Mariposa Press

528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mariposa Press and Western Graphic Arts Union, No. 14, International Printing and Graphic Communications Union, AFL-CIO. Cases 32- CA-3135, 32-CA-3262, and 32-RC-1175 14 December 1984 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER - On 20 May 1982 Administrative Law Judge Earldean V. S. Robbins issued the 'attached deci- sion. The Respondent filed exceptions and a sup- porting brief, the General Counsel filed an excep- tion and a supporting brief, and the Respondent filed an opposition to the General Counsel's excep- tion. The National Labor Relations Board has delegat- ed its authority in 'this proceeding to a three- member panel. - The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions 2 only to the extent consistent with this Decision and Order. ' The General Counsel and the Respondent have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law Judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings Further, we specifically find no ment in the General Counsel's exception to the Judge's finding that the Respondent did not violate Sec 8(a)(1) of the Act when its supervisor Kathy Smith 'questioned employee Dorene Gonderman regarding the Union Concerning this allegation the Judge credited Smith's testimony over Gonderman's because she found that Smith's testimony was "honest and reliable" whereas Gonderman's was characterized as vague and con- fusing Moreover, we agree with the judge's findings that this incident was isolated and occurred before the inception of the Union's campaign, and we can find no evidence of any further conversations between Smith and Gonderman that could be characterized as interrogation Contrary to the Respondent's exceptions, however, we also find that in all other re- spects Gonderman gave credible testimony regarding the Respondent's unlawful behavior 2 We adopt the Judge's findings that the Respondent did not violate Sec 8(a)(1) of the Act by providing its employees with free coffee and doughnuts, by discussing its profit-shanng plan, by promoting certain of its employees to full-time status during the preelection period, or by granting wage increases to some of its employees, and that the Respond- ent did not violate Sec 8(a)(3) of the Act by its discharge of employees Funseth, Sterling, Campbell, Schwarz, and Rodrigues We note that the complaint was withdrawn with regard to Funseth, Sterling, and Camp- bell We also adopt the Judge's findings that the Respondent violated Sec 8(a)(1) of the Act by threatening employees with loss of employment if they selected the Union as their collective-bargaining representative, by promoting employees to full-time status outside its established cntena in order to Induce them to withdraw or withhold their support for the Union, and by granting employees wage increases in order to persuade them to give up their support for the Union Chairman Dotson would dismiss the allegation that the Respondent threatened its employees with discharge, finding instead that the Re- spondent's comments were noncoercive and permissible under Sec 8(c) of the Act 1. The judge found that the Respondent violated Section 8(a)(1) of the Act by soliciting . employee - grievances and implying that it would correct them. The Respondent excepts to this finding con- tending that the statements made by its president Goldman and vice president Homes were merely expressions of their opinions and a reiteration of Company policy, both of which are privileged under Section 8(c) of the Act. We find merit in this exception. The judge found that in a 3 October 1980 3 letter and at employee meetings held 17 October and 24 November Goldman and Homes crossed the line of permissible speech by stating that "[their] door was always open and employees could ,bargain directly with [them] without gOing through a- third party" and that "[they] would be happy to discuss any matter concerning [the employees'] jobs or any- thing else the employees cared to discuss at, any time." In various meetings this statement drew a response from employee Dorene Gonderman as to why she, had not received a raise that, was prom- ised her by a former superviser named Schultes. Homes answered that "she should not have been promised the increase, that he had just become aware of it, that other'promises had been made and they were working on it." Also, in these meetings another employee made a Suggestion regarding changes to the annual raises. Although Goldman repeatedly told employees that "he was prohibited from promising or granting Wage increases outside [the Respondent's] stated policy," the judge found that the Respondent solicited grievances and im- plied that it would remedy them by asking for comments and by its response to these comments or questions. The judge further found that the Re- spondent, in response to an employee's question, promised a dental plan by commenting that "it was not easy to set up one and that later on, as there were more employees, they could all get together and join a dental plan but as far as the company being able to handle a dental plan, it could not do that"; that "he hoped in the future there would be one"; and that "he might consider [a dental plan] in the future if the company became profitable." In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), the Supreme Court established that "an em- ployer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a 'threat of re- Chairman Dotson also finds the evidence insufficient to establish a causal connection between the transfer of employee Murphee and an un- lawful motive on the part of the Respondent nor would the Chairman find the subsequent Increase in wages to be lawful 3 All dates are in 1980 unless specified otherwise 273 NLRB No. 83 MARIPOSA PRESS 529 prisal or force or promise of benefit." Further, an employer may attempt to influence the outcome of an election by presenting facts and even making predictions based on fact, as long as the employer avoids using its influence to interfere with employ- ee rights of free association. 4 It is also well estab- lished that employers are free to hold meetings with their employees in response to a union cam- paign regardless of whether a past practice existed or not. It is equally well established that a solicita- tion of grievances is not, per se, a violation. It is only when there is a promise to remedy those grievances that the violation occurs.5 Although the Respondent's "door is always open" comments may be viewed as an implied so- licitation of grievances, we are persuaded that these comments and the Respondent's subsequent comments do not rise to the level of unlawful con- duct anticipated by Gissel, supra, for the following reasons. Unlike the judge, we. find it significant that the Respondent repeatedly told its employees during its discussions that "it could not make any promises regarding resolution of their problems." Thus, any possible inference of a promise of bene- fits was specifically negated by the .express "no promise" responses to employees' comments. Uarco Inc., supra. Additionally, the Respondent's specific reply to a question about a raise that the employee "should not have been promised the increase" shows clearly a disavowal by the Respondent of any unauthorized promises. Moreover, the Re- spondent's comment that "they were working on it," when assessed in the context of the Respond- ent's overall statement, appears ambiguous and sus- cektible to meanings other than the discriminatory one ascribed to it by the judge. Further, in consid- ering the Respondent's comments regarding a dental plan, we find that the Respondent Was very candid with its employees by stating "it could not handle a dental plan," and that its further explana- tion that "if it became profitable it would consider it, if it was something everyone wanted" was noth- ing more than an expression of the Respondent's opinion that it hoped to be in a position at some unspecified time in the future to offer . more to its employees in terms of wages and working condi- tions, a statement which is privileged under Section 8(c) of the Act. See, e.g., Allied Business Systems, 169 NLRB 514, 517 (1968). Furthermore, viewing these statements in the context of the employee meetings, we are not persuaded that they are suffi- cient to support or reinforce, any employee's antici- pation of improved conditions of employment which would warrant withdrawal of support from 4 Gissel at 618 5 Uarco Inc , 216 NLRB 1, 2(1974) the Union. 6 Moreover, there is no evidence in the record' tending to establish any coercion in fact from these comments. Accordingly, we , shall dis- miss these allegations of the complaint.7 2. The 'judge found that the Respondent violated Section 8(a)(1) of the Act by urging employees to revoke their authorization cards. The Respondent excepts to this finding contending that its conduct in this regard was not violative of the Act. We find Merit in this exception. In a letter dated 17 October and during a meet- ing with employees on that same date, the Re- spondent's president Goldman explained the proce- dures to employees of how they could have their authorization cards returned to them. The judge found that Goldman's remarks Violated Section 8(a)(1) because they were made gratuitously as the Respondent had begun the preparation of the letter before any employee had inquired about the revo- cation procedures. Acknowledging that providing information to employees regarding revocation of their authorization cards is not, per se, a violation, the judge nevertheless found a violation based on her finding that the Respondent gave ith advice in a coercive and threatening atmosphere. We dis- agree. An employer may lawfully inform employ- ees of their right to revoke their authorization cards even if employees have not solicited such in- formation, as long as the employer makes no at- tempt to ascertain whether employees will avail themselves of this right nor offers any assistance or otherwise creates a situation in which employees would tend to feel peril in refraining from such revocation. R. L. White Co., 262 NLRB 575 (1982). Here, the Respondent did not attempt to monitor whether employees would actually revoke their au- thorization cards and-there is no evidence that the Respondent requested or gave assistance to any employee. This is unlike the cases relied on by the 6 NLRB v Quick Find Co, 698 F 2d 355 (8th Cir 1983) 7 Member Zimmerman dissents from the dismissal of these allegations He agrees with the Judge that the Respondent unlawfully solicited griev- ances from employees by implicitly promising to correct them and un- lawfully promised to consider establishing a dental plan Contrary to his colleagues, he finds that the Respondent's mere recitation of the stock "no promises" phrase did not negate these implied promises Under simi- lar circumstances, the Board in Raley's, Inc, 236 NLRB 971, 972 (1978), stated - [T]he structure of such preelection meetings provides a "compelling inference" that the employer by its conduct at such meetings im- pliedly promises that the grievances raised would be corrected Were we to conclude that Respondent, by merely reciting a "no promises" formula, had clearly discharged its duty to avoid giving the employ- ees the impression that their complaints would be remedied, we would be forced to conclude that-the parties at these meetings were engaged in a largely meaningless exchange concerning the employ- ees' grievances and complaints Further, he notes that the disputed statements were made in a context not free of union animus, inasmuch as it has been found that the Respondent at the same meeting unlawfully threatened employees with the loss of employment if they voted for the Union 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD judge, for in Kut Rate Kid & Shop Kwik, 246 NLRB 106 ,(1979), the respondent specifically re- quested revocation letters from its employees and threatened them with plant closure. See also L'Eggs Products, 236 NLRB . 354 (1978), in which the respondent interrogated and threatened its em- ployees and requested that employees revoke their authorization cards. Furthermore, it is undisputed that the Respondent, in the employee meetings dis- cussed supra, assured its employees that it was their right .to support a union and that it would not dis- criminate against anyone who wanted "to vote for or talk up a union and if the union won [the Re- spondent] would bargain with the Union." From the neutral tone of the Respondent's letter, we are persuaded that no employee could have reasonably felt any peril in refraining from revoking his card, nor do we find any evidence that any employee was threatened, coerced, or prompted into revok- ing his card. ,Under these circumstances, we do not find that the Respondent's conduct constituted un- lawful encouragement or solicitation of employees to revoke their authorization cards. Accordingly, we shall dismiss this allegation of the complaint.8 3. The judge found that the Respondent violated Section 8(a)(5) of the Act by its refusal to recog- nize , and bargain with the Union based on the Union's card majority and recommended a bargain- ing order to remedy the Respondent's unfair labor practices. The Respondent contends, inter alia, that there was no showing that its unfair labor practices interfered with employee free choice in the elec- tion held 26 November 1980, nor would they pre- clude the possibility of a fair rerun election. We find merit in the Respondent's latter position. The essential justification for a bargaining order in this type of case, as stated by the Supreme Court in Gissel, supra, depends on findings (1) that the union once had a majority status, (2) that such status had been dissipated by pervasive misconduct on the part of the employer, (3) "that the possibili- ty of erasing the effects of [these] past [pervasive] practices and , of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight," and (4) "that employee senti- ment once expressed through cards would, on bal- ance, be better protected by a bargaining order." . The judge, in her iecommendation of a bargain- ing order, based her conclusion on her assessment 8 Member Zimmerman would adopt the Judge's finding that the Re- spondent unlawfully induced employees to revoke their authorization cards when it proffered unsolicited advice about the procedures for re- voking their cards and passed out wntten instructions to that effect He notes that the Respondent committed other unfair labor practices at the same meeting in which the advice was given Kut Rate Kid & Shop Kwik, supra at 119, and L'Eggs Products, supra at 389 9 395 U S at 614-615 that the acts of the Respondent "were pervasive and egregious" unfair labor practices which had "undermined the Union's majority and rendered doubtful or impossible the holding of a free and fair second election." However, the judge also found that the alleged discharges were not viola- tive of the Act and based her findings of "perva- siveness" solely on 8(a)(1) conduct. We have herein reversed two of the judge's 8(a)(1) find- ings—that the Respondent unlawfully solicited grievances and implied that they would be reme- died and that the Respondent unlawfully induced revocation of employees' union authorization cards. This leaves five incidents of-8(a)(1) conduct involv- ing two threats of loss of employment and three in- cidents of granting wage increases, one of which involves transferring an employee to full-time status. These are hardly the kinds of "hallmark" violations, such as discharges, threats of plant clo- sure, or reprisals, contemplated by the Court in Gissel, supra, nor is this the type of case marked by substantial employer misconduct which has a "tendency to undermine [the Union's] majority strength and impede the election processes." 395 U.S. at 614. We find that these 8(a)(1) violations do not provide an adequate basis for a bargaining order in the absence of any credible finding that there is any "likelihood" that the Respondent's mis- conduct will recur or that the residual impact of these practices is- sufficient to make the likelihood of a fair election slim, if not impossible, despite the salutary effect of a cease-and-desist order." We are not unmindful that the Respondent's conduct was directed at a small unit of employees and that its threats of loss of employment were disseminated to all of its employees in various meetings. Al- though the 8(a)(1) violations did interfere with the employees' free choice, they did not, in our opin- ion, have a permanent impact on employee voting sentiments. Moreover, any initial impact will have dissipated prior to the next election, especially since our cease-and-desist order and the posting of the Order finding the Respondent guilty of unfair labor practices will provide added protection against the likelihood of the recurrence of miscon- duct." Therefore, we also find that the Respond- ent has not violated Section 8(a)(5) by its refusal to . recognize and bargain with the Union." Accord- is First Lakewood Associates v NLRB, 582 F 2d 416, 424 (7th Or 1978), Shulman's Inc v NLRB, 519 F 2d 498, 502 (4th Or 1975) " Dal-Tex Optical Co, 137 NLRB 1782 (1962) The Judge, in finding that employees Steiner and Vaught should be excluded from the unit found appropriate herein, analyzed their status froth the cntena applicable to students While we agree that they should be excluded, we do so based on our finding that they are casual employ- ees because they work on a sporadic, Irregular basis, at their conven- Continued MARIPOSA PRESS 531 ingly, we dismiss this allegation of the complaint and we shall direct a second election." CONCLUSIONS OF LAW 1. The following unit is appropriate for purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act: All regular part-time and full-time production and maintenance employees of the Respondent ience, and they receive a special oncall pay rate which is different from the pay received by the Respondent's other regular part-time and full- time employees Moreover, there is no evidence in the record showing that Steiner and Vaught have any reasonable expectation of continued employment with the Respondent Accordingly, we find that these fac- tors are sufficient to sever any community Of interest they may have had with the Respondent's regular part-time employees Maietta Contracting, 251 NLRB 177 (1980), Muncie Newspapers, 246 NLRB 1088 (1979), Quick-Lahmann Express, 262,NLRB 220 (1982) In sustaining the Union's Objection VII alleging that the Respondent made material misrepresenta- tions regarding wage rates secured by the Union for employees at other companies, the judge analyzed the evidence under the principles of Holly- wood Ceramics Co, 140 NLRB 221 (1962), and General Knit of California, 239 NLRB 619 (1978) However, since the issuance of her decision, the Board has established a new standard regarding misrepresentations In Midland Life Insurance Ca, 263 NLRB 127 (1982), a Board majority stated that misrepresentations made during an election campaign are not grounds for setting aside an election Therefore, .in light of Midland Life we have reviewed the alleged misrepresentation and find that it is not ob- jectionable The judge, in her discussion of this objection, inadvertently referred to it as Objection VIII rather than Objection VII We have made the corrections where it is appropriate In view of their denial of a bargaining order, Chairman Dotson and Member Hunter find It unnecessary to pass on the Issue of the validity of certain union authorization cards and the Respondent's exceptions there- to They also deny the Respondent's motion'to reopen the record-for the same reasons Member Zimmerman would find the authorization cards signed by em- ployees Lowe, Thorsen, David Gonderman, and Foltz to be valid, inas- much as the record does not support the Respondent's -contention that the Union misrepresented the purpose of the cards or stated that they were solely to get an election Because they have found that the Respondent did not solicit grievances or imply that it would remedy them or Induce employees to revoke their union authorization cards in violation of Sec 8(a)(1), Chairman Dotson and Member Hunter overrule the Union's Objections III and V which allege the same conduct ii Member Zimmerman agrees with Member Hunter that the Re- spondent's alleged objectionable conduct which parallels the unfair labor practices that the Respondent was found to have committed warrants-the direction of a second election Member Zimmerman, however, dissents from the majority's failure to issue a bargaining order He agrees with the judge that the Respondent's unfair labor practices were sufficiently wide- spread and serious to warrant a bargaining order He notes that threats of loss of employment, solicitation of grievances, granting of raises, and in- ducing of employees to revoke their authorization cards are likely to have a lasting inhibitive effect on a substantial percentage of the small work force, and therefore are considered "hallmark" violations which support' the issuance of a bargaining order, unless some significant miti- gating circumstances exist See Patsy Bee, Inc. 249 NLRB 976 (1980) No such circumstances exist here Although the Respondent has apparently expenenced substantial employee turnover, he finds that sueh turnover would not warrant withholding a bargaining order Jamaica Towing, 247 NLRB 353 (1980), and Glomac Plastics, 241 NLRB 348 (1979) Accord- ingly, he would deny the Respondent's motion to reopen the record on this issue Finally, having validated, above, the authorization cards of em- ployees Lowe, Thorsen, David Gonderman, and Foltz, Member Zimmer- man concludes that the Union achieved majority status on October 1980 Although Chairman Dotson agrees with Member Hunter that a bar- gaining order is not appropriate, he would not direct a second election because he would have dismissed' the complaint Therefore, he would certify the results of the election •-at its Concord, California facility, excluding all office clerical employees, professional employ- ees, guards, and supervisors as defined in the Act. 2. By threatening employees with loss of em- ployment if they selected the Union as their collec- tive-bargaining representative and by transferring an employee to full-time status with the accompa- nying benefits and wage increase and granting cer- tain other employees Wage increases in order to induce them tO withdraw or withhold their support from the Union, the Respondent lias violated Sec- tion 8(a)(1) of the Act. 3. The Respondent has not engaged in the other unfair labor practices alleged in the amended con- solidated complaint. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices hi violation of Sec- tion 8(a)(1) of the Act, we shall order the Respond- ent to cease and desist therefrom and to take cer- tain affirmative action in order to effectuate the policies of the Act. ORDER The National Labor Relations Board orders that the Respondent, Mariposa Press, Concord, Califor- nia, its officers, agents, successors, ' .and assigns, shall 1. Cease and desist from (a) Threatening employees with loss of employ- ment if they select Western Graphic Arts Union, No. 14, International Printing and Graphic Com- munication Union, AFL-CIO as their 'collective- bargaining representative. (b) Granting employees wage increases and transferring employees to full-time status with the accompanying grant of benefits and wage increases in order to induce them to withdraw or withhold their support from the above-named Union. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act, (a) Post at its facility in Concord, California, copies of the attached notice marked "Appen- dix." 14 Copies of the notice, on forms provided by i4 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 Na- tional Laoor Relations Board" shall read "Posted Pursuant to a JudgMent of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board." 