Garry Mfg. Co.

GARRY MANUFACTURING COMPANY Garry Manufacturing Company and District 65, Dis- tributive Workers of America. Cases 22-CA-7821 and 22-RC-7163 May 24, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On December 29, 1978, Administrative Law Judge Karl Buschmann issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and a motion to supplement the record;' the General Counsel filed a brief in sup- port of the Decision of the Administrative Law Judge and a memorandum in opposition to Respondent's motion to supplement the record. 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, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 We agree with the Administrative Law Judge's findings of numerous and pervasive violations of Sec- I Respondent's motion to supplement the record, based on its allegation that the Administrative Law Judge's conduct of the hearing was prejudicial and constituted a denial of due process, is hereby denied. As a preliminary matter, this motion does not conform to the requirements of Sec. 102.37 of the Board's Rules and Regulations, Series 8, as amended. We note that the allegations of misconduct were not raised at the hearing or subsequent to the hearing, until a Decision adverse to Respondent's interests issued. In addi- tion, Respondent's allegations contained in the affidavit attached to its mo- tion constitute nothing more than bare conclusionary statements which nei- ther refer to specific instances of misconduct nor demonstrate specifically how the alleged misconduct prejudiced its case; as such, Respondent's mo- tion and supporting affidavit fall short of even a prima facie showing of entitlement to any kind of relief. Moreover, we have carefully reviewed the entire record in these proceedings and have independently evaluated the findings of the Administrative Law Judge and are persuaded that his findings of fact are adequately supported by the record and that they also properly support his conclusions of law. Specifically, we would point out that for the most part the findings and conclusions of the Administrative Law Judge are based on the contents of written campaign literature admitted into evidence, or are based on essentially undisputed record testimony. It is only with re- gard to promises of wage increases to two employees, predicated on the Union's defeat at the polls, that the Administrative Law Judge found it necessary to resolve conflicting testimony. He credited the General Counsel's witnesses over Respondent's witness and concluded that Sec. 8(a)(1) of the National Labor Relations Act, as amended, had been violated. In so doing he did not rely on demeanor but on corroborating testimony. We have in- dependently evaluated the testimony of these witnesses and we conclude that the testimony of the General Counsel's witnesses was not impeached and was not mischaracterized, as Respondent contends, but that in all essential aspects it adequately supports the findings and conclusions of the Admims- trative Law Judge. See Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). 2 The Administrative Law Judge inadvertently failed to conform his notice with his recommended Order. We shall correct his notice accordingly. tion 8(a)(1) and (3) of the Act and his conclusion that a bargaining order is warranted to remedy these vio- lations of the law and to "effectuate ascertainable em- ployee free choice."3 It is clear from the record that Respondent's unlawful conduct eroded the Union's majority strength, established on the basis of union authorization cards, and impeded the election process with the result that the chances of holding a free and fair election in the future are, in our view, extremely remote. The record demonstrates that Respondent, through top level management officials, waged an incessant and pervasive antiunion campaign which far ex- ceeded permissible bounds of electioneering. Through speeches to assembled groups of employees and ex- tensive use of written campaign literature, Respon- dent repeatedly drove home the message that, on the one hand, unionization would threaten continued em- ployment and job security and inevitably result in strikes and violence while, on the other hand, rejec- tion of unionization would result in improved benefits and working conditions. As correctly found by the Administrative Law Judge, this conduct constituted clear interference with employees' Section 7 rights and thus violated Section 8(a)(l) of the Act. It is against this backdrop that we assess the impact of the additional violations found on the Union's majority and on the election process itself. We view with particular significance Respondent's unlawful punishment of active union supporters by the imposition of more stringent disciplinary proce- dures and the promise of improved wages to other employees should the Union lose the election. This combination of specific instances of unlawful conduct was particularly coercive as it had the effect of con- cretizing and exemplifying the very unlawful themes conveyed by Respondent throughout the election campaign by means of speeches and campaign litera- ture. We find the most significant single violation of the Act, for purposes of imposing the bargaining order, to be the creation of the "Garry Hot Line"-a special telephone number that employees could call anony- mously to address questions and suggestions to man- agement. It is apparent from the record evidence, and is in fact admitted by Respondent, that this device was set up to solicit