Dresser Industries, Inc.

DRESSER INDUSTRIES, INC. Dresser Industries, Inc. and Operating Engineers Local Union No. 3, AFL-CIO. Cases 20-CA- 11736 and 20-RC-13552 August 24, 1977 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On April 20, 1977, Administrative Law Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the Charging Party and the General Counsel filed briefs in support of the Administrative Law Judge 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, find- ings,l and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. 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 in Case 20-CA-11736 and hereby orders that the Respon- dent, Dresser Industries, Inc., Battle Mountain, Nevada, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order. IT IS FURTHER ORDERED that the election held on July 22, 1976, in Case 20-RC-13552 be, and it hereby is, set aside and that a new election be conducted. [Direction of Second Election and Excelsior foot- note omitted from publication.] The Respondent contends that Mine Foreman Johnson's conversation with employee Nichols on July 15. during the critical period, had "no nexus with union activity" and was an "isolated incident." and even if found to be unlawful is insufficient to warrant setting aside the July 22 election which the Union lost by a vote of 20 to 21. We disagree. According to Nichols' credited testimony. Johnson approached Nichols and said that Nichols was doing pretty good and that he (Johnson) was going to talk to Seldin about getting Nichols a raise. When Nichols indicated that he approved of this. Johnson then asked him how he felt about the Union. However, it was Nichols who had been called aside by Mine Superintendent Nay on May 7 inquiring whether there was to be a union meeting, an inquiry found by the Administrative Law Judge to be an 8(a)(1) violation. We agree with the Administrative Law Judge that the July 15 conversation was indeed unlawful in that it involved an unlawful promise of benefit to as well as additional unlawful interrogation of Nichols. Moreover, this conversation occurred against a background of earlier widespread threats, interrogations. 231 NLRB No. 97 impression of surveillance, and solicitation of grievances, the latter occurring shortly after the first interrogation of Nichols, as did the wage raises to nine specific employees on May 10. As the Board has said, the rule in the Ideal Electric and Manufacturing Company, 134 NLRB 1275 (1961), does not preclude prepetition conduct being considered insofar as it lends meaning and dimension to related postpetition conduct, or assists in evaluating it. See Stevenson Equipment Company, 174 NLRB 865, fn. I (1969); Warren W. Parke, d/b/a Parke Coal Company, 219 NLRB 546, 547 (1975). Thus, it is not appropriate to view the July 15 promise to Nichols as "isolated" simply because it alone occurred in the postpetition period. In view of the close vote and the record as a whole, a promise of that sort warrants invalidating the election. See also Hardy-Herpolsheimer Division of Allied Stores, et al., 173 NLRB 1109, 1110 (1968), and Darby Cadillac, Inc., 169 NLRB 315, 318 (1968), where the Board assessed impact partly on the basis of the closeness of the election. The Respondent has also 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 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Member Murphy would have found the wage increases resulting from the reclassification of certain employees lawful but for the Respondent's unlawful conduct just prior to and during the May 8 meeting which, in her view, warrants a finding that said increases were motivated by antiunion consideration. In so finding, Member Murphy notes that the Respondent has in the past granted similar increases to individuals, but only after these particular individuals complained to the Respondent about their status. With respect to the present wage increases, however, the Respondent did not wait for specific complaints. Rather, on May 8 it solicited employee complaints and promptly instituted changes in the wage and classification schedule, which resulted in wage increases for runine employees. The Respondent also agreed to look into the possibility of a first aid program for employees and agreed to remove some unsafe equipment from the work area. All these concessions to the employees' complaints were made just I day after the Respondent became aware of the union activities and after it solicited the grievances and interrogated four of its employees at their homes the night before the May 8 meeting. In light of the above, Member Murphy agrees with her colleagues' adoption of the Administrative Law Judge's finding that the wage increases granted by the Respondent to these nine employees were unlawfully motivated and in violation of Sec. 8(aX 1) of the Act. DECISION AND REPORT ON POSTELECTION OBJECTIONS 1. STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: This consolidated matter was heard before me in Reno, Nevada, on March 10, 1977. The charge in Case 20-CA-11736 was filed on July 26 and amended on September 29, 1976, by Operating Engineers Local Union No. 3, AFL-CIO (Union). The complaint issued September 30, 1976, was amended on February 23, 1977, and during the hearing, and alleges violations by Dresser Industries, Inc. (Respondent) of