The Stride Rite Corp.

224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Stride Rite Corporation and Lewiston-Auburn Shoeworkers Protective Association. Cases 1-CA- 10550 and 1-RC-13670 February 15, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On September 28, 1976, Administrative Law Judge Michael O. Miller issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. The General Counsel and the Charging Party filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the 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 briefs and has decided to affirm the rulings,' findings,2 and conclusions3 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The Administrative Law Judge found that Respon- dent's solicitation of grievances during the union campaign was a continuation of past practices and not an unlawful promise of benefits. The General Counsel contends that Respondent's actions dui ing the campaign differ significantly from past practices and constitute a violation of Section 8(a)(1) of the Act. We find merit in this exception. When Respondent opened its plant in Auburn, Maine, a letter was distributed to employees setting forth, inter alia, a grievance procedure. Forms were provided on which employees could request an operation review. Problems could be discussed first with the immediate supervisor, then with Plant Manager Leseur, and, as a last resort, with Clarence Nelson, vice president of Stride Rite Manufacturing. Nelson, who operated from the corporation's princi- pal office in Boston , Massachusetts, made a practice of visiting all of Respondent's plants a few times a year. On the opening of the Auburn plant, he instructed his assistant, Barringer, Plant Manager I The Administrative Law Judge found that Respondent's unfair labor practices came within the first category of unfair labor practices as defined by the Supreme Court in N LR B v. Gissel Packing Co, Inc, 395 U S. 575 (1969) We find it unnecessary to determine whether the violations are within the first category since we find that , even if the unfair labor practices do not come within this category , they come within the second category and a bargaining order is warranted under either finding 2 The Respondent and the General Counsel have 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 credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F2d 362 (C.A 3, 228 NLRB No. 22 Leseur, and other supervisors to talk to employees about production problems with a view toward solving them. In the past, Nelson had visited the plant and talked individually with a few employees, but no formal employee meetings were held. On January 15, 1976, the Union filed a representa- tion petition. During the third and fourth weeks of January, Nelson held a series of meetings to discuss the union petition and to determine what sort of problems existed in the plant. Employees were asked to attend by department. The meetings were held in the conference room of the plant. Nelson made a speech from prepared notes and then asked for comments. Employees complained about the unsani- tary condition of one of the bathrooms, the high noise level of a compressor, and the inconvenient location of a conveyor. They also expressed a preference for a plantwide vacation over the July 4 holiday, rather than the staggered vacations suggested by manage- ment. Nelson wrote down these complaints and admitted that Respondent "took some of the sugges- tions and capitalized on them." Shortly after the meetings the bathroom was cleaned, the compressor was muffled, and the location of the conveyor was changed. About 2 weeks after the meetings, Respon- dent distributed a ballot asking employees to indicate their preference for either a 1-week paid vacation or a 2-week vacation with 1 week paid. Prior to the election, it was announced that the plant would be closed for the first 2 weeks of July. The Administrative Law Judge found, and we agree, that the meetings were for the purpose of soliciting grievances. He concluded, however, that since Respondent had in the past solicited grievances it was merely continuing its former practice at the January meetings and, therefore, its conduct on these occasions did not constitute an unlawful promise of benefit. Contrary to the Administrative Law Judge, we find that the January meetings represent a major change in Respondent's approach to grievances. Complaints had previously been handled informally by local officials in the plant manager's office or on the plant floor. Prior to the union campaign, Nelson, a high- ranking corporate official, had spoken with only a few employees at the Auburn plant while carrying out 1951). We have carefully examined the record and find no basis for reversing his findings 3 Chairman Murphy agrees that Respondent's remarks regarding plant closure violated Sec 8(aXI) of the Act In the instant case, the repeated reference to a 30-day cancellation clause in the Company 's 2-year lease and to the failure to sign a long-term lease suggests that options which are solely within Respondent's control may be exercised to punish the employees should they select the Union In contrast , the employer's remarks in Honeywell, Inc, Photographic Products Division, 225 NLRB 617 (1976), which Chairman Murphy there found unobjectionable , referred to possible effects of unionization beyond the employer's control and did not in her view suggest that the employer would take any adverse action toward the employees should they select the union STRIDE RITE CORP. his practice of visiting all the Company 's plants a few times a year. After the Union's representation peti- tion, he held group meetings twice in 1 month. Further, these meetings were held in the conference room-an area of the plant which had never before been used for such purposes . The aura of formality created by this special location of the meetings and the recurrent appearance of a high -level corporate officer stands in marked contrast to the casual questioning of employees by local officials. By the same token, the calling of mass meetings for all departments differs significantly from the provision for an individual grievance procedure . These changes in practice, coupled with the immediate remedy of several complaints raised at the meetings, undoubted- ly conveyed to the employees the message that Respondent, in its effort to defeat the Union, was now willing to look much more favorably on any request they might make .4 Accordingly, we find that Respondent , by its actions in the January meetings, impliedly promised benefits in an attempt to under- mine the Union's support in violation of Section 8(a)(1) of the Act. We further find that by its subsequent granting of certain of these promised benefits Respondent also violated Section 8(a)(1). 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, The Stride Rite Corporation , Auburn, Maine, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph 1(e) and reletter the subsequent paragraphs accordingly: "(e) Promising and granting benefits and soliciting the presentation of grievances and adjusting such grievances, to discourage its employees' designation of a representative for the purposes of collective bargaining." 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the election in Case 1- RC-13670 be, and the same hereby is, set aside, and that the petition in Case 1-RC-13670 be dismissed. APPENDIX 225 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a repre- sentative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all these things. WE WILL NOT do anything that interferes with, restrains, or coerces employees with respect to these rights. WE WILL NOT create the impression that we are engaging in surveillance of your union activities. WE WILL NOT interrogate you concerning your union membership, activities, sympathies, or de- sires. WE WILL NOT promise and grant benefits and solicit the presentation of grievances and adjust such grievances, to discourage you in the designa- tion of a representative for the purposes of collective bargaining. WE WILL NOT threaten you with plant closing or other reprisals if you select Lewiston-Auburn Shoeworkers Protective Association, or any other labor organization, as your collective-bargaining representative, or engage in any other union activities. WE WILL, upon request, bargain collectively with the Lewiston-Auburn Shoeworkers Protec- tive Association, as the exclusive bargaining representative of all the employees in the unit described below with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an agreement is reached, embody such understanding in a written signed agreement . The bargaining unit is: All full-time and regular part-time employees of the Stride Rite Corporation at its Old Hotel Road, Auburn, Maine, plant, exclud- ing office clerical employees, guards and all supervisors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the ' Eagle-Picher Industries, Inc, Electronics Division, Precision Products Department, 171 NLRB 293,298-299 (1968) 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. THE STRIDE RITE CORPORATION DECISION STATEMENT OF THE CASE MICHAEL O. MILLER, Administrative Law Judge: Upon a charge filed on March 31, 1975, by Lewiston-Auburn Shoeworkers Protective Association (herein LASPA or the Union), a complaint and amended complaint issued by the Regional Director for Region 1 of the National Labor Relations Board (herein the Board) on November 17, 1975, and April 2, 1976, respectively,I and timely filed answers by the Stride Rite Corporation (herein Respondent), a hearing was held on April 20 through 24, 1976, in Auburn, Maine. Consolidated for hearing with the complaint were Union- filed objections to the conduct of an election conducted among Respondent's employees on March 27, 1975.2 A hearing upon these objections, which parallel certain complaint allegations, was directed by the Board on August 4, 1975. At issue herein was whether Respondent violated Section 8(a)(1) of the Act and interfered with the conduct of the election by solicitmg grievances from its employees and satisfying or promising to satisfy same in order to under- mine the Union's organizational efforts, interrogating its employees in regard to the union activity, creating the impression of surveillance of union activities, and impliedly threatening to close the plant if the Union won the representation election. Further at issue was whether Respondent, by the foregoing conduct and its refusal to bargain collectively with the Union, rendered a free election, impossible and thereby violated Section 8(a)(5) of the Act. