Cardio Data Systems Corp.

CARDIO DATA SYSTEMS CORP. Cardio Data Systems Corp. and District 1199C, Na- tional Union of Hospital and Health Care Em- ployees. Case 4-CA-11743 September 22, 1982 DECISION AND ORDER BY MEMBERS JENKINS, ZIMMERMAN, ANI) HUNTER On March 30, 1982, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, the General Coun- sel filed cross-exceptions and a supporting brief, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions2 of the Administrative Law Judge3 only to the extent consistent herewith. In his Decision, the Administrative Law Judge omitted discussion of a number of substantive alle- gations contained in the complaint and supported by the record. It is the obligation of the Adminis- trative Law Judge to make findings of fact based on the record presented to him and to reach con- clusions of law with respect to all of the allegations of misconduct set forth in the complaint. The Ad- ministrative Law Judge's remarks that the com- plaint is duplicative and that certain testimony is repetitive of unfair labor practices previously found by him provides no guidance as to why no findings were made on the remaining allegations set forth in the complaint and repeated in the General Coun- sel's cross-exceptions. We note that the evidence presented by the General Counsel to support these allegations consists primarily of memorandums 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 credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect Standard Dry Wall Products. Inc.. 91 NLRB 544 (1950), enfd 18# F 2d 362 (id Cir 1951). We have carefully examined the record and find no basis foir reversing his findings. 2 In the absence of exceptions we adopt the Administrative Law Judge's conclusion that Respondent did not xiolate Sec. 8(a}(3) and (1) by refusing to make employee Johnson a full-time employee Further- more, we disavow the Administrative I.aw Judge's statement that Wright Line. a Division if Wright Line. Inc. 251 NLRH I083 (9Q80), applies only to discharge cases. 3 Member Hunter, in s le of Respondent's several contemporaneous violations of Sec. 8(a)(1),. in the circumstances of this case agrees with the Administrative Law Judge's finding that Respondent violated Sec 8(a)(l) by Supervisor Loeb's statement to (iotthclf" . that what would happen was that we would all end up ilut on strike, and that the Compa- ny really did not need us, because theN could rehire old employees and that we would end up losing our obhs " 264 NLRB No. 11 posted by Respondent and are not the basis for al- legations discussed by the Administrative Law Judge. First, we find merit in the General Counsel's al- legation that Respondent violated Section 8(a)(1) of the Act as a result of language contained in a state- ment by Supervisor William Loeb posted in the lunchroom in January 1981. In this statement, Loeb described events during his 2-1/2 years of employ- ment with Respondent, during which time Re- spondent had greatly expanded its operations, and that: [ . . [a] drawback of such rapid growth is the loss of a certain amount of informality. Dress codes, time clocks, etc. are all symptoms of this. However, if a union were elected here, our present informal professionalism could become rigid with rules and procedures. This statement clearly infers that a consequence of selecting a union to represent the employees would be a further erosion of a favorable informal atmos- phere of employment. Although Loeb said only that this "could" be the result, the entirety of Loeb's statement demonstrates clearly that he threatened employees with more stringent rules and procedures should they organize. 4 Second, we agree with the General Counsel that Respondent violated Section 8(a)(1) as a result of a memorandum posted in December 1980, from Re- spondent's officer, John Aglialoro, in which he stated: Joining a union deprives you of your rights to settle your problems directly without interfer- ence. Today, you can go to your manager or supervisor with a complaint. Unions change all that. Your problem is taken to the shop ste- ward and all interaction with management is through him/her. This statement is contrary to the statutory protec- tion available to employees under Section 9(a) of the Act, as well as Respondent's admitted practice of allowing employees direct access to management to discuss complaints with them. Accordingly, the statement threatens to deprive employees of an ex- isting benefit should they select a union as their 4 Loeb's statement reveals that he was generally forewarning employ- ees of the adverse consequences of unionization. Immediately before the above quote Loeb noted that Respondent had promoted employees to su- pervisory positions, but, "However, the usual course foir a unionized company is to hire supervisors and managers from the outside . . It would be a shame if this resource were lost." Although this latter state- ment is not alleged to be a violation, this quote provides background to show that Loeb was making veiled threats beyond the protections grant- ed by Sec. 8(c) of the Act. 37 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative. See Sacramento Clinical Laboratory, Inc., 242 NLRB 944 (1979).5 Third, we find that Respondent violated Section 8(a)(1) as a result of the posting of a statement in early January 1981 on the lunchroom bulletin board by James Johnson, the general manager of Pacemaker Evaluation Service. In this statement, Johnson related events with his prior employer which had a "startling similarity" to the current sit- uation facing Respondent. He noted that the em- ployees there selected the union, but that it did no more than offer the employees token support during negotiations. Consequently: The employees that were represented were, for all intents and purposes, literally frozen in their job classifications and blocked from ad- vancement. The company was obligated to act in its own best interest and hired all supervi- sors and management personnel from external sources. Internal promotions were eliminated. . . . As most of you are aware, I came to United Medical in 1977 as a part-time employ- ee. Since then, I have seen many others pro- moted from on-line positions to supervisory and management jobs. This would have been impossible in a union organization. The explicit message in this statement is that Re- spondent's practice of promoting employees from within would end with union representation. This threat to withdraw an existing benefit was not rooted simply in what had occurred at another lo- cation but related to what was possible or impossi- ble in a "union organization." Such a statement based solely on union considerations amounts to an unlawful threat. Further, this statement made by Johnson is attributable to Respondent Cardio Data Systems. The statement was made on the stationery of Pacemaker, a single employer with Respondent, and was posted on the bulletin board used by Re- spondent to publicize similar statements by the management of Cardio Data Systems. Fourth, we find merit in the General Counsel's exception that Respondent violated Section 8(a)(3) and (1) by Manager Loring's issuance of a warning notice to employee Gotthelf on December 9, 1980. The Administrative Law Judge did not discuss this allegation. He found, however, that Respondent violated Section 8(a)(1) when Loring told Gotthelf a month later that that warning, for unauthorized use of a copying machine,6 should be taken as a 5 Member Hunter, for the reasons set forth in his dissent in Hahn Prop- erty Management Corporation, 263 NLRB 586 (1982), would not find a violation of the Act in this instance. 