Section 8(aX)(1) of the National Labor Relations Act, as amended. An election in Case 20-RC-13552 was held on July 22, 1976, among the production and maintenance employees at Respondent's mine and mill. It derived from a petition filed by the Union on May 18, 1976, and a Stipulation for Certification Upon Consent Election approved by the Regional Director for Region 20 on June 18. The election tally was 21 votes for and 22 against the Union, with I challenged ballot. The Union filed objections to the conduct of the election on July 24, 1976, and, on October 22, the Regional Director issued a report on objections recommending to 591 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Board that three of the four objections be overruled and that the remaining objection, along with possible misconduct by Respondent not specified in the objections, be considered jointly with the matters raised by the above complaint. The Board, by an order dated November 11 and revised on December 3, adopted the Regional Director's' recommendations, after which the Acting Regional Director, on December 14, issued an order consolidating cases and notice of hearing providing that the objections and unfair labor practice issues be "consoli- dated for purposes of hearing before a duly designated Administrative Law Judge." The parties were permitted during the hearing to introduce relevant evidence, to examine and cross-examine witnesses, and to argue orally. Posttrial briefs were filed for the General Counsel, for Respondent, and for the Union. 11. JURISDICTION Respondent is a Delaware corporation engaged in and around Battle Mountain, Nevada, in the mining and milling of barite. It annually ships products valued in excess of $50,000 from Nevada directly to customers in other States. Respondent is an employer engaged in and affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. III. LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. IV. ISSUES The complaint as finally amended alleges six categories of misconduct by Respondent at various times in May and July 1976: (a) Interrogation concerning the employees' union activities and sympathies. (b) Creating an impression that the employees' union activities were under surveillance. (c) Threatening mine closure should the employees opt for union representation. (d) Soliciting employee grievances to lessen enthusiasm for the Union. (e) Threatening more layoffs and loss of benefits in the event of union representation. (f) Granting wage increases to weaken support of the Union. The answer denies any wrongdoing. The objections matter raises the further question whether misconduct by Respondent during the pendency of the election interfered with free voter choice, requiring that the election be rerun. V. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts In March and April 1976, Respondent's headquarters organization in Houston, Texas, conducted a wage and I About three-fourths of Respondent's employees work in the mine, one- fourth in the mill. classification review concerning the employees at the Battle Mountain mine and mill. This resulted in the posting of a new wage/classification schedule at the mine and mill on Monday, May 3, to become effective that day. The new schedule triggered widespread employee dissatisfaction, which translated into an organizational effort on behalf of the Union. On Tuesday, May 4, one of the mine employees, Mervil Thompson, told Plant Manager Marvin Seldin that he was "unhappy" with the raise he was getting under the new schedule and that "there was a lot of unhappy people at the mine." The next day, May 5, obtaining verification from James Johnson, general mine foreman, that Thompson's observations were accurate, Seldin advised Johnson that he wished to meet with the employees at the mine on Saturday, May 8, "to explain the changes in the classifica- tions and wages and so forth." Saturday was selected, according to Seldin, because Saturdays at the mine are devoted more to maintenance than production, meaning that a meeting then would cause less disruption.' Management apparently learned of the employees' interest in unionization on Friday, May 7. Mine Superin- tendent Robert Nay called Bobby Nichols away from his work that day to ask if there was going to be a union meeting, adding that he would have to tell Seldin about it2; and both Nay and Johnson informed Seldin on May 7 that there was union talk among the employees. Seldin's immediate response was twofold. He ordered Nay, who was unpopular with the employees, to resign; and he and Johnson called on four of the employees-Calvin Chisum, Eugene Masterson, William Steen, and Mervil Thomp- son-at their homes that evening. Explaining why these four were chosen, Seldin testified: Well, Steen had been a lead man and one of our key employees. I figured we could talk to him. Calvin Chisum and I-I always thought of him as a reasonable person. I talked to him. I had been friends of Mervil Thompson for several years, personal friends. Master- son-we had good relations there. Seemed like logical people to talk to. Seldin asked Steen what the employees' complaints were and who was making them. Steen described the displeasure over the wage/classification schedule, stating that Nay was an added irritant; and Seldin countered by asking what the employees expected to gain from the Union. The record does not reveal what happened at the homes of the other three, except that Seldin and Johnson were told by Thompson that there was going to be a union organization- al meeting the next day, Saturday, May 8, after work. On the morning of May 8, Seldin presided over an employee meeting at the mine in accordance with his previously expressed wish to Johnson. He opened the meeting by saying there had been "a lot of complaints about the classifications and wages" and that he wanted "to get it straightened out." Thus encouraged, various of the employees complained that their duties did not correspond with their classifications, giving particulars, 2 This finding is based upon Nichols' uncontroverted testimony. Nay did not testify. 