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to argue orally.3 Comprehensive briefs, which have been carefully considered, were filed by all parties. Upon the entire record, including my careful observation of the witnesses and their demeanor, I make the following: 1 A motion to further amend the complaint at the opening of heanng was timely See Starkville, Inc., 219 NLRB 595 (1975) 2 The election was held pursuant to a Stipulation for Certification Upon Consent Election approved on February 7, 1975 Of approximately 112 eligible voters, 43 cast votes for, and 62 cast votes against, LASPA. 3 Respondent contended that the Freedom of Information Act, 5 U.S.C Sec 552, as amended, 88 Stat 1563, entitled it to prehearing inspection of the affidavits of witnesses General Counsel intended to call at the hearing and that the General Counsel's failure to comply with its request for same violated that act, denied Respondent due process of law, and rendered the hearing herein void ab mrtio. As the Board has pointed out, Respondent cannot raise the refusal to furnish documents as a defense in an unfair labor practice proceeding See, e g, Mercy College, 219 NLRB 81 (1975). The appropriate avenue for Freedom of Information Act contentions lies in the first instance before the United States district courts, rather than an Administrative Law Judge of the Board Moreover, Respondent rested its FOIA contentions on certain decisions rendered by various district courts favorable to its position The Board, with all due respect, has not accepted the propriety of such decisions. Upon appeal, decisions requiring that investigative affidavits be disclosed prior to hearing pursuant to the FOIA have consistently been reversed See, for example, Goodfriend Western Corp., d/b/a Wrangler Wranch v Fuchs, 535 F 2d 145 (C A I, 1976), Title Guarantee Co v. N L R B, 534 F 2d 484 (C A. FINDINGS OF FACT 1. THE RESPONDENT'S BUSINESS AND THE UNION'S LABOR ORGANIZATION STATUS-PRELIMINARY CONCLUSIONS OF LAW Respondent, a Massachusetts corporation, is engaged in Auburn, Maine, in the manufacture, sale, and distribution of shoes and footwear. Jurisdiction is not in issue. I find and conclude that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I find and conclude that the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. To the extent relevant herein, I find that the following persons, at the times in question, comprised Respondent's supervisory heirarchy: Myles Slosberg, vice president; C. T. Nelson, director of manufacturing; Donald Leseur, plant manager; Robert G. Lauzon, maintenance supervisor; Fred Lawrence, cutting room foreman; Maurice Frechette, cutting room foreman; and Al Gagne, packing room foreman. H. THE UNFAIR LABOR PRACTICES A. Background-Stride Rite's Arrival and Union Activity The twin city area of Lewiston-Auburn, Maine, has historically been a center for the manufacture of shoes. Like other such areas in the northeast, it has, in recent years, suffered attrition in the number of factories and concerns so engaged. As the number of shoe factories declined, so too did the membership of LASPA, one of the area's principal unions. One of Auburn's factories to close in 1974 was Moxee's, a reasonably new plant which had been built by yet another shoe company, Belgrade. LASPA had repre- sented the employees of both Belgrade and Moxee. Prior to the acquisition of the Auburn plant, Respondent had seven plants, four unionized. Around the fall of 1973, because of a discerned need for increased production, Respondent began seeking additional manufacturing facili- ties. The former Moxee plant offered a relatively new 2, 1976), Climax Molybdenum Company v. N.L.R B, 539 F 2d 63 (C A 10, 1976) Respondent further contended that it had been denied due process of law by General Counsel's refusal to furnish it, for cross-examination purposes, with the notes and memoranda of witness interviews, taken in the investiga- tion from some witnesses in lieu of affidavits. (Where General Counsel had affidavits of its witnesses, they were furnished) The Board's Rule, Sec 102.118, embodying the principles of Jencks v United States, 353 U S 657 (1957), is specific and requires only that "statements" be produced. The term "statement" is narrowly defined to include- "(I) a written statement made by said witness and signed or otherwise adopted or approved by him, or (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement The fact that General Counsel chose not to take sworn affidavits from all witnesses, but relied on notes of interviews of some in issuing the complaint and preparing witnesses for hearing, does not render such notes "adopted or approved" within the Board's Rule, absent some evidence that the notes were, in fact, "adopted or approved" by the witness or that they purported to be substantially verbatim recitals of the witnesses' statements. I find General Counsel's refusal to furnish such notes warranted by the Board' s Rules "Since the notes in issue did not have to be produced, the Respondent's arguments that it was prejudiced by their unavailability are without meet " American Rubber and Plastics Corporation, 200 NLRB 867, 868 (1972) STRIDE RITE CORP. physical plant and an available work force with skills in the manufacture of shoes. Slosberg, president of Respondent's manufacturing division, as well as corporate vice president, investigated the plant and the Auburn area. He inquired and was informed about the available labor force, the prevailing wages, the extent of unionism, and the identity and characteristics of LASPA. Arrangements were made for Respondent to acquire the Auburn plant through industrial revenue bond financing. Under this financing plan, which required a municipal referendum, the city of Auburn would purchase the plant from its present owners with the proceeds of a municipal bond offering and would lease it to Respondent for a term of 15 years at a rental equal to the city's obligations on the bond. At the end of the 15 years, Respondent would own the plant and would have enjoyed the advantage of the substantially lower municipal bond interest rate. In August 1974, Respondent entered into a 2-year lease for the plant. The lease provided, inter alia: [P]rovided however that the Tenant shall have the right to terminate this lease at any time by giving the Landlord written notice, and said termination shall become effective upon the 30th day following the Landlord's receipt of said notice.4 Respondent's decision to locate in Auburn was an- nounced during the summer of 1974 and an advertising campaign, stressing the added jobs and improved tax base, aimed at passage of the bond referendum, was undertaken. The referendum was held in November 1974. It passed. Even before the referendum, however, Respondent had moved into the plant. Production began in late September and employees were added to the work force as the various steps in the assembly process were completed. In order to open the plant, Respondent invested approximately $200,000 in repair and renovation, much of which was nonrecoverable. In late December, the date of January 7, 1975, was selected for closing on the revenue bond financing package and Respondent's obligation thereunder. Approximately 2 or 3 days before January 7, Respondent's bond counsel requested an indefinite postponement because of "technical difficulties." The postponement was granted. The Union's interest in the plant began when Respondent commenced operations. Wallace Dixon, LASPA's business agent, visited the plant on three or four occasions between October and December 1974, met with Plant Manager Donald Leseur, and indicated the Union's interest in representing Respondent's employees. Many of Respon- dent's employees had been LASPA members when previ- ously employed in this and other shoe factories. Pursuant to their requests, an initial organizing meeting, attended by six or seven employees, was held on January 6, 1975 (all dates hereinafter are 1975 unless otherwise specified). Authoriza- tion cards were passed out. Additional union meetings were held on January 13 and 20. On January 10, the Union made 4 Prior to the execution of this lease , in a letter to the building's owners, Slosberg had indicated a willingness "to enter into a . . month-to-month lease arrangement . . . with the understanding that we could ternunate on short notice if the Revenue Bond financing package cannot be worked out to our mutual satisfaction ." In testimony, Slosberg indicated that it also sought 227 a demand for recognition which was repeated on January 21 and on that date rejected. The Union also filed the representation petition in Case 1 -RC-13670 on January 15. On January 22, the Union filed a complaint with the U.S. Department of Labor, Occupational Safety and Health Administration, alleging problems with compressor noise, lighting, an unsanitary restroom, and inadequate heat. B. Stride Rite's Response to the Union Activity 1. Alleged solicitation and satisfaction of grievances It is not in dispute that, upon receipt of the petition, Respondent undertook to convince its employees to vote against union representation. In the third and fourth weeks of January, Clarence Nelson, director of manufacturing and vice president of the manufacturing division, conduct- ed a series of meetings with the employees. He testified: A petition for an election had been filed and I wanted to find out what they knew about it, maybe we could set up some kind of communication. He further testified that the purpose of the meetings was to find out what the problems were and to solve them. In these meetings, Nelson introduced himself and Barringer, his assistant, and, speaking from notes prepared for the purposes, told the employees: [W ]e had received the Petition from the NLRB for an election and that I realized that there were problems there and that we had been working on some of these problems and we would continue to work on these problems. I went back to the history of Auburn, the way we came there in the first place; where we had been looking for available skills in various cities and ... I had determined through a survey that people were available in Auburn-Lewiston area as well as some other areas that we had done a similar survey in and we had decided to come here primarily because of the available labor and because of the available plant. We expected startup problems. Every factory I know of has startup problems and some of these problems I had written down there, flow of work, equipment and lack of some skills and I think we agreed that there was some of this that existed there and that some people suggested ways to get around some of these problems. But that was later on. I continued talking about the economy in general and in the shoe industry and I think ... that there was an economic situation existing , unemploy- ment in the country, unemployment in this community and I cited some other shoe towns where unemploy- ment had been a problem, such as Haverhill, Lynn and Brockton, Massachusetts and I mentioned Moxee's which had been in that plant and many of the people there in these meetings had worked in Moxee's and experienced this. So, it wasn't something that was the short-term revocable commitment so that it could get out if business turned down or the plant turned out to be unsuitable . The 2-year lease contained no limitation on the reasons for which Respondent could give notice and terminate. 