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Regional Diiector for Region 32,- after being signed by the Respondent's authorized representa- tive, -shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any _other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that all allegations of the complaint not sustained are dismissed. IT. IS FURTHER ORDERED that the election held 26 November 1980 is set aside, the petition in Case 32-RC-1175 is reinstated, and this case is remand- ed to the Regional Director for Region 32 for the purpose of conducting a new election. [Direction of Second Election omitted from pub- lication.] APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has - found that we violated the National Labor Relations Act and has ordered us to post and-abide by this notice. Section 7 of the Act gives employees these rights. To organize , To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection - To choose not to engage in any of these protected concerted activities. WE WILL NOT do anything that interferes with these rights. More specifically,I11WE WILL NOT threaten em-ployees with loss of employment if they select Western Graphic Arts Union, No. -14, International Printing and Graphic Communica- tions Union, AFL-CIO as their collective-bargain- ing representative. WE WILL NOT grant employees wage increases and transfer employees to full-time status with the accompanying grant of benefits and wage increases in order td induce them to withdraw or withhold their suppoit for the Union. -. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you- by Section 7 of the Act. MARIPOSA PRESS DECISION STATEMENT OF THE CASE EARLDEAN V. S. ROBBINS, Administrative Law Judge. This matter was heard before me in Oakland, California, on June 16-24, 1981. The charge in Case 32-CA-3135 was filed by Western Graphic Arts Union, No. 14, Inter- national Printing and Graphic Communications Union, AFL-CIO (the Union) and served on Mariposa Press (Respondent), on October 16, 1980, and a first amended charge therein was filed by the Union and served on Re- spondent on November 19, 1980. A complaint issued in that matter on December 3, 1980, alleging that Respond- ent violated Section 8(a)(/) and (3) of the National Labor Relations Act. The charge in Case 32-CA-3262 was filed by the Union on December 11, 1980, and served on Re- spondent on December 15, 1980; and a first amended charge therein was filed by the Union and served on Re- spondent on January 14, 1981. The amended consolidat- ed complaint in Case 32-CA-3135 and 32-CA-3262 issued on January 16, 1981, alleging that Respondent vio- lated Section 8(a)(/), (3), and (5) of the Act. The petition in Case 32-RC-1175 was filed by the Union on October 6, 1980. Pursuant to a Stipulation for Certification Upon Consent Election approved on No- vember 5, 1980, an election by secret ballot was conduct- ed on November 26, 1980, which resulted in 7 ballots for and 13 ballots against the Petitioner, with 7 challenged ballots, which are sufficient in number to affect the re- sults of the election. On December 2, 1980, the Petitioner filed timely objections to the election, certain of which were later withdrawn. On January 21, 1981, the Regional Director determined that the objections to the election and the challenged ballots in Case 32-RC-1175 and the matters alleged as unfair labor practices in Case 32-CA- 3135 and 32-CA-3262 constitute a single overall contro- versy and ordered that Case 32-RC-1175 be consolidat- ed with Cases 32-CA-3135 and 32-CA-3262 for pur- poses of hearing, ruling, and recommended decision. The basic issues are 1. Whether Respondent unlawfully discharged Robert Sterling, Clifford Funseth, Gary Campbell, Allen Schwari, and Ed Rodrigues. 2. Whether Respondent unlawfully induced employees to revoke authorization cards designating the Union as their collective-bargaining representative 3. Whether Respondent promised and/or granted em- ployees wage increases and/or other benefits in order to discourage them from joining or supporting the Union and/or designating the Union as their collective-bargain- ing representative. 4. Whether Respondent unlawfully solicited grievances from employees regarding their working conditions. 5. Whether Respondent interrogated employees re- garding their union activities and/or threatened employ- MARIPOSA PRESS 533 ees with loss employment if they selected the Union as their collective-bargaining representative. 6. Whether Becky Stein and Karrie Vaught are casual employees, as the Petitioner contends, or regular part- time employees, as the Employer contends. 7. Whether Respondent•has engaged in conduct which interferes with the exercise of a . free and untrammeled choice of the employees in the election held on Novem- ber 26, 1980. 8. Whether a bargaining order is appropriate herein. On the entire record, including my, observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the parties, I make the following FINDINGS OF FACT I. JURISDICTION At all times material herein Respondent, a California corporation with an office and place of business in Con- cord, California, has been engaged in the nonretail busi- ness of printing books and other materials. During the calendar year 1980, Respondent, in the course and con- duct of its businesi operations, sold and shipped goods or services valiied in excess of $50,000 directly to customers located outside the 'State of California. The complaint alleges, Respondent admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II. LABOR 'ORGANIZATION The complaint alleges, Respondent admits, and I find that the Union is now, and at all times material herein has been, a labor organization within the meaning of Sec- tion 2(5) of the Act: III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Union's Organizational Campaign Allen Schwarz and Robert Sterling were Inred by Re- spondent on September 10, 1980 I Shortly 'thereafter, they began discussing the possibility of obtaining union representation for Respondent's employees. Schwarz contacted the Union and obtained union authorization cards to be distributed to Respondent's employees. Ster- ling and Schwarz signed cards authorizing the Union as their collective-bargaining' representative on September 19. By the end of September a number of Respondent's employees had signed authorization cards for the Union. On September 25, by mailgram, union organizer James Ziolkowski notified Respondent that Schwarz, Sterling, and Clifford Funseth were on the employees volunteer organizing committee for the,Union On October 6, the Union filed a petition in Case 32- RC-1175 seeking to represent all regular part-time and full-tune production and maintenance employees em- ployed by Respondent at its Concord, California loca- tion, excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. 1 All dates hereinafter in September through December will be' in 1980 and in January will be in 1981 On that same day, by certified mail, the Union notified Respondent that a majority of the employees in said unit had designated the Union as their collective-bargaining representative, and demanded recognition as such This letter was received by Respondent on October 7 B Respondent's Election Campaign On October 3 Respondent distributed a letter -to em- ployees signed by Respondent. President Earl M. Gold- man. The letter acknowledged that Respondent had heard that a union was requesting them to sign union au- thorization cards. The letter further explains the purpose of authorization cards and the various ways in which one can be used by a union The letter then states that "we feel that we can talk over whatever problems you might have directly with us, and that you have no need for a third party to represent you. My door is always open to you and I will be most happy to discuss any matter con- cerning your job, or anything else you care to discuss at any time." 1. The October 17 meetings Respondent held two meetings of employees during its preelection campaign—on October 17 and November 24. Each meeting was held in two sessions, with Goldman as the principal speaker. It is undisputed that the meetings were held for the purpose of apprising the 'employees of Respondent's position in opposition to union representa- tion. Thus Goldman admits that he said that Respondent would prefer remaining nonunion and would like for the employees to vote no in the election. He further said that he did not feel there was a need to have a union because they were a small company, management was there every day and they knew most of the employees on a first-name basis, there was good communication and there really was no reason for a third party to be inter- jected between management and the employees. He said he felt strongly that, in a company of Respondent's size, with its general attitude and benefits, there was just no need for a third party between the employees and man- agement; they had always been able to communicate in the past and shOuld be able to continue to do so in the future without putting someone between them, that his door had always been open. However, according to Goldman, he also said that, as far as the Company was concerned, they believed in democracy and in the event an election was held and the Union won, Respondent would recognize the Union and bargain with them in a fair manner. He further said that Respondent would not discriminate against anyone who wanted to vote for or advocate a union, that they would be treated no differ- ently from anyone who voted against the Union. Homes testified in essential 'agreement with Goldman. Employee Edward Rodrigues testified that Goldman said he would bargain with the Union and the other employ- ee witnesses do not deny that Goldman said Respondent would recognize and bargain with the Union if the Union won the election. Employee Dorene Gonderman admits that Goldman said something to the effect that it was all right with him if the employees wanted a union. She further testified that he said they should be able to 534 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD work without a union, that his door was always open and they were welcome to bring up any suggestions that they might have. Homes testified that, in. response to Goldman's statement, his door was always open and em- ployees could bargain directly with Respondent without going through a third party. Gonderman said she had been trying to get a raise for some time. Employee Annie Llamas testified that either Goldman or Homes said that Respondent 'would provide a suggestion box if the employees wanted one. Rodrigues also testified that Goldman said there was no suggestion box, but he would provide one. Holmes denies that Goldman made , any mention of a suggestion box, hOwever Goldman does not deny it. It is undiskuted that Goldman mentioned union au- thorization cards. However, the witnesses are in dis- agreement as to whether he discussed the revocation of these cards Dorene Gonderman testified that Goldman said several people had received authorization cards. He then proceeded to tell them the procedure that could be used to have the authorization cards revoked. She does not recall any employee asking for such information. Employee Isaac Camp testified that Goldman said if the employees wanted to rescind their union 'authorization cards there was a mechanism that they could use. He ex- plained what the procedure was, but Camp does not recall exactly what he said in this regard. No employee at the meeting had inquired as to what they should do in order to rescind their. authorization cards. Rodrigues tes- tified that Goldman further said that he encouraged the employees to withdraw their cards, that there_ were pro- cedures for doing this and, if they were unfamiliar with the procedures, he would explain them so that their rights could be protected. Rodrigues does not recall him elaborating on that. ' Homes testified that Goldman said an authorization card was not just to get an election, that it authorized the Union to become the collective-bargaining agent of the person who signed the card. He also explained that, in the event there wis an NLRB hearing, an employee's authorization card could possibly be disclosed to 'them. As Goldman was discussing authorization cards, he was referring to a brochure from the U.S Chamber of Com- merce.' An employee, whose name Homes does not recall, asked whether it was possible to revoke an au- thorization card Goldman said that he did not know, but that he would find out. Homes denied that Goldman said he thought employees should, or hoped they would, revoke the authorization cards. ' . Goldman testified that he said the union had been passing out authorization cards, he explained what the authorizatiOn cards were and said, contrary to what they might have heard, the cards were riot simply a . means to have an election in which they could vote no, that they should understand that, in reality, the cards authorize the Union to become their bargaining agent. Goldman fur- ther testified that, when he mentioned authorization cards, one of the employees gave the impression that, now he understood it, he should not have -signed the card and asked if it would be possible to rescind At. Goldman said - he did not know but he would find out. The employee said he thought signing an authorization card would cause an. election to take place and that he could vote no at the election, much like signing. a peti- tion for a state constituticinal amendment. He said he did not realize he was authonzing the Union to represent him for collective bargaining. Goldman denies that he told the employees they should revoke their cards, or that he wished they would. Goldman testified that he thinks it was Michael Foltz who asked whether he could revoke his union authorization card, but he is not abso- lutely sure. The consolidated complaint alleges that Respondent made an implied promise to implement a profit-sharing plan and a dental plan if employees voted against the Union. In support thereof, Gonderman testified that at the October 17 meeting Goldman briefly mentioned a profit-sharing plan. He said all full-time employees were part of the plan, but Respondent had not had a profitable year yet, so they had not received a shire. According to Gonderman, this was the first time she had heard - any- thing about being a part of a profit-sharing plan. Gonderman further testified 'that someone asked why Respondent did not have a dental plan. Goldman ex- plained that it was not that easy to set up one and that later on, as there- were more employees, they could all get. together and join a dental plan,. but as far as the Company being able to handle a dental plan, it could not do that. Rodrigues testified that Goldman mentioned profit sharing at both the meeting's. At the October 17 meeting he discussed the profit-sharing plan, but Rodri- gues does not recall exactly what was said as to who would participate in the plan. Goldman also said some- thing to the effect that the profit-sharing plan would not work unless the Company made a profit. Rodrigues fur- ther testified that Goldman said there was a health plan, he regretted there was no dental plan, and hoped in the future there would be one. This is the first time Rodri- gues had heard a dental plan mentioned Neither Camp nor Llamas- included in their account of this meeting any mention of a dental plan. However, Camp testified that Goldman mentioned profit sharing. He does not recall whether Goldman said that the Com- pany already had a profit-sharing plan. Goldman did not say that if, within the next ,year or so, Respondent start- ed showing a profit, the employees could get involved in profit sharing. According to Camp, he had never been told previously that he was part of a profit-sharing plan. He does not recall whether Goldman said the profit-shar- ing plan was already in effect as to full-time employees. Llamas testified that Goldman said Respondent had a good profit-sharing plan. Homes testified that Goldman explained the benefits that were available for full-time employees. He said Re- spondent had , a good medical plan with a $100 deducti- ble which had been waived. He covered the life insur- ance, long-term disability, vacation, holiday, and paid holiday, benefits. He said Respondent had a profit-sharing plan and, that, in 1 year, up to 15 percent of a person's annual wages can be contributed to that plan. However, he also said, to have a profit-sharing plan, Respondent had to be profitable. The question as to the dental plan came up at the afternoon meeting. Someone asked why MARIPOSA PRESS 535 Respondent had no dental plan. Goldman said that would be something, along with other benefits, he might consider in the future if the Company became profitable. According to Goldman, someone asked about the ben- efits offered by Respondent. Goldman then went over the various benefits including the medical insurance with no deductible, long-term disability insurance, group life insurance, profit-sharing plan, paid vacation, sick leave, and lunchroom facility. He explained these in as much detail as he thought the employees were interested One of the employees asked why there was no dental plan. Goldman replied because 'they had all those other bene- fits which he thought was a good package. Someone asked if they would have a dental plan in the future. Goldman said that it was entirely possible, that it was something Respondent could consider in the future if Re- spondent became profitable and it was something every- one wanted. It is undisputed that during the meeting Goldman also stated that he could not make any prom- ises. According to Goldman and Homes, he repeated this several times. As to 'the allegation that, at the October 17 meeting, Respondent threatened employees with loss of employ- ment if they selected the Union as their collective-bar- gaining representative, Gonderman testified that Gold- man said all the contracts, that he had looked over, re- quired a ratio of so many journeymen to so many ap- prentices. He said, since the employees were all fairly new at what they were doing, they would be considered apprentices and there would not be sufficient journey- men to cover them, and therefore some of them might have to be laid off to make way for journeymen Ac- cording to Gonderman, he mentioned this also at the second meeting. According to Camp, Goldman gave a comparison as to what it would be like if a union was in the shop com- pared to the way it was at that time. Goldman said that if the Union got in, more than likely, Respondent would have to lay off employees because they would have to pay a journeyman over at the other end of the shop union wages which would probably take away from the less skilled workers Goldman referred to other situations where the Union was involved and said that, in order to have a certain ratio of journeymen to apprentices, Re- spondent would have to hire more journeymen and, as a result, some employees would have to be discharged Employee Annie Llamas testified that she attended both the October 17 and the November 24 meetings but, as to the statements she recollects, she is unable to distin- guish which were made at each meeting. At one of the meetings, Goldman had charts setting forth wage rates. He said, based on contracts that he had seen, they would have to have a certain number of journeymen working there so Respondent would have to get rid of some of the pressmen. According to Llamas, she does not recall very much about the first meeting The main thing that stands out in her mind is that one of the employees asked whether she could return to her job_ if the Union got in and she did not want to join the Union McCain spoke up and said that he had -been in the Union before when he , worked for a different employer, that there was no open shop in California and she would not be able to work there, she would have to join the, Union or leave. Goldman said that McCain was right, there was no open shop in California and she would no longer be able to work there unless she joined the Union. Homes testified that someone asked whether everyone would have to be member of the Union if the union was voted in. Goldman started to say that he did not know, but he was interrupted by McCain. McCain said that in his , union experience, as far as he knew, there were no open shop in California, that everyone would have to be a member of the Union. Goldman said that he did not know because he did not have any experience with the Union. According to Homes, Goldman further said that one had to be a journeyman to receive journeyman rates and, according to the copies of Local 14 contracts that Re- spondent had acquired, employees who are trainees or apprentices receive a percentage of the journeyman wages He also mentioned that there was a ratio of three journeymen to every one apprentice or trainee Goldman said, although it would be subject to bargaining with the Union, if that kind of ratio was important, Respondent would not be able to have as many trainees as it current- ly had. Goldman said that he could not promise any- thing, that the wage rates would be part of the bargain- ing issue with the Union, and the rates posted on the bul- letin board would not be necessarily relevant to any- thing 2 He said there was no guarantee that they would receive that rate or anything like it, that it appeared to be a journeyman's rate and a trainee would receive only a percentage of that. Homes denies that anything was said to the effect that, if the Union won the election, people would have to be laid off. Goldman did say he was not in favor of a union, and he felt Respondent paid competitive wages for the area. On cross-examination, Homes denied that the ratio between journeyman and apprentice was discussed at the October 17 meeting. Homes also testified that soft drinks and coffee were available free at one of the afternoon meetings. Dough- nuts were available free at the morning sessions on Octo- ber 17 and November 24. Coffee was available at all ses- sions of the meetings because coffee is available free to employees at all times. The only reference to journeymen and trainees con- tained in Goldman's account of the meeting was his statement that Respondent had a great many trainees and it was a good opportunity for people to work their way up to become journeymen. Goldman denies he said any- thing to the effect that employees would lose their jobs if the Union won the election. Employees Tnna Stupp and Sonja Vaught asked whether employees would be re- quired to join the Union if the Union won the election. Goldman testified that he responded that to his knowl- edge they would have to belong to the Union, that there would probably be a closed shop, that the union con- tracts he had seen had that provision in them. McCain said, from his experience, closed shops were the rule in 2 Someone other than Respondent had posted on the bulletin board a list of job classifications and wage rates which appeared on its face to have been taken from a collective-bargaining agreement - 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD California and you had to be in the Union if you were working there. Goldman also mentioned wage increases Thus the text of his prepared speech, which he read, states that al- though Respondent is prohibited from promising or granting wage increases outside its stated policy to review employees and consider merit and cost-of-living wage increases on an annual basis at the end of each cal- endar year, "We would welcome the opportunity to per- sonally discuss your wage rate and current wage range with you. -To arrange such a meeting contact your imme- diate Foreman/Supervisor." 