592 DRESSER INDUSTRIES, INC. and that they consequently were being underpaid. There also were complaints that some of the equipment was unsafe, and requests that a first aid training program be established. Seldin responded that he would create some new job classifications; that a certain loader identified as unsafe would be removed from use until repaired; and that he would check with Houston about a first aid program. Seldin held a second meeting, similar to this, with the swing-shift employees that same afternoon. There is no evidence that the union situation was mentioned at either meeting. After the day shift on May 8, about 15 of the employees met at the home of Lenny Fagg, a district representative of the Union. 3 The employees talked about their job dissatis- factions, focusing mainly on classifications and wages, and Fagg described union benefits and ways and means of obtaining union representation. Some of the employees signed union authorization cards during the meeting. The night of May 8, Johnson discussed the union situation with certain of the employees from time to time as they shuttled between two bar/casinos in Battle Moun- tain-the Owl Club ,and the Nevada Club. Early in the evening, at the Owl Club, Johnson told Roger Stocking, an electrician in the mine, that he knew "there had been a card signing." 4 Later, at the Nevada Club, Johnson announced to Stocking that he knew there had been a union meeting and that Stocking and about 13 others had signed cards. Johnson in addition asked Stocking, at some time or other during their disjointed exchange, who had started "the union thing"; opined that unions "were bad in general," except "maybe construction unions weren't too bad"; and declared that Respondent would close down if the Union got in. 5 That same night, also at the Nevada Club, Johnson told another employee, George Quintana, that he knew who had attended the union meeting and signed cards, that Romero Cedillo had told him.6 On Sunday, May 9, Seldin telephoned John Middleton, labor relations manager for Respondent's mineral and manufacturing group, at Middleton's home in Houston. Seldin reported "quite a bit of unhappiness with regard to the increase in the [wage] rate range and the way we implemented them," as Middleton recalled, and asked for clearance to effect the changes he had discussed with the employees the day before. Middleton replied that "it all rs Although the record leaves some doubt whether the Fagg meeting was May 7 or 8. the weight of evidence in combination with a stipulation of counsel compels the finding that it was May 8. Stocking is credited that Johnson made this remark. Johnson's denial notwithstanding. Stocking's demeanor and the precision of his testimony generally were more convincing than Johnson's. I Stocking is credited that Johnson made these several comments. Johnson admittedly told Stocking that he had heard "some rumbles" about the union meeting. Otherwise, except for denying that he raised the prospect of closure. Johnson provided few details of his comments to Stocking. For the reasons stated in the preceding footnote. Stocking is credited to the extent that his testimony conflicts with Johnson's. " Although rendering this testimony with great reluctance, and only after being led and having his memory refreshed by counsel for the General Counsel. Quintana is credited. Johnson not only did not explicitly refute it, but admitted that he mentioned to Quintana that he had heard "some rumbles" about the union meeting, and further admitted that Cedillo indeed had told him "who all went to the lunion ] meeting." William Steen credibly testified. moreover, that he overheard Cedillo tell Johnson that Steen. Quintana. and Larrx Marshall had signed cards. sounded reasonable" to him, but that he wanted to check with his superiors on Monday and would let Seldin know. Seldin testified that he "might have" told Middleton about the union activity, as well. Middleton testified that he had no recollection of that. Seldin and Middleton spoke again on Monday, May 10, Middleton granting Seldin authority, with slight modifica- tion concerning the names of some of the new classifica- tions, to implement his proposals. This resulted in an increase in classifications from II to 17, with a number of the employees being reclassified accordingly, and in wage increases-generally of 20 cents per hour-for "most of the employees." The changes were made retroactive to May 3, in lieu of those contained in the schedule posted on that