employee grievances. In response to employee questions via the "Hot Line" Respon- dent prepared a written memorandum listing ques- tions and management's answers. This document con- veyed a clear promise of improved benefits should the Union be defeated. As we stated in Teledyne Dental Products Corp.,4 such conduct evidences a deliberate 'N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 614 (1969). '210 NLRB 435, 436 (1974) 242 NLRB No. 94 539 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . . course of action designed to convince the employees that their demands will be met through direct dealing with Respondent and that union representative could in no way be advan- tageous to them. Obviously such conduct must, of necessity, have a strong coercive effect on the employees' freedom of choice, serving as it does to eliminate, by unlawful means and tactics, the very reason for a union's existence.... [S]uch conduct by its very nature has a long-lasting, if not permanent, effect on the employees' freedom of choice in selecting or rejecting a bargaining representative. Finally, we cannot take leave of this without men- tion of Respondent's interference with the Board in- vestigation in this case through a letter to employees which mischaracterized the purpose of the Board's investigation and actively discouraged employee co- operation. The Administrative Law Judge found, and we agree, that such conduct constitutes a clear viola- tion of Section 8(a)(l) of the Act.5 Such conduct has the direct effect of obstructing this Agency's perform- ance of its proper legal function, denigrates its statu- tory purpose, and undermines employee confidence in this Agency's liability to protect employees' rights un- der the Act. For this reason, Respondent's conduct makes the holding of a free and fair election in the future an extremely remote possibility. Accordingly, in view of the cumulative impact of Respondent's unlawful conduct, we conclude that a bargaining order is both proper and necessary. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Garry Manufacturing Company, New Brunswick, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Ad- ministrative Law Judge. IT IS FURTHER ORDERED that the representation election in Case 22-RC-7163 be set aside. Florida Steel Corporation, 233 NLRB 491 (1977); Certain-Teed Products Corporation, 147 NLRB 1517 (1964). 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 parties had the opportu- nity to present their evidence, it has been found that we violated the law and we have been ordered to post this notice. We intend to abide by the following: The National Labor Relations Act gives all em- ployees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a represent- ative of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all these things. WE WILL NOT threaten you with loss of jobs, plant closings, or relocation. WE WILL NOT promise or grant benefits in or- der to discourage you from voting for the Union. WE WILL NOT solicit your grievances or com- plaints and impliedly promise to adjust them in order to interfere with your union activities. WE WILL NOT issue disciplinary warnings to our employees or otherwise discriminate against our employees because they support the Union. WE WILL NOT interfere with or impede the investigating process of the National Labor Re- lations Board. WE WILL NOT refuse to bargain collectively with District 65, Distributive Workers of Amer- ica, as the exclusive bargaining representative of our employees in the unit. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the above rights. WE WILL, upon request, bargain collectively with the above-named labor organization as the exclusive representative of the employees in the appropriate unit concerning wages, hours, and other conditions. WE WILL expunge from the employment rec- ords of Veronica Taratko and Dorothy Dickhut all disciplinary warnings which the National La- bor Relations Board found unlawful. GARRY MANUFACTURING COMPANY DECISION STATEMENT OF THE CASE KARL BUSCHMANN, Administrative Law Judge: This case arose upon charges filed by District 65, Distributive Work- 540 GARRY MANUFACTURING COMPANY ers of America (the Union) which resulted in a complaint issued August 31, 1977, charging the Respondent with vio- lations of Section 8(a)(l) and (3) of the National Labor Relations Act (The Act). The complaint was amended on December 6, 1977, based upon additional charges filed by the Union. Respondent, Garry Manufacturing Company, New Brunswick, New Jersey, filed an answer on September 8, 1977, denying the substantive charges of the complaint and raising affirmative defenses to the complaint. A hearing on the allegation in the complaint was held on December 6, 7, 8, 9, and 13, 1978. Both sides filed briefs on March 15, 1978. Respondent filed a reply brief on March 24, 1978, which was opposed by General Counsel on March 27, 1978.' By letter of March 28, 1978, General Counsel requested that judicial notice be given to C & T Manufac- turing Company, 233 NLRB 1430 (1977) in the event that Respondent's reply brief is accepted. Upon the entire record in this case, including the briefs filed by counsel and General Counsel's letter of March 28, 1978, and from my observation of the witness I make the following findings of fact and conclusions of law. FINDINGS OF FACT Respondent, Garry Manufacturing Company, is a New Jersey corporation with its principal office and plant lo- cated at 1010 Jersey Avenue, New Brunswick, New