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD secondhand or something. They knew it firsthand, these problems. I said that the company did not want a Union. I didn't feel it was necessary but that we had some Unions and we operated with a Union if that's what the people wanted, that we did operate with Unions. We had some factories operating without Unions and once we got our problems worked out in the startup, that we felt we could come up with a viable operation that was a good place for people to work. And then I asked if there was any questions or any comments that the people would like to make at that point and there were some.5 As employees voiced various complaints, suggestions, and questions, Nelson made written notes of them and either described Respondent's policy on the particular subject or indicated that he would look into the matter. Among the complaints that were raised were such matters as the allegedly dirty bathroom, ice on the parking lot, the location of a conveyor, and noise from a compressor. One complaint about a missing machine part caused Nelson to take immediate action. According to Nelson's notes and his recollections, someone commented that if LASPA was in they would get the LASPA contract. Employees asked how many plants Respondent had and how many were union- ized. A comment was made that Moxee's had closed but Stride Rite could not because the bond issue had been approved and the lease signed. Nelson testified that he made no comments about the latter statements. A question was raised on Respondent's wage increase policy, in response to which Nelson stated that there was no set policy. He stated that wages could not be raised at that time. He continued by describing Respondent's standard hour-incentive system. An extended discussion arose over the scheduling of vacations. Nelson stated, consistent with the information new employees were given, that the vacation period or schedule would be announced by May 1. The question was asked when it would be. Nelson spoke of his reservations about shutting the plant down for a vacation period and his preference for staggered vacations. This caused considerable consternation as plantwide vaca- tion shutdowns over the July 4 holiday were customary in the area. Following these group meetings in January, according to Nelson, Respondent "took some of the suggestions and capitalized on them and used them." Some of the comp- laints, such as the noisy compressor and the dirty bath- room, had also been raised through OSHA. The compressor was first muffled and ultimately moved outdoors. Nelson looked into the bathroom situation and the complaints in regard thereto ceased.6 A suggestion (or complaint) in regard to the installation of a conveyor belt in a particular area was followed up and done. The record 7 reveals that from October through Decem- ber 1974 Respondent gave 11 employees rate changes, in all 5 The foregoing does not purport to be a verbatim recital of Nelson's statement to the employees in these meetings. His recollection of these meetings is corroborated yb yy his notes and is more specific than recollections of the employees who testified on this subject. Additionally, I note Nelson's candid acknowledgment of the purpose of the meetings and his statements concerning the Respondent's preference vis-a-vis unionization, which were not specifically recalled by most of the employees . Accordingly, I credit Nelson's testimony, as set forth above. but 1 case 25-cent-per-hour increases. From January 13 (the first raises after the start of the in-plant union activity) until March 24 (the last raise before the election), there were 32 such wage increase rate changes, varying in amount from 10 to 25 cents per hour. There were no such wage increases in the month following the election but 18 increases from the end of April through June. About 2 weeks after the meetings, Respondent distribut- ed a ballot asking employees for their preference of a 1- week fully paid vacation or a 2-week vacation with I week paid. Prior to the election, Respondent announced that the plant would be closed for the first 2 weeks of July. When Respondent opened the Auburn plant, and at least until the advent of the Union, new employees received a letter from Nelson describing company benefits. Included therein was a grievance procedure, providing for steps through the immediate supervisor, plant manager and ultimately to Nelson. It further stated: "we will keep and [sic ] open door policy so that all employees can talk freely with all members of management." Respondent also had a form on which employees could request an operation review; the record reflects that it was used at least once prior to the January 6 union meeting. Although Nelson had not met with employees other than individually prior to January, other supervisors had con- ducted at least a few group sessions for employees to air their gripes and suggestions. Leseur testified that both he and Barringer met with groups of employees, from October through December, where employee problems and comp- laints were solicited and discussed. Employee Judith Hurd recalled such a meeting in November or December with 12 to 15 employees and Barringer present. Jeanette Roy recalled a meeting in the beginning of December with Leseur, Barringer, and about five employees at which there were complaints about the wages and Roy asked whether they would be released early on Christmas eve. Although Leseur indicated then that an early release would not be feasible, the plant closed at 11 a.m. on the day before Christmas. Gloria Targett also confirmed that such meet- ings were being held during the period prior to any overt union activity. Other employees indicated that in the period before the first union meeting, while they were able to voice comp- laints to supervision, their individual complaints or griev- ances received little or no favorable response. The record does reflect changes in wage rates, machines, and proce- dures during the period from the plant opening until the start of the union activity. The complaint alleged that by Nelson's meetings in January Respondent solicited grievances from its employ- ees, promised to remedy them, and did so, in order to undermine the Union's campaign, in violation of Section 8(axl). The essence of such a violation is not the solicita- tion of grievances itself; rather, it is the promise to correct them, either express or inferred from the solicitation. 6 It appears that there was some turnover in the personnel responsible for this service. I cannot conclude from the record before me that anyone was hired to assume this task as a result of the complaints. 7 The point motion to introduce into evidence after the close of hearing a summary of wage increases given by Respondent from October 1974 through June 1975 is hereby granted. STRIDE RITE CORP. Campbell Soup Company, 225 NLRB 222 (1976); Uarco Incorporated, 216 NLRB 1 (1974). In the instant case, there being no express promise, it must be found by inference if at all. In regard to the creation of such an inference, the Board, in Reliance Electric Company, Madison Plant Me- chanical Drives Division, 191 NLRB 44,46 (1971), stated the principle succinctly: Where, as here, an employer, who has not previously had a practice of soliciting employee grievances or complaints, adopts such a course when unions engage in organizational campaigns seeking to represent employ- ees, we think there is a compelling inference that he is implicitly promising to correct those inequities he discovers as a result of his inquiries and likewise urging on his employees that the combined program of inquiry and correction will make union representation unneces- sary. Such conduct is unlawful. Squire Shops, Inc., 218 NLRB 158 (1975); Texaco Inc. (Evansville, Indiana Bulk Station), 178 NLRB 434 (1969). Respondent contends that Nelson's meetings were not for the purpose of and did not constitute solicitation of grievances. I must reject this contention. Nelson acknowl- edged that the meetings were held "to set up some kind of communication." Moreover, he admittedly invited ques- tions and comments and a number of complaints naturally were aired. Nelson listened to the complaints, made note of them, indicated that they would be looked into, and took corrective action on at least some of them. To this extent, at least, the facts herein parallel those of Gold Circle Dept •t- ment Stores, a Division of Federated Department Stores, Inc., 207 NLRB 1005 (1973), wherein unlawful promises and grants of benefits were found. See also Reliance Electric, supra. The cases cited by Respondent in support of this contention are inapposite. In Big G Supermarket, Inc., d/bla Town and Country Family Center, 219 NLRB 1078 (1975), the employer approached an employee and "said that he wanted me to know that he was still deadly against [the union] and that he couldn't ask me no questions or how I felt about it, but he could listen to what I had to say." This statement was far more ambiguous than Nelson's calling of successive meetings, discussing the Company and the problems in the plant, and asking for and noting employee comments and suggestions. Similarly, in Orkin Exterminating Company of Kansas, Inc., 136 NLRB 630 (1962), in a context wherein the employer was not aware of any union activity, the employees were merely told that they might discuss problems with management. No prom- ise, express or implied, was made, and it was on that basis, rather than on the ground that there had been no solicita- tion of grievances, that the allegation was dismissed. A more substantial question is presented by Respon- dent's contention that, even assuming a solicitation of grievances, no violation can be found where the employer has a past practice of such solicitation of complaints and grievances. In Bryant Chucking Grinder Company, 160 NLRB 1526, 1548-50 (1966), enfd. 389 F.2d 565 (C.A. 2, 229 1967), the employer had an established complaint proce- dure. During a union campaign, and as a direct response to it, there was a strengthening of that procedure and an increased supervisory solicitousness toward employee grievances outside of the procedure. The Trial Examiner found no violation notwithstanding that the conduct may have been intended