2. Respondent's campaign letters On October 17 Respondent distributed a letter to em- ployees, both by mail and with their paychecks The letter stated, inter aim: We have heard that some of you who signed the , Union authorization cards would now like to with- draw those cards, but don't know how to go about it. If you want to withdraw, you should send a letter addressed jointly to the union and the Nation- . al Labor Relations Board, telling them you wish to withdraw. Respondent's letter then sets forth a sample statement which the employees could copy and send to the Union and the Board agent handling the representation case herein, stating that the employee hereby withdrew and revoked the authorization card previously signed for the Union and no longer wanted the Union to represent the employee. The letter then advised the employees to tele- phone the Board agent, to tell her that the card had been revoked. The letter also states: If either the union or the Board agent tells you that you can't withdraw, if the Board agent tries to talk you out of it, please tell me immediately so we can take steps to protect your rights. You have the legal right to sign a card if you want, but you also have the same right to withdraw. Don't let anyone tell you different. Homes testified that the October 17 letter was pre- pared in response to the question asked at one of the meetings that day and a question asked of McCain by employee Mike Foltz. McCain testified that within 10 to 15 minutes after the conclusion of the morning session of the October 17 meeting, 3 Foltz approached him and said he did not know what the authorization card was and asked if there was any way he could get out of it. Foltz further said that he thought he should revoke .the card. McCain said that he did not know, he would ask. Ac- cording to McCain, about 15 or 20 minutes later, he went to Homes and told him that one of the binder em- ployees wanted to know if there was any way they could revoke an authorization card. Homes said that he would check on it McCain then returned to Foltz and told him that the front office was checking to see what, if anything, had to be done The meeting was scheduled for 8 a m Homes testified that McCain told him that Foltz had just asked how he could revoke his union authorization card. McCain then asked, "Have we done anything on that yet?" Homes said no, but they were working on it and would let McCain know as soon as they found out anything. Homes testified that following the meeting, and prior to speaking with McCain, he sought the advice of Respondent's counsel. Respondent's counsel drafted the letter. Homes had it prepared and it was distributed to the employees by mail that evening and placed in their paychecks the next payday. The parties stipulated that the letter was included with the paychecks which were distributed, to employees on October 17. Employee Ken Thorsen did attempt to revoke his au- thorization card. In accordance with the instructions contained in the October 17 letter, he sent a letter to -the union representative and the Board agent on October 20, the body of which reads: After much thought and consideration I withdraw and revoke my previously signed card for Local 14 to represent me at Mariposa Press. I do no longer want to have any union represent me in any manner. According to Thorsen, he never requested from any su- pervisor or management official at Respondent any infor- mation regarding the procedure for revoking his union authorization card. In addition to the October 17 letter, Respondent dis- tributed campaign letters to the employees on November 14, 19, and 20. The November 14 letter informed the em- ployees of the time and place of the election and urged them to vote. It further stated that Respondent strongly opposed the Union and outlined the collective-bargaining procedure, explaining that the Union's promises would not automatically become reality if the Union won the election. The November 19 letter was devoted to the ex- penses concomitant to the ' union representation and membership. The November 20 letter reiterated that wages do not automatically increase when a union comes in. Attached to the letter was a schedule of wage rates, which the letter described as a sheet "containing wage rates apparently used in a contract that Local 14 had with an unnamed printing company" which was posted on the bulletin board by "someone apparently connected with the union" The letter refers to the sheet as an indi- cation that one cannot rely on any promise by the Union that they will gain wage increases. The letter further states that, in one Local 14 contract, untrained employ- ees began at a wage rate 55 percent of the contract rate and did not obtain the full contract wage rate until after 4 years of employment and training. The letter then pro- ceeds to apply that graduated percentage scale to the contract rates posted on the bulletin board and concludes that Respondent's employees make more money than they would under the union rates posted on the bulletin board. Also attached to each individual letter was a spe- cific comparison of the individual employee's present wage rate to the one Respondent contends the employee would earn under such a graduated scale. MARIPOSA PRESS 537 3. The October 24 meetings On October 24 Respondent had another meeting of employees. On this date Goldman and Homes had two sessions of the meeting and also met with the press crew alone. Goldman and Homes testified that Goldman read a prepared speech; however, they do not dispute that some additional comments were made. Employee Wayne Lowe testified that, at the press crew meeting, Goldman asked for suggestions. Employee Dave Gonderman testi- fies that he does not recall who brought up the topic of suggestions, but that certain suggestions were made. Ac- cording to Lowe, he suggested changing to a quarterly review, even if it did not necessarily include a wage in- crease. Gonderman testified that someone suggested a change in the policy of reviews. Apparently, this is a ref- erence to quarterly reviews According to Gonderman, neither Goldman nor Homes promised to adopt this sug- gestion. Rather, they said it would be something they would look into after the election was over, that it was a good suggestion, but they could not say one way or the other.. Gonderman also testified that, at the beginning of the meeting, Homes and/or Goldman said that they could not promise anything or give raises or anything like that because of the election. Goldman admits that this was the first formal meeting he had had with the press crew According to him, he had a separate meeting with them on .that day because they wanted to talk to each group separately to make it as informal as possible and to be sure that everyone had a chance to communicate. Homes testified that they met with the press crew separately because they had a heavy press schedule and it would have been nonproductive to interrupt the running of the press for the meeting, so they decided to meet with the press crew prior to the beginning of their shift. Goldman testified that he read his prepared speech verbatim at the press crew meeting. He further testified that at his meeting with the press crew, when he outlined the various benefits, he covered the profit-sharing plan. According to him, he said Re- spondent had had a profit-sharing plan since the incep- tion of the Company and that although Respondent had never made contributions to the profit-sharing plan be- cause it was in the startup phase and had not yet become profitable, Respondent's other affiliated companies in previous years had made such contributions He also stated that it was Respondent's intention in profitable years to contribute to the profit-sharing plan and that contributions could run as high as 15 percent , of the pay- roll. Homes testified that Goldman asked for comments and, in response, there was some general discussion re- garding productivity on the press, work quality, and minimizing paper waste. He corroborates that Wayne Lowe suggested quarterly reviews rather than the annual wage and performance reviews. According to him, Goldman responded that this was something he would consider but he could not promise anything. As to the other meetings on November 24, it is undis- puted that Goldman used charts to illustrate that the union wage rate which had been posted on the bulletin board was less than Respondent's wage rate if one ap- plied the graduated percentage scale for apprentices and trainees to the contractual wage rates. As a further illus- tration, according to employee Barbara Murphee, Gold- man said that Dave Gonderman had worked for Re- spondent for about a year but he would not automatical- ly become a journeyman, he would not automatically get journeyman wages and, if Respondent had to pay him journeyman wages, they would just get a journeyman to do the job. Murphee said she had just received the Re- spondent's November 20 letter which stated that she would be making only $2.94 an hour and asked how could that be true inasmuch as it was below minimum wage. Homes said, in her case it was different and indi- cated that it was obvious that she would not be making less than minimum wage. Dorene Gonderman testified that Homes explained wage increases were based on annual reviews, which would start again in January. Gonderman said other em- ployees would be getting raises in October. Homes said those raises were scheduled, that trainees get scheduled wage increases and people who become full time get wage increases. Gonderman asked why some employees were receiving increases and others who had been prom- ised increases were not. She said when she started on a machine she had been promised a wage increase and a review 3 months later but had never received it. Homes said she should not have been promised the increase, that he had just become aware of it, that other promises had been made and they were working on it. It is undisputed that Goldman again mentioned the ratio of journeymen to apprentices required by union contracts. Murphee tes- tified that someone asked about profit sharing and Gold- man said they did have plans for profit sharing, some- thing similar to what Earl Goldman Insurance had, but not at this time.4 Homes testified that the statements as to a dental plan were in the November 24 meeting, rather than the Octo- ber 17 meeting. He also testified that the subject of profit sharing came up at the November 24 meeting. Accord- ing to him, when Goldman was itemizing various bene- fits he made a statement that Respondent did not have a profit-sharing plan or that Respondent had not been making a profit, that such opportunity certainly existed down the road, but at this point in time there could be no profit-sharing contribution because Respondent was not making a profit. He recalls that Dorene Gonderman made the cdmment that the wage rates quoted to em- ployees were below minimum wage. According to him, he responded that it was not meant to imply that anyone would be paid wages below minimum but, rather, it was meant to illustrate what happens if one was to take a trainee and training rates and apply . the percentage on the bulletin board. He said it was not meant to be a rep- resentation of fact, but an exercise in illustrating the per- centage rates paid under the two union Contracts avail- able to Respondent As to the journeyman-apprentice ratio, Homes testified that Goldman said that the union contracts available to Respondent called for a ratio of three journeymen to one apprentice and, if that clause became part of the contract 4 According to Homes' schedule, Murphee and Gonderman attended different sessions of the October 24 meeting. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD between Respondent and the Union, Respondent would not be able to have as many trainees as they currently had. Goldman further said, according to Homes, that Re- spondent had recently found posted on the bulletin board a wage schedule which appeared to be from a Local 14 Contract. He said those appeared to be journeyman rates, there was no guarantee that if a uniori won an election and Respondent bargained with the union that the em- ployees would receive these rates or any other posted rates, that this would be an item that would have to be negotiated. He also 'discussed the minimum number of years it takes to become a journeyman and the percent- age of journeyman pay one would receive based on the amount of time one had been working, using charts to illustrate these points. Murphee testified that something was mentioned at the meeting regarding a suggestion box. However, Homes denied .that, at either of the meetings, Goldman asked employees for complaints or suggestions or made any promises regarding a dental plan. He also denies that Goldman referred to Dave Gonderman at either meet- ing. Goldman testified that in his speech he said the con- tracts they had seen had ratios between trainees and, ap- prentices and journeymen and that the ratio was usually three journeymen for each apprentice or trainee. He fur- ther said it would be difficult to know what would happen if the Union won and there was a contract, that Respondent might not be able to have as many trainees and apprentices. However, the text of the speech sets for the recommendation ratio of 3-to-1, and then states: Once again this issue would be subject to negotia- tions. However, the contracts we have seen, if ap- plied to Mariposa Press, would severely limit our ability to offer training programs. As to any discussion aside from his prepared speech, Goldman testified that he more or less responded when someone said something or asked a question ; He recalled some discussion about the journeyman rates and testified that his tendency was to go back to his prepared speech in making any response. McCain pointed out that train- ees did not make journeyman wages, that they started at a lower wage and worked their way up over a period of years from trainee to apprentice to journeyman. McCain also said that' it had been his experience with unions that there was a ratio of journeymen to apprentices and train- ees, that it was normally 3-to-1; in the event Respondent had a union contract, Respondent might not be able to have as many trainees Goldman further testified that he reiterated he was unable to make any promises and would not make them, that Respondent felt it was the employees' right to have a union if they wanted one and that Respondent would recognize and bargain with the Union if the Union won the election. McCain also said it took several years to become a journeyman, that Re- spondent did not really have any journeymen and very few of the employees could hold a job as a journeyman. Goldman testified that he does not recall making any ref- erence to Dave Gonderman He also denies making any promise to remedy employee complaints or grievances. 4. Conclusions a. Credibility A number of the alleged violations of Section 8(a)(1) of the Act involve the October 17 and November 24 Meetings. Much of the testimony as to these meetings is uncontradicted. However, other testimony is in dispute, mainly that adduced by the General Counsel in support of the complaint. Goldman and Homes testified that Goldman read a prepared speech at the November 24 .meeting I credit this testimony which is corroborated by some of the employee witnesses. However, it is undis- puted that Goldman also made additional statements. The testimony of the employee witnesses, while not as detailed as that of Goldman .and Homes, tended to be mutually corroborative in some critical aspects and was given without written texts to refresh recollection On the other hand, both Goldman and Homes had prepared for their testimony by referring to the prepared text and outline of Goldman's speech Nevertheless, their testimo- ny was contradictory in some respects and appeared in some regards to be slanted in a -manner favorable to Re- spondent's position. Homes testified that Goldman read a prepared speech at each meeting. Yet when confronted with the "text" of the October 17 meeting, which was not a speech but a list of points to cover, Goldman admitted that he could not have read the document verbatim as a speech Homes testified that when someone asked if everyone would have to be a member of the Union, Goldman said he did not know because he did not have any experience with the Union Goldman testified that he said to his knowledge they would have to belong to the Union, that there would probably be a closed shop, that the union contracts he had seen had such a provision. Homes testi- fied that they met with the press crew separately because of a heavy press schedule. Goldman testified they had a separate meeting with the press crew because they wanted to speak td each group separately for informality and to facilitate communication Both Goldman and Homes deny that GOldman mentioned suggestion boxes. Yet more than one employee witness testified that Gold- man mentioned a suggestion box Also, Homes testified that Goldman never mentioned Dave Gonderman. Goldman testified only that he does not recall making any reference to Dave Gonderman. Yet Murphee testified that Goldman mentioned Gonder- man, Who is her nephew, as an illustration of an employ- ee who would be replaced with a journeyman. On direct examination, Homes testified that on October 17 Gold- man made statements regarding a ratio of journeymen to apprentices. On cross-examination, he denied that the ratio between journeymen to apprentices was discussed at that meeting. Goldman testified that, during the Octo- ber 17 meeting, his discussion of the various benefits was in response to a question asked by someone as to what benefits were offered by Respondent. Yet the outline of his speech, which he claims he followed faithfully at the beginning of each session, states, "Explain to employees all the benefits they presently enjoy." Homes and Gold- man both testified that, during the - October 17 meeting, MARIPOSA PRESS \ 539 the issue of the revocation of authorization cards was ini- tiated by an employee inquiry as to the procedure for re- voking an authorization card. However, I note that Homes could not recall the identity of the employee who allegedly made an inquiry in his presence. Yet he does not recall the identity of the employees who spoke to McCain. Goldman also testified that he cannot recall the identity of this employee. He thinks however that it was Foltz. Neither McCain nor Smith was questioned in this regard. I find it incredible that Goldman and Homes, who Goldman claimed were on a first name basis with the employees, would consider this inquiry important enough to furnish all employees with the requested infor- mation and yet not recall the employee who made the inquiry. I also note that McCain testified that Foltz told him he did not understand the significance of the card and asked if there was any way he could get out of it. According to McCain, he told Homes one of the binder employees wanted to know if there was any way he could revoke an authorization card. Homes said he would check on it. Homes also testified that McCain told him about the in- quiry. However, his testimony differs from McCain as to what was said after McCain relayed the substance of the inquiry. Homes' account is very neatly phrased to but- tress his version of what occurred at the meeting. Thus Homes testified that McCain asked, "Have we done any- thing on that yet," to which he replied that they were working on it. On the other hand, Gonderman and Camp both testi- fied that, during the October 17 meeting, Goldman told them the procedure to follow to revoke their authoriza- tion cards and that no employee at the meeting requested such information. Rodrigues does not recall Goldman ac- tually explaining the procedure, but testified that Gold- man said there were such procedures which he would explain to them if they were unfamiliar with the proce- dures. In all the circumstances, including a consideration of the contradictions set forth above, in light of the totality of the testimonial and documentary evidence and my ob- servation of the demeanor of the witnesses, I find that, as to their testimony regarding the meetings, Homes and Goldman were not reliable witnesses and I do not credit them to the extent that their testimony is contradicted by that of Murphee, Gonderman, Camp, and Rodrigues, whom I credit in this regard. b. The free coffee and doughnuts The complaint alleges that Respondent provided the employees with free coffee and doughnuts at the Octo- ber 17 meeting in order to discourage them from sup- porting the Union and/or designating the Union as their collective-bargaining representative. Murphee and Gold- man testified that coffee and doughtnuts were provided during the morning meeting. Llamas testified that soft drinks were provided during the meeting she attended. Goldman testified, without contradiction, that Respond- ent regularly provides employees with free coffee, tea, and 'hot chocolate and that it subsidizes a lunchroom which serves sandwiches and a light lunch at a cost to employees of about 50 percent of the prevailing rate in the area. In these circumstances, I find that Respondent did not violate Section 8(a)(1) of the Act by providing free beverages and doughnuts to employees. c. The implied promise of a profit-sharing plan The complaint also alleges that Respondent made an implied promise to implement a profit-sharing plan for employees if the employees voted against the Union. However, the evidence establishes that Respondent's em- ployees are covered under the same plan which has been in effect for several years for companies affiliated with Respondent. Goldman simply informed employees that such a plan was one of the employee benefits, that no contributions had ever been made under the plan for Re- spondent's employees and would not be made until Re- spondent showed a profit. Accordingly, I find that Re- spondent has not violated Section 8(a)(1) of the Act by Goldman's statements regarding the profit-sharing plan. d. The solicitation of grievances and the implied promise of a dental plan The complaint alleges that Respondent solicited griev- ances from employees concerning their working condi- tions and made an implied promise to implement a dental plan for employees if they voted against the Union. It is well established that an employer's solicitation of griev- ances at preelection meetings carries with it an inference that the employer is implicitly promising to correct the inequities it discovers as a result of its inquiries. It is equally as well established that it is the implied promise to correct grievances, rather than the solicitation, that constitutes unlawful interference with employee rights and that the solicitation of grievances merely raises an inference that the employer is making such a promise, which inference is rebuttable by the employer. Uarco Inc., 216 NLRB 1 (1974); Merle Lindsey Chevrolet, 231 NLRB 478 (1977). Here Respondent contends that it did not solicit griev- ances. I disagree. Thus Goldman stated in his October 3 letter that employees could discuss directly with Re- spondent any problems they might have without any need for a third party to represent them, that his door was always open to employees and he would be happy to discuss any matter concerning their jobs or anything else the employees cared to discuss at any time. He reit- erated this idea of dealing directly with employees and maintaining an open-door policy at the October 17 meet- ing and continued to proffer the idea of direct dealings at the November 24 meeting. Homes admits that Goldman asked for comments at his meeting with the press crew. I find that in the con- text of a speech where Goldman was comparing Re- spondent's wage program with that which could be ex- pected under a collective-bargaining agreement and was listing the benefits offered by Respondent to employees, a solicitation of comments would reasonably be assumed by employees to be a solicitation of their views regard- ing their wages and working conditions. The employees certainly took it as such since they proceeded to make certain suggestions, including one with regard to chang- ing from an annual review to a quarterly one: Also, in 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD \ response to Goldman's statements with regard to his open-door policy, Dorene Gonderman complained that she had been attempting unsucessfully to secure a wage increase and she continued to complain in this regard at the November 24 meeting At this time, while stating that she should