Mass. Machine & Stamping, Inc.

MASS. MACHINE & STAMPING, INC. Mass. Machine & Stamping, Inc. (formerly Massa- chusetts Machine Shop, Inc.) and United Electri- cal, Radio & Machine Workers of America (UE). Cases 1-CA- 10898 and I-CA- 11928 August 30, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On May 16, 1977, Administrative Law Judge Robert Cohn issued the attached Decision in this proceeding. Thereafter, Respondent and General Counsel filed exceptions and supporting briefs. 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,' and conclusions of the Administrative Law Judge only to the extent consistent herewith. The complaint in this matter alleged, inter alia, that Respondent had violated Section 8(a)(5) of the Act by withdrawing recognition of the Union on July 21, 1975,2 the day Respondent began operations at its new location in Nashua, New Hampshire. The Administrative Law Judge found that Respondent did not violate the Act by such withdrawal of recognition. For the reasons set forth below, we do not agree with that finding, but, instead, find that Respondent violated Section 8(a)(5) of the Act by refusing to bargain with the Union on and after July 21. During the year prior to July 3, Respondent operated a metal stamping and machine tooling plant in Roxbury, Massachusetts. An election was held on June 28, 1973, in an appropriate unit of production and maintenance employees at the Roxbury plant. A majority of the employees chose the Union as their collective-bargaining representa- tive. Respondent and Union entered into a collec- tive-bargaining agreement effective from November 2, 1973, until November 3, 1975.3 In November 1974, Respondent notified the Union that it intended to move the Roxbury operations to another unspecified location. Respondent and Union, in a series of I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Drv Wall Products, Iec. 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 All dates hereafter refer to 1975 unless otherwise specified. :' The contract ssas terminated at the time of the move in accord with a 231 NLRB No. 133 meetings over several months, bargained over the effect of the move, entering into a "Memorandum of Agreement" on June 23. Among other things, the memorandum provided severance pay for employees who did not wish to continue their employment at the new plant. In addition, the agreement granted travel allowances for commuters and specified other working conditions. On July 3, Respondent closed its Roxbury plant. At that time there were 22 employees working at the plant. 4 Of these 22, 11 employees continued their employment at the Nashua plant when it began operations on July 21. The remaining 11 employees elected to accept the severance pay rather than transfer. The Nashua plant began operations on July 21 with 19 employees actually working at the plant. This included 11 employees who had worked at the Roxbury plant and 8 new employees hired for the Nashua plant.5 In addition, as of July 21, three other employees had been hired, but had not yet begun work. Throughout the negotiations on the effects of the move, the Union had requested that Respondent continue to recognize the Union as the collective- bargaining representative of the employees after the move to the new plant. Respondent stated that it could not make a commitment to do so until it knew the makeup of the work force at the new plant. On July 17, the Union, by mail, requested recognition as the representative of the employees at the Nashua plant. By a letter dated July 23 Respondent replied that it declined to recognize the Union because, in Respondent's view, the Union no longer represented a majority of the employees. The Administrative Law Judge found that Respon- dent was not required to recognize the Union as the bargaining representative for the employees at the Nashua plant. In so finding, the Administrative Law Judge observed that, as of July 21, only about half the machinery had been installed; the employee complement was expected to increase to as many as 35 employees very shortly; by July 28, 15 new employees from the Nashua area had been hired and had actually begun working placing the 11 employees from the Roxbury plant in the minority. The Administrative Law Judge also pointed out that even on July 21 there were II employees from the clause within the contract itself which provided that the contract would remain in effect if the operation was relocated within 30 miles. Nashua is approximately 40 miles from Roxbury. 4 In addition to the 22 "active" employees, there were 22 employees on layoff status and 7 employees on industrial injury leave. All 22 laid-off employees elected to accept the severance pay. The seven injured employees were not offered the severance-pay option. s Six of these new employees had begun work prior to July 21 and had assisted in the setup of the Nashua facility. 