Jersey. It is admittedly engaged in the manufacture, sale and distri- bution of electronic component parts and related products in commerce within the meaning of Section 2(6) and (7) of the Act. District 65, Distributive Workers of America (the Union) is admittedly a labor organization within the meaning of Section 2(5) of the Act. The Union began an organizational campaign at Garry in late April in response to an oral inquiry by Veronica Taratko, a Garry employee. On Friday, April 29, 1977, a meeting was held between Veronica Taratko, Nancy Gall, and Dorothy Dickhut, all employed by Garry Manufactur- ing Company, and two union representatives, Robert Mihalko and Robert Cardinale. During that meeting the three employees signed union cards and discussed with the union representatives the procedure for a union drive at Garry. On Monday, May 2, 1977, the employees com- menced to distribute union cards among the rest of the em- ployees. They campaigned among the employees on behalf of the Union but attempted to hide this activity from man- agement. The Union obtained approximately 90 signed cards from Garry's 130 production and maintenance em- ployees. On May 17, 1977, Robert Cardinale, the Union's manager, met with Rudolph Koppel, president, and his son Harry Koppel, executive vice president, and requested that the Union be recognized as the bargaining agent on behalf of Garry's employees. Rudolph Koppel, however, re- sponded: "We do not recognize you do what you have to." Thereafter, the Company waged a vigorous campaign op- posing the Union's efforts to gain recognition as the em- ployees' bargaining agent. General Counsel's motion to strike Respondent's reply brief is denied. Based upon a Stipulation for Certification Upon Consent Election signed May 31, 1977, an election was held on June 29, 1977. By vote of 67 to 46 out of a total of 113 valid votes, the Union was defeated. Following the filing of ob- jections to the election and Respondent's answers thereto, the Union on July 22, 1977, filed charges with the National Labor Relations Board alleging that the Company had en- gaged in conduct violative of Section 8(a)(1) and (3) of the Act. On August 31, 1977, the Board issued a complaint (in Case 22-CA-7821) charging the Respondent with unfair labor practices and an order consoiidating that case with Objections to the Election (in Case 22-RC-7163). In sub- stance, it is alleged that during its campaign against the Union's organizational attempt, Respondent has gone be- yond the bounds of permissible conduct and engaged in unfair labor practices which unfairly prejudiced the election results. I. RESPONDENT'S CAMPAIGN LITERATURE Respondent conceded that it conducted a vigorous cam- paign against the Union's organizational drive. The record contains numerous bulletins and letters which the Com- pany had distributed to its employees and in which it ex- pressed its anti-union position. In addition, management made speeches to the employees discussing the Union. For example, a letter, dated May 23, 1977, from the "The Man- agement" warned the employees (G.C. Exh. 108): REMEMBER, NO UNION CAN PROTECT YOUR JOBS. AS YOU KNOW, GARRY IS ACCEPTING MANY SMALL AND UNDESIRABLE ORDERS, TO KEEP YOU FULLY EMPLOYED. ONLY MAN- AGEMENT, BY ITS CONTINUED EFFORTS, ESPECIALLY IN THESE VERY DIFFICULT TIMES, CAN PROTECT YOUR JOB SECURITY. NO UNION CAN GIVE YOU THIS PROTEC- TION. In a speech. given one week before the election, Koppel emphasized job security and stated, inter alia, (G.C. Exh. 107(a)): JOB SECURITY. NO UNION CAN GIVE YOU JOB SECURITY.... NOW LET US TALK ABOUT REAL JOB SECU- RITY. REAL JOB SECURITY MEANS A PAY CHECK EVERY WEEK, AN EXCELLENT IN- SURANCE PROGRAM ... SOME COMPANIES, SIMILAR TO OURS IN SIZE, THAT WERE ORGANIZED BY UNIONS FOUND THAT THEY COULD NOT COMPETE AND IN ORDER TO SURVIVE THEY MOVED. MOST OF US REMEMBER THAT MACK TRUCK, AMONGST OTHERS, LEFT OUR AREA SOME TIME AGO. In a reply to two union leaflets, Rudolph Koppel told the employees (G.C. Exh. 112): ONLY GARRY CAN AND WILL PROTECT YOUR JOBS AND YOUR FUTURE AND YOUR STEADY PAYCHECKS. UNLIKE THE UNION, 541 DECISIONS OF NATIONAL LABOR RELATIONS BOARD BY LAW I AM PROHIBITED TO MAKE SPE- CIFIC PROMISES. AFTER WE WIN THE ELEC- TION WE WILL DISCUSS TOGETHER OUR FU- TURE OPENLY AND FRANKLY WITHOUT INTERFERENCE OF OUTSIDERS. I AM SIN- CERELY INTERESTED IN OUR FUTURE AND WILL NOT DISAPPOINT YOU. In a flyer entitled "It Could Happen Here" the company warned of strikes and violence if the Union were elected at Garry. Listing several instances of violence as reported in local papers, the document warns: "If you want the threat of strikes and violence and constant turmoil in our plant, vote for District 65" (G.C. Exh. 105; see also: G.C. Exh. 115(a)). In another letter addressed to the employees. Harry Koppel poses, among others, the following rhetorical ques- tion: "How are they [the Union] going to win improve- ments without a strike" (G.C. Exh. 104). Yet in another open letter, dated June 28, 1977, the management of Garry Manufacturing Co. stated (G.C. Exh. 113): ARE YOU ORGANIZING YOUR PLANT OUT OF A COMPETITIVE POSITION? ARE YOU ORGANIZING YOURSELF OUT OF REGULAR EMPLOYMENT AND LIBERAL OVERTIME? Don't Experiment! DO NOT GAMBLE with your secure jobs, your fu- ture benefits, and that steady pay check. Your company will strive for continued improve- ments. Finally, among Garry's numerous pieces of antiunion lit- erature was a letter drafted by an employee but distributed to the employees by