not have been promised the wage in- crease, Goldman said he had become aware that this and other promises had been made and they were working on it. Further in his prepared speech, he stated that, even though Respondent was prohibited from promising or granting wage increases outside its stated policy, they would welcome the opportunity to personally discuss with each employee his wage rate and current wage range. The employees were invited to contact their im- mediate supervisors to arrange such a meeting. Addition- ally, Goldman said he would provide a suggestion box I further find that Respondent has failed to rebut the inference of an implied promise to correct the inequities it discovered as a a result of its inquiries. In this regard, I note that the record does not reflect that Respondent has previously announced an open-door policy or encour- aged its employees to discuss their problems with its president. Further, this invitation was extended during speeches and in letters which were clearly in response to the Union's organizational campaign and part of Re- spondent's campaign to persuade its employees to deal directly with it and to reject union representation. In these circumstances, the mere recitation of a "no prom- ises" formula does not negate the implied promise. Raley's, Inc., 236 NLRB 971 (1978). Accordingly, I find that Respondent has violated Section 8(a)(1) of the Act by soliciting grievances from employees and by implicit- ly promising to correct any inequities found, including a promise to consider establishing a dental plan in the future. Uarco Inc., supra; Merle Lindsey Chevrolet, supra; Cutting, Inc., 255 NLRB 534 (1981); Permanent Label Corp., 248 NLRB 118, 130 (1980); Raley's, Inc., supra. e. The threat of loss of employment According to the credited testimony, in his October 17 speech, 5 Goldman said that the union contracts he had seen required a ratio of so many journeymen to appren- tices, that most of Respondent's employees would be considered apprentices or trainees, and in order to main- tain the required ratio Respondent would have to lay off some of the employees and hire journeymen. In one of the November 24 sessions, he specifically mentioned em- ployee David Gonderman and said if Respondent had to pay him journeyman wages, they would just get a jour- neyman to do the job. I find this to be a threat of loss of employment if the employees selected the Union as their collective-bargaining representative. Accordingly, I find that Respondent thereby violated Section 8(a)(1) of the 5 Respondent argues that the testimony of Gonderman and Camp is not reliable as to their placing the discussion on Journeyman-apprentice ratio during the October 17 meeting I find no merit in this argument Camp testified that he attended a meeting but does not recall whether it was in October or November However, he also testified that revocation of authorization cards was discussed at this meeting and it is undisputed that revocation of authonzation cards was mentioned at the October 17 meeting, not at the November 24 meeting Moreover, Homes initially tes- tified that these ratio were discussed at the October 17 meeting Act. Delco-Remy Division, 234 NLRB 995 (1978); Duran- go Boot, 247 NLRB 361, 364 (1980). The General Counsel also argues that Respondent un- lawfully threatened its employees during one of the ses- sions of the October 17 meetings by Goldman's and McCain's statements that there was no "open shop" in California and, if the Union won the election, employees would have to join the Union or leave Respondent's employ. This was in the context of a speech where Goldman had pointed out the "disadvantages of union membership such as the obligation to abide by union rules, punishable union offenses, fines and assessments." He thereby conveyed an erroneous impression that the mere selection of the Union as their bargaining represent- ative would inevitably result in either the financial and other obligations of union membership or loss of employ- ment. I find this to be a threat of loss of employment which is violative of Section 8(a)(1) of the Act. - f. The inducement of employees to revoke union authorization cards The complaint alleges that Respondent induced em- ployees to revoke the authorization cards they had signed designating the Union as their collective-bargain- ing representative. Respondent did, in fact, provide em- ployees with information as to a procedure for revoking the cards. Respondent contends that it merely did so in response to an inquiry from an employee as to the proce- dure for revoking his authorization card. However, the evidence does not support this contention. No employee inquired regarding the revocation of authorization cards prior to Goldman's statements at the October 17 meeting and Homes admits that he had commenced the process of preparing the October 17 letter prior to McCain in- forming him of Foltz' inquiry. Thus, the idea of the rev- ocation of union authorization cards was, in fact, initiat- ed by Respondent. Where employees in a noncoercive atmosphere request their employer to advise or assist them in revoking union authorization cards, an employer may lawfully do so if the employee has the opportunity to continue or halt the revocation process without the interference or knowl- edge of the employer. KDI Precision Products, 176 NLRB 135 (1969); Payless Drugstore of Port Angeles, 210 NLRB 134, 136 (1974); Jimmy-Richard Co., 210 NLRB 802 (1974); Aircraft Hydro-Forming, Inc., 221 NLRB 581, 583 (1975). Further, advising employees that they can revoke union authorization cards and furnishing information as to the procedure for doing so is not a per se violation of Section 8(a)(1) of the Act, even though such advice may not have been requested by any employee. Aircraft Hydro-Forming, Inc., 221 NLRB 581, 582 (1975). Howev- er, such conduct has been found coercive where the em- ployer has also attempted to elicit information as to whether employees availed themselves of this advice. Hatteras Yachts, AMF, 207 NLRB 1043 fn. 3 (1973); where unrequested advice has been accompanied by em- ployer assistance in the actual mechanics of the revoca- tion, Deutsch Co., 180 NLRB 8, 20 (1969), and where the advice was given in the context of other unfair labor practices, Kut Rate Kid & Shop Kwik, 246 NLRB 106, MARIPOSA PRESS 541 119 (1979); L'Eggs Products Inc., 236 NLRB 354, 389 (1978). Here Respondent proferred its unsolicited advice which was later elaborated on in the October 17 letter in the same meeting where it threatened its employees with loss of employment if they selected the Union as their collective-bargaining representative and implicitly prom- ised that, if they rejected union representation, and dealt directly with Respondent, it would correct any inequi- ties. In these circumstances, I find that Respondent vio- lated Section 8(a)(1) of the Act by inducing employees to revoke their authorization cards. 5. The alleged unlawful interrogation Dorene Gonderman testified that she and Supervisor Kathy Smith had been personal friends for about 4 years and that, at one time during this period, they were next door neighbors According to Gonderman, she had ap- proximately 10 conversations with Smith concerning the union during the months of September, October, and No- vember They were casual conversations and never very long. Most of the conversations were indistinguishable as to what was said in which conversation. However, she does recall that, in October during a break, Smith asked her how the union drive was going, if she had heard whether supervisors would be allowed to vote, and if there were very many people at work involved Gonder- man replied that things were going fine and she did not think supervisors could vote because they have the au- thority to hire and fire. She also told her when the next meeting was scheduled but did not tell her who was in- volved with the Union. Gonderman also testified that, sometime in October, Smith asked her who was involved in the Union It is unclear whether she was referring to another conversation or whether she was changing her testimony as to this conversation. After being shown her prehearing affidavit which states that her first conversa- tion with Smith about the Union was around the begin- ning of July, and denied that this first conversation was in reference to the organizing campaign of a previous union. According to her, this other union was organizing in June; however, the parties stipulated that the organiz- ing campaign of the Union at Mariposa Press began during the first week of September and that, if Ziol- kowski was called to testify that to the best of his knowl- edge, prior to September, there was no contact made di- rectly between the Union and Dorene Gonderman. Smith testified that during the summer, around June, when the other union was organizing she asked Gonder- man if she could be included in the union activity. Gon- derman said no, because Smith could hire and fire. Thereafter, during the summer, Homes told Smith she was not allowed to ask any employees about union mat- ters •and, if employees asked her questions, she could answer them and could express her own opinion but she was not to ask employees anything. Following that dis- cussion with Homes, according to Smith, she did not ask Gonderman any further questions. However, she did eat lunch with Gonderman frequently, as did other employ- ees, and union matters were discussed in her presence. Smith denies that during any of these discussions she ever asked Gonderman if she had gone to a union meet- ing Respondent attacks Gonderman's credibility on the basis of her confusion as to the time the Union's organi- zational campaign commenced. Unquestionably, her testi- mony was completely unreliable in that regard and .I credit Smith, whom I found to be an honest and reliable witness who was endeavoring to tell the truth, that this conversation occurred around June. I also credit Smith that she did not ask who .was involved in the Union nor when any union meeting would be held. Gondernian admits that her recollection is vague as to any conversa- tion which occurred after the initial one. I credit Smith that, following this June conversation, Homes told her she was not to question employees and she did not do so. In this regard, I note that, even though Smith admits that the Union was frequently discussed in her presence and does not deny that she participated in these •discus- sions, there is no other evidence that Smith•interrogated- employees. In the circumstances, including the absence of any evidence as to any other unfair labor practices around June or at any time prior to October, and the ab- sence of any evidence of other incidents of interrogation during Respondent's rather active campaign against. the Union, I find that Smith's asking Gonderman, in June, whether many employees were involved was an isolated instance of interrogation which did not violate Section 8(a)(1) of the Act. C Granting of Benefits I. The transfers to full-time status All of Respondent's unit employees are classified as either full time or part-time. It is undisputed that part time employees sometimes work a 40-hour week-and that full-time employees work less than a 40-hour week if no work is available. A part-time employee does not become full-time simply by regularly working a 40-hour workweek over a period of time Rather, some affirma- tive action has to be taken by Respondent to transfer an employee from part-time to full-time. The principal dif- ference between part-time and full-time employees is the benefits they receive Full-time employees receive a full complement of benefits, including medical and life insur- ance, paid holidays, and paid vacations. On the other hand, part-time employees receive, in lieu of all other benefits, one paid vacation day every 110 regular hours worked During October five employees were trans- ferred from part-time to full-time status. They were Mel Pacheco, Wayne Lowe, Ron Murphee, Gary Mann, and Annie Llamas. Homes testified that employees are transferred from part-time to full-time status as the work load demands. With the possible exception of the press crew there are no guidelines by which a supervisor can determine when an employee is to be transferred to full-time. Further, all such decisions are made by Homes. However, after a part-time employee continues to work 40-hour weeks over a period of time, the supervisor will normally rec- ommend that the person be transferred to full-time status. Then, assuming that the workload demands are favor- Jan Feb March April May tJune July Aug Sept Oct Nov Dec. $34,455 39,248 21,600 19,127 14,905 8,442 5,901 17,650 37,323 28,151 37,036 $60 326 71,935 66,347 67,012 56,881 68,135 60,636 106,355 127,543 74,249 94,1.56 S14,592 18,113 17,896 13,059 9,304, 9,680 9,828 13,838 16,518 20.298 10,814 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD able, Homes will consider, as to an individual employee, facts such as seniority, skills or aptitude for the particular job, training, and background. In 1980, prior to the union organizational campaign, five employees were transferred to full-time status They were Kirsten Carpenter and Sonja Vaught in April, Ca- trina Stupp and Dorene Gonderman in May, and Jenni- fer Rossi on September 1 Carpenter and Gonderman worked in the bindery, Vaught in the warehouse, and Stupp and Rossi in the press department. Of the five em- ployees who were transferred to full-time in October, Pacheco worked in the warehouse, Lowe in the press department, and Mar, Murphee,-and Llamas worked in the bindery. Homes testified that the transfers to full-time status in 1980 reflected an increase in Respondent's busi- ness which stemmed from a change in its operations. Ac- cording to Homes, Respondent was initially engaged as a warehouse , and shipping operation . of Nitty Gritty Pro- ductions, one of Respondent's affiliated companies. A warehouse was opened in Concord in September 1977. At that point, Respondent's sole customer was Nitty Gritty and its work complement was one full-time ware- house -and shipping supervisor and four to five part-time employees who were on-call In early 1978, Respondent commenced the construction of a . new facility with the intention of expanding Respondent's operation into print- . ing and binding. When Respondent moved into that fa- cility in May 1979 and commenced its printing and bind- ing operation, it was still working exclusively for Nitty Gritty as the delays occasioned by the move into the new facility had resulted in a tremendous backlog of printing and binding Work for Nitty Gritty. At that point in time, Respondent had about five or six full-time em- ployees and about six part-time employees. In January Respondent began to aggressively seek out- side commercial printing and binding work. Its success in this regard was somewhat erratic During the summer there was a .significant decrease in its bindery and ware- house operations and July and August were particularly dissatrous for the bindery There was a dramatic increase in the printing operation in September and October and •there were also substantial, increases in the bindery de- partment and in the warehouse. Respondent's records in- dicate that its income by departments for 1980 was as follows: BIND- PRINT- WARE- ER Y ING , HOUSE Pacheco was hired on July 7 primarily as a driver in the warehouse department and was promoted to full-time status on October 2 at the end of his 90-day, probationary period According to Homes, at the time Pacheco was hired he was told that when Respondent's business in- creased to the point where a majority of his time was spent driving he would be transferred to full time status By the end of his probationary period he was spending 80 percent of his time driving a truck making deliveries and pickups. The remainder of his time was spent work- ing in the warehouse. Lowe was hired as a part-time employee in the ware- house on July 2. On July 29 he was transferred to the press department and began training as a "jogger." By the end of his 90-day probationary period he was work- ing a 40-hour week At that time, on October 2, he was transferred to full-time status. Homes testified that in the normal course of business the press is run full time and that it is necessary for someone to occupy each position on the press at all times Thus the four _press crew posi- tions—first and second pressmen, feeder, and jogger—are all full time positions. Accordingly, Lowe was trans- ferred to full-time status at the completion of his proba- tionary period. • Murphee was hired in October 1979 to work in the warehouse. He also worked sometimes in the bindery. In July he began training as an -operator on the Perfect binder. The Perfect binder, the primary machine used in Respondent's bindery operation, is a large machine which requires several persons to man it in addition to an operator who is responsible for the overall operation of the machine. McCain was the principal operator of the Perfect binder; however, according to him, he needed to have another operator available to relieve him to perform other duties. Since Murphee had been satis- factorily training for that position and was the only em- ployee besides McCain who could operate the Perfect binder, according to Homes, he was transferred to full- time status. At the time, Murphee was attending school and was working only about 32 hours a week. Homes testified that in October, on receiving a payroll change notice from McCain recommending Murphee for a wage increase, he called McCain in to discuss the matter He queried McCain as to his immediate and short-term "need for a bindery trainee and asked if some- one on a part-time basis was really what McCain needed or did he feel at this point that he needed a full-time em- ployee in that position to relieve him to carry out his other duties McCain said he had been in a hurry, that he wanted to get his paperwork done and had not really thought it through, and that he had meant to indicate on the payroll change notice that Murphee should be full- time with benefits. McCain also said that Murphee was available to work up to 32 hours per week. McCain fur- ther said he understood that Murphee had decided to leave school at the end of the year and would be avail- able to work a full-time schedule.6 Pnor to this, according to McCain, Murphee had been working 20 to 30 hours on'a regular basis According to Murphee, in No■rember he was working 30-32 hours a week MARIPOSA PRESS 543 McCain testified that Murphee had been training on the binder and was performing satisfactorily but was not working sufficient hours to permit McCain to Perform his other responsibilities -properly. Therefore, according to McCain, the work load actually caused him to recom- mend that Murphee be transferred to full-time status. McCain admits, however, that after Murphee was given full-time status his hours continued to vary through the end of the year from 22 to 36 hours. It was sometime around the first of the year that he began working 40 hours a week on a regular basis. According to McCain, when he transferred Murphee to full-time status, he spoke to him regarding the number of hours he wanted him to work. He asked if Murphee could put in 40 hours. Murphee said he was still going to school McCain asked how many hours could he work. Murphee said he did not know and McCain said the more hours Murphee worked the better it would be for McCain insofar as re- lieving him for his other duties. McCain admits he had no subsequent conversations with Murphee concerning the number of hours he was working. Murphee denies that McCain told him he was going to be transferred to full-time status. He admits he knew Re- spondent's policy was that an employee received the full complement of benefits upon being transferred to full- time status. However, according to him, he did not tell McCain that he was going to be quitting school the first of the year nor did anyone tell him to begin working 40 hours a week. Rather, he just began to show up at 8 a.m. and ever since has worked a full-time schedule. Llamas was hired on September 27, 1979, as a part- time bindery worker. Mann was hired on March 11 as a part-time worker in the warehouse and was later trans- ferred to the bindery. In August, both Mann and Llamas commenced training on the saddle stitcher machine. In late August or September, Respondent started operating the sadle stitcher on a two-shift basis. Kirsten Carpenter, a full-time employee, and Mann were assigned to operate the machine on the day shift; and Dorene Gonderman, a full-time employee, and Llamas were assigned to operate the machine on the night shift. Mann was transferred to full-time status on October 15 and Llamas was trans- ferred to full-time on October 17. McCain testified that these transfers were made because of the increase in work load, because Mann and Llamas had been perform- ing satisfactorily on the saddle stitchei and because of 'their semonty. 7 With a few exceptions, Llamas has regu- larly worked a 40-hour week since at least the time she began working on the saddle stitcher.° When McCain asked her to work nights on the saddle stitcher, he told her she would get a night wage differential and that he would try to get her a raise. He further said that all of the employees, working on the saddle stitcher would be transferred to full-time status. 7 According to Homes, Mann was more proficient on the saddle stitcher than Llamas 8 Llamas signed a union authonzation card on ,September 10 Accord- ing to her, she began working on the saddle stitcher about a month earli- er 2. The wage increases Respondent granted wage increases to ,the 14 employ- ees during the period between the commencement of the Union's organizational campaign and the election-10 in October and 4 in November. Homes, who has to ap- prove all wage increases, testified that all these wage in- creases were granted in accordance with Respondent's normal practice. According to him, wage increases are granted as merit increases on the recommendation of the supervisor, to accompany a promotion, as a length of service increase which might be after 80 hours of em- ployment, or at the conclusion of the probationary period, and as a result of their annual wage review which occurs in January.° Five of the wage increases in- volved here accompanied the promotions to full-time status discussed above. It is undisputed that it is Re- spondent's practice to grant a wage increase to employ- ees when they are transferred to full-time status, and the timing of four of these five increases is consistent with this practice. However, Lowe was transferred to full- time status on October 7 but did not receive the increase in his paycheck until November 21.10 Lowe testified that after he began working as a jogger he asked Kerry Orton, the first pressman,' if his trans- fer to the press entailed a wage increase Orton said Lowe was still "sort of on a temporary basis." Lowe fur- ther testified that he also should have been issued a uni- form but had to wait about a month for the uniform. For 2 or 3 weeks after he began working on the press, he asked Orton about his uniforms and his pay increase and Orton said, "We'll wait and see how you work out." However, the parties stipulated that Lowe received a $1 wage increase ' on July 29, and Lowe testified that he began working as a jogger around the end of July. Lowe's November 21 paycheck reflected a wage in- crease retroactive to October 2. When Lowe received the check it was considerably more than he expected so he asked Orton io check to see if there was a mistake. The following week, according to Lowe, Orton' told him that about a month after he had been transferred to the press he had been granted a wage increase, but it had not been logged into the computer so the money he received on his November 21 check was his wage increase retro- active to the date it had been granted. Homes testified that he approved Orton's recommen- dation that Lowe be transferred to full-time status and given a wage increase However, inadvertently the infor- mation did not get placed into the computer. Around mid-November, Orton told him Lowe had complained that he had never received the wage increase promised him by Orton Homes researched the matter and, after he discovered the error, instructed the payroll clerk to rec- tify the problem. Homes then explained to Lowe what had happened and, according to him, told Lowe that his next paycheck would reflect the raise retroactive to Oc- tober 2. 