2d 551 ,557 (C.A. 4,1967). 59 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 pufposes. STRUTHERS-DUNN, INC. 71 sional employees, guards and supervisors as defined in Section 2(11) of the Act. (b) Post at its place of business in Manchester, New Hampshire, copies of the attached notice marked "Appen- dix. " 60 Copies of said notice, on forms provided by the Regional Director of Region 1, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing, within 20 days of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the petition in Case 1-RC- 13745 be dismissed and all proceedings therein be vacated. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. 60 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."