6 The evidence indicates that Loring had made copies of a map to her house for a gathering to be held there, and had left a copy of the map in the copying maching Gotthelf testified that the map was for a union threat and that it was intended to show Gotthelf what it would be like if the employees were repre- sented by the Union. We reject Respondent's claim that this warning was lawfully issued due to Gotth- elfs violation of an unwritten company policy.7 In these circumstances, we find Loring's admission re- garding the motive for the warning is a true reflec- tion for the motive underlying the warning. Fifth, we reverse the Administrative Law Judge's dismissal of the complaint allegation that Loring unlawfully promised to improve Respond- ent's "criteria system" in order to encourage em- ployees from selecting the Union as their repre- sentative. The evidence shows that the "criteria system" was designed as a production incentive for employees in the analyst classification, and that they received additional compensation if they ex- ceeded a quota established by that system. The Ad- ministrative Law Judge found that Loring told Gotthelf 2 days before the election that, if the Union did not come in, Respondent would change the criteria system. However, in dismissing this al- legation, the Administrative Law Judge incorrectly framed the issue as being whether Respondent's subsequent revision of the criteria system8 was lawful. We agree with the General Counsel's con- tention that the legality of Loring's promise is an issue independent of the legality of Respondent's subsequent conduct not here in dispute. As such, Loring's promise to change the criteria system was expressly conditioned on the employees' rejection of the Union and was violative of Section 8(a)(l). Where there is no evidence to show that employ- ees were informed that such a reevaluation had been scheduled by Respondent,9 it is unlawful for Respondent to condition such a benefit on their re- jection of the Union. meeting, but the evidence doe r not indicate whether that purpose was di- rectly stated on the map I he evidence does sho\,' how ever, that this in- cident occurred about a week after the consent election agreement was signed and approximately a mouth before the electilon herein. 7 Loring testified that hie was aw are of other employees being warned in the past for misuse of the copying machine, but no direct evidence was introduced by Respondenlt covering such incidents. On the other hand, the General Counsel introduced a s.arning issued to Ken DiLuigi, a trainee, in March 1979 which set forth a series of deficiencies. including his questionable exercise of judgment in using Respondent's equipment to copy "fairly large quantities of personal materials." I'his warning, which threatened discharge should the trainee's overall performance not im- prove is unlike the warning issued to Gotthelf, %4hich threatened her with immediate discharge should her isolated use of the copying machine rec ur ' The Administrative I a. Judge incorrectly stated that this revision occurred in January 1981 when the election petition was pending The record shows that the reevaluation of the criteria system occurred in February or March 1981, after the election had taken place " Loring testified that the criteria system was established in December 1978, and had been reevaluated in early 1980 and August 1980 This testi- mony is insufficient to establish that employees would have anticipated the reevaluation in 1981 absent notice thereof. 38 CARDIO DATA SYSTEMS CORP. In addition, we find merit in the General Coun- sel's exception that the Administrative Law Judge erred in failing to rule on the complaint allegation that Respondent violated Section 8(a)(l) by Super- visor Loeb telling employee Johnson in mid-Janu- ary 1981 that she probably could not see her per- sonnel file because of the union campaign. This al- legation is supported by testimony by Johnson but has been denied by Loeb. In the absence of credi- bility resolutions on this testimony, we are unable to resolve the conflicting claims."' However, in view of our conclusions herein that Respondent has made other threats in violation of Section 8(a)(1), we find that any additional finding of un- lawful conduct based on this allegation would not significantly change the remedy. In this circum- stance we shall decline to remand this case for ad- ditional credibility resolutions, which would unnec- essarily protract the present proceeding. Finally, we note that in his Decision, the Admin- istrative Law Judge made certain misstatements of fact and law which do not affect the validity of his remaining findings and conclusions which we have here adopted. First, as set forth in the parties' stip- ulations, Joan Carter is the secretary, as well as vice president, of United Medical and is the trea- surer and secretary, not the vice president, of Pace- maker. Second, the record does not support the Administrative Law Judge's finding that on the day before the election Loring asked employee Gotthelf what her "problems" were. The record indicates only that Loring asked Gotthelf if she had any questions. Third, the Administrative Law Judge based his discrediting of Loring on the lat- ter's testimony regarding a conversation with Gotthelf, not Johnson. " Fourth, we do not adopt his parenthetical comment, not reflected in any conclusion of law, that Loring made a veiled threat to withhold benefits by telling an employee existing benefits would have to be negotiated with a union. Fifth, we disavow his remark that the Union no longer was able to file timely objections in a con- current representation proceeding where the elec- tion had occurred over a year prior to the issuance of his Decision. In that representation proceeding the ballots had been impounded and there had not yet been a tally of ballots. In these circumstances, the time for the filing of objections had not yet begun to run. See Section 102.69, Board's Rules "' Although the Administrative Law Judge credited testimony by Loch over testinony byv Johnson regarding another incident. he did not generall, crcedit the t;iniolln),of I oeb On the contrary, the A. :ministra- tive I.asw Judge credited the testimony hy employee Golthelf xhen it conflicted with that of l.oeb W' Ve specificall' note that the Administrative Law Judge's credibility resolution in this regard is not dra.sn into question. or that his analysis iif Loring's telimons depends on w hether Loring spoke with Gotthellf or Johnsoni and Regulations and Statements of Procedure, Series 8, as amended. AMENDED REMEDY Having found that Respondent has engaged in further unfair labor practices, we shall order it to cease and desist therefrom and to take certain addi- tional affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(3) and (1) of the Act by unlawfully issuing a warning notice to employee Gotthelf, we shall order Respondent to expunge from its records any reference to this warning notice, and notify her in writing that this has been done and that evidence of this unlawful warning notice will not be used as a basis for future personnel actions concerning her. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Cardio Data Systems Corp., Haddonfield, New Jersey, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Issuing warning notices in retaliation for union activities. (b) Threatening employees with the loss of the right to present grievances directly to management in order to discourage union activity. (c) Threatening not to promote employees and to prefer outsiders for managerial posts in retaliation for union activities. (d) Threatening that rules and procedures could become rigid in retaliation for union activities. (e) Threatening to discharge employees to curb their union activities on their own time. (f) Promising to grant raises and to change the criteria system to induce employees to discontinue their union activities. (g) Promising to advance employees more quick- ly if they abandon their union activities. (h) Telling employees they would lose their jobs if they chose to strike. (i) Telling employees that they have been disci- plined in retaliation for union activities. (j) Telling employees that collective bargaining would be a futile activity. (k) Prohibiting employees from discussing their individual rates of pay with fellow employees and threatening to discharge them for such conversa- tions among themselves. (I) Requesting employees to add their names to any union-related notices posted on the company bulletin board. 39 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (m) Questioning employees as to their views on union representation. (n) Questioning employees as to the identity of other employees who attended union meetings. (o) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of their right to self-organization, to form, join, or assist District 1199C, National Union of Hospital and Health Care Employees, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any and all such activi- ties. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its place of business in Haddonfield, New Jersey, copies of the attached notice marked "Appendix."' 2 Copies of said notice, on forms pro- vided by the Regional Director for Region 4, after being duly signed by its 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 it to ensure that said notices are not altered, defaced, or covered by any other material. (b) Expunge from its files any references to the warning notice given to Susan Gotthelf on or about December 9, 1980, and notify her in writing that this has been done and that evidence of this unlawful warning notice will not be used as a basis for future personnel actions against her. (c) Notify the Regional Director for Region 4, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 12 [n the evenlt 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 Pursu- ant tlo 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 all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT issue warning notices in re- taliation for union activities. WE WILL NOT threaten employees with the loss of the right to present grievances directly to management in order to discourage union activity. WE WILL NOT threaten not to promote em- ployees and to prefer outsiders for managerial posts in retaliation for union activities. WE WILL NOT threaten that rules and proce- dures could become rigid in retaliation for union activities. WE WILL NOT threaten to discharge employ- ees to curb their union activities on their own time. WE WILL NOT promise to grant raises and to change the criteria system to induce employees to discontinue their union activities. WE WILL NOT promise to advance employ- ees more quickly if they abandon their union activities. WE WILL NOT tell employees they would lose their jobs if they chose to strike. WE WILL NOT tell employees that they have been disciplined in retaliation for union activi- ty. WE WILL NOT tell employees that collective bargaining would be a futile activity. WE WILL NOT prohibit employees from dis- cussing their individual rates of pay with fellow employees and threaten to discharge them for such conversations among them- selves. WE WILL NOT request employees to add their names to any union-related notices posted on the company bulletin board. WE WILL NOT question employees as to their views on union representation. WE WILL NOT question employees as to the identity of other employees who attended union meetings. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join or assist District 1199C, National Union of Hospital and Health Care Employ- ees, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concert- ed activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any and all such activities. 40 CARDIO DATA SYSTEMS CORP. WE WILL expunge from our files any refer- ences to the warning notice given to Susan Gotthelf on or about December 9, 1980, and notify her in writing that this has been done and that evidence of this unlawful warning notice will not be used as a basis for future personnel actions against her. CARDIO DATA SYSTEMS CORP. DECISION SIATEMENT OF THE CASE THOMAS A. RIccl, Administrative Law Judge: A hear- ing in this proceeding was held on December 14 and 15, 1981, in Philadelphia, Pennsylvania, on complaint of the General Counsel against Cardio Data Systems Corpora- tion, here called the Respondent, or the Company. The final, written complaint issued on April 24, 1981, upon a charge filed on January 8, 1981, by District 1199C, Na- tional Union of Hospital and Health Care Employees, here called the Union. The issues presented are whether the Respondent committed a number of violations of Section 8(a)(l) of the Act-coercive statements aimed at defeating the employees' self-organizational campaign, and a violation of Section 8(a)(3), by failing to move one employee from part-time to full-time status for a certain period. Briefs were filed by the General Counsel and the Respondent. Upon the entire record, and from my observation of the witnesses, I make the following:' FINDINGS OF FACT I. JUIRISDICTION: IDENTITY OF THE EMPLOYER There is a tie-in in this case involving three nominally separate corporations which together carry on an inte- grated business. The charge as filed named only one of them as the employer-Cardio Data Systems Incorporat- ed, herein called Cardio Data. The other two companies are Pacemaker Evaluation Service Corporation, herein called Pacemaker, and United Medical Corporation, herein called United Medical. The complaint alleges that all three companies together constitute a single employer within the meaning of the Act and therefore calls them a single employer as far as this proceeding is concerned. The question