9 In 1980, this Increase was delayed until April is Respondent's payroll system involved a 1-week time lag between payroll penod and paycheck 11 Orton is an admitted supervisor 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Orton testified that Lowe was not transferred to full- time status at the time he began working on the press be- cause he had no prior experience on a web press and Orton wanted to be sure that he could perform satisfac- torily before making •him full time: He further testified that, at the time he asked Lowe to work as a. jogger, they had no discussion about a wage increase. However, according to him, they did have such.a discussion in Oc- tober when he told Lowe that he was satisfied with his work performance and was going to speak to Homes about granting him a wage increase. He then recom- mended to Homes that Lowe be given an increase. Homes agreed, so Orton told Lowe he had the _raise. On the following payday Lowe asked Orton why his wage increase was not reflected on his paycheck. Orton said he would look into it. He then ,spoke to the payroll clerk who said she would take care of it. When Lowe received the check which contained the retroactive pay, accord- ing to Orton, he asked- Orton what the extra pay was for and Orton reminded him that it was backpay because he had not received his pay increase at the proper time. Orton also testified that he does not believe he Shad any conversation with Homes about Lowe not receiving his wage increase. However, he admits he does not remem- ber how he learned that the problem had been caused because the increase had not been placed in the comput- er. He thinks that ,the payroll clerk mentioned it to him. Of the remaining nine wage increases involved herein, Respondent contends seven were given in , accordance with its general wage policy for new hires. Respondent's rules and procedures for employees, dated April 1, 1980, provide: COMPENSATION As a general rule, all employees will receive a compensation/performance review annually. Addi- tional reviews may be conducted during the year • Certain additions to and clarification of procedures and rules are contained in a memo from Homes to the plant manager dated April 14, 1980. This memo , provides: NEW HIRES2FULL OR PART TIME New hires and wage rates other than replace- ments for part time employees must be approved by' the office in advance. The following wage policy will apply to part time new hires NEW HIRES—PART TIME PAY POLICY Until further notice new hires—part time will be paid at the maximum rate of $3.50 per hour. After 2 weeks or 80 hours worked, increase to $3.75 (or 25¢ an hour), after review. After an additional 2 weeks, or_ 80 hours, review with increase of 250 an- hour to a maximum of $4.00. At 6 months performance review increase 250 an hour. Maximum wage for part time employees is $4.25 per hour. Homes admits this is merely a guideline and that the increase is actually at the discretion of the supervisor. Generally the supervisors review such increases with Homes. Homes also admits that a review and wage in- crease does not necessarily have to be timed after 2 weeks, 4 weeks, and 6 months of employment. Rather, Respondent's policy is very flexible in an attempt to try to motivate, attract, maintain, and compensate good part- time people. In accordance with this policy Barbara Murphee, Issac Camp, Michael Flotz, Derrex Nash, Andy Navarro, Sherrill Orr, and Debbie Shipherd all re- ceived 25 cent raises at intervals ranging from 2-1/2 weeks to 1 month after their hire. The other two wage increases, given to Kathy Seybolt and Edward Rodrigues, do not fit into any specific &define' for granting wage increases. Rather, according to Respondent, they are covered by the statement in the rules and procedures which states "additional reviews may be conducted during the year." Seybolt was given a 25-cent-an-hour increase on her first year , anniversary date, October 17. Homes admits there is no written policy that an employee must be reviewed after '1 year of employment. However, according to him, Seybolt is a part-time employee who does not desire to work full time. At the time she was one of only two part-time em- ployees who had worked for Respondent for as long as 1 year. The other was ,Llamas who was promoted to full- time Seybolt's last raise had been in April. Rodrigues' wage increase was the only one not based on length of service and merit. The increase was granted 2 months short of the time for a possible 6 months in- crease for new hires, and both Homes and Smith, his su- pervisor, contend that they had problems with him as to his job performance. However, they also contend, he had been requesting a wage increase and he was granted one in the hope that it would serve as an incentive to in- crease the quality of his work performance. 3. Conclusion It is settled that increases and benefits to induce em- ployees to vote against the union is violative of the Act for, as stated by the Supreme Court. The danger inherent in well-timed increases in bene- fits is the suggestion of a fist inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged. [NLRB v. Ex- change Parts Co.; 375 U.S. 405, 409 (1964).] The crucial question, of course, is motivation, because granting employee benefits during a union organizational campaign is not a per se violation of the Act. However, in determining whether a grant of benefits which coin- cides with a union organizational and election campaign is unlawful, absent an affirmative showing by the em- ployer of some legitimate business reason for such timing, the Board will draw an inference of improper motivation and interference with employee rights under the Act. Litton Dental Products, 221 NLRB 700, '701 (1975); Somerset Shirt & Pajama Co., 232 NLRB 1103, 1111 (1977); see also Essex International, Inc , 216 NLRB 575 (1975). - As to the transfers to full-time status, the General Counsel argues that the circumstances under which each MARIPOSA PRESS \ 545 of these employees was made full time were suspicious and inadequately explained. On the other hand, Respond- ent argues that these transfers to full-time status were for legitimate business reasons and within Respondent's flexi- ble policy and practice on such matters. Respondent has no definite objective policy guidelines as to when an em- ployee will be transferred. However, I find that Re- spondent has met its burden as to Pacheco and Lowe. Homes testified without contradiction that Pacheco was told at the time of his hire that he would be made full time as soon as the workload for a driver increased to the point where it constituted a majority of his work. When he was transferred to full-time status at the end of his 90-day probationary period, he was driving 80 per- cent of the time. Lowe was hired on July 2. On July 29, he began training as a jogger on the press. Homes and Orton testified, without contradiction, that all press posi- tions are full-time positions shice the press runs full time and the four positions must be occupied , at all times. Lowe was made full time at the end of his probationary period. A determination as to the motivation for the transfer of the three bindery workers to full time tatus is some- what more involved. Whether they are transferred to full time seems to depend, at least partially, upon a determi- nation as to whether the work load justifies such a trans- fer. The principal evidence as to general workload came from Respondent's summary of its 1980 income by de- partments The increase in the income of the bindery de- partment in October does not appear to corroborate Re- spondent's contention that there was an increase in work load in that department in October. However, there is no specific' showing of any factors which would indicate that, in early October, Respondent had reason to believe this would be a sustained increase. The income of the bindery department had been comparable in February and March but steadily declined for several months thereafter. Yet during this decline, two bindery employ- ees were transferred to full-time status—Kirsten Carpen- ter on April 1 and Dorene Gonderman on May 19. In 'all the circumstances, I find that overall department income does not, by itself, establish the sort of increase in work- load which would cause Respondent to transfer employ- ees to full-time status. Rather, it appears to be only gen- erally corroborative of other evidence as to increased work load. Respondent contends that Mann and Llamas were transferred to full-time statu essentially because they were assigned to operate the newly acquired saddle stitcher machine. It is undisputed that, for at least several months commencing in the first week of September; the work load for that machine was sufficient to require op- erating it on a double shift. Llamas testified that during the latter part of August when she was assigned to begin training on the saddle sticher, McCain told her that ev- eryone assigned to the saddle stitcher would become full time with benefits. In response to her request for a wage increase, he said he would try to get her an increase. However, when questioned as to why Mann and Llamas were not immediately transferred, McCain testified that he was not sure whether there would be sufficient work to keep the machine busy and that it took 3 weeks to a month to make that determination. In the circumstances, I conclude that a delay of 3 or 4 weeks in effectuating the promise that the operators of the saddle stitcher would be transferred to full-time status was not so unreasonable as to support an inference that the transfers were motivated by the union organiza- tional campaign. Thus, as with Pacheco, the transfer of Mann and Llamas was effectuated in accordance with promises to do so which were made prior to the Union's organizational campaign. Respondent had an obligation to effectuate this change in status as if the Union were not in the picture. Accordingly, I find that Respondent did not violate Section 8(a)(1) of the Act by transferring Pacheco; Mann, Llamas, and Lowe to full-time status. On the other hand, I find that the circumstances of Ron Murphee's transfer to full-time status do not estab- lish a legitimate business reason for the timing of his transfer. He does not meet with Respondent's most basic requirement—that he regularly work a 40-hour week. I therefore conclude that the evidence supports an infer- ence of unlawful motivation. This conclusion is but- tressed by my finding below that the grant of certain wage increases was unlawfully motivated. Accordingly, I find that Respondent violated Section 8(a)(1) of the Act by transferring Murphee to full-time status with the ac- companying grant of benefits and wage increase. As to the wage increases granted to Pacheco, Lowe, Mann, and Llamas, in accordance with Respondent's prior practice, these increases accompanied their transfer to full-time status. Since I have found these transfers were not violative of the Act, I also find that the wage increases which accompanied the transfers were not vio- lative of Section 8(a)(1) of the Act." Regarding the other wage increases granted during the election campaign, seven were granted to employees with less than 6 months' seniority and two were granted to employees with more than 6 months' seniority. The General Counsel correctly argues the burden is on Re- spondent to establish that the timing of such increases was motivated by factors other than the union campaign or the pendency of an election, Chester Valley, Inc., 251 NLRB 1435 (1980); and that the burden is met where the increases are shown to be granted in accordance with an established regular wage program. Doces Sixth Avenue, 225 NLRB 806, 810-811 (1976). The General Counsel also argues that a further indicia of unlawful motivation is the fact that wage increases were granted in "unprece- dented" numbers for a 4- to 6-week period other than the period of the annual reviews. Adam Automation & Mfg. Co., 218 NLRB 1255, 1258 (1975). Respondent's only regular established program of wage increases for part-time employees with more than 6 months' seniority is that which accompanies a transfer to full-time status based on an annual review. This review is not given on an employee's anniversary date but rather is given to all ernriloyees during the same time period. Annual reviews, and the resulting wage increases, were 1 2 In the circumstances, ' I find that LoWe's wage increase was the in- crease which accompanies a transfer to full-time status and that the delay in his receiving the increase was inadvertent. 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD given in 1980 during the month of April. Any other raises are given at the discretion of the supervisor and Homes. The raises given to Seybolt and Rodrigues fall within this discretionary category and were not based on any regularly established wage plan. I find that Respond- ent has not established a legitimate business reason for the timing of the wage increase granted to Seybolt and Rodrigues. Accordingly, I find that Respondent has vio- lated Section 8(a)(1) of the Act by the grant of wage in- creases to them. As to the wage increases granted the newly hired em- ployees, Respondent's stated wage policy provides for review after 2 weeks or 80 hours with a 25-cent wage increase and a second review after an additional 2 weeks or 80 hours with a 25-cent wage increase. All the wage increases were granted within 1 month of employment except for Orr who was given a wage increase after 5 weeks of employment. Although it appears from the record that Respondent's practice has not been to give all new employees two wage increases during their first month of employment, there is nothing to suggest that they did not receive one wage increase during that first month. . The General Counsel finds it suspicious that Murphee and Shipherd were the only employees who received wage increases approximately 2 weeks after their hire dates. Also none of the wage increases were granted ex- actly 2 weeks or 4 weeks after hire. I find that neither circumstance is an indicia of unlawful motivation. There is no reason to conclude that the actual timing of the wage increases, as opposed to the 2 weeks and 4 weeks, or 80 hours and 160 hours, anniversary dates, was more advantageous to Respondent's election campaign. All the raises were granted after the initial surge of card signing and the Union's demand, and all of the pertinent anniver- sary dates would have been prior to the election. I find no significance in the fact that the raises were not granted precisely on the appropriate anniversary dates. In all the circumstances, I find that the wage in- creases granted to new hires conformed generally to Re- spondent's wage plan for new hires. The fact that a large number of wage increases was given during the preelec- tion period only reflects that a number of new employees were hired in September and October. There is no con- tention, or evidence, that the hiring of these new em- ployees was unlawfully motivated. Accordingly, I find that Respondent did not violate Section 8(a)(1) of the Act by granting wage increases to Camp, Foltz, Barbara Murphee, Nash, Navarro, Orr, and Shipherd. D. The Discharge of Funseth, Sterling, and Campbell As set forth above, on September 25 and 26 the Union notified Respondent that Funseth, Sterling, Schwarz, and Rodrigues were members of the volunteer organizing committee. Both Sterling and Funseth commenced work- ing for Respondent in September and Campbell's first day of employment was October 7. On October 7, McCain discharged Funseth, Sterling, and Campbell for smoking marijuana during their lunch break. It is not dis- puted that they were in fact smoking marijuana. It is also undisputed that in September, prior to the union activity, McCain had told Sterling and two other employees that he thought he had observed them smoking marijuana and, upon their denial, warned them that if he caught them smoking marijuana again during their lunch break he would discharge them. In these circumstances I agree with counsels for the Respondent and the General Coun- sel that Respondent established the discharges would have taken place even in the absence of the union activi- ty. Accordingly, the motion of counsel for the General Counsel is granted to withdraw subparagraphs 7(a) and 8(a) and (b) of the amended complaint insofar as they al- leged the unlawful discharge of Funseth, Sterling, and Campbell. Wright Line, 251 NLRB 1083 (1980). E. The Discharge of Schwarz 1. Facts Allen Schwarz was hired on September 8 to work in the bindery. He had no prior experience doing bindery work. According to McCain, when he hired Schwarz he explained that there was a probationary period and that if his work was satisfactory he would receive a wage in- crease after so many hours and after so many more he would get another raise with the possibility of being transferred to full-time status; but, that if his work was not satisfactory, he could be discharged. Although McCain was Schwarz' supervisor, both Smith and McCain testified as to the reason for his discharge. Ac- cording to Smith, Schwarz moved incredibly slow, he was always wandering around pretending to push his broom, talking to other employees, and "not doing much of anything." Smith further testified that on the day Schwarz was discharged she observed Schwarz pretend- ing to sweep in a corner of an area between the bindery and the warehouse for a half hour when it only required 2 minutes at the most to sweep. According to her, she was furious and went to McCain, related to him what she had just observed, and told him that he had to do something about Schwarz, that Schwarz' work perform- ance was terrible, other employees had been complain- ing" and, if McCain did not discharge him, she would. According to McCain, he would assign Schwarz a job of cleaning up an area, emptying barrels or something of that nature, and then he would notice Schwarz leaning on his broom talking to other employees. As soon as McCain approached him, Schwarz would start moving his broom. McCain spoke to him regarding this a half- dozen or a dozen times, the first time being about a week after he was hired. Then he gave him a verbal warning on September 18 for leaning on his broom, not following instructions, and improperly feeding the pockets of the Perfect binder. According to McCain, on several other occasions he told Schwarz he was getting tired of him making mistakes and leaning on his broom, not doing his job, that he had better start straightening up or he was going to be out the door. Essentially McCain testified 13 According to Smith, employee Larry Carpenter complained that Schwarz worked too slow and was too inept to be of any assistance in the operation of the three-knife tnmmer Kirsten Carpenter and Sonja Vaught generally complained as to Schwarz being permitted to stand around when they had to work - MARIPOSA PRESS- 547 that Schwarz was lazy and did not have the aptitude to be a bindery worker McCain further testified that, on September 26, Schwarz was assigned to-feed pockets which he proceed- ed to do incorrectly and too slowly McCain wrote up a warning, called Schwarz into the office, and explained to Schwarz that he had been watching him, counting the .mistakes .that.he made, and that he was tired of warning Schwarz about just being a broom leaner. He said that with his mistakes, Respondent could not afford him, and if he did not get his act together he was not going to be there. McCain. showed Schwarz the written warning, pointed out to him that he could either concur or dis- agree, and that if he disagreed he could write in a state- ment of disagreement. Schwarz ' said he neither con- curred nor disagreed with the statement. Schwarz signed the warning, but did not write a statement on the warn- ing report nor did he check the box for either concur- rence or disagreement with the supervisor's statement contained in the warning McCain's written comment, which appears on the warning, reads: .- ' I have explained what jobs have to be performed and have had to take over for Allen because he could not keep up with machine or made mistakes. On 9-26-80 he could not keep up with the first pockets I assigned him so I put him on some easier ones and he, feed [sic] them backwards on 4' Occa- sions and let them run out also. Schwarz testified that on the day he received the writ- ten warning he had been loading the pockets in the binder and had been unable to keep up with the binder. According to him, the material was going too fast and he ,had too many stations He was removed from the binder and was replaced by two employees who were assigned the same number Of pockets that Schwarz had been han- dling alone 'On direct .examination, Schwarz testified that he did not recall how many pockets this was; how- ever, on cross-examination he testified that he thinks it was about five pockets. He further testified he never ob- • served how many pockets one person would typically feed so' he does not know whether five was an unusual _ number or not. 