Garry's management which, inter alia, hypothecated that the Company-if forced to bargain with the Union-would offer no more than what it presently offers to its employees and that a consequence would be a defeat of the Union after one year. The other alternative would be to strike. It concluded by stating that the Koppels "have alluded to improvements in the future if they were given a chance." (G.C. Exh. 103(a)). Although quoted out of context above, the cumulative effect of the often repetitive statements clearly represented to the employees, (1) that unionization would mean a loss of employment, security and overtime work: (2) that it would lead to strikes and violence and (3) that only a defeat of the Union would result in certain benefits and improve- ments in working conditions of Garry. In appraising campaign propaganda of the type summa- rized above, it is often necessary to overlook some of the exaggerations and slight inaccuracies expressed by the em- ployer because of his right to free speech and his right to wage a vigorous campaign agains a union drive. At the same time, employees have a right to make a choice, either for or against a union, freely and fairly. An employer may make predictions of the effects which unionization will have upon his company. But such predictions must be based upon an employer's reasonable, honest and demonstrable belief. However, if the campaign rhetoric contains misrep-. resentations which have a tendency to coerce or threaten employees or which may reasonably be expected to have had a serious or significant impact on the election, it may be set aside by the Board. Of particular significance are an employer's threats, promises of benefits, loss of benefits, or other conduct which interferes with an employee's right of free choice. The overall impact of some of Respondent's campaign rhetoric as summarized above has been seriously to inter- fere with the employees' right of free choice. It had a ten- dency to coerce and threaten them to the extent that they probably felt constrained to vote against the Union. Such statements, particularly when coupled with certain other practices detailed below, constituted violations of the em- ployees' rights protected by Section 7 of the Act, in viola- tion of Section 8(a)( ) of the Act. II. OIHER UNION RILArED (ONDUCT A. The Movement of Plant Machinero The record further shows that on June 20, 1977, during the union campaign and shortly prior to the election, the Company removed certain machinery and equipment out of its Brunswick plant for purpose of storage and relocation to other plant locations. This move caused considerable ap- prehension among the employees about Garry's intentions of continuing its operations at the Brunswick location. For example, employee Dorothy Dickhut testified as follows as to what she observed when the machinery was moved: "I saw panic, I saw fear. People came to me with questions and statements as to why the machinery was being moved." It is uncontested that about 15 pieces of equipment includ- ing several heavy machines, were moved out by riggers, specially employed for this task, and that the move was made without a prior announcement or any subsequent ex- planation by management. With one exception, it was the largest single move undertaken by Garry. The record contains extensive testimony by company of- ficials as to the reasons for the move. Generally. Respon- dent has shown that the moving of machinery from one plant to another was made for legitimate business reasons. However, the record does not show why the move was nec- essary at precisely the point in time both, the Union and the Company, were campaigning for the votes of the employees shortly prior to election. Moreover, as already stated, the Company did nothing to allay the employees' apprehension engendered by the sudden moving of machinery at such critical time. Respondent's conduct in timing the move of the machin- ery to coincide with the union campaign conveyed to the employees the economic power of the employer in realistic and concrete terms which, in conjunction with the constant and repetitive allusions to job security, plant closure or plant relocation in their campaign literature, had a threat- ening and coercive effect on the employees. B. Promises of Benefits Similarly, the veiled promises of benefits contained in Re- spondent's literature were reinforced by promises of specific benefits and the granting of benefits. For example, even 542 GARRY MANUFACTURING COMPANY though the Union had scheduled its final organizational meeting for June 26, 1977, Repondent decided to schedule an employee outing to Great Adventure Amusement Park for the same day. The record shows that in early April 1977 a salesman from the Great Adventure Amusement Park contacted Garry's management and that on April 13, 1977, a salesman briefly met with Harry Koppel to discuss the various programs which Great Adventure offered on a group discount basis. Great Adventure sent information and brochures to Garry. Some time in late May 1977 Harry Koppel called Wil- liam Tantum of Great Adventure requesting a meeting to discuss a group outing. On June 6, 1977, Tantum and Kop- pel met, they discussed the various options and finally agreed to an outing to be held on June 26, 1977, for the employees at Garry's Brunswick location. The program of- fered all employees free admission to the Park and a lunch at Company's expense. On June 8, 1977, Koppel called Tantum and informed him that for legal