is important for two reasons: To bring the case within the Board's jurisdictional standards, and be- cause some of the unfair labor practices alleged are said to have been committed by individuals who hold nomi- nal positions with only one or two of these companies. Only certain employees of Cardio Data were directly af- fected by the unfair labor practices, so the theory of complaint is that even where officers or managers of Pacemaker and of United Medical engaged in the con- duct their relationship to these employees was no differ- ent than that between them and the nominal supervisors paid by Cardio Data. The pertinent facts on this question A motion by the General Counsel to correct certain typographical errors in the transcript of testimony, unopposed, is hereby granted. were stipulated, and they show clearly that the three companies functioned, for purposes of this proceeding, as a single employer. All three are New Jersey corporations, and all three operate in a single building owned by United Medical. Cardio Data provides cardiac medical services for medi- cal doctors. Pacemaker provides periodic vascular func- tioning services for patients having permanently implant- ed pacemakers. United Medical owns the other two com- panies and provides all their needed personnel services, centralized accounting, centralized photocopying, and legal and accounting services. A fixed percentage of the income received by the subordinate companies goes to United Medical for these managerial functions. John Ag- lioloro is president of United Medical, secretary-treasurer of Cardio Data, and vice president of Pacemaker. His wife, Joan Carter. is vice president of United Medical, president of Cardio Data, and vice president of Pacemak- er. Each of the Aglioloros owns 38 percent of the stock of United Medical. The employees of all three companies enjoy the bene- fits of a profit-sharing plan based solely on the profits of United Medical. All three groups also have identical em- ployee benefits in such things as pension, medical, dental and life insurance, vacation benefits, sick and personal leave, holidays, etc. I do not think more need be said. A common hand- book, called "United Medical Corporation Employee Handbook," applies to all three groups of employees. When the Union filed its election petition with the Board, seeking an election among certain employees of only Cardio Data, Miriam Weissman, signing herself as personnel director, posted a notice to the employees of Cardio Data, on the official, printed stationery of United Medical, informing them of the fact and stating: "We do not believe that a majority of our employees want to be members of any union." (Emphasis supplied.) I find that the three corporations together constitute a single employer for purposes of this proceeding, and are therefore collectively to be deemed the Respondent here. Miami Foundry Corporation, 252 NLRB 2 (1980). The parties stipulated that during the past year both Cardio Data and Pacemaker provided services in excess of S50,000 directly to points located outside the State of New Jersey. I find that the Respondent is an employer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that District 1199C, National Union of Hospital and Health Care Employees, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICiES Activities towards joining the Union started in April 1980, when Linda Johnson, an employee, telephoned the Union, obtained authorization cards, and began to solicit signatures. She said she spoke to others as they came and went from the plant, called them at home, and distribut- ed cards in the lunchroom, where she also posted union literature. She added that she asked others to help her but did "not think that they did. They were too intimi- 41 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dated." Organizational meetings were held at her home; she said the meetings started in December, but another witness for the General Counsel, Evelyn Estrada, spoke of an incident in November, when she was preparing to attend a meeting at Johnson's house. These activities were limited to the nonprofessional employees of Cardio Data. On November 7, 1980, the Union filed a petition with the Board requesting an elec- tion in that group, excluding professionals, guards, super- visors, etc. On December 1 the parties signed a consent election agreement and the election took place on Janu- ary 9, 1981. The charge in this case was filed on January 8, and, because of it, I suppose, the ballots the next day were impounded; as of the day of the hearing, almost a year later, they had not yet been opened and counted. The charge says that the Respondent violated Section 8(a)(1), (3), and (5) of the Act; i.e., that among the unfair labor practices committed the Company illegally refused to bargain with the Union. But the complaint alleges only diversified, and often simply rephrased, violations of Section 8(a)(1) plus some very minor violations of Sec- tion 8(a)(3), discrimination in work assignment. No ob- jections were filed to the results of the election. There is no contention advanced by the General Counsel that even absent any allegation about refusing to bargain, the Respondent should nevertheless be ordered affirmatively to bargain on any theory of the severity or egregious nature of the 8(a)(1) violations committed. Compare United Dairy Farmers Cooperative Association, 257 NLRB 972 (1980). The Union did not file a brief. Why the Union did not at the time of the hearing, and does not even now, ask that the ballots be opened and counted is an anomaly in the case. With the purpose of the very existence of any union being to establish its ma- jority status and to bargain on behalf of employees, no coherent reason appears for its indifference about the re- sults of that election. If in fact it won, this proceeding would be substantially mooted. Continuing this litigation, if in fact the Union did win a majority back in January 1981, will do no more than postpone for who knows how long the very collective-bargaining process the stat- ute was intended to encourage. If the Union lost, the re- sults could not be set aside and a new election ordered on the original election petition because no timely objec- tions were filed. In either event the Union would now be entitled to a new, immediate election anyway, for 12 months having passed since the earlier election, it is free to file a new petition! A. Violations of Section 8(a)(1) The complaint separately lists a great number of coer- cive statements attributed to the supervisors, each called an unfair labor practice in itself. Some are pure duplica- tion-a single interrogation of the same employee, in the same conversation, listed twice. There was much talk be- tween members of management and employees during the events, particularly during the period preceding the election, about the pros and cons of unionism. It is clear that in furtherance of its program aimed at dissuading the employees from any prounion resolve, management representatives did say, and do, some things that did vio- lence to Section 8(a)(1) of the Act. But no useful