'McCain denies that he ever assigned Schwarz five pockets. According to him, normally, he would assign \ Schwarz three pockets and would assign other employ- ees' four. He specifically denies that he assigned more Than one person, on September 26 to feed the same number of pockets that Schwarz had been feeding by himself. I credit McCain in this regard. In doing so, I note that, though given the opportunity to do so, Schwarz made no notation on the warning of his alleged version of what occurred: , • McCain testified 'that at the time , he gave Schwarz the Written warning he was beginning to think there was no hope for Schwarz, -that he could not perform any job as- signment' free -of Mistakes. However, following the Sep- tember 26 warning, he assigned Schwarz to stack books at the end of the binder. According to McCain, this was 'the least complicated of the bindery assignments. Schwarz testified that two employees are assigned to the end of the binder, one- sits in a chair at the end of the conveyor and removes the material from the conveyor and hands it to the other employee who stacks it on a pallet. Schwarz further testified that for at least a week or 10 days after he received the written warning he Worked as one of these two employees: He also testified that it had been his obvservation that,' generally, no em- 'ployee spent more than a half day at a 'time working at the end of the 'binder. Nevertheless Schwarz was not re- assigned from that position until about 3 days prior to his discharge. He also testified that when he worked at the end of the binder he actually had no contact with any employees other than the one working with him. How- ever, when he was working loading the binder pockets he had more contact with the other employees. Employ- ees would sometimes stop the machine and go down and help other employees with the fiallets, help people load the bins ,and, in general, mix around McCain testified that Schwarz' work performance did not improve after the written warning. He did assign Schwarz to' the end of the binder' for 'several days, the reason being that he could no longer assign Schwarz to 'feed pOckets because of the mistakes he made. According to McCain, the jobs 'they were running during that period of time were too critical and too close as to count to allow for very many bad books. On October 10 they were having some difficulty with a particular job mainly because of a customer's problem. This resulted in quite a bit of downtime during which McCain would assign em- ployees to clean up, break down and repair pallets, empty barrels, sweep the floor, and anything else that needed to be done ,but is difficult to find time to do when the binder is running. Every time he assigned Schwarz to do something, Schwarz would go in a corner or behind the collator where he could not be seen "unless you were specifically" looking for him; he would lean on his broom and watch the press run and stand in a corner and look around to see what everyone was doing. McCain observed him CIO this twice for 3 or 4 minutes at a time. At some point during that day, according to McCain, Smith asked what he was going to•do with Schwarz. She said she had -been watching -him sweep the same 3-foot square in the courtyard for the last half hour, that there was nothing there, that he was just pushing the broom around in a circle, and why McCain did not do some- thing with him She further said that if McCain did not get rid of Schwarz, she was going to go crazy. At the time, according to McCain, he was busy and did not have time to do anything; however, he told Smith that as soon as he could catch Schwarz doing something wrong again he was going to discharge him. Subsequently, when -McCain was checking to see what each employee was doing, he did not see a couple of em- ployees so he began to look around for them. He walked over to the end of the cutter and observed Schwarz lean- ing on his broom- behind the collator just standing there. According to McCain, he stood and watched Schwarz for 5 minutes. During that time Schwarz did not move at all; whereupon McCain filled out Schwarz' termination report, came out and asked Schwarz to come into his 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office Schwarz asked why. McCain said he was fired, that he was not doing what McCain asked him to do and McCain was getting tired of seeing him lean on his broom and making mistakes that cost money and books. Schwarz said he was doing as good a job as anybody and that the only reason McCain was discharging him was because he was a union affiliate. McCain said he was firing Schwarz because he was a lousy worker. Schwarz said he would take this either to the NLRB or to the at- torneys. McCain responded that he did not care who Schwarz took it to, that he was discharged because he could not do the job. Schwarz said he was going to pursue it. McCain said, "You are free to pursue it as far as you want." McCain admits that at that time he knew Schwarz was interested in the Union. Schwarz's termina- tion memo cites incompetence as the reason for termina- tion and under comments notes: "Spent a good deal of time leaning on a broom talking to other employees and kept making the same mistakes—mainly loading pockets wrong." Schwarz testified that on October 10 he spent the first half of the morning sweeping and the second half un- loading the .pallets into the bins. According to him, about a quarter of the signatures on the pallet had already been through the trimmer and that the signature mark, which is a black stripe on the side of the folds, had been trimmed off which made it more difficult to know in which direction the signatures should be placed in the bins." When questioned as to whether it mattered whether the signatures are placed in the bin correctly, he testified that it helps to have them going in the same way as they are going to go- into the binder or at least what- ever way you are putting them in; if you are putting them in the bin all the same way, the person loading the pocket will have less chance of placing the signatures in the pockets incorrectly He further testified that if signa- tures were placed in the bins' incorrectly, the person loading the pockets could correct it, since all they had to do was simply to look at what they had in their hands and be sure that they placed it in the pocket correctly. Schwarz testified that on the morning of the day he was discharged, he was loading bins and Larry and Kir- sten Carpenter were loading- pockets. According to Schwarz, neither of the Carpenters mentioned that he was loading the bins incorrectly nor did the binder make any significant stops. According to Schwarz when he re- turned from lunch McCain told him, 'I'm sorry, I've got to let you go." Schwarz asked why and McCain replied that Schwarz had loaded three layers into the bin incor- rectly and that the Carpenters had complained about it. Schwarz said that the Carpenters were the ones who were responsible for loading the pockets, not him. He further complained that he could not see the way the sig- natures were going, apparently referring to- the alleged absence of the signature marks. McCain said that some- one had said they saw Schwarz leaning on a broom that morning and that Schwarz only had two speeds, slow and stop. Schwarz said he thought the real reason for his discharge was his organizing activity. McCain said, "You '4 Apparently Schwarz referred to this stnpe to determine the proper placement of the signatures go ahead and get your NLRB. I can get 10 employees to swear you are not a good worker." At this point, Schwarz walked away. Schwarz admits he did not deny that he had loaded the bins incorrectly. Rather, he said that since he had been written up for loading pockets incorrectly, it was incumbent on the person loading the pockets to load cor- rectly. He also told McCain no one had said-anything to him and there had been no significant stoppage,- to his recollection, and that based upon the written..warning he had received, it seemed to , him the .primary responsibility for loading the pockets correctly lay with the person who was loading the pocket. He admits, however, that McCain was speaking to him regarding‘the proper load- ing of the' bins McCain testified that the Carpenters had complained to him about Schwarz on -numerous occa- sions but does not recall for sure whether they com- plained on the day of Schwarz' discharge. Nor does he recall for sure telling Schwarz that day the Carpenters had been complaining regarding -him -loading bins incor- rectly that morning. There is no substantial disparity between the testimony of McCain and Schwarz 'as to this cOnveration. Howev- er, to the extent that Schwarz' ,version of the reason given by McCain for his discharge implies that Schwarz was discharged because the Carpenters complained. I credit McCain's version of what he said and his denial that complaints by the Carpenters were factors he con- sidered in making the decision to discharge Schwarz. Further, I , do not credit Schwarz that the binder did not make any significant stOps that morning It is apparent from his, testimony that he is not very knowledgeable re- garding' bindery operations. As to Schwarz' overall work performance, McCain testified that Schwarz made a number of mistakes, that he warned Schwarz he was making WO many mistakes, and would .have to watch what he was doing or he would be discharged: McCain specifically referred to Schwarz' work on the Perfect binder. The operation of the Perfect binder requires, in addition to the operator, employees to stack into bins forms consisting of several pages which are called signatures. Then other employes remove the signatures from the bin, jog them so that they are even, and fill the pockets that ,feed the Perfect binder. The machine then collates and binds the books and other employees are required to remove the bound books and stack them on pallets. From there, the books - are moved to the three-knife trimmer where the edges!,:: are trimmed. Employees are ,then required to remove the"' finished books from a conveyor belt and box them or stack them on pallets. According to McCain, Kirsten Carpenter, and Larry Carpenter, who is the operator of the three-knife trim- mer, Schwarz was assigned to these various jobs and constantly made mistakes and/or worked. so slowly doing all of them. Specifically, when he loaded the bins, he placed the signatures in the wrong, direction and/or the wrong bin. When he was assigned to load pockets, he worked too slowly which resulted in the pockets not being kept filled which caused the machine to shut down. According to McCain, even prior to September MARIPOSA PRESS 549 19 he had spoken to Schwarz about loading pockets backwards. On at least one occasion, McCain stopped the binder and showed Allen what he was doing wrong. He took some signatures out of the pocket and showed Schwarz the correct way .to place them in the pocket and immediately thereafter Schwarz again placed signa- tures in the pocket incorrectly. McCain told him he was doing it wrong and he would have to watch what he was doing. McCain cannot recall the. date of this inci- dent. According to McCain, Schwarz put signatures into the wrong pockets and did not jog the signatures properly. Jogging requires a certain amount of manual dexterity which apparently Schwarz did not possess. He was all thumbs; he could not move his hands properly and he held the forms too tightly, McCain would explain and show him how to do it correctly but Schwarz could not seem to catch on. McCain assigned Schwarz to stack books off the end of the binder. These books have to be stacked on a pallet in a pattern so as to prevent , the books from tumbling off when the pallet ' is moved. Schwarz could not keep up. He could not remember the pattern He would get flustered and sometimes take 8 to 10 books and thrOw them on the ground and just start over. All of the books that he threw on the ground would be ruined. McCain also testified that when Schwarz was assigned to work at the end of the binder, he complained that the books were too hot (from the hot pre-melt glue used in the binder) and began to wear gloves, he stacked the books incorrectly and when he got begind he threw them on the floor.. At this point McCain told him that if he threw any more books away McCain was going to throw him away This was 3 to 7 days prior to-the writ- ten warning. As to why he did not give Schwarz a writ- ten warning at this time, McCain testified that he was trying to give him a chance. He wanted to see if he could at least improve. McCain -testified that most of the employees under his supervision are instructed that they are to find something to do when the binder , shuts off such as pick up scrap, empty barrels, load bins, sweep, or anything they could do that makes them at least look like they are working. He further testified that when the binder is down, most of the employees load pockets if there are pockets to be loaded, pick up scrap, move skids, and sometimes repair bad books. It depends upon what needs to be done and how severe the stop is. If it is going to be brief, perhaps 5 minutes, he usually tells employees to clean up any bad books on the floor and load pockets. If it is going to be 15 minutes or more, he will tell them to sweep up any bad books, empty barrels, repair pallets, etc. He would assign different jobs to different employees. When ques- tioned as to whether he considered these to be "make work" tasks or important tasks, McCain testified that he considers them to be important, that, when the binder is running, if 10 pallets are needed to pack a job and there are only 6 in the shop, then somewhere they have to find 4 additional pallets at a point when they really do not have time to do so. therefore, if there is downtime and pallets are available to be repaired or garbage bins to be emptied, it is important to get those tasks done so that they are not required to do it while the binder is operat- ing. McCain admits that it is common for new employees to make mistakes on the binder but asserts that the extent of the mistakes made by Schwarz was uncommon, that most employees learn . to perform satisfactorily within , a few days or a week at the most. Schwarz never achieved this level of performance. McCain also testified that he does not recall seeing any other employees standing around like Schwarz and that, on the occasions when he observed Schwarz leaning on his broom, there were jobs to be done such as repairing pallets, emptying garbage, sweeping the floor, and loading the bins. According to him, he never had any problems on any consistent basis. with any other employee not doing anything productive when the binder was down. Employees Kirsten and Larry Carpenter testified as to Schwarz' work performance. Kirsten Carpenter" testi- fied that Schwarz was lazy, that she does not know whether it was just that he did not want to work or whether he just could not handle the job, but she does know that he did not work' very well.- Specifically he would fill the pockets of the bins backwards and when she would tell him he had done it incorreetly and try to explain to him what to do, he would respond that he did not care, that other employees could fix it When Kirsten explained that the other employees did not have time to fix It, he would again say "They can fix it." She also testified that a couple of times she was feed- ing pockets while Schwarz was filling the bins and half of her time would be spent rearranging her pockets. Fur- ther, there were a couple of times when the machine ran out because he had wrong signatures in the wrong bin. He would place the signatures in the bins backwards or he would put signatures in the wrong bin. She further testified that McCain places the new employees by expe- rienced employees on the binder so she has observed Schwarz feeding pockets as she was working next to him. According to her, when she would try to show him how to do it, he would say that he had a better way. When she told him that if he did it the way she was in- structing, it was a lot easier and would get the job done, he would reply, "No, I'll do it my way." Then the pocket would shut off because he did not get the signa- tures jogged propeily and, when he placed signatures in the wrong pockets, the result was bad books and dam- aged books that could not be fixed Kirsten Carpenter also testified that she has observed Schwirz stacking books at the end of the binder quite frequently. He worked' too slowly, and stacked the pal- 15 Kirsten Carpenter was the observer for Respondent at the election 'However, according to her, pnor to the beginning of November she had 'not made up her mind about the Union She was Just debating whether to vote for or against It She once had a discussion with Schwarz regarding the Union during the lunch penod which turned into an argument Ac- cording to her, she does not actually remember what was said but she was very upset when she finished talking to him He promised a lot of things and she said she did not see how he could do that, that she thought the Union would have "to discuss it, would have to bargain with the Company and it would be decided there She admits that she was angry with him during that discussion but denies that she felt any person- al animosity towards him or that she wanted to see either him or Rodri- gues discharged because of their union activity 550 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD lets incorrectly. The books are supposed to be turned on the pallet every so often so that the spines are distributed on the pallet in a way that keeps the books from falling off the ,pallet when it is moved. Schwarz just could not seem to do it correctly. He would not remember to turn the books, consequently the layer of books would be very uneven and they would ,fall when the pallet was moved. She further testified that she has worked with Schwarz boxing books as they come off the ;trimmer The books which come out of the -three-knife trimmer are finished product. They come out on a conveyor belt about 3 feet wide and approximately 6 feet long. There.is •a table placed sideways to the rollers and an employee stands on each side of the table and boxes the books in certain patterns. One person -stands in the front and an- other in the rear. Usually the front person will box more books because that person is closer to the belt. Accord- ing to Carpenter, she has worked with Schwarz when he has been in the front position. The books would come out , and he would get so jumbled that instead of picking up the books he would just shove them at her so that she would be doing twice the, work, witlr stacks of books . When the stacks get too piled up, then Schwarz would just throw them on the floor She told him that the books were. finished productz and that was what was paying both of their salaries. Schwarz said he did not care. After receiving that response on several occasions, Carpenter admits that she finally got upset , and told him "Don't throw them on the ,floor and don't push ,them.to- wards me," that he had to at least try to pick up every other stack of books. After this, Schwarz stopped throw- ing the books on the floor. He would throw them on the table and would push the books towards Carpenter. She switched positions with him The books were coming out fast and she was still boxing probably three boxes to his one. According to her, Schwarz could not keep up and . she was rushing and it was really a mess. The books fell off the end of the roller. Finally, Schwarz stopped trying to .place books on the pallet and just handed them , to Carpenter. When asked how she , would compare Schwarz' work performance to that of .other new em- ployees working on the binder and the trimmer, she testi- fied, "There's no companson. Allen was the worst, plus when you try and teach him something he just didn't want to. It was like he didn't want to learn. He-just felt, I don't care, You know, who cares? Or let me do it my way. And there are some .things that you just _can't do your way. You just have to do it the set way until. you figure out or set good enough to figure out doing it your own way." Kirsten Carpenter testified in agreement , with McCain that all employees are required to clean tip. According to her, a number of times Schwarz would sweep in a 3-foot wide square and 'just keep sweeping that place for half an hour when in a half hour you could get the entire plant done with a couple of people. Other times, he talked 'to press employees or other employees On occasion, ac- cording to Carpenter, she would say to Allen, "Let's get busy, everybody else is cleaning up." Schwarz would say okay and walk away. She admits she complained-to McCain regarding Schwarz, that he did not like to work with him and wanted him to be discharged because he was incompetent and made her job a lot more difficult so that sometimes -she would have to work twice as hard. She further testified that in the 2-1/2 years she has worked for Respondent in the bindery she has never ob- served any new employee having as much , trouble feed- ing pockets on the Perfect binder as Schwarz nor make as many mistakes as he did. , Larry Carpenter operated the three-knife book trim- mer which takes a paperback book, cuts the top, bottom, and front square and feeds it out on a conveyor system where other, employees remove them and stack them on pallets' or, box theni. Larry Carpenter testified - that Schwarz had been assigned to stack a box 'of books as they come off the three-knife trimmer which he was op- erating.' According to him, Schwarz did not do a very good job. He told Schwarz' 'toturn the books and showed him how, but Schwarz never turned the books the way he instructed him. Rather; he would Tilace the books however he could stack theni with the end result that the hooks would' fall. Carpenter explained to Schwarz several,times how to perform. the job . properly. Nevertheless, his performance did not improve after the :explanation. According, to Larry Carpenter, Schwarz seemed to lack the coordination and speed to keep up with the books. On one occasion, Schwarz got so far behind that the second person .could not keep up with the books and the books backed, up into the machine _causing a jam which resulted in a loss of 4 hours of pro- duction ' time This happened about 2 weeks after "Schwarz began his employment:, At this point, Carpenter requested that Schwarz not be assigned' again to the three-knife trimmer. At the time of .this incident, Carpen- ter had. no knowledge of any union' activities among the employees. According to him," he first learned about the union activity when Schwarz I had worked there for a little more than 3 weeks. Carpenter further testified that he never had as Much of a problem training anyone on "the three-knife trimmer as he did with Schwarz. , Carpenter also testified that he has seen Schwarz feed- ing pockets on the Perfect binder and that Schwari had a lot of problems jogging signatures. According to him, when you are feeding pockets, you have to jog the signa- tures square to the' front edge. Otherwise, the machine Will not pick them up and feed them. Schwarz never seemed' to 'be able to do that very well. When asked if he could tell What the problem was with Schwarz in this -regard, Larry Carpenter testified that Schwarz would work- twice as hard as he needed to and still 'he would not get the job done the way it should be done; he does _ not know whether it was lack of coordination or what, • but Schwarz_ just did not seem to have the ability. Car- penter also testified that he has observed the binder shut off when Schwarz was feeding pockets and that he _ knows it was Schwarz who caused the machine to shut _off because, ,,when he would go over to fix it he would pull Schwarz' signatures out and rejog them, show him how to jog, them and put them back in. Schwarz could not seem to jog them, flat. Instead of. being all jogged down square to the front edge, some of them would be MARIPOSA PRESS 551 off a half-inch or better or would be turned the wrong way. 2. Conclusion Where, as here, the determination as to whether a dis- charge was unlawful turns on motivation, the General Counsel is required to make a prima facie showing suffi- cient to support the inference that protected conduct was a motivating factor in the employer's decision. Once this is established, the burden shifts to the employer to dem- onstrate that the same action would have taken place even in the absence of the protected conduct Wright Line, 251 NLRB 1083 (1980). I find that the General Counsel has made a sufficient prima facie showing based on the animus indicated by Respondent's election campaign and the concurrent unfair labor practices found above; Respondent's knowl- edge that Schwarz was one of four persons identified by the Union as members of the employees' volunteer orga- nizing Committee for the Union and the timing of the dis- charge within less than 3 weeks after Respondent ac- quired such knowledge and within 3 days after Respond- ent received the Union's demand for recognition; the ab- sence of a single, major precipitating incident; and the coincidence of the other three kriown members of the Union's employee organizing committee all being dis- charged during the course of the preelection campaign. However, I also find that Respondent has rebutted this prima facie case by demonstrating that Schwarz_ would have been discharged even in the absence of the union activity. Thus, Schwarz commenced work for Respond- ent on September 8. Within a week, McCain began speaking to him regarding the mistakes he was making. On Septem' ber 18, the day before he, Funesth, Sterling, and Rodrigues signed union authorization cards," he was given a verbal warning for leaning on his broom, not following instructions, and improperly feeding the pockets of the Perfect binder. Nevertheless he continued the same conduct which led to the verbal warning. On two or three ,occasions, McCain told him he would be discharged if his work did not improve and on Septem- ber 26 McCain gave him a written warning regarding his 'unsatisfactory work performance. Despite all this, Schwarz' work performance did not improve. In this regard, I credit the mutually corroborative testimony of McCain, Smith, and- Larry and Kirsten Carpenter as to Schwarz' incompetence, particularly since the General Counsel adduced no evidence to refute it. Further, there is no evidence which establishes disparate treatment17 and Schwarz' employment—only one month—was too short, absent a contrary practice, to support any adverse inference from McCain's failure to discharge him earlier. In fact, excluding his