801 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roxbury plant, 8 new employees who had already begun work, and 3 employees who had been hired and were scheduled to begin work within a few days. Because these 3 employees would have an interest in the question of representation, the Administrative Law Judge concluded that the 3 should be added to the 19 employees working on July 21 assessing the union strength. As a result, even on July 21, the Administrative Law Judge concluded, the Union would not have had a majority. We do not agree with this analysis of the situation. While the Administrative Law Judge rejected the doctrine of the presumption of continuing majority status, recent cases have reaffirmed this principle:6 It is well settled that a certified union, upon expiration of the first year following its certifica- tion, enjoys a rebuttable presumption that its majority representative status continues.' This presumption is designed to promote stability in collective-bargaining relationships, without im- pairing the free choice of employees. 2 According- ly, once the presumption is shown to be operative, a primafacie case is established that an employer is obligated to bargain and that its refusal to do so would be unlawful. The prima facie case may be rebutted if the employer affirmatively establishes either (I) that at the time of the refusal the union in fact no longer enjoyed majority representative status; 3 or (2) that the employer's refusal was predicated on a good-faith and reasonably grounded doubt of the union's continued majority status. As to the second of these, i.e., "good faith doubt," two prerequisites for sustaining the defense are that the asserted doubt must be based on objective considerations4 and it must not have been advanced for the purpose of gaining time in which to undermine the union.5 I Celanese Corporation ofAmerica, 95 NLRB 644, 671-672. 2 Id. ' "Majority representative status" means that a majonty of employees in the unit wish to have the union as their representative for collective bargaining purposes. Id. I See Laystrom Manufacturing Company, 151 NLRB 1482, 1484, enforcement denied on other grounds (sufficiency of evidence) 359 F.2d 799 (C.A. 7. 1966); United Aircraft Corporation, 168 NLRB 480 (TXD): N.L.R.B. v. Gulfmont Hotel Company, 362 F.2d 588 (C.A. 5, 1966). enfg. 147 NLRB 977. And cf. United States Gypsum Company, 157 NLRB 652. C & C Plywood Corporation, 163 NLRB 1022; Bally Case and Cooler, Inc., 172 NLRB 1127. Here Respondent had recognized and bargained with the Union pursuant to a certification and had entered into a collective-bargaining agreement. Thus, the presumption of majority status is established. In I Bartenders, Hotel, Motel and Restaurant Employees Bargaining Associa- lion of Pocatello, Idaho and its Employer-Members, 213 NLRB 651 (1974). 7 Harpeth Steel, Inc., 208 NLRB 545 (1974). support of its doubt of the Union's majority status, Respondent relies solely on the large turnover of employees at the time of the move as well as the increase in the work force, noting that within a week of July 21 the employees from the Roxbury plant were no longer in the majority. However, it is well established that turnover or increase in size of the work force alone does not rebut the presumption of a majority status, since there is also a presumption that new employees will support the union in the same proportion as the previous employee complement.7 Accordingly, the evidence offered by Respondent to justify its withdrawal of recognition does not rebut that presumption. Moreover, Respondent's sole defense that the Union no longer enjoys majority status does not withstand analysis. First, there is no reason to search for a date after July 21 when there was a newly established, representative employee complement. On July 21, 11 of 19 employees in the unit were from the Roxbury plant.8 The Nashua plant is not a new operation, but only a continuation of Respondent's business at the Roxbury plant. The equipment and machinery from Roxbury was moved to Nashua. The job structure remained intact, with a few job titles being renamed. The supervisory personnel were retained during the move. Job skills and require- ments were unchanged, with all active and laid-off employees having been given the opportunity to transfer. The size of the unit in the month after the move grew from 19 to approximately 29 employees, hardly an unusual occurrence for an enterprise that, on July 3, had 22 active and 22 laid-off employees. Even this minimal increase was gradual. On the first day in the new facility there were 19 employees. On July 22, there were 20 employees; July 23, 22 employees; July 24, 23 employees; July 28, 26 employees; August 18, 28 employees; and August 20, 29 employees. When one considers that, according to General Manager Hill, Respondent's business varies up to 30-40 percent from month to month, this increase is not impressive. Stripped to its essentials, the only significant shift in the operation was geographic. Therefore, because Respondent has failed to rebut the presumption of continued majority status and, additionally, because a majority of Respondent's work force upon commencement of operations at the new location consisted of employees who had been represented by the Union at the Roxbury plant, we find that Respondent violated Section 8(a)(5) of the Act by failing and refusing to bargain in good faith on and after July 21. Accordingly, we shall order I The three employees who had been hired by July 21 but had not yet begun work were not included in the unit on July 21. Colecraft Mfg. Co., 162 NLRB 680 (1967). 