purpose would be served by repeating every jot and tittle of the continuing talking that went on. It will be enough to report the salient and clear violations that occurred. Re- petitive phrases, even if found to be repeat offenses, would in no event change the remedial order called for. One point must be made. The quoted supervisors. in defense. denied virtually every threat or interrogation charged to them by the General Counsel's witnesses. Some of this denial was direct and clear, but much of it was in evasive and argumentative language that left much to be desired. One of the repeated defenses was that, when supervisors voiced their views, it was in re- sponse to questions by the employees, so how can it be said it was the bosses who interfered with the union campaign? There is some evidence to support this argu- ment. One of the principal government witnesses was Susan Gotthelf; she testified about what William Loeb, a shift supervisor, and Robert Loring, the plant manager, said to her in derogation of the Union in several conver- sations. But Gotthelf also admitted, as clearly as can be, that it was she who started some of these conversations with them, that more than once she asked Loeb what his opinion about the Union was. She also admitted asking Frank Farelli, another supervisor, as well as the manager himself, what they thought about the Union. Now, it is one thing for the boss to volunteer his ad- verse opinion, to tell the men he thinks they are better off without a union, to ask do they really want a union, but it is something else again when, asked by the em- ployees what he thinks, the boss tells them that unions push for seniority as against relative merit on the job, that unions are in favor of contractual obligation towards union membership by all the employees--and never mind how some individuals might feel, or that the Company would not agree to force membership on anyone against his will. This does not mean that even in a conversation initiated by the employees an employer is free to intimi- date them, to probe into the activities of others, or to promise new benefits to buy the employees towards his contrary view. The point is that if Gotthelf could corner the boss to bring him around to a tolerant view about unions, and of necessity this must have been her purpose, he cannot be faulted if instead he tried to convince her to his view. Much of the testimony in this record details conversations of this kind. But another reality that runs through the case--and it is no less significant, despite the Respondent's attempt to befuddle it-is that the Company was opposed to having a union, and did attempt-apparently with success-to defeat it. On this score the credibility of the Respond- ent's witnesses suffers very badly. For example, on Janu- ary 7, 2 days before the election, President Aglioloro called a meeting of Cardio Data's employees to discuss the merits of the Union with them. After the meeting ended, Manager Loring called Gotthelf to his office; he said he had her in there alone with him for 30 minutes. From Gotthelfs testimony about this talk: ([He [Loring] said that I was the last person that he would ever expect to be prounion, and that I could advance a lot more quickly if there was not a union in there. He asked me why I wanted the Union in, 42 CARDIO DATA SYSTEMS CORP. and I said one of the reasons was because I thought that we were underpaid. And he said that if the union did not come in, that they would change the criteria system.... He said that the union would not do us any good, because although the Company would bargain in good faith, we would have to give things up, and we would not get anything, any ad- vantages in the long run. I said that John [Aglio- loro-the president] had said that there would be no reprisals against union supporters, and if that was true then how come Linda's [Johnson] hours had been cut, and how come I had been disciplined for using the Xerox machine. And he replied that he was glad that I understood why I got that warning for using the Xerox machine. I said that I took it as a threat, and he said that is right, I want to show you what it would be like if the union got in here. It would be like a Gestapo camp. Later, the manager testified that when the president spoke to the assembled employees about the Company's "position" respecting the Union. Gotthelf seemed dissat- isfied with Aglioloro's statements, and that he therefore called her into the office for a personal talk. Loring denied making any threats, but admitted asking what her problems (an off-used synonym for prounionism) were, explaining the bonus system for higher production, tell- ing her to consider the benefits when deciding which way to go, and adding these benefits would thereafter have to be negotiated (a veiled threat to withhold bene- fits long being enjoyed) with a union. And then came the following: JUl)GE Ricci: Sir, would this be a correct state- ment? Tell me because you were there. That your purpose or hope in all this detailed explanation and enlightenment of this girl was that she would decide against union representation. THE WITNESS: Oh, not at all. JUDGE RIccI: This is not it? THE WITNEISS: No. Where Loring's testimony conflicts with that of em- ployee witnesses on this record, I cannot credit him. He gave like testimony when recalling conversations he had with employee Johnson, the first union activist. Johnson had been distributing union authorization cards all over the place by the time the election petition was filed. In that very period the manager called her in also for a comprehensive talk like the one he had with Gotthelf in January. On his own version he told the girl not to come to the plant 20 or 30 minutes before starting time and threatened to discharge her if she did not stop. Loring's now assertion is that his reason for calling her to his office was because "it had been reported to us" that Linda had been engaged in activities which were not re- lated to Cardio Data Systems work. Asked plainly did he know, when he called her in, what kind of activities Johnson was carrying on among the employees, Loring said, more than once, that he did not know, although from "very secondary pieces of information" he did know a union organizational campaign was going on. The witness continued that it was Johnson who first mentioned the Union in this conversation, and that she asked him to enlighten her as to what was going on. Loring stated, "[S]he says, well, you know, there is a union being considered. What do you know about it or what information do you have? She said this to me." "I offered my assistance and knowledge." With this as a starter, Loring then went on with his version of the long talk about unionism that he continued with the girl that day in his office. His testimony as to this extended con- versation ends as follows: Q. Didn't you tell her on the basis of all the things that you knew about unionization in other places, that employees were not likely to gain from unionization? A. No. Q. You characterized your conversation with Susan as being objective, that you were going to give her the objective story on unions. Did you have anything good to say about unions? A. Well, I think that the interpretation of facts as being good, bad or indifferent should be left to the individual receiving information. The idea, injected throughout this record. obliquely and directly, that the Respondent, its president, and its general manager were indifferent as to what the results of the election might be is so preposterous a notion as to totally discredit its witnesses. 