date, and were reflected in the paychecks that issued on May 14. The employees were told of them on May 10, at a meeting called by Seldin and by posted notice.' A few days later, on an unspecified date in mid-May, Johnson and Ron Levinson, a mine helper, had a conversation while Levinson was "running samples" in Respondent's laboratory. Johnson asked Levinson if he thought the Union would "make it" at the mine. To Levinson's affirmative answer, Johnson said that, should the Union get in, Respondent would close the mine in the winter, causing people to be laid off; would no longer provide transportation between the mill and the mine for the mine employees; and would cease paying the mine employees while in transit between the mill and the mine.8 At that time, the mine employees clocked in at the mill each day, then were driven the 36 miles to the mine in crew cabs. Next in the sequence were the Union's filing the petition for election on May 18 and the Regional Director's approving the Stipulation for Certification Upon Consent Election on June 18. The final piece of questionable conduct by Respondent occurred on an unspecified date in mid-July, shortly before the election. Johnson approached Bobby Nichols on the job, and said: "Looks like you're doing pretty good ... I'm going to talk to Marvin [Seldin] about getting you a raise." Nichols replied that he was for that, whereupon Johnson asked how he "felt about the Union." Nichols I In an apparently unrelated transaction, Jose Zubizarreta was promoted from helper to jig operator as of May 24, receiving a pay increase from 54.80 to $5.40. He had been recommended for the promotion on May 18 by Johnson, who testified that "there was some people going on vacation and we had to have somebody in that capacity." Johnson continued that Zubizarreta "was the next qualified person in line." Previously, on Apnl 19. 1976, Zubizarreta had been promoted from laborer to helper, getting a raise from $4 to $4.40; and had received another raise, from $4.40 to $4.80, effective May 3. The General Counsel does not contend that the promotion of May 24 was improper. The Union. however, argues that it was, and thus a ground for setting the election aside. s Levinson's testimony concerning this conversation is credited. Johnson denied any recall of it, further denying that he ever said the mine would be closed if the Union got in. that company-provided transportation would be withdrawn, or that more layoffs would result. Levinson's witness-stand demeanor inspired greater trust than Johnson's, and the detailed nature of his recital carried more conviction than Johnson's generally noncommuni- cative performance. 593 DECISIONS OF NATIONAL LABOR RELATIONS BOARD answered that "the men had quit bitching so much . . . and kind of cooled down," and the conversation was over.9 The election, as previously noted, was on July 22. B. Conclusions I. Interrogations Paragraphs 6(a) and 7 of the complaint allege that, on or about May 7, Mine Superintendent Nay "interrogated an employee concerning his union activities and the union activities of other employees," thereby violating Section 8(a)(1). As previously found, Nay called Bobby Nichols away from his work on May 7 to ask if there was going to be a union meeting, adding that he would have to tell Plant Manager Seldin about it. It is concluded that Nay, by this conduct, violated Section 8(a)(l) as alleged. Paragraphs 6(b) and 7 of the complaint allege that, on or about May 8, Mine Foreman Johnson likewise interrogat- ed an employee in violation of Section 8(a)(1). It having been found that, during their conversations at the Nevada Club the night of May 8, Johnson asked Roger Stocking who had started "the union thing," it is concluded that he violated Section 8(a)(1) as alleged. Paragraphs 6(e) and 7 of the complaint allege that, on or about May 8, Johnson and Seldin "interrogated an employee concerning his union sympathies and the union sympathies of other employees," thereby violating Section 8(a)(1). As found above, upon learning of the employees' interest in unionizing, Seldin and Johnson called on four employees at their homes on the evening of May 7, with Seldin asking at least one of the employees, William Steen, what the employees' complaints were and who was making them, and what the employees expected to gain from the Union. It is concluded that Seldin thus violated Section 8(a)( I) as alleged. Paragraphs 6(g) and 7 of the complaint allege that, on or about May 15 and about July 15, Johnson "interrogated an employee concerning his union sympathies," violating Section 8(a)(1) in each instance. Regarding the May allegation, it has been found that Johnson asked Ron Levinson, on an unspecified date in mid-May, if he thought the Union would "make it" in the mine. It is concluded, particularly since Johnson asked this question as a preface for other remarks determined below to have been unlawful- ly threatening, that this interrogation violated Section 8(a)(l) as alleged. Concerning the alleged July interrogation, it has been found that, on an unspecified date shortly before the election, Johnson told Bobby Nichols that he was "going to talk to Marvin about getting you a raise," then asked Nichols how he "felt about the Union." It is concluded that this interrogation, juxtaposed with talk of a raise, was pointed rather than innocent, violating Section 8(a)(1) as alleged. 