802 MASS. MACHINE & STAMPING, INC. Respondent to recognize and bargain with the Union as the exclusive collective-bargaining agent of the employees in the appropriate unit.9 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Mass. Machine & Stamping, Inc. (formerly Massa- chusetts Machine Shop, Inc.), Nashua, New Hamp- shire, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their union membership and activities. (b) Creating the impression of surveillance of its employees' union activities. (c) Threatening its employees with discharge or closure of its Nashua, New Hampshire, plant, or other reprisals, should its employees join, support, or otherwise engage in activities on behalf of United Electrical, Radio & Machine Workers of America (UE), or any other labor organization. (d) Promising wage increases or other benefits to employees should they refrain from joining, support- ing, or otherwise engaging in activities on behalf of the above-named Union, or any other labor organi- zation. (e) Refusing and failing to bargain in good faith with United Electrical, Radio & Machine Workers of America (UE) as the exclusive bargaining representa- tive of the employees in the following appropriate unit: All production and maintenance employees of the Respondent employed at its Nashua, New Hamp- shire plant, excluding office clerical employees, professional employees, guards and all supervi- sors as defined in the Act. (f) Withdrawing its recognition of the Union when such withdrawal is not supported by a good-faith doubt as to the Union's majority status. (g) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive representative of the employ- ees in the above-described unit and embody in a signed agreement any understanding reached. (b) Post at its Nashua, New Hampshire, facility copies of the attached notice marked "Appendix." 10 Copies of said notice, on forms provided by the Regional Director for Region I, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 9 For the reasons fully articulated by the Administrative Law Judge in his Decision, Member Walther would affirm the dismissal of the 8(aX5) allegation in the complaint. lo In the event that this 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 After a hearing at which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and we intend to abide by the following: Section 7 of the Act gives all employees these rights: To organize themselves To form, join, or help unions To act together for collective bargaining or other mutual aid or protection To bargain collectively through represen- tatives of their own choosing To refuse to do any or all of these things. WE WILL NOT coercively interrogate our em- ployees concerning their union membership or activities. WE WILL NOT create the impression that our employees' union activities are being spied upon. WE WILL NOT threaten our employees with discharge, or threaten to close our Nashua, New Hampshire, plant, or otherwise threaten our employees with reprisals if they join, support, or otherwise engage in activities on behalf of United Electrical, Radio & Machine Workers of America (UE), or any other labor organization. WE WILL NOT promise our employees wage increases or other benefits should they refrain 803 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from joining or supporting the above-named labor organization, or any other labor organiza- tion. WE WILL NOT refuse and fail to bargain in good faith with United Electrical, Radio & Machine Workers of America (UE) as the exclusive bargaining representative of the employees in the following appropriate unit: All production and maintenance employees of the Respondent employed at its Nashua, New Hampshire plant, excluding office clerical employees, professional employees, guards and all supervisors as defined in the Act. WE WILL NOT withdraw recognition of the Union when such withdrawal is not supported by a good-faith doubt as to the Union's majority status. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, as amended. WE WILL, upon request, bargain collectively with United Electrical, Radio & Machine Work- ers of America (UE) as the exclusive representa- tive of the employees in the above-described unit and embody in a signed agreement any under- standing reached. MASS. MACHINE & STAMPING, INC. (FORMERLY MASSACHUSETTS MACHINE SHOP, INC.) DECISION STATEMENT OF THE CASE ROBERT CoHN, Administrative Law Judge: This consoli- dated proceeding, heard before me in Nashua, New Hampshire, on December 2 and 3, 1976, presents the questions: (1) whether Mass. Machine & Stamping, Inc. I United Electrical, Radio and Machine Workers of America (UE). 2 The original charge in Case I-CA 10898 is dated July 22, 1975; the original charge in Case I-CA-11928 is dated June 25, 1976. The order consolidating cases, amended complaint and notice of hearing was issued August 25, 1976. :1 Cf. Bishop and Malco, Inc., d/b/a Walker's, 159 NLRB 1159, 1161 (1966). No question is presented respecting the issue of the Board'sjurisdiction or of the status of the Union as a labor organization. The amended complaint alleges sufficient facts, which are duly admitted in the Respon- dent's answer, upon which I may, and hereby do, find that at all times material the Respondent has been an employer engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act, and that the Union is a labor organization within the meaning of Sec. 2(5) of the Act. (herein the Respondent or Company), violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended (herein the Act), when it refused to bargain with the Charging Union ' pursuant to the latter's request, upon the opening of the Company's Nashua, New Hampshire, facility, and (2) whether the Respondent, through its agents or supervisors, engaged in independent violations of Section 8(a)(1) of the Act.2 Subsequent to the hearing, helpful briefs were submitted by counsel for the General Counsel and by counsel for the Respondent, which have been duly considered. Upon the entire record, including my observation of the demeanor of the witnesses,3 I make the following: FINDINGS AND CONCLUSIONS 4 I. THE ALLEGED UNFAIR LABOR PRACTICES A. Background For some years prior to July 3, 1975, 5 Respondent operated a plant in Roxbury, Massachusetts (a suburb of Boston), where it engaged in metal stamping and machine tooling operations. On or about June 28, 1973, a majority of the production and maintenance employees employed by the Respondent at its Roxbury plant voted to be represented for purposes of collective bargaining by the Charging Union, and the latter was subsequently certified as such bargaining representative. Subsequently, the Respondent and the Union entered into a collective- bargaining agreement which extended for 2 years (Novem- ber 2, 1973, until November 3, 1975). In November 1974, the Respondent notified the Union of its intention to move its Roxbury operations to another location, and there were several meetings held between the parties at about that time concerning this subject matter. However, such plans were temporarily suspended, and the meetings, at that time, ceased. Such negotiations resumed in April, and culminated in the execution of a "Memorandum of Agreement" which was executed by the parties on June 23. Such memorandum concerned itself primarily with the effect upon the employees of the decision of the Respon- dent to cease operation of its Roxbury plant on July 3. Thus, such memorandum provided for severance pay to those employees who chose not to go to the Company's new facility in Nashua, New Hampshire, and specified certain working conditions, including gas allowances for commuters, for those employees who elected to work in Nashua.6 5 All dates hereinafter refer to the calendar year 1975, unless otherwise indicated. 6 Prior to the execution of the memorandum of agreement, both the Union and the Company had conducted independent polls of the employees (all of whom were members of the Union pursuant to a union-security clause in the contract) to ascertain which employees desired to continue working for the Respondent in Nashua. and those who preferred to cease working for the Respondent and obtain severance pay under the collective- bargaining agreement. Both polls indicated that of the 22 employees who were actually working in the Roxbury plant on that last weekly payroll, I I elected to work in Nashua, and I 11 opted for the severance pay. It should be noted, additionally, in this connection, that at this time (the last week of operation of the Roxbury plant), there were 22 employees in a temporary layoff status who were also polled with respect to their desire to 804 MASS. MACHINE & STAMPING, INC. As indicated, on July 3, at approximately 3:30 p.m., the Respondent closed its Roxbury operation. During the subsequent, approximate 2-week period, Respondent moved a substantial amount of its machinery and equip- ment from the Roxbury plant to the new operation in Nashua, and commenced operations at the latter location on Monday, July 21. However, prior to that date, and as a result of the polls taken in June indicating that only II of the Roxbury employees intended to work for the Company in Nashua, the Respondent, in late June, advertised in a New Hampshire newspaper for employees in the classifica- tions utilized by the Respondent. The record reflects that such prospective employees were interviewed by officials of the Respondent during the first couple of weeks in July, and that as of July 21, 11 persons from the Nashua area had been hired although only 8 actually worked on the first day of operations-July 21. 7 Thus the employee comple- ment actually working at the plant on July 21 was 19 employees, which number comprised 11 from the Roxbury plant and 8 from the Nashua area. The record further reflects that an additional four employees were hired on July 22, but did not report for work until several days later. 8 Three additional employees were hired in August. Meanwhile, on July 17, the Union dispatched a letter to the Respondent in Nashua (received on July 19) demand- ing continued recognition of the Union as bargaining representative of the employees at Nashua. 9 By letter dated July 23, the Respondent's attorney replied to the Union's letter declining such request based upon lack of majority status, i.e., that the initial work force at the Company's Nashua's plant "consists of 26 production and mainte- nance employees, only II of whom were previously employed at the Company's plant in Roxbury, Massachu- setts." 10 Analysis and Concluding Findings as to the 8(a)(5) Allegations It is the contention of counsel for the General Counsel that the duty of Respondent to bargain with the Union at the Nashua plant flowed from the fact that on the first day work for the Respondent in Nashua. All 22 declined, opting in favor of accepting severance pay. Finally, there were seven persons who had previously worked for the Company. whose names did not appear on the last payroll because they had not worked for the Company for some time due to industrial accidents. These persons were not polled with respect to their desires regarding work for the Respondent in Nashua. 