1. Johnson testified that when Loring called her to his office on November 20 he began by asking her "why we wanted a union," and then added, "He said that it would ruin the company. fle said that if the people went out on strike, they would lose their jobs and people in adminis- tration would come down permanently and do their job in Cardio Data, and all new' administration people will be rehired for that period. He said that they were talking about giving everyone 40 percent across-the-board raises, and he also said that if the union did not get in that Bill Loeb-that the place would be like a Gestapo and Bill Loeb would be a Gestapo leader." "At the end of the conversation, he said that he was not getting anywhere with me, so he said that he did not want to see me on the parking lot before 3:30 or after midnight. My lunch breaks, I was to report to my supervisor before taking my break to make sure that it was okay. I was also not to speak to anyone when I was coming into the building or when I was leaving; that I was to come in promptly and leave promptly, and not speak to anyone . . . at the end of the conversation, he said 'If I were seen on the parking lot before 3:30, before my punch in time or after midnight when I was supposed to leave, that that would be it.' 'He said that promotions, that if the union was in, he said that no one would get any promotions. They would hire people from outside of the Company for management positions."' As already stated, I do not credit Loring's denials of the unlawful statements contained in this testimony. I find that by questioning Johnson as to why the em- ployee favored the Union, by telling her that employees would lose their jobs if they went on strike, by promis- ing a raise-a clearly implied new benefit in return for 43 DECISIONS OF NATIONAL LABOR RELATIONS BOARD abandonment of prounion activities, and by saying that if the employees chose to be represented by the Union no employees would be promoted and the Company would hire outsiders for management positions instead, Manager Loring, on behalf of the Respondent, violated Section 8(a)(l) of the Act. I also find that the Respondent violated Section 8(a)(1) by Loring's threat to discharge Johnson if she continued her solicitation in favor of the Union on her own time on/or off the company premises. In addition to the park- ing lot, there is a lunchroom in the building where em- ployees gather for coffee after arriving but before punch- ing in, during breaks, and for lunch. Loring tried to ex- plain the restrictions he imposed upon Johnson as only a rule against interfering with the work duties of others; i.e., talking to them about outside activities while they were on the clock. And Johnson did admit that there were occasions when she did solicit others who were at work. But, in Loring's own words, "What I informed Linda is she should not report to work 20 to 30 minutes early .... " This was a clearly prohibited exclusion under established Board precedent. Campbell Chain Company, 237 NLRB 420 (1978). In any event, I do not believe his contradictions, and credit instead Johnson's quotations that he told her if she was seen "on the lot before 3:30 [her actual work starting time] or after mid- night [her actual quitting time] she would be dismissed." 2. I make like findings with respect to some of what Loring said to employee Gotthelf in his office on Janu- ary 7. The fact that an employee may on occasion her- self start discussion with supervisors about a union and, presumably, hope, by persuasive talks, to win acquies- cence on the part of managers does not excuse coercive and intimidating statements, if in fact they are made by the supervisors. Between the two-Gotthelf verses Loring-I have no question but that the employee was more reliable as to this talk, considering especially the circumstances which caused the manager to bring it about in the first place. Accordingly, I find that by Loring's interrogation as to why Gotthelf favored the Union, by his statement that the employees would advance more quickly without a union, by his statement that the reason why Gotthelf had been disciplined for using the Xerox machine was that it be received as a threat of what would happen in further retaliation if union activities continued, the Respondent violated Section 8(a)(1) of the Act. 3. During the organizational campaign, at least shortly before the election, the Respondent had a rule in effect prohibiting employees from discussing their individual rates of pay with any other employee of the Company. It was a written rule the employees acknowledged every time they were paid and provided for termination in case of violation. I find that by maintaining such a rule the Respondent violated Section 8(aX1) of the Act. Van Guard Carpet Mills, 246 NLRB 661 (1979). 4. Another notice to the employees was posted on the company bulletin board in the lunchroom, where union notices were posted among other things. This one re- quired that all notices must bear the signature of whoev- er wrote it. Again, it was an improper interference with, and inquiry into, the identity of prounion activists, and therefore I find it to have been a further violation of Section 8(a)(1). Parkview Acres Center Convalescent Center, 255 NLRB 1164 (1981). The notice was put up' on about December 10, 1980. immediately after the con- sent election agreement had been reached. The fact that the language of the notice did not use the word "must" as an order demanding compliance with the company position, but said only the writer of the notice was "re- quested" to reveal his or her name, will not do to remove the notice from the ambit of Board law. In the circumstances of the moment, an employer's request on a touchy subject of this kind is no less coercive than an outright order. 5. There were other unlawful interrogations by other members of management. Supervisor Diane Liss, when telephoning Evelyn Estrada, learned the employee could not come to work early because she had to go to "a meeting." The supervisor asked, according to Estrada, if it was a union meeting. The girl avoided answering. When she came in to work, still according to her story, Liss asked her "how did the union meeting go, and how did I feel, and was I for the union or against it .... Then she asked me who was at the meeting." Liss denied the foregoing direct interrogation, but her testimony gen- erally was evasive and more self-explanatory than direct. I credit the employee against the supervisor, and I find that by Liss' questioning of Estrada as to whether she fa- vored the Union and as to the identity of other employ- ees who had attended a union meeting, the Respondent violated Section 8(a)(1) of the Act. This resolution rests in part upon the demeanor of the witnesses, and in part upon the general picture of the case as a whole, which shows similar interrogations by higher members of man- agement. I think it fair to make it clear, however, that my resolution here does not at all rest on what the Gen- eral Counsel argued strongly at the hearing, the fact that this supervisor once found fault with another employ- ee-Gotthelf-for not coming to work on schedule be- cause she chose to go to a union meeting instead. 