considerations he wanted to cancel the June 26 outing to be rescheduled for a later date. The can- cellation request by Koppel was followed up by letter of June 8, 1977. Nonetheless, on June 24, 1977, Koppel decided to go ahead with the original agreement signed on June 6, 1978, and to offer his employees a free day with a buffet lunch at Great Adventure. On that day, June 24, Garry posted no- tices informing all employees of the program. This was the first time that employees were notified of the outing and the only time in the Company's history that Garry had made this benefit available to its employees. Moreover, this was done even though in early June the Union's organizing committee had scheduled its final organizational meeting for June 26, 3 days prior to the election set for June 29, 1977. All employees had therefore been notified in early June by bulletins and word of mouth of the union meeting on June 26, 1977. To be sure, employees who wanted to take advantage of the Great Adventure outing were not prevented from also attending the union meeting set for 6 p.m. in the evening, and the record reflects that some employees did attend both functions. Nevertheless, the record shows that Respondent carefully calculated the timing of the outing to coincide with the union meeting. First, Respondent decided in the latter part of May-well after May 17th when the Union made its request for recognition-that it wanted to offer the outing to Great Adventure, a benefit which theretofore had not been made available to the employees. Secondly, Re- spondent was obviously aware that the Union meeting was set for June 26, yet Koppel, having initially contemplated the cancelling of the outing for June 26, decided to let the dates coincide. It is well established that the timing in- volved in the granting of a benefit to employees can be of great significance in determining the impact of such actions on the employees. N.L.R.B. v. Exchange Parts Company, 375 U.S. 405 (1964). In addition, Respondent made selected promises of wage increases. For example, on the day of the election, Dorothy Dickhut saw Joseph Weresow, a supervisor, approach Erika Eordos, an employee while she was working on her machine and overheard him mention to her that she would get a 20 cent raise if the Union did not get in. Similarly, about a week prior to the election, Weresow talked to Sarolta Gruber and stated that Mr. Koppel would give them more money, about 20 cents or more in the event the Union would be unsuccessful. Specific promises of pay raises in conjunction with the campaign literature insinuat- ing improvements in working conditions were a powerful tool in dissuading employees from voting for the Union.' C. The Garry Hot Line In late May 1977, when Rudolph Koppel became ill with phlebitis, the Company distributed a memorandum to its employees, which, in substance, explained that by dialing a certain telephone number employees were entitled to ex- press their concerns anonymously, and that replies to any such questions would be distributed by special memoran- dum (G.C. Exh. I 10a). The memorandum begins as fol- lows: Here's your chance to ASK YOUR QUESTIONS AND GET ANSWERS FROM ME REGARDING UNION ACTIVITIES AND A.NY'THING ELSE ABOUT THE COMPANY'. We are calling it "THE GARRY HOT LINE." The questions you ask and the answers to these ques- tions will be distributed throughout the plant by spe- cial memo. No one will know who a.vked the questions. It then describes how to use the special telephone and concludes: I feel it is extremely important that you ask questions and know all thejlcts. Please do not hesitate to use the special phone as often as you wish. IT IS FOR YOU' TO USE. The reason for the Garry Hot Line was explained by Rudolph Koppel as tollows: "When I was sick I felt I 2 Although Weresow denied having talked to the two employees about the raise, I credit the testimony of employees Gruber and Dickhut, since it was corroborated by the testimony of Veronica Taralko, another employee. Although General Counsel has demonstrated that Respondent granted the employees an additional paid holiday shortly after the employees began their union campaign, the record does not establish that Respondent had knowledge of it. More specifically, on May 6. 1977. a notice, pixsted at Garry. informed the employees that they were getting an additional paid holiday on George Washington's Birthda) Extensive testimony dealt with the decision- al process of the Company, particularly as to whether it knew of the union drive at the time the decision was made. General Counsel asserts, without evidentiary support. that the Company had known of the union drive prior to May 6. 1977 because several employees had solicited on behalf of the Union. Respondent argues that the decision was hased upon the efforts of its supervisor) employee, Anne Fisco, who had requested Harry Koppel to grant George Washington's Birthday as an additional holidas for the em- ployees. There is no record of evidence which indicates or from which it may be inferred that Respondent had any knowledge of the union campaign prior to May 17. 1977 when Cardinale and Mihalko met with the Koppels and re- quested to be recognized. Indeed, one of the three employees wvho led the union drive, Dorothy Dickhut testified: "We decided to get signatures. pass out cards, talk of the union, discuss the Union in private. without manage- ment's knowledge.' Accordingly, I find that Respondent's decision to add George Washington's Birthday into a paid holidaly for the employees was not motivated by union considerations. 