first 10 days of employment, a dis- charge at any time during his probationary period would have raised suspicions as to timing. Similarly, any ad- verse inference which might have been drawn from the 16 There is no evidence that any authonzation cards were signed pnor ' to September 19 " Contrary to the General Counsel, in the absence of evidence to es- tablish that other- employees had been similarly incompetent, I do not find it significant that neither McCain nor Smith could recall any other employee who had previously been discharged for Incompetence absence of a major incident on the day of his discharge is negated by the continuing pattern of unsatisfactory per- formance. Accordingly, I find that Respondent did not violate Section 8(a)(1) and (3) of the Act by discharging Schwarz. F. The Discharge of Rodrigues 1. Facts Rodrigues was hired on June 17, 1980, 18 as a general cleanup employee. He was terminated on November 11, 1980, allegedly for incompetence and excessive tardiness and absenteeism. Initially he was supervised by Gary Shultes, the plant manager. His job was to clean the press and bindery areas, the warehouse and the court- yard and to gather and remove trash from those areas. Additionally, he did some painting and some light car- pentry work. Around the first of September, when Shultes left Respondent's employ, Smith became his su- pervisor. About September 9, Rodrigues, who had been working a regular 40-hour shift, was transferred to part- time hours at his request. Thereafter, his working hours were from 12:30 to 5:30 p.m. - According to Smith, during the month of September, she spoke to him several times regarding mistakes he was making in performing his work such as .using the wrong type of strap, failing to straighten up the pallets, not keeping boxes of paper full, not putting them on the right pallets, not keeping the aisles clear, not keeping the courtyard properly swept, and putting the wrong type of paper in the compactor. His frequent response, when she inquired as to why he had not done various things, was to say that he did not know he was supposed to ,do that. During this period, she made no notation of verbal warn- ings to be placed in his personnel file nor did she give him a written warning. On October 3, Smith prepared a written schedule of Rodrigues' job duties which she gave to him-- According to Smith, when she gave him the schedule they went over' it item by item She asked if he understood it and he said he did She told him that she was getting tired of him saying he did not know he was supposed to do vari- ous things and the schedule should solve that problem. The schedule was as follows: ED'S SCHEDULE Throw away garbage between double doors & sweep. - Get all garbage around press & bindery into court- yard, Throw away— Make sure pallets are straightened up. Strap all pallets of cardboard, boxes & trash (with metal strapping). Sweep press area & straighten up. Make sure courtyard is swept up 18 Rodngues testified that he was hired on June 17 and a notation of his hire filled out by Shultes show 6/17/80 as the date of hire Rodrigues' W-4 form and a notation made by Homes on his application shows May 28 as the date of hire I find the testimony of Rodrigues and the notation by Shultes to be more reliable 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RULES Always use metal strapping ' Do not use MP pallets Do not talk to employees leaving at 5:00 p.m. - Do not block isles [sic] Do not leave any equipment outside. Rodrigues agreed that Smith did give him a written list of duties and that the list contained no duties he had not previously performed under Shultes' supervision. On October 2, Smith prepared an employee performance evaluation of Rodrigues. The record is not fully clear as to why the evaluation was prepared at this point in time. Rodrigues testified that about September 15 he asked Smith if he was entitled to 'any benefits after 3 months because Shultes had said he was. Smith said, to her knowledge, no, but there would be a review made as to his progress. About a week later, he asked her if there was any new information about this review from a man- ager. Smith said she was still working on that. Smith tes- tifies that on- October 2 she had been his supervisor for about a month, and that she believes she prepared the evaluation because it was around the time to do it from a length of service standpoint. Howevei, it was not the time for a 6-month evaluation and the record does not establish any' practice of giving employees a formal eval- uation a month after being assigned to a new supervisor. On its face, the evaluation indicates that it is an 'evalua- tion of a new employee. No rating was given for the var- ious performance factors listed on the evaluation form. Under -the heading "General comments as to employee's strength, weaknesses and action taken to improve job performance," Smith wrote, "I feel I cannot give Ed a fair review since 1 have . only been his supervisor for about 1 month. When Ed's next review comes up I feel I can ,fairly evaluate his job performance." She discussed the evaluation with Rodrigues on October 29 at which time Rodrigues wrote in the following comment: "I look forward to a better review in the "future. Now, I have a 'written schedule." On October 1, Rodrigues was 10 minutes late. On his daily timesheet for that date opposite the start time, Ro- drigues made a notation, "No break at 3:00." Apparently this was to compensate for arriving 10 minutes late to work. On October 2, he was 1-1/2 hours late On Octo- ber 2, Smith spoke to him about his tardiness and about not taking his break. She told him not to skip his breaks and that if he was going to be 15 minutes late or more he should telephone her. On October 3, he was a half-hour late; On October 6, he was 40 minutes late; on October 7, he was 15 minutes late; and on October 8, he was a half-hour late. He did not call in on any of these occa- sions. October 9, Smith gave Rodrigues the following verbal warning: VERBAL WARNING FOR ED RODRIGUES Ed is not showing up for work on time. He is up to 45 minutes late at a time without calling in. . I am also- warning Ed about a metal. device I found that is quite dangerous. I was told that Ed has been seen with this object. I don't want to see him or anybody else with this object. Ed is leaving piles of garbage -in the courtyard & not picking it up. This is his job and I expect him to do it According to Smith, she told Rodrigues that he has been coming in late too often and had not- been calling in. She told him that was not a good situation and the Company did not want it. She also told him that she had found the metal object in the pallet, that it 'could have really hurt someone, and that he had been identified as the person having the object. Rodrigues said he had found one and he had thrown it away. Smith told him she was not accusing him of throwing the object or of having it but if he ever found one again she wanted him to bring it tO' her, she did not want to see him or anyone else with one. She also told him that if he saw anyone else' with one to tell her because it was such a dangerous article. He said fine, and agreed that it was a dangerous article. 19 She told him he had been 'leaving piles of gar- bage in front 'of the compactor' and that he was supposed to keep that courtyard area clean. --He said he did not know he was supposed to do that. She said it was on his list and he said, "Yes, you are right." Smith also testified that she told him if he did not improve, she would have to give him a written warning. , Rodrigues testified that he was given two verbal warn- ing's by Smith in August. This is clearly .incorrect inas- much as Smith did not become his supervisor until the day Shultes left Respondent's employ, a date which the parties stipulated was September 14. According to Ro- drigues, the first verbal warning was for tardiness only. He .does not recall exactly what Smith said, but she did complain about the days that he had been late reporting to work. He does not recall whether Smith told him at this time that, if he ever had to be late or absent, he was to call in. He does recall that this was discussed at some point in time and that he was aware this was Respond- ent's rule. The second warning, according to him, con- cerned his work quality—specifically, cleaning up the courtyard area. He does not recall specifically what was said. However, Smith did ask him why the area had not been cleaned. He thinks he gave her a reason. He does not recall what her respnse was but she seemed to be dis- satisfied with his explanation. He also testified that it was in the latter part of the day that Smith asked him why the area had not been cleaned and that he had not cleaned the area because he had been attending to other duties to which he gave priority—emptying the trash bin used by the pressmen. According to Rodrigues, these had to .be constantly kept empty .so he had ,not cleaned up, the debris in the driveway. He agreed that the area was "quite a mess" As set forth above, on October 17, Rodrigues was given a wage increase of 25 cents an hour. On October 27, Smith gave Rodrigues a written warning. The warn- ii The metal object, known as a charade, was descnbed by Rodngues as a sharp star-shaped metal object used as a weapon in one of the martial arts It is thrown like a frisbee with the object of embedding It m the target • MARIPOSA PRESS 553 ing report shows that it was for work quality and that a previous verbal warning had been given on October 15. The statement written by Smith on the warning report reads: - Ed was told during the week of 10-20 to 10-25 to clean the compactor on 10-27-80 this was still not' done. Also on 10-27-80 Ed was throWing away books. The problem was that he was throwing them away one by one seeming to make a game out of his job. Ed is not performing his assigned duties satis- factorily. Rodrigues signed the warning report and indicated there- on that he concurred with the , statement written by Smith. According to Smith, she had instructed Rodrigues to clean around, and in back of, the compactor and to clean the courtyard. Sometime during the afternoon of Octo- ber 27, as she was standing on the loading dock, she ob-- served him, for at least 10 minutes, picking up damaged books from a bin and throwing them away one by one. About every couple of books he would flip , through the pages and read some portion of it. 2° She yelled at him, "Ed you can't do that. Start throwing them away faster." To which he responded, "But this is really inter- esting." Smith testified that this response really upset her and she prepared a written warning. According to Smith, when she gave him the written warning she told him she had asked him to clean up around the compactor and she noticed that it was still not being done. She told him she was very unhappy with the way he was throw- ing away the books, that she had watched him for ap- proximately 10 minutes or so, and he was not handling that efficiently, throwing the books away one at a time and glancing through them. She said she was very un- happy about this and would not tolerate him continuing to do so. She further told him that, in general, he was not performing his assigned duties up to par, and if his performance did not improve he would be discharged. She also told him if he disagreed with anything, he could check the box on the warning report which said that he disagreed and then he could write anything he wanted to on the warning report. Rodrigues testified that Smith gave the written warning to him around 1:30 p m . He does not recall what they discussed. In October, Rodrigues was subpoenaed to testify in the representation hearing in this matter. On October 22, he showed the subpoena to Smith. Smith said she did not understand why they wanted Rodrigues. Rodrigues said he had never been subpoenaed before and he did not know what it was going to be about but he wanted to inform her that he might be a bit delayed that next day getting to work. According to Rodrigues, Smith said she wanted him to be there at his regular starting time re- gardless. Rodrigues testified that he did not in fact testify at, or attend, this hearing. On Thursday, November 6, Rodrigues did not report to work and did not call in. According to Smith, when 20 Prior to this date, she had observed him doing the same thing on two or three previous occasions and had told him that he had to throw them away faster and more efficiently He said okay he came to work the following day she told him that he already had problems with his attendance and that she just could not put up with much more of his poor at- tendance. As usual, he agreed with her assessment of the situation but she does not recall that he offered any ex- cuses. However, according to her, Rodrigues usually of- fered one of two excuses—either he had missed his bus or had to take his brother to the doctor. On Monday, - November 10, Rodrigues reported to work 1 hour late. He -neither called in nor did he report to Smith upon his arrival at work. He testified he did not see -Smith when he arrived so he proceeded with his job duties. He further testified that he • boarded the wrong bus. When he realized his mistake and left the bus he was about a mile and a half from Respondent's plant so he proceeded to walk to the plant. When asked if it took him an hour to walk a mile and a half, Rodrigues testi- fied, "No, I was already late from getting on a later bus. And when I realized my mistake, that I was on a 303 in- stead of a 306, I presumed it was most important just to start to work. And I did not have any change to make a phone call. That's why I did not call that day." Rodri- gues was then shown his prehearing affidavit dated No- '.ember 25, 25, in which he claimed that he did not call to say' he would be late because he was on his way and he thought it best to get there as soon as possible rather than taking the time to call. His prehearing affidavit fur- ther recites that when he got to work he saw Smith but' she did not say anything to him at that time. He then tes- tified that he seemed to remember that the reason he did not call in was both because he had no change and be- cause he thought it was important to get to work as soon as possible; and that when he arrived at work he did see Smith, but she did not approach him, they just made eye contact. Later that day, Rodrigues testified, about 1:45 p.m. Smith told him she wanted to speak to him and they went into the small luncheon area. She closed the door and said, "This is going to be your last day here." Rodri- gues asked why. Smith said, "What time did you get in here to work?" Rodrigues replied, "I got in late because I got on the wrong 'bus." Smith said, "Well, I've been getting complaints about your work," and further stated that Rodrigues had been late before. To which Rodri- gues replied, "Yes, I'm aware of that, but I've never been this late." Rodrigues then apologized and said he was looking for another job in the area because he had heard that a union was organizing in the plant and he thought if he remained in Respondent's employ he would have to join the Union. Smith said, "Well, I don't know if that's true. But it's probably part of the contract." He does not recall whether Smith explained exactly what complaint she had received about his work if he asked her whit the complaints were, nor does he recall if there was any disciission of anything that had happened the previous 'week. Rodrigues admits that he had not been looking active- ly for a job, that he had been making phone calls and asking people, but he was not going for employment interviews. He further testified he does not know why he made the statement to Smith about the Union and seek- 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing other employment. However, his prehearing affidavit. states I had been playing dumb about the union around supervisors like Smith and dim McCain. And at the end of the conversation, I continued to do so I did so at this time to see if she would tell me what she knew about the union and who was involved. I told her I would have been looking for another, job sooner or later, because I had heard a union was trying to get into the plant. She asked me why I was looking ,for another job. I said because I had been told that if the union came in, I would have to join. She said ,she didn't 'know about that. But she guessed it was true. It would .be part of the con- tract, He further admitted that he was attempting to get Smith to tell him she knew he was involved with the Union. Smith testified she spoke. to Rodrigues in the - break- room around 3 p m. According to her, she told him his absenteeism and tardiness had not improved but rather seemed to be getting worse, insofar as she would_ tell, that they could not use employees like that at Mariposa Press and she could have to let him go. She further told him his general work habits and 'productivity were not good enough. He said, , "I think you're right and besides I'm already_ getting another job." He said he was going to get some other kind of job with some electronic place or something like that.. She does not recall if he gave her a reason for being late that -day nor does she recall whether he said anything about taking the wrong bus or missing the bus. Smith further testified that her statement to Rodrigues with regard to his work- performance referred to him being very slow and very erratic in his work habits. For example, when he swept between the double doors near the courtyard it would take a half-hour rather than the 5 minutes it should require. Part of the press crew is sta- tioned on that side and he would yell back and forth to them. He was supposed to work until 5 30 but he did not accomplish very much after 5 p.m. when the other em- ployees' shift ended. As other employees walked through the area to leave, he talked to them 'and worked very slowly so he could maintain a conversation. Further, he was always going from one thing to the other very quickly without finishing jobs-. He still. was not keeping the courtyard area clean nor was he keeping the pallets stacked prOpeily or strapping the boxes tightly enough. Also, he was continually leaving baskets full of paper, etc., in the aisle. Based on the above, Respondent contends that Rodri- gues' discharge was justified. However, the critical ques- tion is not simply whether his disdharge may have been justifiable, but rather would he have been discharged absent his union activity. Wright Line, supra. Viewed from this perspective, whether his discharge was justified, for legitimate business reasons is only one of the factors to be considered rather than the sole factor. Respond- ent's rules and procedures provide, inter alia, that "the employee's immediate supervisor must be notified prior to the beginning of a work day of a non-attendance ,due to sickness or emergency" The rules and procedures contain no provision as to tardiness. As to Respondent's practice, there is no evidence in the record of any em- ployee being discharged because of a tardiness problem. However, Smith was questioned as to two employees who had an absenteeism problem, Andy Navarro and Derrex Nash. Nash quit his employment and Navarro was discharged. 21 Respondent's records show that Nash overslept and was 2-1/2 hours late on October 1. He did call in that day. He had unexcused absences on October 29 and November 5 for which, according to Smith, he received a verbal warning at least once. However, she placed no written notation of this warning in his -file He was also absent without calling in on November 10 and 11. On either November 11 or November 12 Smith placed a notation on Nash's November 11 daily time- sheet, "Paula, please prepare his last check. He will pick it up on Friday." According to Smith, even though she thought Nash was a very good employee and she wanted to keep him .she felt that she could not continue to toler- ate his poor attendance. She did decide to terminate him on November 11. However, he telephoned and quit before she made out his termination papers. She does not recall whether when she talked to him she told him he was discharged and simply did not write "discharge" on his termination slip. On October 6, Andy Navarro was not at work and did not call in. On October 8 he was given a written warn- ing for attendance which indicated that he had been :given a verbal warning on October 3 and states, "Andy was told that he must call when he cannot come to work. On 10-6-80 he did not call in. This is the second time this has occurred." On November 17 and 18, Na- varro was absent and did not call in. On his daily time- sheet for November 18 Smith wrote the notation, "Last day" Navarro was also absent on October 7 and No- vember 3. Smith testified that Navarro was a former warehouse supervisor who had lost his job through no fault of his own and had come highly recommended by his previous employer. She considered him a very good worker and did not want to lose him. Smith further testified that when she is confronted with an employee who is tardy or has unexcused ab- sences, she considers several factors in determining whether she should discipline the employee. She tries to give everyone a chance. For one tardy, she does not get upset at anybody. She does consider though whether the employee is totally unproductive and whether that af- fects' the production of other employees, although, even for a person like that, she does not fire them because they vere late or had an unexcused absence for 1 or pos- sibly 2 days. As to Navarro, even though she wanted to keep him, she felt she could not condone his conduct 'any further without being- unfair to other employees. Navarro was still a probationary employee. Smith testified that during the time R6drigues was under her supervision she was trying very had to work with him and to motivate him to do a better job. How- " Smith testified that she has discharged four employees—Rodrigues, Navarro, Teresa Allen, and Thomas Hendry Both Allen and Hendry were discharged for poor productivity 'MARIPOSA _PRESS 555 ever, she did not seem to be having much success and he probably would have been discharged for incompetence. even if there had not existed the attendance problem. She admits that the attendance problem hastened his dis- charge. She also testified that Rodrigues' poor attend- ance caused a somewhat greater problem than Navarro's attendance. Navarro worked in the warehouse and there are three or four employees that are basically trained in each aspect of shipping. So if one is absent, his work is just covered by the other employees. On the other hand, Rodrigues was the only person who -regularly performed the duties assigned to him. If he was absent, part of his work could be covered with little difficulty,- but with the press running the press area gets bogged down with papers which is the reason Respondent 'has a special person just for that job. If Rodrigues was not there, Smith would have to assign someone else to the job and go through a short training session with them to show them where to put the different papers. 