6. With the employees themselves having started many of the conversations with supervisors that are detailed in the record, and with the supervisors having taken pains to intersperse some of the talking that went on with careful, and legally well-advised, assurances that the Re- spondent would comply with statutory requirements, some further unfair labor practices appear blurred, a little veiled. In her 40-page brief the counsel for the General Counsel lists an unending number of violations by picking a phrase here and there, much of it, however, out of context. But I do think, on careful study of all the testimony and exhibits, that two other violations are defi- nitely proved of record. The Respondent threatened re- prisals against the employees if they should ever go on strike, and it passed the message that, if the Union were ever established as a representative in collective bargain- ing, the bargaining would be futile for the employees. Thus, Gotthelf testified that in a conversation with Loeb the supervisor said to her "the Company would never agree to an open shop or something like that . . . that what would happen was that we would all end up out on strike, and that the Company really did not need 44 CARDIO DATA SYSTFMS CORP us, because they could rehire old employees and that we would end up losing our jobs." Gotthelf also testified that, during her extended talk with Loring in the office 2 days before the elcctiol, Loring said "that I could ad- vance a lot more quickly if there was not a union in there . . . because although the Company would bargain inl good faith, we would have to give things up, and we would not get anyithiiig. any advantages in the long run." Estrada testified that, when she complained to her su- perior. L.iss, in January. because the pay raise that had bo'Cn given to all emnployees was not enough, Liss asked hit "how did I feel about the union." When Estrada an- swercd she was leaning in favor, the supervisor contin- ued "thait she realloy did not think that it was a good idea beca;use of the fact that Joan Carter [president of Cardio Data] . had prepared to bring the supervisors in, be- cause wee would automatically go on strike, and hire new personnel, and put them in training. And our jobs were not secure." I find, on the basis of this testimony by Gotthelf and Estrada, which I credit. that by telling the employees thes would lose their jobs if they chose to strike, and that collecli,.e bargaining through a union of the em- ploy!es' choice Nsould be futile. the Respondent violated Section X(a)(1) of the Act. Bcvyond the foregoing, there is repetitive testimony about side conversations with supervisors, many started by the employecs themselves, which only illustrate, per- lhaps once or twice in repetitive detail, the same sort of unfair labor practices. already found. None of it would alter the findings to be made or the remedy to be or- dered. One other form of allegation coercion, of a differ- ent kind, in the complaint, should be mentioned. Starting in 17-' there has long been a company practice. every 6 nmonhs, of reevaluating "the criteria system" of produc- tionl. Ivi effect this precise system specifies the amount of woik to be perfor-med by employees in some of the clas- sifications during a fixed period. As the system is evalu- atid each time the earnings of the employees are affect- ed, usually upwards. The system was in fact reevaluated during the organizational campaign, indeed while the IUnion's election petition was pending. It was also used in \Algut 1X(80, before the union activity, as well as in Jan- u11.1) I' )8. I do not think this record as a whole warrants a finding that whatever changes in earnings took place in lanur!y 1981. that particular reevaluation of the criteria svytem can be called illegal inducement of employees to abandon this prounion campaign. B. Alleged Iiolations of Section 8(a)(3) Johnson was an "analyst," a job that called for a cer- tain function. There is another job called "mounter," which calls for a different kind of work. Late in August 1Q80 ,she decided she preferred doing this mounting, be- ciause. among the reasons she explained at the hearing, the analvst job was "a little stressful." She had twice been evaluated and been rated poorly, so much so that she was put on probation. Another reason for her want- ing the change was: "I thought that I better get into something where they would have a hard time firing me." This was the witness creating an aura of presump- tive guii in the Respondent. Management granted her request. but she was told explicitly it would be a part- time job. She was glad to accept it Between early September and mid-leccember, Johnson worked as a mounter. somenires as a regular part-timer. from 5 to 11 p.m., and sometimes longer, on occasion a full shift, from 3:30 to 12. when, for one reason or an- other, there was more work for her to do. From Decem- ber 8 to April 1981 she was steadily a part-time mounter and nothing else. Again on April 14, the w orkload in- creased and she became a full-timer, still as a mounter. In June she chose to quit and left the Companl permanent- ly. The complaint alleges that in January, after Johnson had been a regular part-timer for a month, the Respond- ent refused to make her a full-time employee because she was an active unioneer. The complaint also alleges, and I do not understand why. that the Respondent committed a separate and additional unfair labor practice when it told her she Xas being kept a part-timer because thle union campaign w'as still pending. The complaint issued on April 24, 10 days after Johnson had gone on a full- time basis, but. again beyrond my comprehension, it al- leges the Respondent wias even then refusing to change her hours upward. In light of all the relevant facts of record, I find that the General Counsel has not. by a preponderance of the affirmative evidence on the record as a ,whole (see N.L.R.B. v. Glen Raven Silk Mills,. Inc., 203 F.2d 946 (4th Cir. 1953), proved the commission of an unfair labor practice as to this woman.' Essentially the question is whether it can be said affirmatixely that management harbored a pervasive animosity against her because of her union activities. and for that reason discriminated against her by ignoring her desire for full-time work as a mounter. The story starts in the beginning, and a very signifi- cant fact is Johnson w.as told, when she asked for the job, that it was a part-time job. she know\ingly accepted it. More important, she said that when she asked for the