7 The record reflects that the other three (Pickenng. Hudson. and Cisewski) although hired on July 17, 21, and 21, respectively, did not commence work until July 28, 22. and 28, respectively. They were: Brown, Mullen, Hanby, and Chenelle. See Joint Exh. 5. " It should be noted that the collective-bargaining agreement contained the following provision respecting its applicability to another location: If. during the term of this collective bargaining agreement, the Company moves its Boston, Massachusetts operations to a point within thirty (30) miles of its present location on Albany Street. Roxbury, Massachusetts, this Agreement will be applicable to such new location. There is no issue that the Nashua plant is located more than 30 miles from the Company's Roxbury plant. to Jt. Exh. 4. " As previously set forth, the facts show that as of that date, of the 19 employees actually working. I I employees were transferees from the Roxbury plant all of whom were members of the Union pursuant to the union-security clause in the contract. of operations, July 21, the Union, in fact, represented a majority of the employees actually working for Respondent at the Nashua plant that day.tI Counsel for the Respondent argues that it would be highly erroneous to adopt such a "purely simplistic and mechanistic approach to the issue of recognition," and that the Respondent did not unlawfully refuse to bargain with the Union because the latter never did represent a majority of the employees of the Company at the Nashua location. For the reasons hereinafter set forth, I agree with the Respondent. At the outset, it should be noted that there is no allegation or contention that the Respondent engaged in any unfair labor practices prior to or concurrent with the relocation of its Roxbury plant to Nashua. Thus, it notified the Union of its intentions, negotiated with it concerning the effects upon the employees, consummated an agree- ment with the Union with respect to such issues, and offered all affected employees the opportunity to work at the new plant. 2 Accordingly, unlike many plant relocation cases to come before the Board, we do not have present in the instant case a situation where an employer either (1) covertly closes its plant at one location to move to another for the purpose of evading its obligation to bargain with the Union, or (2) where it is shown that the employer utilizes an otherwise economic relocation for the purpose of ridding itself of the Union as the employees' collective- bargaining representative.13 Thus we face the issue of the duty of the Respondent to recognize the Union at Nashua bereft of any background of unfair labor practices by the Respondent. It is true, of course, as General Counsel argues, that on the first day of operations at the Nashua plant the Union represented a majority of the employees actually working that day. However, viewing all surrounding circumstances affecting majority status, it cannot be reasonably said, in my view, that a duty devolved upon the Respondent to recognize the Union as the collective-bargaining represen- tative of the employees at the Nashua plant. In the first place, the evidence shows that the employee complement at 1Z It is noted, in this connection, that neither the Company nor the Union anticipated that the seven employees not actively working for the Respondent at the close of the Roxbury operation because of industrial accidents had a right to employment at the Nashua plant. In the aforesaid "Memorandum of Agreement," it was stipulated in Sec. 2, (J): With respect to those employees now out with industrial accident claims, such employees, when they settle their industrial accident cases and are able to work, may either terminate their employment and obtain the termination benefits referred to in Section I or 2 above to which their status entitles them or will be considered for available jobs at the Nashua plant. The record further reflects that neither the Union nor the Company attempted to poll any of the seven employees with respect to their desires to work for the Respondent in Nashua, nor have any of the seven communicated with the Company with respect to their return to employ- ment during the entire period of their disability which varied from 6 months to as long as 2 years. Under these circumstances, therefore. I do not believe it reasonable to count any of the seven as employees who had a reasonable expectancy of employment at the Nashua plant for the purpose of ascertaining the Union's majority status. 1i Cf. Allied Mills, Inc.. 218 NLRB 281 (1975). 