9 This is Nichols' credited version of the conversation. Johnson recalled it somewhat differently, testifying that Nichols started it by complaining that he had not received a raise he thought was due, after which Johnson said he would "look into it." Johnson continued: "I might have asked how 2. Impression of surveillance Paragraphs 6(c) and 7 of the complaint allege that, on or about May 8, Johnson "attempted to create an impression of surveillance by telling an employee that Johnson knew who had signed union cards," thereby violating Section 8(a)(l). As earlier found, Johnson told Roger Stocking, on the night of May 8 at the Owl Club, that he knew "there had been a card signing," and stated to Stocking later that same night, at the Nevada Club, that he knew there had been a union meeting and that Stocking and about 13 others had signed cards. Also at the Nevada Club that night, as found above, Johnson told George Quintana that he knew who had attended the union meeting and signed cards. It is concluded that Johnson, by these remarks to Stocking and Quintana, violated Section 8(a)(1) as alleged. 3. Threat of closure Paragraphs 6(d) and 7 of the complaint allege that, on or about May 8, Johnson "threatened an employee that Respondent would close its mine if the employees selected the Union as their collective bargaining representative," thus violating Section 8(a)(1). During their exchange at the Nevada Club the night of May 8, as previously found, Johnson told Stocking that Respondent would close down if the Union got in. It is concluded that this comment violated Section 8(a)(1) as alleged. 4. Solicitation of grievances Paragraphs 6(f) and 7 of the complaint allege that, on or about May 10, Seldin "solicited grievances concerning working conditions from its [Respondent's] employees in order to discourage them from supporting the Union," thereby violating Section 8(aX 1). As found above, after learning of the employees' displeasure with the new schedule posted May 3, Seldin told Johnson on May 5 that he wished to meet with the employees on May 8 "to explain the changes in the classifications and wages and so forth." Subsequently, on May 7, Seldin learned of the employees' interest in unionization, which prompted him to call for Nay's immediate resignation and, with Johnson, to visit four of the employees at their homes that evening to look further into the situation. In the employee meetings on May 8, Seldin went well beyond the original purpose of simply explaining the changes in classifications and wages. He instead invited the employees to air their complaints with the inducement that he wished to get the problems "straightened out," and, after listening to them, announced that he would make major revisions in the schedule that had been posted. It is concluded that, while the May 8 meetings as first conceived had no antiunion purport, their emphasis as conducted upon hearing out and assuaging employee the votes would come out, or something." Johnson, as previously indicated, was not an impressive witness. Nichols seemingly was the more capable and conscientious of the two. 594 DRESSER INDUSTRIES, INC. grievances was influenced by the same thing that brought in the demand for Nay's resignation and the visits to the four homes the night before-namely, the union threat. Respondent consequently violated Section 8(aXl) as alleged. 5. Threat of layoffs and loss of benefits Paragraphs 6(h) and 7 of the complaint allege that, on or about May 15, Johnson "threatened an employee that Respondent would institute more frequent layoffs and deprive employees of benefits if the employees selected the Union as their collective bargaining representative," thus violating Section 8(a)(l). As previously found, Johnson told Ron Levinson on an unspecified date in mid-May that, should the Union get in, Respondent would close the mine in the winter, causing people to be laid off; would no longer provide transporta- tion for the mine employees between the mill and the mine; and would cease paying the mine employees while in transit between the mill and the mine. It is concluded that these remarks violated Section 8(a)(l) as alleged. 6. Wage increase Paragraphs 6(j) and 7 of the complaint allege that, on or about May 28, "Respondent granted wage increases to its employees . .. in order to discourage them from support- ing the Union," thereby violating Section 8(aXI).10 As found above, Seldin's May 8 meetings with the employees led to the creation of six new classifications, with a number of employees receiving classification adjustments and wage increases as a result. The changes were retroactive to May 3, and were reflected in paychecks issued on May 14. The logic underlying the earlier conclusion that the emphasis of the May 8 meetings "upon hearing out and assuaging employee grievances" was influenced by anti- union considerations compels the further conclusion that the wage adjustments flowing from those meetings also violated Section 8(a)(l) as alleged."I CONCLUSIONS OF LAW 1. By interrogating its employees concerning the em- ployees' union activities and sympathies; by creating an impression that its employees' union activities are under surveillance; by soliciting employee grievances to discour- age support of the Union; by threatening, should the "I Counsel for the General Counsel stated on the record, based upon the evidence as adduced, that the date set forth in par. 6(j) of the complaint should be May 10 rather than May 28. " Inasmuch as the impetus for the raises in question came from Seldin, in answer to the union threat, it is of no moment whether Houston headquarters, in granting the authonty he requested, knew of or was motivated by the employees' union activities. There consequently is no need to pass on Middleton's dubious testimony that Seldin made no mention of those activities in their May 9 telephone conversation. Allegheny Pepsi-Cola Bottling Companti v. N.L.R.B., 312 F.2d 529, 531 (C.A. 3, 1%962) Price Brothers Compans. 