to convince employees that they had less reason for wanting a union to handle their grievances. Similarly, in Mt. Ida Footwear Company, A Division of Munro Company, Inc., 217 NLRB 1011 (1975), the Board found no violation where, during an organizational cam- paign, the employer: (1) continued its practice of giving its employees questionnaries asking, inter alia, how earnings and working conditions could be improved and what benefits they would like to see added; (2) referred to the questionnaires in its campaign speeches and indicated that it was working on the problems; and (3) reminded employees of its open-door policy permitting them to bring problems to management. The Board found that the foregoing was insufficient to establish that the employer unlawfully solicited and promised to redress employee grievances. It stated that "[t]he timing of the circulation to occur during an organizational drive does not itself establish an ulterior motive" and pointed out that the evidence suggested that the employer, rather than promis- ing to redress grievances, was merely indicating that it would follow established management policies. Finally, in this regard, I would note that as the essence of the alleged violation is the promise and grant of benefits (Uarco, supra) and as an employer is obligated during an organizational campaign to continue its benefits program as if the union were not on the scene (Gold Circle Department Stores, supra at 1014; The Gates Rubber Company, 182 NLRB 95 (1970)), there would appear to be nothing unlawful in employer promises to continue existing practices. Logic would dictate that its obligation to continue existing practices would apply with equal force to a practice of soliciting grievances as to a practice of wage increases. As I have found herein that Respondent had a grievance procedure, a practice of soliciting employee complaints, suggestions, and grievances, and a history, since its recent inception, of making changes in various aspects of its operation, I conclude that Nelson's solicitation of grievanc- es at his January meetings did not constitute an unlawful promise of benefit. I further find that evidence is insuffi- cient to establish that the changes instituted and actions taken by Respondent, particularly in regard to wage rates, vacations, the cleaning of bathrooms, relocation or im- provement of machinery, and similar matters, constituted grants of benefits unlawful as attempts to undermine the Union's support. 2. Alleged interrogation, surveillance, and threatened loss of benefits Employee Jeanette Roy testified that on the day that the authorization cards were brought into the plant (January 7) the packingroom foreman , Al Gagne,8 asked if she had heard that the Union was trying to get in . She told him that 8 Gagne's supervisory status was admitted. 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD she had seen the business agent at the plant about a week earlier. Gagne stated : "That's not what I mean.... Has anyone approached you about the union?" Roy said no and Gagne walked away. Jeanette Roy's demeanor, the manner in which she held firm to her testimony in the face of leading questions by both General Counsel and Respon- dent, and her candor as reflected in her testimony acknowl- edging facts adverse to the Union's cause, all establish her as a thoroughly credible witness . Gagne was not called to contradict her testimony. Similarly, employee Paul Bechard testified credibly and without contradiction that in the week prior to the election Cutting Room Foreman Fred Lawrence9 approached his bench and asked if he was for or against the Union. Bechard told him that it was none of Lawrence 's business. Interrogation as to the union activities of the questioned employee and others, as reflected by the foregoing testimo- ny, is inherently coercive even in the absence of accompa- nying threats. Crown Zellerbach Corporation, 225 NLRB 911 (1976); P.B. and S. Chemical Company, 224 NLRB 1 (1976). Even assuming arguendo that the law excuses some casual interrogations, the record herein fails to reflect that the foregoing interrogations were so casual or innocuous as to warrant dismissal. Gloria Targett testified credibly and without contradic- tion that the cuttingroom foreman, Maurice Frechette,10 told her, during January, when she had been passing out cards, that she had better watch her step because Leseur, the plant manager, knew what she was doing . Frechette, however, wished her success in the union campaign and indicated that he did not care as he was leaving. Notwith- standing Frechette's good wishes, I find that his statement interfered with Targett's Section 7 rights. As the Board stated in Florida Steel Corporation, 224 NLRB 45 (1976): It has long been recognized that the test of interference, restraint, and coercion under Section 8(axl) of the Act does not turn on a respondent's motive, courtesy, or gentleness, or on whether the coercion succeeded or failed. It also does not turn on whether the supervisor and employee involved are on friendly or unfriendly terms. Rather, the test is whether the supervisor's conduct reasonably tended to interfere with the free exercise of the employee's rights under the Act. Telling an employee who is engaged in authorization card distribution that she should watch her step as the plant manager was aware of her activities cannot fail to inhibit those activities, regardless of the immediate supervisor's union proclivities. Accordingly, I fmd that by the foregoing impression of surveillance, interrogations, and threats Respondent has violated Section 8(a)(l) of the Act. In the week prior to the election, Maintenance Supervisor Robert Lauzon (supervisory status admitted) spoke with employees Marion Tarr and Louise Bennett, at Bennett's work station, while he was passing out campaign literature. In the course of a discussion about the Union, precipitated by the distribution but initiated by the employees , Lauzon mentioned the employees' health insurance coverage. According to Bennett, Lauzon told them, "If the Union comes in, you won't have your Blue Cross-Blue Shield. It would be taken away."" Lauzon testified that he was distributing two pieces of literature, one, dated March 25 and liven to all the employees on or about that date, described the state of the shoe industry in New England and listed shoe factories which had closed . The other, he alleged, was a leaflet entitled "10 Reasons Why You Should Keep The Union Out," dated March 18, which had earlier been distributed to employees in other departments and which he had been asked to distribute in the packingroom at this time because there was no supervisor there. In the last-described leaflet was a statement about bargaining. It stated: "Bargaining is trading. . . . In order to get this provision [union shop], the Union could trade away any of your present benefits, including insurance . . . ." Lauzon testified that this piece of literature prompted Tarr to ask what "bargaining" meant, he read the description of bargaining from the literature, Tarr asked what could be bargained away, and he asked what assets they had. There was a mention of Blue Cross-Blue Shield and he said that could be a bargaining issue . He denied saying that they would lose their insurance . Bennett denied that Lauzon distributed more than one piece of literature on the day of her conversation with him. The foregoing evidence is attended with inconsistencies on all sides. On balance, I conclude that Lauzon's recollec- tion is more complete than either Bennett's or Tarr's. I also deem Lauzon's version less implausible than that of the employees. The threat, as alleged by the employees , did not fit into the context of the conversation as they related it. It may well be that Lauzon made the statement substantially as he recalled it and that Bennett and Tarr, as employees concerned with possible loss of benefits , understood it as they related. Accordingly, I shall recommend that this allegation be dismissed. 3. Alleged implied threats of plant closure General Counsel contends that Respondent's campaign, by specific statements in literature and speeches and by its total impact, contained implied threats to close the plant in the event of unionization. Respondent denied that its statements threatened plant closure and asserted that its statements were factually and legally correct, made with sufficient time for the Union to respond thereto, were in response to subjects interjected in the campaign by the Union, dealt with such legitimate campaign subjects as economic conditions and job security, and were privileged as predictions based on objective fact. As noted, the Union's in-plant campaign was initiated on January 7. Nelson's meetings with employees in mid- to late January were the first formal communications , by either party, to the employees. In those meetings, Nelson made reference to adverse economic conditions and high levels of unemployment in the Nation, the community , and the shoe 9 Lawrence was not employed by Respondent at the time of the hearing . that Lauzon said that if the Union did get in, "we might lose our Blue Cross io Frechette was not employed by Respondent at the time of the hearing. and Blue Shield." On cross-examination, she phrased the alleged threat more ii Tarr, who was unable to recall the conversation without the aid of a positively, that Respondent would take away some benefits, such as the question suggesting the topic of discussion , testified on direct examination health insurance. STRIDE RITE CORP. 231 industry and referred back to the history of the plant. In this context, he told the employees that Respondent did not want a union but operated elsewhere with unions and would do so here if the employees wanted. Among the comments made by individual employees were statements about employees getting the LASPA contract if unionized and Respondent's obligation to remain in Auburn because of the lease. The Union responded to Nelson's meetings by a letter to employees dated January 28. Neither that letter, nor the union campaign literature of February 7 and 27, or March 6, made any reference to specific benefits LASPA promised to secure or to Respondent's obligation to remain in this plant under its lease. On March 6, Respondent and representatives of the city of Auburn executed an agreement extending the date for completion of the real estate transaction to May 28. On March 7, Nelson sent Respondent's employees its first written communication in the campaign. That letter con- tained, inter alia, the following: On Thursday, March 27, 1975, you will decide whether or not to let the LASPA Union get in your plant. This is a very important decision for you to make, for it directly involves your job, your