805 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that plant was expected to expand to at least 25 to 30 employees within a very short time, i.e., a week or two. Thus, the record shows (I) that although the plant opened for operations on July 21, only approximately one-half of the equipment and the machinery was in place, but was still in transit from Roxbury to Nashua; (2) that during the prerelocation negotiations between union and company, the latter advised that the employee complement in Nashua would approximate 20 to 35 employees depending upon business conditions; and (3) that by July 28 the Company had employed from the Nashua areas 15 employees who had, by that date, actually commenced working in the plant. These 15 Nashua employees added to the II Roxbury transferees totaled 26 employees altogeth- er, and formed an employee complement within I week of commencement of operations which was certainly more consistent with the Respondent's normal complement of employees than the 19 which was extant on July 21. Moreover, I am not convinced that a bargaining order should issue even if one adopted the General Counsel's theory that the July 21 date is critical. This because: (1) the record shows that three employees from the Nashua area (in addition to the eight employees who actually worked on July 21) had been hired by the Respondent on or before such date, even though they were not scheduled to start work until July 22 and/or July 28.' 4 It would seem that these three persons were clearly contemplated to become employees at the Company and would therefore have an interest in the question of representation. Adding their number to the 19 who were actually working on July 21, the Union, of course, did not have a majority as of that date. Furthermore, it seems questionable whether July 21 should be considered the critical date for the purpose of resolving the issue of majority status because of the probationary clause which the Union and Company inserted in the "Memorandum of Agreement." That clause is as follows: C. Company will provide a 60 calendar day grace period commencing on the first day of work for each employee at the Nashua site, during which such employees may exercise an option to be laid off with the same termination benefits and status provided in the formula agreed on for those employees choosing not to accept employment in Nashua. Company also guarantees a 60 day grace period for the employees listed above for purpos- es of receiving the same termination benefits and status provided in the formula should they be fired with just cause. It appears from the foregoing that each of the II Roxbury employees who opted to work in Nashua retained the privilege for 60 days to exercise his option to remain an employee in Nashua or to be laid off with the same termination benefits and status of those employees who opted not to go to Nashua. The Respondent argues, on the basis of such 60-day grace period, that the critical date for 14 These employees are: Pickering, Hudson, and Cisewski. See Jt. Exh. 5. 'r, See Respondent's brief. determining majority status should therefor be September 21 rather than July 21. It points out in its brief that one employee (Alan Steinberg) accepted a job at the Nashua plant, started working there on July 21, but changed his mind before the expiration of 60 days and elected to take severance pay in lieu of continued employment.?5 Without necessarily adopting the Respondent's argument that the September 21 date should be critical, I deem the inclusion of the 60-day grace period as a significant factor in declining to adopt the July 21 date as being critical to a resolution of the question of majority status. Finally, I must reject the further argument of the General Counsel that the majority status of the Union is secured by some doctrine based upon a presumption of continuation of such status from the Union's previous certification and contract. In his brief, counsel for the General Counsel points out that there is a presumption of continued majority status which, as applied to plant removal cases, "is that good faith bargaining concerning the effects of the employer's move will result in the transfer of a 'constituen- cy sufficient to compel' continued recognition of the bargaining relationship (citing Fraser & Johnston Company, 189 NLRB 142, reversed in pertinent part 469 F.2d 1259 (C.A. 9); Cooper Thermometer Company 160 NLRB 1902, reversed in pertinent part, 376 F.2d 684 (C.A. 2); Allied Mills, Inc., 218 NLRB 281)." 16 However, the cases cited by counsel for the General Counsel arose in a context where the respondent committed unfair labor practices with respect to the relocation or in the negotiations pertaining thereto. As we have seen, no such unfair labor practices were committed by the Respondent in this case, and therefore there is no occasion to delve into the question of how many employees would have transferred to the new location had the Respondent not engaged in the unfair labor practices. As we have seen, only a minority of the employees at the Roxbury plant chose to follow the Company to Nashua so that there is no foundation upon which to base a finding that the Union represented a majority of the employees at the new plant, unless one accepts the further contention of the General Counsel that the new employees are presumed to support the Union in the same ratio as other unit employees [citing N.L.IRB. v. Little Rock Downtowner, Inc., 414 F.2d 1084 (C.A. 8, 1965)]. However, that statement was made by the court in the context of refuting the company's contention in that case that the union did not represent a majority because of a high rate of employee turnover. There can be no question that, as the court indicated, a high rate of turnover does not of itself provide the basis for allowing an employer to refuse to continue to bargain with an incumbent union. However, that is not, of course, the situation in the instant case, and the presumption is therefore not applicable to the circumstances here. For all of the foregoing reasons, I find and conclude that the Respondent did not violate Section 8(a)(5) of the Act through its refusal to bargain with the Union at the Nashua plant. I shall therefore recommend that the complaint, to that extent, be dismissed. 