175 NLRB 277, 278, fn. 5 (1%9); Sears, Roebuck andCo.. 172 NLRB 2222, fn. I (1968); Federal Tool Corporation, 130 NLRB 210, 221 (1961). 12 The Union's contention is rejected that Jose Zubizarreta's promotion of May 24, referred to above in fn. 7, was improper and a further ground for employees choose to be represented by the Union, that it would close the mine, that it would close the mine in the winter, that it would no longer provide transportation between the mill and the mine, and that it would cease paying the mine employees while in transit between the mill and the mine; and by granting wage increases to discourage support of the Union, all as found herein, Respondent in each instance violated Section 8(a)(1) of the Act. 2. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE OmJECTONS Only one instance of misconduct occurred during the "critical period" after the May 18 filing of the election petition, that being Johnson's July interrogation of Bobby Nichols. Although this interrogation was somewhat isolat- ed, Johnson infused it with heavy implications by coupling it with talk of a raise for Nichols. Moreover, the incident took place shortly before the election, and the election outcome was extremely close. It is concluded in these circumstances that this misconduct is sufficient to overturn the election. Compare Stouffer Restaurant & Inn Corpora- tion, 213 NLRB 799, 800(1974).12 Upon the foregoing findings of fact, conclusions of law, and the entire record,i3 I issue the following recommend- ed: ORDER ' 4 The Respondent, Dresser Industries, Inc., Battle Moun- tain, Nevada, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning the employ- ees' union activities and sympathies; creating an impres- sion that its employees' union activities are under surveil- lance; soliciting employee grievances to discourage support of the Union; threatening, should the employees choose to be represented by the Union, that it would close the mine, that it would close the mine in the winter, that it would no longer provide transportation between the mill and the mine, and that it would cease paying the mine employees while in transit between the mill and the mine; and granting wage increases to discourage support of the Union.s5 setting the election aside. The weight of record evidence fails to support such a conclusion and, as previously mentioned, this promotion is not alleged as an unfair labor practice. 13 Certain errors in the transcript have been noted and are hereby corrected. 14 All outstanding motions inconsistent with this recommended Order hereby are denied. In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 1' Nothing in this Order is to be construed as requiring Respondent to retract raises now in effect. 595 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under the Act. 2. Take this affirmative action: (a) Post at its mine and mill in Battle Mountain, Nevada, the attached notice marked "Appendix." ' 6 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's authorized representative, 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 ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the election of July 22, 1976, be set aside and a new election directed. '6 In the event 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The hearing held in Reno, Nevada, on May 10, 1977, in which we participated and had a chance to give evidence, resulted in a decision that we had committed certain unfair labor practices in violation of Section 8(a)(1) of the National Labor Relations Act, and this notice is posted pursuant to that decision. The National Labor Relations Act gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities. In recognition of these rights, we hereby notify our employees that: WE WILL NOT interrogate our employees concerning the employees' union activities and sympathies. WE WILL NOT create an impression that our employ- ees' union activities are under surveillance. WE WILL NOT solicit employee grievances to discour- age employee support of a union. WE WILL NOT threaten, should our employees choose to be represented by a union, that we will close the mine, that we will close the mine in the winter, that we will no longer provide transportation between the mill and the mine, or that we will cease paying our mine employees while in transit between the mill and the mine. WE WILL NOT grant wage increases to discourage employee support of a union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights under the Act. DRESSER INDUSTRIES, INC. 596