future, and the very future of your plant. Your Company sincerely believes that it is not in your best interests to let the union get into your plant. This union has not done anything for anyone, and many of you in this plant today know that first hand. After all, what did this Union do for its dues paying members when Moxees closed this very same plant and hundreds of you, your friends and relatives lost their jobs? What did this Union do for its members when Auburn Heel and Shapiro Bros. both closed? The Union did nothing for them, absolutely nothing. It described what Stride Rite had done to improve the plant and pointed out that it, rather than the Union, was responsible for providing the jobs, improving the plant, and paying their wages. The employees were told: This union has done nothing for you in the past, and it cannot guarantee you anything in the future. In these days of economic depression, mass unemploy- ment, layoffs and plant closings, your jobs should not be taken for granted nor should this plant be taken for granted. Stride Rite does not own this building nor has it signed a lease for it. Because of the economic conditions we are faced with today, we are here on a month-to-month basis, and if these economic condi- tions force us to, we would have to close this plant. Stride Rite has been in Auburn for only a short time. Thus, we do not really know one another. But, we believe that if we work together as a team, cooperate with each other and trust and respect each other, we can make this a successful plant. We ask only that you give us a chance. On March 11, Respondent distributed another flyer, stating, in essence, that Respondent was the source of their jobs, benefits, and livelihood, not the Union, and that "The Union Can Guarantee You Absolutely Nothing." On March 13, the Union responded with a letter from Joseph Roy, secretary-treasurer, wherein he pointed out what LASPA had done for its members. In regard to the alleged month-to-month term of Respondent's presence, Roy stated: After bragging about all the money Stride Rite has spent on improving the factory, Mr. Nelson mentions that Stride Rite is only here on a month-to-month basis. Do you believe this? Why would they have spent money on improvements and machines if they intended to leave? This is a desparation move by the company to scare you into voting against the union. The company is under a two year lease with the Maine Guarantee Authority right now which expires August 13, 1976. They have also agreed to sign a 25 year lease as soon as the revenue bond sale goes through. Between March 14 and 24, Respondent distributed what may best be described as fairly typical, if somewhat heavy- handed, campaign literature. The literature dwelt primarily on the costs of unionism, the loss of control, the Union's inability to guarantee improvements, the possibility of strikes to enforce union demands, the Employer's right to replace strikers, and the Union's right to require support of a strike. General Counsel does not specifically allude to any portion of this literature in support of its allegation of implied threats and none will be quoted herein.12 In a March 20 letter, the Union again attempted to refute Respondent's assertion that it was only present on a month- to-month basis. The letter pointed to Respondent's public utterances and assurances made in support of the bond referendum. It reiterated that Respondent had a 2-year lease and a commitment to sign a long-term lease and asserted that Respondent had postponed the bond issue because of the petition for campaign leverage. Finally, it asserted the benefits of unionization, including wages and fringe benefits "at least equal to those in other union shops." Increased benefits was also the theme of union 12 General Counsel contended at hearing, but not on brief, that, pursuant to the language of N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), statements about the Union, its leadership, its interests, and its propaganda must be based on objective fact. The Gissel principle requiring support in objective fact pertains only to employer predictions of the effect of unioniza- tion, not to all campaign propaganda. Except to the extent that some portions of this literature may contribute to employee belief as to the inevitability of strikes or plant closure, it does not exceed the bounds of legitimate campaign ropaganda. As the Fifth Circuit Court of Appeals noted in N.L.R.B. v. Sumter Plywood Corporation, 535 F.2d 917 (1976), enfg. 215 NLRB 227 (1974): Although the Board aspires to "laboratory conditions" in elections we recognize that clinical aspesis is an unattainable goal in the real world of union organizational efforts. On the contrary, it is often the case that "exaggerations, hyperbole and appeals to emotions are the stuff of which election campaigns are made." ... Some degree of puffing and propagandizing must be permitted, else the laboratory would be found infected in every case 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD literature of March 21 and 25. The latter, after setting forth earnings of another LASPA-represented factory in the area, stated: LASPA is not promising `pie in the sky.' We are promising that if you elect LASPA to represent you, you will get AT LEAST what our other members in Lewiston-Auburn get. In fact, our other contracts forbid us to accept anything less. [Emphasis supplied.] On March 25, Respondent issued another letter to its employees. It stated: As you know, when Shapiro Bros., Moxees and Auburn Heel closed, hundreds of LASPA members lost their jobs. On March 13th 1975, LASPA distributed a letter signed by Mr. Joseph P.R. Roy, in which they tried to make you believe that the LASPA members who worked at those plants when they closed, somehow benefited from losing their jobs. Well, Mr. Roy can talk about Unemployment Compensation and lawsuits all he wants to, but one fact remains above all others, and that is, Shapiro Bros. Moxees and Auburn Heel did close, as many of you working here know all too well. And, every single member of LASPA who worked at those plants lost their JOBS! Standing in an unemployment line may be a benefit to Mr. Roy. After all, he's entitled to his opinion. But, it seems to me that if he was really interested in helping people, he would concentrate more on JOB SECURI- TY. Instead of coming around here to try to collect union dues from you, Mr. Roy should be out trying to help his out of work members find jobs. [Emphasis supplied.] The letter went on to label as "not true" what it contended was Roy's March 13 assertion that Stride Rite was "not here on a month-to-month basis, but must stay in Auburn, no matter what happens, until August 13, 1976." It then quoted the 30-day termination notice language of its lease with Maine Guarantee Authority (supra) and reiterated that "Stride Rite is here on a month-to-month basis only." (Emphasis supplied.) It denied that Stide Rite had agreed to a 25-year lease and said that, even though the bond sale had been approved by the voters, "Stride Rite has delayed signing a long-term lease." The letter concludes: As you can readily see, Mr. Joseph P. R. Roy and his LASPA Union are not to be trusted. Do not put your jobs, your future and the very future of your plant in their hands. Vote NO. 13 Nelson testified that he told the employees that he felt harassed by the numerous inspections which had been conducted at the plant . Most of these inspections were normal incidents of opening a new plant ; they dealt with such matters as the electrical system , the boiler, and the cafeteria. One inspection was by OSHA, on the Union's complaint. Virtually all of the inspections had occurred in the first few months of the plant's operation. Moreover, Nelson called the March 25 meetings because of the election. The inspections had nothing to do with the election . I therefore find it impossible On the same date, Respondent distributed a flyer containing newspaper articles dealing with plant closings and financial difficulties in the shoe industry, under the heading, "Do you seriously believe that the Union's promises of 'job security' can change this sad picture." The same flyer listed 486 shoe factories, "many with union contracts," which had closed in 10 years. It asked, "What is job security?" Respondent's final preelection distribution, on March 26, again was headed "What is job security?" and stated: LASPA wants you to believe that job security is a LASPA contract, and that no plant that has LASPA can ever be closed. That, of course, is simply not true. The truth is, any Company can always close a plant for economic reasons. LASPA knows better than anyone that hundreds of its members lost theirjobs when, for economic reasons, the following plants which were all "unionized" by LASPA were forced to close. It then pictured three named Auburn shoe factories with the word "Closed" stamped across them. It asserted that "True job security" came from making and selling a quality product at a competitive price. It concluded: AT STRIDE RITE, we have always attempted to maintain production and give 52 pay checks a year. IF LA SPA gets in and disrupts ourproduction or in any way makes us non-competitive so we can't sell our product, those pay checks will stop. [Emphasis supplied.] THINK ! VOTE NO! On or about March 25, Nelson held a final series of meetings with the employees . According to Nelson's testimony, he again told the employees the details of Respondent's lease with Maine Guarantee Authority and read them the portion containing the 30 -day termination clause. He also told them that they could look at a copy of the lease in the office. He compared the earnings shown in one of the Union's leaflets with those at this plant and stated that Stride Rite's would be as good or better if the production problems were resolved. He then told the employees that he felt that he was being harassed and was not sure that they were wanted in the city of Auburn. Various employees attributed to Nelson a statement that the machines were not bolted down and they could pick up and leave on 30 days' notice. 