543 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would like to communicate with our people as the union drive was on. I had always very good relations with our people. I couldn't speak to them. I wanted to hear if there are any complaints or suggestions so I could answer them at least in writing as I couldn't be present at the factory [Em- phasis supplied.]" As a direct result of this device, Respon- dent distributed several memoranda, the contents of which deal almost exclusively with the subject matter "union." Respondent essentially argues that the Garry Hot Line was simply a device which enabled Respondent's president to communicate with his employees which he otherwise was unable to do because of his illness. To be sure, this may have been one of Respondent's motives, but it is clear that in its notice to the employees, Respondent has urged them to use the device. Its very creation at such a critical time conveyed to the employees that the Company had a great concern for them, and it represented an implied promise to improve their working conditions further. For example, in one of the answers to a Garry Hot Line question, Respon- dent stated (G.C. Exh. Illa): "Unfortunately, during an organizational drive, I am prohibited from discussing any plans we have for adding optical coverage or improving dental care or about any other changes in our overall bene- fit plan. After you vote NO on June 29, I can speak freely." This statement, made in response to a question seeking cer- tain medical insurance coverage, implicitly promised that improvements in the insurance coverage would be made if the Union were defeated. Solicitation of employees' complaints and grievances and the implied promise to adjust them during the union drive is in violation of Section 8(a)( ) of the Act. Ken McKenzie's, Inc., 221 NLRB 489, 492 (1975). D. Discriminatory Conduct Finally, the record contains several instances of discrimi- natory conduct by Respondent against union activists. In May 1977, Dorothy Dickhut, while distributing union lit- erature near the Company's offices, was approached by Su- pervisor Weresow and asked whether she knew what she was doing. She replied, "[y]es, I do. I'm a turtle. I have to stick out my head to get anywhere." He replied, "just make sure you have a neck to pull back when all this is over." In his testimony, Weresow admitted that such a conversation occurred but maintained that his reply was simply, "It's your neck." Irrespective of which comment Weresow actu- ally made, it shows he was well aware of Dickhut's union efforts when, on June 15, 1977, he handed her and fellow campaigner Toratko disciplinary warnings for absenteeism with the comment: "When a union gets in we are going to have strict rules around here so I might as well start right now." These warnings stated (G.C. Exhs. 117, 116a): "You were absent on Tuesday, June 14, 1977, [Monday, June 13, 1977, respectively] and did not call in. This is a serious violation of our company policy and must not be repeated." While, as Respondent argues, Respondent may have been justified in criticizing Dickhut and Taratko for being absent without calling in, the record shows that this was the first time written warnings were handed out to the employ- ees even though they had been absent on several prior occa- sions. Accordingly, it is clear that Respondent had changed its attitude toward both Taratko and Dickhut because of their union efforts. Similarly, on June 23, 1977, Weresow issued a "write-up" to Taratko for poor work (G.C. Exh. 116b). The warning simply stated that she had been producing unacceptable parts for a couple of days and admonished her to take cor- rective action to prevent the discrepancy in the future. While she had been considered one of the best employees, Respondent claimed that Taratko's and Dickhut's preoccu- pation with the Union and long secretive meetings in the bathroom prevented them from discharging their duties sat- isfactorily. Of significance was Weresow's remark to Taratko when he handed her the warning slip. He stated: "You want to play little union games, I'll play little union games." On June 29, the day of the union election, he re- marked that she had only a week or two left with the Com- pany even if the Union would get in. Weresow admitted in his testimony that prior to this time he usually gave oral warnings to the employees and tried not be too formal by issuing written reprimands because he wanted to stay on a friendly basis with them. But when during the campaign, according to Weresow, they distrib- uted the place and became irresponsible "with their bath- room meetings and they walk way from their machines, they were talking to other people, disrupting other people," he decided to give a warning in writing rather than verbal in order to be more effective. Clearly then, Respondent's conduct, in issuing written warnings to Taratko and Dick- hut showed that they were singled out because of their union activities in violation of Section 8(a)(3) of the Act. E. Obstruction of Board's Investigation In an open letter, dated November 17, 1977, and distrib- uted to all employees, Garry warned that an NLRB repre- sentative had contacted several employees in preparation of the formal, administrative hearing and advised them that they had no obligation to cooperate with the Board agent. Of particular significance is a statement in the third para- graph