transfer she "was in the middle of min union campaign." This means management knew what she was up to. Does an employer disposed towards discriminating against a known union activist favor her request instead? Rather. this fact affirmatively supports the defense contention that its attitude towards Johnson was not motivated by any union animus. Had the Respondent been inclined to find reason to get rid of her, it would have thought as Johnson did, when she testified "that they [the Compa- ny] probably would be putting a lot of pressure upon me. As an analyst, they do quality control on analysts and find errors, and they can conveniently find \ways (if firing people." In the same breath, while saying she was told it would be a part-time job, Johnson also said "they kept me full- time, because they needed new full timers." Now the witness was again offering her conclusionary statement as to the work schedule in order to obliterate the simul- [ This is not a i rgh/lr i ne. suru[ ra. kind of cat,. hb a lc Jlillhnon as not discharged tihe Respondenl here has nio hurdnll to proste wh. it did whlal it did--as does oal employser who fires a man I his Respondenl did nothing just left lJohn,son shere stl \ia, 45 DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD taneous notice to her about what hours were to be ex- pected. Much of Johnson's testimony paraphrases the factual, but conclusionary, statements in the complaint. It is true that from September to December 8 she often worked full time, but the work she did during those added hours then was analyst work, what she had done before, because there happened to be more of that work. For that extra work in that period she was paid at the higher analyst hourly rate. But this proves once again that the quantity of mounting work was still less than a full-timer could do, proving she had correctly been told she had taken on a part-time job. And when she was back at, and remained, a part-timer in Decem- ber, she was told, again as she testified, that the reason was because the amount of analyst work available for her had declined. In fact, a new full-time analyst was hired at precisely that time, and, obviously, that is why the part-time mounter simply continued as a part-timer. Johnson went on to add that during the period De- cember to April other employees had to do extra work which she could have done, that others had to do over- time because she was kept on a part-time basis. The Gen- eral Counsel then offered the testimony of employee Laura Spiegelman, who said, among other things, she had to do overtime then: "We [she and Johnson] would be on the shift for about an hour together." But her timecard records show instead that, except for I week in December, when she did 15 extra hours on a Saturday and Sunday because somebody else was absent, she did no overtime work at all between December 1 and Febru- ary 3, except an occasional half hour or so on only two or three occasions. And, no less interesting, on a number of occasions from December to April the supervisors called Johnson to come in early and do extra work over and above her part-time hours; each time she refused. Not only does this fact cast a serious doubt upon her whole story about suffering discrimination in being denied more work, but it also indicates further that there was no animus against her. The work rules provide that part-timers are required to do overtime work and that employees who refuse to do extra hours shall be repri- manded, or disciplined. The Company just passed over these rule violations by Johnson, this even though she had recently acted as the Union's observer at the Janu- ary election. A final item on which the General Counsel rests in her brief is testimony by employee Johnson and Spiegelman about what Supervisor Loeb is said to have given as the reason why Johnson's request to be returned to full-time status was denied. According to Johnson, when she asked Loeb why she was not being made full time, he (Loeb) "threw his hands up in the air, and said, Linda, my hands are tied until after all this union stuff is over." Spiegelman said that she once asked Loeb "what the plans were going to be with Linda, if they were going to put her back to full-time . . .. He said that they did not want to make any moves as far as Linda was concerned, because they felt that it will be used against them some- how, you know, in a case or whatever .... Q. Did he mention who would use them against them? A. Well, I assume that he meant the union, but I do not know." Loeb denied having told anyone the reason why John- son remained a part-timer was because of the union ac- tivities going on. I credit his denials here. Spiegelman did not quote the supervisor as speaking the word "union" at all; she admitted she simply assumed he meant union. As to Johnson, her total testimony is ridden again anrid again with oblique suggestions that the Company was out to get her, that there was unspoken animosity against her. Her constant implications and expressions of suspicion against the Respondent greatly weakened her credibility. But even were I to find that one supervisor expressed the view the Company deemed it inadvisable at the moment-with the union election pending-to favor the outstanding unioneer with an upward discrimination in her conditions of employment, I would not weigh the statement in the balance in favor of the theory of com- plaint. The Company faced a "Hobson's Choice." How many unfair labor practice findings have I seen predicat- ed upon an employer saying "yes" to a Johnson of one kind or another, and then being held to have bought her away from her union resolve. IV. THE EIFIICI OF 'IFIH UNFAIR I.ABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described in section 1, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. CONCI.USIONS OF LAW 1. By the following conduct the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act: (a) Questioning employees as to why they favor union representation. (b) Questioning employees as to the identity of other employees who attended union meetings. (c) Promising to grant raises to induce employees to discontinue their union activities. (d) Telling employees they would lose their jobs if they chose to strike. (e) Threatening not to promote employees and to prefer outsiders for managerial posts in retaliation for union activities. (f) Threatening to discharge employees to curb their union activities on their own time and off company premises. (g) Promising to advance employees more quickly if they abandoned their union activities. (h) Telling employees that they have been disciplined for the reason that they engaged in union activities. (i) Prohibiting employees from discussing their individ- ual rates of pay with fellow employees and threatening to discharge them for such conversations among them- selves. 46 CARDIO DATA SYSTEMS CORP. (j) Requiring employees to add their names to any prounion-related notices posted on the company bulletin board. (k) Telling employees that collective bargaining would be a futile activity on their part. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 47