13 General Counsel contended that Respondent deliberately postponed finalization of its long-term commitment for the Auburn plant because of the employees' union activity, in to credit Nelson's assertion that his reference to "harassment" and to not feeling wanted related to the inspections which had been conducted Additionally, Nelson testified that he did not believe he made the statement about the machines not being bolted down ; however, he did not specifically deny it. The statement was attributed to him by at least three employees, Bennett, Tarr, and Clotiere, and I conclude that Nelson did, in fact, make such a statement in this series of meetings. STRIDE RITE CORP. 233 order to bolster its arguments among the employees that it could leave Auburn on short notice and that such a departure was a real possibility in the event of unionization. Respondent asserted that the postponements were for legitimate business reasons, unconnected with the union activity. As motive is not the determinative factor as to the presence or absence of a violation of Section 8(a)(1). (See for example Florida Steel Corporation, supra.) I deem it unnecessary to determine whether the postponements were occasioned by the union activity or were fortuitously coincident with it. If the postponements were for the best of reasons but Respondent capitalized on them in its propa- ganda in such a way as to imply that the plant would close in the event of unionization, Respondent's conduct would violate Section 8(a)(1) just as surely as if it had ordered the postponements for that purpose. Conversely, if Respondent postponed the execution of the long-term lease for the suspected reasons, but said nothing which would reason- ably give rise to an implied threat to close, then, as General Counsel conceded, there would be no violation of the Act.14 The question thus becomes whether Respondent's oral and written communications, taken singularly or as a whole, impliedly threatened plant closing if the Union won the election. Respondent asserted that its statements were but opinions and predictions permissible under Section 8(c) of the Act. N. L. R. B. v. Gissel Packing Co., Inc., 395 U.S. 575, 617, 618 (1969), upon which all parties hereto rely, states, in part: Thus, Section 8(c) merely implements the First Amend- ment by requiring that . . . the expression of "any views, argument, or opinion" shall not be "evidence of an unfair labor practice," so long as such expression contains "no threat of reprisal or force of promise of benefit" in violation of § 8(a)(1) .. . Any assessment of the precise scope of employer expression, of course, must be made in the context of its labor relations setting. Thus, an employer's rights cannot outweigh the equal rights of the employees to associate freely, as those rights are embodied in § 7 and protected by § 8(a)(1) and the proviso to § 8(c). And any balancing of those rights must take into account the economic dependence of the employees on their em- ployers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear. The Court goes on to state, in oft-quoted language, that an employer ... may even make a prediction as to the precise effect he believes unionization will have on his compa- ny. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably proba- ble consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization . . . If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment. We therefore agree . . . that "conveyance of an employer's belief, even though sincere, that unionization will or may result in the closing of the plant is not a statement of fact unless, which is most improbable, the eventuality of closing is capable of proof." In the instant case, from the very outset of its campaign, Respondent repeatedly emphasized unemployment, plant closings, the inability of unions to prevent such plant closings, and its own ability to move on short notice. In both the first distribution and again just 2 days before the election, the employees were expressly told that the future of their jobs and the plant were dependent on the results of the election. Respondent's statements do not, I find, come within the Gissel definition of predictions based on objective fact. Respondent may have been aware of LASPA's wage rates in other contracts, but the record is barren of any indication by the Employer to the employees that it was the wage rates which caused it to repeatedly refer to plant closings or its own right to close. The Employer presented no financial data or cost comparisons to the employees to show that it would be forced to take such drastic action if forced to meet 14 In order to avoid the delay of a potential remand in the event that I have misread the significance of this contention , I shall resolve the difficult factual question presented. According to Spita , Auburn's assistant city manager, as of December 30, 1974, the execution of the long-term lease was scheduled for January 7. Approximately 2 or 3 days before January 7, and hence before the onset of overt union activities, it was postponed for "techmcal reasons." (Respondent referred in brief to a letter of June 12, 1975, to Stride Rite, Resp. Exh. 10, containing a reference to a letter agreement of December 19, 1974, postponing the closing. That letter agreement was never produced at hearing. I do not deem Resp . Exh. 10 probative of the existence of such agreement.) Both Slosberg and Wathen, attorney for Maine Guarantee Authority, stated that the problem related to the bankruptcy of the prior owner. Wathen testified that that problem was resolved within a week of January 10. However, the postponement was continued, on the request of Respondent's bond counsel, Allen, and Allen explained to Wathen that the postponement was caused by "labor problems or union." The postponement was formalized on March 6, the day before Respondent began its written campaign . Respondent's March 7 letter to employees refers to the short-term lease. The postponement was further continued from May 28 to July 29, at which time the documents were executed. Respondent asserted that the postponements were the result of its continued questioning of the plant acquisition in light of business conditions. In this regard, the production, sales, and shipments records are less than definitive. They reveal increases in production, when compared to the same month a year earlier, in June through October 1974, decreases in November and December 1974 and February and March 1975, and increases in January, April, May, and June. The cumulative production of 1974 exceeded that of 1973, but from the start of the year 1975 through June was somewhat lower than the same period in the prior year. Sales, both "at once" orders and those for future delivery, were down (by relatively small percentages) from August through November 1974. "At once" sales remained down in December 1974 but shipments increased. "At once" sales and shipments were up in January, February, May, and June 1975, but down in March and April. Considering all of the foregoing, together with the oral and financial commitments Respondent had made in acquiring and improving the plant, I am constrained to conclude that while the initial postponement was caused by problems unrelated to the Union's campaign, the subsequent delay in executing the long-term lease documents was motivated, at least in part, by that campaign. 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD area wage rates. Indeed, Respondent even indicated that once it eliminated the production problems accompanying startup, the employees would be able to equal or exceed the earnings at LASPA-represented plants.15 Moreover, Re- spondent's vague references to "economic conditions" and "economic reasons" which might force them to close the plant are not sufficient to bring its statements within the ambit of lawful "prediction." Ann Lee Sportswear, Inc., 220 NLRB 982 (1975); Ludwig Motor Corp., 222 NLRB 635 (1976). The instant case is essentially "on all fours" with Mohawk Bedding Company, 204 NLRB 277 (1973), 216 NLRB 126 (1975). That campaign, like Respondent's, emphasized that the same plant the employer then occupied had been previously occupied by a unionized business and had closed, referred to the high area unemployment rate, and made repeated references to other unionized business that had closed or moved from the area. The Board held that the employer's letters and speeches, taken cumulatively, con- veyed a threat of adverse economic consequences as the inevitable result of the employees' selection of a union as their bargaining representative . It stated: Through the Employer's repeated reference to the Union causing other plants to close and the high unemployment situation locally, the employees could reasonably infer that their employment would be jeopardized if they supported the Union and that the Employer was willing to use its economic power to make the threat an actuality. See also Ludwig Motor Corp., supra, Marathon LeTourneou Company, GulfMarine Division of Marathon Manufacturing Company, 208 NLRB 213 (1974). Respondent asserted that Nelson's assurance, in the January meeting, that Respondent would deal with the Union if that is what the employees wanted , mitigated the effect of the subsequent threats. The short answer to this contention is found in the Board's literary allusion in Ludwig Motor Corp., supra: We have long recognized that threats of closing or moving are among those to which employees are the most acutely sensitive . Indeed, as with the fabled princess and the pea, the possibility of such a reprisal can be felt by employees even after assurances are piled upon assurances that an apparent threat was not intended as such. As noted, Respondent did not pile the assurances on top of the threat; the threats were piled atop the single assurance. In reaching my conclusions, I have not ignored the cases cited by Respondent. However, I deem them distinguish- able and inapposite. The situations cited involve isolated statements of legal rights (for example, Oxford Pickles, Division of John E. Cain Co., 190 NLRB 109 (1971), and Texas Boot Manufacturing Company, Inc., 143 NLRB 264 (1963), justifiable emotional outbursts in reaction to ad hominem attacks (May Department Stores Company, d/b/a The M. O'Neil Company, 211 NLRB 150 (1974)), and predictions based on objective fact (Leboe Tire and Rubber Company, d/b/a Mission Tire and Rubber Company, 208 NLRB 84 (1974); Birdsall Construction Company, 198 NLRB 163 (1972)). Accordingly, I conclude that to the ear of an employee, economically dependent on the employer, Respondent's campaign taken in its entirety conveyed the unmistakable message that selection of the Union as their collective- bargaining representative would result in the Employer's termination of its Auburn plant. By this implied threat of plant closing, Respondent has violated Section 8 (a)(1) of the Act. C. The Refusal To Bargain 1. The unit The Respondent admitted that the following unit was appropriate for the purposes of collective bargaining: All full-time and regular part-time employees of Re- spondent employed at its Old Hotel Road, Auburn, Maine, plant, exclusive of office clerical employees, guards, and all supervisors as defined in Section 2(11) of the Act. 2. The demand and refusal The Union demanded recognition as the collective-bar- gaining representative of the employees in the appropriate unit on January 10 and 21. It was stipulated that Respon- dent denied the Union's request on January 21. 