16 See General Counsel's brief. 806 MASS. MACHINE & STAMPING, INC. C. The Alleged 8(a)(1) Violations One day in January 1976, a union representative visited the home of William Brown, an employee of the Company at the time, 7 and requested that Brown secure a list of names of other employees of the Company. Brown acquiesced in such request, and subsequently contacted, while at work, fellow employee Rod Taylor concerning the matter. S According to the testimony of Brown (Taylor was not called as a witness), he and Taylor were subsequently approached by leadman Jerry Gilmore who told them that "it had been reported in the office that we had been in contact with the Union, and it would be better for us to go in the office and report it ourselves or we would probably get fired anyway." Gilmore denied making such a state- ment, although he acknowledged having a conversation with Brown and Taylor about this time. According to Gilmore's version of the conversation, Taylor (whom Gilmore stated "did most of the talking"), said that the union representative had contacted Taylor and Brown, and they wanted to know what they should do about it. Gilmore stated that he did not know, and suggested that they see Paul Swenson, an official of the Respondent. After a careful consideration of the factors bearing upon credibility, including demeanor, I credit Brown 19 and find that by Gilmore's statements the Respondent: (1) created an impression of surveillance of the employees' union activities, and (2) threatened reprisals for engaging in such activities. Shortly after their conversation with Gilmore, Brown and Taylor proceeded to the office of Paul Swenson, Respondent's manager of manufacturing. There they had a conversation with Swenson in the presence of Peter Smith, Respondent's chief engineer.20 Brown testified that the employees told Swenson that they had been contacted by the union representative, and that the latter wanted a list of the employees; that at that point Smith asked why the union representative came to Brown for the list, to which Brown responded that it was because the union representative lived close to him; that Swenson said "he didn't care whether they got the names or not"; and that the conversation ended upon Swenson's stating, "Of course, you know if the Union gets in here we'll have to close the doors." Swenson testified that on this occasion the two employ- ees presented themselves in his office and asked if they could see him, to which he replied affirmatively. Taylor advised that he had heard that he (Taylor) was about to be visited by the business agent of some union, and sought Swenson's advice as to what to do. Swenson replied that he (Swenson) was not in a position to advise Taylor-that it was up to him as to what he did; that during the conversation Smith asked Brown if he knew the name of the union representative to whom they were referring, and : Brown left the Company's employ in May 1976. I The reason that Brown asked Taylor for a list was that Taylor was an organizer or promoter of gambling pools" in the plant, and apparently knew the names of most of the employees. !' Respondent argues in its bnef that I should rule in its favor on this issue in view, inier alia, of the failure of General Counsel to call Taylor as a witness. However. Taylor was an employee. and, apparently available to either parts as a witness The Board has, in a recent case (Mangurian's, Inc., 227 NLRB 113 (1976)). held that it was improper to draw an adverse inference under such circumstances. that Brown stated that he did not "catch the fellow's name." Both Swenson and Smith denied that either made a statement to the effect that if the Union came in the plant would close. Here again, resolution of the credibility issue has been an extremely difficult one. However, after weighing all factors, I am constrained to credit Brown in view of, primarily: (I) demeanor, and (2) the circumstance that, as discussed infra, Swenson's testimony at the hearing varied rather significantly in some respects from that given by him in a prehearing affidavit. Moreover, unlike Respondent, I do not view as necessarily inconsistent Swenson's statement of neutrality respecting the divulgence of information with his warning of plant closure should the Union come in. Furthermore, I do not consider the question admittedly asked by Smith to be merely an innocuous inquiry made from idle curiosity. Rather, I find it to be a pointed interrogation into the union activities of the employees made for the possible purpose of further investigation of those activities. Such interrogation, made in the sanctum of the manager's office without any assurance against recrimi- nation has been held to be coercive within the meaning of Section 8(a)(1). 