of the letter which stated: "We want you to know that you are not obligated to talk to the agent or sign any- thing," and the last paragraph of that letter which states as follows (G.C. Exh. 118): The N.L.R.B. agent is not interested in the results of the prior vote (June 19, 1977) or that you may not want District 65 to represent you now. He only wants your signature in order to force Garry to recognize District 65 as your bargaining agent. Again, you are not obligated to talk to the agent or sign anything. At first blush such statements may seem innocuous. Yet it is obvious that Respondent's explanation for the presence of the Board agent and his function is somewhat distorted, for the duty of any Federal investigation includes his obli- gation to ascertain the true and accurate facts surrounding the controversy. Yet Respondent depicted the function one-sidely-as only being concerned with facts supporting the complaint, irrespective of their truth or falsity. More- over, Respondent's further instruction that employees have 544 GARRY MANUFACTURING COMPANY no obligation to talk to a Federal investigator or sign any- thing is patently erroneous. Not only is it the duty of every citizen to cooperate with the lawful investigation of any governmental agency, but also the failure to comply with a subpoena or other formal requests for information mandat- ed by statute or regulation can lead to the arrest of the recalcitrant party. I have no difficulty in finding Respondent's statements to be violative of Section 8(a)(1) of the Act for the reasoning set forth in Certain-Teed Products Corporation, 147 NLRB 1517, 1520-21 (1964); Bryant Chucking Grinder Company, 160 NLRB 1526, 1562 (1966)4 F. Bargaining Order General Counsel has urged that under N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), a bargaining order should issue in this case because Respondent had engaged in serious unfair labor practices which interfered with the election process and which tended to preclude the holding of a fair election. Respondent argues that even if violations of Section 8(aXl) and (3) of the Act are found, they are not sufficiently serious as to warrant a bargaining order. The principle is well established that a bargaining obliga- tion may be found to exist, even though the employees had rejected the Union as their bargaining agent in an election. Such a duty arises when it can be shown (1) that at one point the Union had a majority status and (2) the employ- er's unfair labor practices were extensive or pervasive and likely to have dissipated the Union's majority status. The record contains the definition of the appropriate bar- gaining unit, as well as the approximate number of the em- ployees in that unit. The unit is described as "[a]ll produc- tion and maintenance employees including shipping and receiving employees employed by the Employer at its 1010 Jersey Avenue, New Brunswick, New Jersey location, but excluding all office clerical employees, guards and supervi- sors as defined in the Act." (Resp. Exh. 2). The approxi- mate number of eligible voters amounted to 130 employees (Resp. Exh. 3). It is further uncontested that a demand for recognition was made by District 65 on May 17, 1977, and denied on the same day by Rudolph Koppel. On that date, the Union had attained already 73 signed authorization cards. Ultimately 90 cards were signed which are contained in the record (G.C. Exhs. 2-102). These cards, introduced by General Counsel, were obtained from witnesses who tes- tified to having passed them out to the employees, observed them sign the cards, and received the signed authorization cards from the particular employees. In those instances where the actual signing of the cards was not directly ob- served by a witness, General Counsel offered the signatures of these employees as contained on cancelled checks or "W-4" forms and the testimony of a handwriting expert who compared the respective signatures. Clearly all cards have been amply validated on the record, and they consti- ' On June 24, 1977, while addressing the employees assembled in the cafe- teria, Harry Koppel, referring to Susan Venuto, a Garry employee, stated: "If the Union gets in, the people have you to thank, Sue." General Counsel argues that the remark was meant to hold Venuto up for ridicule and dispar- aged her for her union support. However, I find the remark to fall short of any volation of Section 8(aX 1) of the Act. tute reliable indicia of majority status among the employees in the bargaining unit. Of paramount and remaining concern is whether Re- spondent's unfair labor practices were significant and per- vasive enough to have had a significant impact in the elec- tion process. In this regard I find that Respondent's unlaw- ful conduct, including the implied threats of loss of jobs or the inevitability of strikes and promises of benefits ex- pressed in the campaign statements, compounded by the timing of the removal of certain machinery, specific prom- ises of wage increases, the Company sponsored outing to an amusement park, as well the Garry Hot Line, and the dis- criminatory write-ups to known union supporters, had such a prevasive and significant effect on the election process so as to deprive the employees of their right to freely select or reject a bargaining representative. Particularly effective were the campaign statements, most of which came from top management, namely Rudolph or Harry Koppel. The Garry Hot Line involved both Koppels, and the amuse- ment