3. Majority status As of the January 18 payroll, there were 107 employees in the appropriate unit and 110 in the week ending January 25. The Excelsior list, dated February 14, lists 120 employees. The Union secured signed unambiguous authorizations for representation from 76 employees, 67 prior to January 21 and 9 more between the date and February 14. Respondent contested the authenticity of 21 cards on the basis that they had not been properly authenticated . Each of those cards had been introduced on the testimony of the person to whom the signatory had returned the signed card . In each case, the individual through whom the card had been introduced had not actually seen the act of signing. It was on that basis that Respondent objected to their admission and authenticity. Respondent's objection to the authentica- tion of these cards in this manner is without merit . The act of an employee in returning a signed card for transmission to the Union evidences the signer's selection of the Union as definitively as does the act of signing itself. Verlin L. Pulley and Carols Pulley d/b/a Capitol-Varsity Cleaning Co., 163 NLRB 1057, 1061 (1967) (card of Marjorie Maynor), enfd. in pertinent part 395 F.2d 870 (C.A. 6, 1968). As the Board stated in McEwen Manufacturing Company, 172 NLRB 990,992 (1968): The Board has long held that an authorization card may be properly authenticated by a person other than the 15 In this regard, I note that Respondent continued its retail division for several years after inception before it finally turned a profit STRIDE RITE CORP. 235 signer and that the latter's absence as a witness need not be accounted for. . . . The Board will . . . accept as authentic any authorization cards which were returned by the signatory to the person soliciting them even though the solicitor did not witness the actual act of signing. Respondent further contested the authenticity of those cards, contending that the testimony of the authenticators was not credible. I reject Respondent's blanket contention that the witnesses could not conceivably recall the individu- als from whom they had received the signed cards after 15 months, in the absence of some written record, and that any testimony to the contrary must be "discredited automati- cally." The record reveals that the employees were well acquainted with each other, the solicitations were conduct- ed within the solicitors' departments or carpools and each employees' solicitations were limited in number. From such circumstances, it is not unreasonable to expect that the solicitors would be able to remember from whom they received cards. 16 Respondent contested specific cards based on the testi- mony of the solicitors. Thus, it was contended that the cards signed by Florence Jones and Emile Michel were invalid because Michelin Beaudoin, the solicitor, indicated some confusion in regard to who returned cards to her. Beaudoin testified that she was the only employee soliciting signatures in the stitching room and recalled Jones and Michel working in close proximity to her. She did not attempt to identify cards signed by persons of whom she was less sure. I am satisfied that Beaudoin's testimony, that she received the cards from Jones and Michel, was honest and accurate. Similarly, Respondent contested the cards signed by Victoria Martin and Mary Owens, authenticated by Doris LaVoie. LaVoie was a credible witness who did not attempt to claim recollection of facts beyond the scope of her actual present memory. She specifically recalled receiving the cards of Martin and Owens.17 Respondent contested the five cards authenticated by Marion Tarr, contending that Tarr was an incredible witness. Tarr's recollection of the five employees (Bennett, Harvey, Nadeau, Pray, and Tessier) and of receipt of the cards from them was both specific and credible. I find no basis for rejecting those cards.18 Gloria Targett authenticated nine cards in addition to her own; Raymond Cloutier, Greaton, Lassard, Pelletier, Rene, Simoneau, Turcotte, Turmenne, and Keaton. Contrary to Respondent's contention, I deem her testimony in this regard credible. In so concluding, I note that she did not 16 I note, further, in this regard, that Respondent had possession of the authorization cards for a period of time prior to the hearing and adduced no evidence or employee witnesses to dispute either the authenticity of the cards or the intentions of the signatories. 17 LaVoie's inability to recall meeting with an NLRB investigating attorney (not a denial of such a meeting, as characterized by Respondent), her lack of knowledge about the Union's $1 initiation fee (again, not a denial that such a fee existed), her error as to when she received a wage increase (2 months, rather than a couple of weeks, prior to the election), and her inability to recall how many other cards she passed out are not such flaws in her testimony that her specific recollection regarding the cards of Martin and Owens must be rejected. is In an apparent stenographic error, the record shows Pray's name as "Craig." Tarr had identified the card signed by Pray, and this error is no attempt to claim credit for cards of which she had no specific recall and she candidly acknowledged facts adverse to the Union's cause. She did not, as asserted by Respon- dent, contradict her own testimony regarding her atten- dance at meetings held in the plant. Neither was she an evasive witness. While she testified, "I can't remember" a number of times on cross-examination, many of such answers were given to the same question asked several times by Respondent's counsel or were to such trivial questions as what another employee was wearing when she gave her the card, 15 months earlier. Contrary to Respon- dent's contention, Targett's explanation that she could remember receiving these nine cards because she knew the individuals is a valid and satisfactory explanation for her memory.19 Liette LaChance testified that she received a card from someone she believed to be Gloria Targett. After she signed it, she changed her mind and asked that it be returned or destroyed. Neither occurred, as she later teamed. Based on the foregoing, I conclude that LaChance's attempted retrieval invalidates that card. However, I do not find that, because Targett failed to return LaChance's card on request (she explained her failure to LaChance), the other cards authenticated by Targett must be rejected. There is no evidence that any other employees similarly sought to retrieve their cards. Respondent contended that the card signed by Con- stance Ackerley, and others signed by employees who, like Ackerley, received their cards from LaVoie, was not properly authenticated. While not entirely clear, Ackerley's testimony indicates that LaVoie asked her and several others if they wanted a union. According to Ackerley, there was a discussion among the employees in which it was said that the initiation fee would be $10 if they signed immedi- ately, but $25 if they waited. This statement she attributed to LaVoie. LaVoie credibly denied making such a state- ment. Ackerley also responded affirmatively to a leading question as to whether she was told the card was only for an election. It appeared from the record that if either of these statements were made, they were made by the employees, themselves, in the course of discussing the union cards, and were not made by the person soliciting signatures on those cards. Moreover, even assuming that someone told Acker- ley that the card was only for an election, it is clear that the card was given to her in the context of determining whether or not she wanted union representation. Accordingly, I find that the card executed by Ackerley, and those executed by other employees who signed in the same group, were valid designations of representative. See Gissel, supra at 606-607; basis for discrediting Tarr. Neither is her poor eyesight in the absence of glasses or the thoroughly inconsequential difference on an unrelated matter between her testimony and her affidavit. While Tarr's apparent upset over her interrogation and her reluctance to undergo cross-examination while a newspaper reporter was present is troubling, I deem it ambiguous conduct, subject to any number of explanations, and not necessarily an indication of incredibility. I note that, on cross-examination, Tarr was a firm and forthright witness who appeared to be testifying to the best of her recollection. 19 While I am satisfied by the authentication of the authorization cards in the manner described above, much of the contentious litigation on card authentication could be eliminated by the simple expedient of having card solicitors sign or initial cards executed at their request. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Federal Stainless Sink Div. of Unarco Industries, Inc., 197 NLRB 489,493 (1972). Respondent contested cards of Romeo and Lillian Picard, because when they signed they were intending to quit their employment. They were still employees who, if the election had been held on that date, would have been eligible to vote. Their cards are not invalid because they contemplated severing their employment . Indeed, I note from the Excelsior list that both were still employed on the date of the election, March 27. The cards of the Picards, Bellefleur, Thurlow, Hurd, Devlin, and Irish were further challenged because of statements by the solicitors of said cards pertaining to their purpose of being "only for an election." In resolving this question, the Supreme Court's language, in Gissel, supra at 606-607, must be borne in mind: [E ]mployees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature . There is nothing inconsistent in handing an employee a card that says the signer authorizes the union to represent him and then telling him that the card will probably be used first to get an election ... . We agree, however, with the Board's own warnings in Levi Strauss & Co., 172 NLRB [732] ... n. 7 (1968), that in hearing testimony concerning a card challenge, trial examiners should not neglect their obligation to ensure employee free choice by a too easy application of the Cumberlandrule. The Board, in Levi Strauss, supra to which the Court referred, pointed out that it was not the presence or absence of "magic words" which controlled , but the totality of circumstances surrounding the card solicitation. Consider- ing all of those circumstances, I deem the cards executed by the aforementioned employees, except that of Cheryl Devlin, to be valid designations of representative. In so concluding, I note that each of these employees, except Irish, had previously been union members. I note also