21 Accordingly, I find the foregoing threat and interroga- tion to constitute interference, restraint, and coercion within the meaning of Section 8(a)(X) of the Act, and will recommend an appropriate remedy. On or about March 11, 1976, Brown had another conversation (or two) with Swenson. It appears that prior to March 11 both Brown and Swenson had been contacted by Brown's previous employer (Spaulding Fibre Compa- ny), the purpose of which was to ascertain whether Brown desired to return to work for that company.22 The conversation proceeded, according to Brown's testimony, as follows: A. He (Swenson) said he had a talk with Spaulding Fiber Company, and wanted to know if I was going back there or staying there. So I debated, and I said why I thought Spaulding Fiber would be a lot better and like that, but I liked it there. And he says, well, he says, we're paying much better wages than we did down in Boston and like that. And I said, I don't think you are. And I had the contract. And I showed him. I said-then I said-he asked me where I got that. And I said, "The union man asked me to give it to Mike Spodnick." So, he said, "Go ahead. Give it to him." He didn't care. The idea was then again was really- JUDGE COHN: We don't want what the idea was. What did he say? THE WITNESS: Go ahead and give it to him. He didn't care. 20 Smith was called into Swenson's office after Brown and Taylor presented themselves. 21 See, e.g., Bonnie Bourne, an individual, d/bha Bourne Co. v. N.LR.B. 332 F.2d 47 (C.A. 2, 1964); N.LR.B. v. Camco, Inc.. 340 F.2d 803 (C.A. 5. 1965); Shows, Inc., d/b/a Valle) Cable TV Co., 228 NLRB 1355 (1977). 22 The record reflects that Brown had been laid off from that company prior to employment by Respondent. 807 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And then-and, of course, you know-again, he said-he said that if the union got in why they'd close the doors. Q. (By Mr. Weiner) What else was said? A. I think-oh. Oh. Then later on - that was all. Q. That was all that conversation? A. That was all. Brown then observed that employee Spodnick was called into Swenson's office and stayed approximately a half hour. Subsequently, Brown was called back into Swenson's office, and the latter stated: A. He said he'd been thinking it over. And said he'd recommend me for a Class A operator, and that would mean probably approximately 25 cents more an hour, arid for me to tell the union representative to go fly a kite. I said I thought I was worth the 25 cents an hour without flying the kite. And that was the - all of that conversation. Q. Did he give you an increase? A. I never got it, no. He left after that. Swenson's version of this incident is, in essence, that upon receiving contact from someone in the personnel department of Spaulding Fiber, he called Brown into his office and asked what Brown's decision would be; that when Brown stated that he was inclined to remain with the Company rather than return to Spaulding Fiber, Swenson expressed some surprise since it meant commuting approxi- mately 120 miles each day; that Brown felt that he was being "used" by Spaulding Fiber and that he did not wish to risk being laid off again; that, with respect to the question of a wage increase, this was a subject which the two men had discussed on many occasions but Swenson never "discussed actual money with Brown such as 25 cents," but that they did discuss his being upgraded from a press operator "B" to a press operator "A" which would mean a 25-cent per-hour increase to him. However, Swenson categorically denied promising Brown an increase of 25 cents per hour conditioned upon Brown's abstention from union activities, and/or threatening that if the Union came into the Nashua plant, the shop would be closed down and that Brown would be the "first to go through the door." As previously indicated, the record reflects a rather significant contradiction in Swenson's testimony on the issue of a promise of benefit to Brown. In his testimony at the hearing, Swenson, at first, denied offering Brown a position as class "A" operator-they (Swenson and Brown) had discussed it but that Swenson never offered it to him. Yet when, on cross-examination, Swenson was confronted with his prehearing affidavit, he acknowledged that he, in fact, offered Brown such a position "in the future when his qualifications would justify it," but denied that the offer was made in the context of any meetings in which the Union was mentioned. Under all circumstances, I am unable to credit Swen- son's denial, and find that the promise was made to Brown in essentially the terms he testified, and was therefore a promise of benefit in return for abstention from union activities in violation of Section 8(a)(1) of the Act. I also find and conclude that Swenson reiterated the threat that Respondent would close the Nashua plant if the Union came in, in violation of Section 8(a)(1) of the Act. II. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section I, above, occurring in connection with the interstate operations of Respondent, have a close, intimate, and substantial relationship to trade, traffic, and commerce in the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. III. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed them in Section 7 of the Act, in the manner aforesaid, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(aXl) of the Act. [Recommended Order omitted from publication.] 808