park benefit was directly negotiated by Harry Koppel. High management involvement to such an extent was cer- tainly significant and substantial. I have no difficulty in concluding that the employees' sentiment expressed by a vast card majority must be protected by a bargaining order. In view of Respondent's unlawful conduct immediately upon the Union's request for recognition on May 17, 1977, the bargaining obligation commenced as of that time. Trad- ing Port, Inc., 219 NLRB 298 (1975). Findings On Objections In view of my findings concerning the unfair labor prac- tices committed by Respondent which (with the exception of certain conduct relating to the obstruction of the Board's investigation) are the same as, or similar to, the objections to the election in Case 22-RC-7163, I find that Respon- dent's conduct precluded the holding of a free election and that the election should be set aside. CONCLUSIONS OF LAW I. Garry Manufacturing Co. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District 65, Distributive Workers of America, is a la- bor organization within the meaning of Section 2(5) of the Act. 3. By impliedly threatening employment security, the in- evitability of strikes and violence, and promises of benefits in its campaign rhetoric, Respondent has violated Section 8(a)(l) of the Act. 4. By causing a large scale movement of plant machinery to coincide with campaign slogans emphasizing plant clos- ings and plant relocation, Respondent violated Section 8(a)(1) of the Act. 5. By promising wage increases to certain employees if the Union did not get in and by granting an employee out- ing, including free lunch and free admission to an amuse- ment park. on the day of a union meeting, Respondent vio- lated Section 8(a)(l) of the Act. 545 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. By creating the Garry Hot Line for the purpose of soliciting employee complaints with the implied promise to adjust them constituted a violation of Section 8(a)(1) of the Act. 7. By issuing disciplinary warnings to selected employees because of their union support, Respondent violated Sec- tion 8(a)(1) and (3) of the Act. 8. By discouraging its employees from cooperating with the lawful investigation conducted by Board agents, Re- spondent violated Section 8(a)(1) of the Act. 9. By having engaged in pervasive and significant unfair labor practices during the union campaign immediately af- ter the union's request for recognition as the employers' bargaining agent and the unfair labor practices having dis- sipated the Union's majority status which had been achieved when a large majority of the employees in the appropriate bargaining unit had executed union authoriza- tion cards, a bargaining order is necessary to remedy past election damage and to deter further misconduct. 10. The aforesaid practices are unfair labor practices af- fecting commerce within the meaning of Section 2(6) and (7) of the Act. II1. All other allegations in the complaint have not been sustained. THE REMEDY Having found that Respondent engaged in unfair labor practices in violation of Section 8(a)( ) and (3) of the Act, I recommend that Respondent be ordered to cease and desist from its unlawful practices. I further recommend, for the reasons stated in this decision, that an affirmative order is- sue directing that Respondent bargain with the Union upon request and, if an understanding is reached, embody such understanding in a signed agreement. ORDER 5 The Respondent, Garry Manufacturing Company, New Brunswick, New Jersey, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening its employees with loss of jobs, plant closings or relocation, and the inevitability of strikes and I In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. violence in the event that they selected the Union as their bargaining agent. (b) Promising and granting benefits to the employees in order to dissuade and discourage them from voting for the Union. (c) Soliciting complaints and grievances from the em- ployees and impliedly promising to adjust the grievances for the purpose of interfering with the employees' union activities. (d) Issuing disciplinary warnings or otherwise discrimi- nating against employees because of their support of the Union. (e) Obstructing or impeding the investigating procedures of the National Labor Relations Board. (f) In any other manner interfering with or coercing its employees regarding the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Upon request, bargain collectively with the above- named labor organization as the exclusive representative of the employees in the appropriate unit concerning wages, hours, and other conditions of employment, and, if an un- derstanding is reached, embody such understanding in a signed agreement. (b) Expunge from personnel records of employees Ve- ronica Tarato and Dorothy Dickhut all disciplinary repri- mands found to be unlawful herein, and make them whole for any loss of seniority or employment status as a result of the reprimands. (c) Post at its Brunswick, New Jersey, facility copies of the attached notice marked "Appendix." 6 Copies of said notice on forms provided by the Regional Director for Re- gion 22 after being duly signed by Respondent's represent- ative shall be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 22, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 6 In the event that this Order is enforced by a Judgment of a United States C'ourt 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." 546