Romeo Pichard's testimony, when questioned by the Administrative Law Judge, that Targett told him, "The purpose of the card was to get enough cards to get the Union to have the right to come in and have a vote," and his wife's testimony that he asked her whether she wanted to go into the Union, before he signed both of their cards. Bellefleur testified that he was not sure what he was told, but knew what the card meant . Hurd testified that she was told the card was to get an election to get the Union in, that most of the employees had previously belonged to the Union and knew all about it. Thurlow testified that she read the card, but was told that it did not mean anything. She was also told that she could fill it out or not, as she wanted. Linda Irish did not read the card, but was told that it was for the Union and that it was good. Devlin's testimony, however, places her card within the rule of Cumberland Shoe Corporation, 144 NLRB 1268 (1963). It was her recollection that she was told "that it was just for the election of the Union-that this didn't have anything to do with our jobs one way or the other, it was just to hold an election to see if the Union would be coming in or not. That's all." Devlin's card, I conclude, is invalid. Accordingly, I find that, of the 76 signed authorization cards proffered by the Union, 74 remain valid. Of the valid cards, 65 were executed prior to the Union's demand and Respondent's rejection thereof on January 21.20 Therefore, at all times material herein, I conclude that the Union represented a majority of Respondent's employees in the appropriate collective-bargaining unit. 4. Whether a bargaining order is warranted The starting point for consideration of whether the unlawful conduct found herein, interrogation, impression of surveillance, and threats of plant closing, and other reprisal, warrant or require a bargaining order is Gissel Packing Co., supra at 614. Therein, the Supreme Court held that such an order would be an appropriate remedy for: (1) " `exceptional' cases marked by `outrageous' and 'perva- sive' unfair labor practices . . . of 'such a nature that their coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be had,' " and, (2) "less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election process." The Court went on to point out that the Board, "[i]n fashioning a remedy" could "properly take into consideration the extensiveness of an employer's unfair labor practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future." Considering the instant case pursuant to these standards, as the Board has applied them, I concude that a bargaining order is required to protect the free expression of employee sentiment, as demonstrated by the signed authorization cards. The Board has had repeated occasion to consider whether threats of plant closure meet the aforesaid Gissel bargaining order standards. In Milgo Industrial, Inc., 203 NLRB 1196, 1200-01(1973), it stated: [T]hreats of plant closure and job loss in the event of the Union's advent are plainly actions which in and of themselves are egregious enough under the rule of Gissel to come within the first category there specified, of "unfair labor practices of such a nature that their coercive effects cannot be eliminated by the application of traditional remedies . . ." In any event, these threats together with the other conduct described supra surely bring this case within the second category defined in Gissel... . In that case, while other unfair labor practices were directed at all unit employees, the threats of plant closure and job loss were directed at only a minority of such employees. In the instant case, these threats were made to all employees. 20 Beaudoin terminated her employment on January 17, 1975, after the Union's first demand but prior to the second. STRIDE RITE CORP. 237 In Ann Lee Sportswear, Inc., supra, the Board, in finding a bargaining order appropriate upon conduct which included threats of plant closure, demonstrated the irremedial effect of the employer's conduct on the employees' free expression by reference to the fact that, while the union had valid authorizations from 13 of 20 unit employees, it secured only 5 votes in the election. In the instant case, the Union had valid authorizations from approximately 74 employees, in a unit of 112, but lost the election 43 to 62. I note also that, of those who had signed cards, 48 had previously been union members. In Automated Business Systems, a Division of Litton Business Systems, Inc., 205 NLRB 532, 536 (1973), the Board stated: It needs no extended discussion or lengthy list of authorities to demonstrate that threats of probable plant closings are among the most serious and most flagrant interferences with the right of employees to decide for themselves the question of union representa- tion. In that case, the Board compared threats of total or partial plant moving to threats of closure and found them to be essentially equally coercive. It pointed out that such threats might have been the most coercive to the employees involved because the employees knew that the employer had the capacity to carry them out. Similarly, in the instant case, Respondent's repeated reference to its short-term lease made its threat that much more believable 21 Considering the instant case pursuant to the standards of Gissel, supra, as applied by the Board, I conclude that a bargaining order is required to protect the free expression of employee sentiment, as demonstrated by the authoriza- tion cards signed by a majority of Respondent's employees at the critical time. Respondent's unfair labor practices, I find, were so coercive and pervasive that they not only undermined the Union's majority but precluded a fair election from being conducted on March 27. I further find that by this conduct Respondent has made slight the possibility of erasing the effects of these unfair labor practices, and of insuring a fair election in the near future, by the use of traditional remedies. I therefore recommend the issuance of an order requiring Respondent to recognize and bargain with the Union upon request. III. CONDUCT AFFECTING THE RESULTS OF THE MARCH 27 ELECTION As previously stated herein, the Union's objections to the election paralleled the unfair labor practices. As I have found that certain conduct of Respondent, committed between the filing of the petition on January 15 and the election on March 27, constituted interference, restraint, and coercion violative of Section 8(a)(1), I further find that such conduct also interfered with the exercise of a free and 21 That Respondent has now executed a long-term lease, however, has little, if any, miti gating effect on its coercive actions as the Board has consistently found bargaining orders warranted upon threats of plant closure without consideration of whether such a closure would have entailed great financial loss to the employer. 22 Gagne's interrogation of Roy and Frechette's statement and implied threat to Targett, occurring before the filing of the petition, are not objectionable conduct. untrammeled choice in that election . See Flight Safety, Inc., 197 NLRB 223 (1972). Accordingly, I recommend that the election held in Case 1-RC-13670 be set aside.22 CONCLUSIONS OF LAW 1. All full-time and regular part-time employees of Respondent at its Old Hotel Road, Auburn, Maine, plant, excluding office clerical employees, guards, and all supervi- sors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. At all times since January 21, 1975, the Union has been and is now the exclusive representative of the employees in said unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 3. By interrogating employees concerning their union activities, by creating the impression that it was engaging in surveillance of those union activities, by threatening employees regarding their union activities, and by threaten- ing employees with plant closure in the event that they selected the Union as their collective-bargaining represen- tative, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) of the Act, and has interfered with the conduct of the election conducted on March 27 in Case 1-RC-13670. 4. By refusing, since January 21, 1975, and at all times thereafter, to recognize and bargain with the Union as the exclusive representative of its employees in the appropriate unit set out above, Respondent has engaged in, and is engaging in, unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) of the Act. 5. Except as found above, Respondent has not engaged in the other unfair labor practices alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 23 The Respondent, The Stride Rite Corporation, Auburn, Maine, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees regarding their union activity. (b) Creating the impression that the employees' union activities are under surveillance by the employer. (c) Threatening employees regarding their union activi- ties. (d) Threatening employees that the plant will close in the event that they designate or select the Lewiston-Auburn Shoeworkers Protective Association, or any other labor organization, as their collective-bargaining representative. (e) Refusing to bargain collectively with the* above- named Union as the exclusive bargaining representative of 23 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 purposes. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees in the appropriate collective -bargaining unit, as previously set forth herein. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them under Section 7 of the Act.24 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, recognize and bargain with the Union as the exclusive representative of all employees in the unit which the parties have previously stipulated to be appropri- ate with respect to rates of pay, wages , hours, and other terms and conditions of employment , and, if an under- standing is reached, embody such understanding in a written signed agreement. (b) Post at its place of business in Auburn, Maine, copies of the attached notice marked "Appendix." 25 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's repre- sentative, 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. Rea- sonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order what steps have been taken to comply herewith. 24 A broad order is warranted herein by the serious unfair labor practices Order of the National Labor Relations Board" shall read "Posted Pursuant found. Ann Lee Sportswear, Inc, 220 NLRB 982 (1975). to a Judgment of the United States Court of Appeals Enforcing an Order of 25 In the event that the Board's Order is enforced by a Judgment of a the National Labor Relations Board." United States Court of Appeals, the words in the notice reading "Posted by