2. Conclusions The General Counsel argues that "based upon the animus displayed by Respondent's active anti-union cam- paign and other unlawful actions, the timing of Rodri- gues' discharge just prior to the election, his known posi- tion as an employee organizer and the weak, inapposite reason precipitating his discharge, the General Counsel has established a prima facie case in support of Rodri- gues' unlawful termination." The General Counsel fur- ther argues that Respondent has failed to rebut this prima facie case inasmuch as his attendance and tardiness allegedly precipitated his discharge and the evidence shows disparate treatment of Rodrigues as to absenteeism and tardiness. I agree that, based on the general animus displayed by Respondent, the unfair labor practices I have found above, the timing of the discharge, Rodrigues' status as the sole known employee organizer remaining ' in Re- spondent's employ is sufficient to establish a prima facie case of unlawful discharge. However, I do not agree that Respondent had engaged in disparate treatment of Rodri- gues as to his attendance. The General Counsel's conten- tion as to disparate treatment seems to be based on the argument that absenteeism is somehow more egregious than tardiness and that the improvement in Rodrigues' attendance between October 8 and November 6 was not given the consideration that it should have been given. This argument is not persuasive. Unannounced tardi- ness can be just as disruptive as unannounced absentee- ism for an employer has no way of knowing whether or not the employee plans to -report to work, and may be required to make arrangements to cover_ the employee's work load just as would be necessary if the employee re- mained absent for the entire shift. Further, it is not un- reasonable for an employer to conclude that any previ- ous "improvement" in his attendance was negated by his unannounced absence on November 6 and his tardiness of 1-1/2 hours on Monday, November 10, particularly since Smith had warned him on the previous Friday that she could not tolerate much more of his poor attendance. In the circumstances, I do not find that the attendance record of Nash and Navarro were significantly worse than that of Rodrigues. credit Smith that she had de- cided to terminate Nash Rodrigues does not deny_ Smith's testimony as to his work performance, or that he received the counseling and warnings described by Smith. No inference can be drawn from her failure to discharge him earlier because of his poor work performance since he had worked under her supervision only since around the first of Sep- tember. I credit Smith that she decided to discharge Ro- drigues because of his poor work performance coupled with his poor attendance 'record. In this regard, I note that she has discharged other employees for poor pro- ductivity ind,-as noted above, for poor attendance. I fur- ther note th'at notwithstanding that Rodrigues was tardy for one-half hour to 1-1/2 hours on 4 days and 10 and 15 minutes on 2 days within a period of 1 week, and that this record was established within the 2 weeks following Respondent's notification that he was one of four em- ployee organizers for the Union and during the period of time when the other three employee organizers were dis- charged, Rodrigues was not discharged in October. Such fOrbearance does not appear to be the conduct of an em- ployer bent on ridding itself of a union activist. In all of the circumstances, I find that Respondent has demonstrated that Rodrigues would have been dis- charged in the absence of any union activity. According- ly, I find that Respondent did not violate Section 8(a)(1) and (3) of the Att by discharging Rodrigues. • G. The Alleged Refusal to Bargain 1. The unit The complaint alleges, Respondent admits, and I find that _the appropriate unit is: All regular part-time and full-time production and maintenance employees of Respondent at its Concord, California-- location, excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. The General Counsel contends that, during the period September 30 until October 15, the Union was the ma- jority representative of ihe employees in the appropriate unit , as evidenced by valid authorization cards. Of the nonsupervisory employees who performed unit work, only two—Karrie Vaught and Becky Steiner----are in dis- pute as to their inclusion in the unit during- their term of employment. The General Counsel contends that Steiner and Vaught are casual employees who should be ex- cluded from the appropriate unit and Respondent con- tends that they are regular part-time employees who should be included in the unit. Both of them are classi- fied as "on-call" employees who are paid a special "on- call" rate of $4 an hour. As on-call employees, they are offered work whenever there is work available and they can either accept or decline. During 1980 Steiner, who was hired in . 1979, only worked 2 days-8-1/4 hours on September 2 and 6-1/4 hours on September 25. Karne Vaught, a high school student whose mother is regularly employed by - Respondent, worked on the day 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the election and worked prior to the election in 1980 as follows: September 2 8.5 hours September 25 7.9 hours September 27 8 hours October 25 8 hours November 8 8 hours November 11 5 hours November 15 8 hours November 22 8 hours November 26 9 hours Whether students are included in a bargaining unit with other employees depends upon certain factors which the Board has set forth in Shady Oaks, 229 NLRB 54, 54-55 (1977),"as follows: At least with respect to the commercial sector, the Board has traditionally included part-time stu- dents in units of full-time and regular part-time em- ployees where the students have a substantial and continuing interest in the wages, hours, and work- ing conditions of the other unit employees. In deter- mining whether students have the , requisite commu- nity of interest with other unit employees, the Board conducts an analysis along the same lines that it normally employs when determining "regular part-time" status. Under this analysis, the Board takes into consideration such things as: (1) regulari- ty and continuity of employment; (2) tenure of em- ployment; (3) similarity of work duties; and (4) simi- larity of wages, benefits, and other workings condi- tions. [Footnote omitted.] ' Where students' employment is shown to be spo- radic, temporary, or seasonal in nature or where it is shown that students are treated differently with respect to wages, benefits, and other working condi- tions, the Board excludes them from the regular full-time unit. [Footnote omitted.] Where, on the other hand, students' employment is regular and of substantial duration- and the stu- dents are treated the same as other unit employees, the Board includes them in the unit. [Footnote omit- ted.] Here, although Steiner, who is not a student, and Vaught work under the same supervision as unit employ- ees, presumably doing unit work, they are paid a special rate of pay and they work on an irregular basis at their convenience. In these circumstances, I find that they should be excluded from the unit. 2. Alleged majority status As of October 1, the Union had signed authorization cards from 15 of the unit employees and, by October 6, it had obtained authorization cards from 3 additional em- ployees. Respondent disputes the validity of the cards signed by Ken Thorsen, David Gonderman, Wayne Lowe, Gary Mann, Derrex 'Nash, Marc Elliot, and Mi- chael Foltz The basis for Respondent's position as to these disputed cards is that the solicitors—Ziolkowski and/or Schwarz—only told card• signers that the cards were to get an election and failed to inform them that the cards designated the Union as their bargaining repre- sentative. Respondent argues that this was deliberate concealment and that such "misrepresentation" can be cured only if the employees read the cards, a fact which Respondent contends was not affirmatively established on the record. Additionally, Respondent argues that Foltz' authorization card should not be counted because he was "obviously misled" as to the purpose of the card;22 and that the card of David Gonderman, Thor- sen, and Lowe should not be counted because they were under the influence of alcohol I find no merit in these arguments. Respondent mis- states the law. However, even assuming, arguendo, there exists some requirement, in the circumstances, that it be affirmatively established on the record the authorization cards were read by the card signers, the facts do not sup- port Respondent's position. The wording of the cards is as follows: AUTHORIZATION FOR REPRESENTATION LOCAL UNION No. 14 SUBORDINATE TO THE • INTERNATIONAL PRINTING AND GRAPHIC COMMUNICATIONS UNION AFL-CIO-CLC Gentlemen. , hereby make application to your organization, and designate and delegate the officers of Allis Union as my chosen representatives for the purposeS of negotiating wages, hours and working conditions. My address is City Telephone No I am employed at (Job Title) I am receiving $ per hour Shift Signed The blanks on the cards in question were filled in 23 and the designation is in close proximity thereto. Thus it is apparent that the card signers must have read the cards. As to Lowe, Thorsen, and David Gonderman, Gon- derman admits that he had read the card earlier. Lowe testified that he read the card before he signed 10 4 and neither he nor Thorsen claim that, at the 'time they signed their cards, they were incapacitated by alcohol. The only evidence as to intoxication comes from Gon- derman. He testified that he was not intoxicated but he thinks that Lowe was. I find this insufficient to establish that any one of them was incapable of understanding the 22 This is abused on Foltz' alleged statement on October 17 that he did not know the card designated the Union as his collective-bargaining rep- resentative, but rather thought the card was Just to have an election 23 The card signed by David Gonderman is undated However, the evidence establishes that the card was signed on September 22 24 Additionally, I credit Ziolkowski and Gonzales, another union rep- resentative, that Ziolkowski also explained the representational purpose of the cards Zone Dept MARIPOSA PRESS 557 purpose of the card as set forth on its faee As to Foltz, he testified that he read the card prior to signing it and that the solicitor -told him the card was to help bring a union into Respondent's facility. It is well'establislied that if an authorization card is un- ambiguous—i.e., states on its face that-the signer -author- izes the union to represent the employee for collective- bargaining purposes and does not speak of an election—it will be counted in the determination of majority status unless it is proved that the employee was told the card was td be used solely for the purpose of obtaining an election. Such explicit and unambiguous designation is not negated by statements by the solicitor to the effect that (1) the cards would be used to get an election, (2) the signer had a right to vote either way, even though he or she signed the card; or (3) the card would be kept secret and not shown to anyone except to the Board in order to get an election. NLRB v. Gissel Packing Co, 395 U.S. 575 (1969); Walgreen Co, 221 NLRB 1096 (1975); Levi Stratiss & Co., 172 NLRB 732 (1968) General Steel Products, 157 NLRB 636, 634-648 (1966); Cumberland Shoe Corp., 144 NLRB 1268 (1963) As stated by the Supreme Court in Gissek [E]mployees should be bound by the clear language of what they sign unless that language is deliberate- ly and clearly canCeled by a union adherent with words calculated to ,direct the signer to disregard and forget the language above his signature. There is nothing inconsistent in handing an employee a card that says the signer authorizes the union to represent him and then telling him that the card will probably be used first to get an election. Elec- tions have been, after all, and will continue to - be, held in the vast majority of cases; the union will still have to have the signatures of 30% of the em- ployees when an employer rejects a bargaining demand and insists that the union seek an election. We cannot agree with the employers here that em- ployees as a rule are too unsophisticated to be bound by what they sign unless expressly told that their act of signing represents something else [395 U.S. at 606-607.] Thus, neither the facts nor the law support Respondent's position. Based on a full consideration of the evidence and of the arguments advanced by Respondent, I find that the authorization cards herein are unambiguous and that the evidence does not establish that the designation clearly stated thereon was negated by any statements of the so- licitors. I further find that, by October 1, the Union had received valid signed authorization cards from 15 of the 2725 employees in the appropriate unit and that it main- tained its majority status through October 12. On Octo- ber 7, the date Respondent received the Union's demand for recognition, the Union had valid signed authorization cards from 14 of the 24 _unit employees. 25 Kathy Seybolt's hire date is incorrectly set forth on the stipulated lists of employees Other evidence establishes that she was hired in 1979 3. The appropriateness of a bargaining order The complaint alleges that, by its unlawful conduct set forth above, Respondent has violated Section 8(a)(1) and (5) of the Act. The General Counsel argues that Re- spondent's conduct was calculated to, and did, under- mine the Union's majonty. 26 The record establishes that, by October 1, the Union had secured authorization cards from a majority of the unit employees and had notified Respondent as to the identity of employee organizers. Respondent responded with its October 3 letter to em- ployees acknowledging that it was aware of the Union organizational efforts. The letter further announced, for the first time, an "open door" policy whereby employees could bring their problems directly to Respondent's president and other agents, thus obviating any necessity for union representation. On October 15, Ron Murphee was unlawfully promot- ed to full-time status with the accompanying wage in- crease and grant of benefits; on October 17 Ed Rodri- gues and Kathy Seybolt were unlawfully granted wage increases. On October 17 and November 24, in speeches to employees, Respondent's president continued to urge employees to take advantage of the "open door" policy and deal directly with Respondent. During the October 17 and/or November 24 meetings and certain of its cam- paign letters to employees, Respondent solicited griev- ances from employees and unlawfully promised to cor- rect any inequities found, including a promise to consider establishing a dental plan in the future, threatened em- ployees with loss of -employment; and induced employees to revoke their union authorization cards. Thus, Respondent, while refusing to recognize the Union as the majority representative of its employees, engaged in a course of unlawful conduct designed to induce employees to withdraw their support from the Union and to convince them that their grievances would be redressed through direct dealing, with Respondent and that union representation would be of no advantage to them. This conduct, particularly where, as here, it is di- rected toward a small unit, directly inhibits activity in support of the Union, and the threat of loss , of employ- ment strikes at the very heart of one of the principal rea- sons employees are apt to seek union representation—job security. Such conduct is likely to have had a significant impact on the employees' freedom of choice rendering the election an inaccurate register of employee desire as to union representation. Further, the nature and extent of Respondent's unfair labor practices make it unlikely that their effects can be expunged by traditional Board remedies I therefore con- clude that Respondent's conduct has undermined the Union's majority and rendered doubtful or impossible the holding of a free and fair second election and that the employees' sentiment, once expressed through authoriza- tion cards, would, on balance, be better protected by the issuance of a bargaining order than by traditional reme- 26 have considered and rejected Respondent's argument that the Union's majority was dissipated through substantial employee turnover rather than by Respondent's conduct Jamaica Towing, 247 NLRB 353, 355 (1980) 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dies NLRB v. Gissel Packing Co., 395 U.S -575 (1969), El Rancho Market, 235 NLRB 468 (1978). In these circumstances, I find that Respondent has vio- lated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the 'Union as the majority representative of its employees while coternimously en- gaging in conduct which undermined the Union's majori- ty status and prevented the holding of a fair election Trading Post, Inc., 219 NLRB 298 (1975). IV. THE REPRESENTATION CASE A The Challenges The challenged ballots involved herein were cast by James McCain, Kathy Smith, Edward Rodrigues, Allen Schwarz, Robert Sterling, Becky Steiner, and Karne Vaught. The sole issue as to McCain and Smith is their supervisory status Inasmuch as the parties stipulated, and the record establishes; 'that Both McCain and Smith are supervisors within the meaning of the Act, I shall, recommend that the challenges to their ballots be sus- tained. I shall also recommend that the challenge to the ballot of Robert Sterling be sustained inasmuch as I have granted the ' motion of General Counsel to withdraw the allegations of the complaint relating to his discharge. As to Rodrignes, Schwarz, -Steiner; and Vaught, I have found above that the'discharges of Rodrigues and Schwarz were not violative of Section 8(a)(1) and (3) of the Act, and that Steiner and Vaught should be excluded from the unit. Accordingly, I shall recO-mmend that the challenges to their ballots be sustained. ' B. The Objections - As set _forth above, the Union filed timely objections to the election. These objections are 'as follows: I. The Employer violated Section 8(a)(1) of the National Labor Relations Act: II The Employer violated Section 8(a)(3) of the National Labor Relations At. III The Employer violked Section 8(a)(5) - of the - National Labor Relations Act IV. The Employer granted Employees fringe benefits in order to discourage their Union activi- ties. V. The Employer promised Employees fringe benefits' in order to undermine their support for the Union. .„ . . . . VII. The Employer made substantial misrepresen= tations of fact and law regarding the Union at a time wfien the Union was unable to respond to those misrepresentations. VIII. The Employer unlawfully terminated Ern-. ployees in order to undermine the Employees' sup port of the Union. X. The Employer unlawfully interrogated Em- ployees regarding their support for the Union. XI. The Employer unlawfully threatened Em- ployees because of their support for the Union. The critical period is from October 6; 1980, the date the petition was filed, to November 26, 1980, the date of the election. Ideal Electric & Mfg. Co., 134 _NLRB 1275 (1461). With the exception of Objection- VII, these objections are based on the same conduct alleged in the complaint. Objection VII is based on Respondent's alleged misrepre- sentations as to wage rates if the employees selected the Union as their collective-bargaining representative.- The specific conduct involved concerns the , statements made by Goldman at the Monday, November 24, meeting that most- of its employees were apprentices or trainees; under the Union's contracts, a certain number of years of work- ing as an apprentice or trainee is required before one be- comes a journeyman; and, in this interim, these employ- ees would receive only a graduated percentage of jour- neyman wages. Earlier, by individual letters mailed to employees on Thursday, November 20, Respondent made this same point on an individualized basis. Thus, the letter to each individual employee , contained a comparison of the employee's current wage rate to what the employee's wage rate would be if this graduat- ed percentage was applied to the applicable wage rate set forth in a wage schedule posted on the bulletin board in Respondent's facility. In. Some instances, this adjusted rate was less than-the employee's current wage' rate and, for some, it was even less than minimum wage. Respond- ent does not claim it knew the source of the posted wage schedule and Homes testified that he assumed the' sched- ule had been, posted by somebne connected with the Union. Homes admits he did not attempt to ascertain the specific contract from which the posted schedule was taken, even though Respondent was a member of the Printing Industries Of Northern California" 'and presum- ably had access to those contracts with which the orga- nization was concerned. Union Representative Ziolkowski 'testified tlik the posted wage schedule was taken from the Union's indus- trial contract which is executed by a number of -small employers , in the area and Covers press 'and prepress em- ployees as well as other' employees, including bindery employees. This contract set- forth a progressive wage rate for "Pre-Press and Press" employees, and also for "Assignments other than pre-press and press." The grad- uated percentages set forth in this contract for the latter are as follows: Assignments other than' pre-press and press Up to 6 months - experience 80% of appropriate rate , Up to 12 months experience 90% of approporiate rate'. Up to 18-months -.experience, 95% of appropriate rate - Up to 24 months experience 100% of appropriate rate 27 This is an organization of employers in the printing Industry At least one of the contracts in Respondent's possession was negotiated by this -organization It is unclear whether the industrial contract ,was also negotiated by the organization MARIPOSA PRESS 559 The graduated percentage scale utilized by Respondent came from a contract which covers only prepress and press employees and which provides for wage rates for such employees which are substantially higher than those in the industrial contract. The effect of Respondent's conduct is illustrated by the information given Annie Llamas, an employee with almost 14 months' seniority whose job duties, according to Homes, would place her in the classification of spe- cialty worker. She was sent the following information: November 20, 1980 Name: ANNIE LLAMAS Curent Rate: $4 50 • Posted Rate: $3.20 Note. The posted • rate is for SPECIALTY WORKER adjusted by 66% for your- length of service. If the 95-percentage from the appropriate confract had been applied, the pOsted rate would have been $4.61 as compared to her current fate of $4.50. Thus, Respondent has clearly made misrepresentations The Board's policy as to the effect of a misrepresenta- tion on an election is articulared in Hollywood Ceramics Co., 140 NLRB 221, 224 as follows:28 [A]n election should be set aside only where there has been a misrepresentation or other similar cam- paign trickery, which involves a substantial depar- ture from the truth, at a time which prevents the other party or parties from making an effective reply, so that the misrepresentation, whether delib- erate or not, may reasonably be expected to have a significant impact on the election. [Footnote omit- ted.] Since the misrepresentations herein concern wage rates, a matter of utmost concern to employees, I find them to be substantial and ones which, if not rebutted, would be likely to have a significant impact on the elec- tion. See Information Magnetics Corp., 227 NLRB 1493 (1977) In reaching this latter conclusion, I have fully considered the possibility that the interchange during one of the November 24 meetings, regarding the adjusted rate shown for some employees being below the mini- mum wage, could have been sufficient to put the em- ployees present on notice that Respondent was distorting the facts. However, this session was attended by less than half of the employees, whereas Respondent had sent the misleading information to each individual employee and later reinforced it through the November 24 speech- es, illustrating the point with visual aids. I find that, based on the manner in which wage com- parisons were made for each individual employee, the employees could reasonably conclude that Respondent was not engaged in idle , generalization, but rather had carefully gathered the relevant facts for this presentation 28 This policy was abandoned in Shopping Kart Food Market, 228 NLRB 1311 (1977), but after a brief period was adopted in General Knit of California, 239 NLRB 619 (1978) In these circumstances, I find the employees could rea- sonably conclude that the information was obtained from a union contract and was somewhat authoritative. I fur- ther find that, even though Goldman disavowed any intent to indicate what their wages would be with union representation, the employees could reasonably expect that this information reflected -the Union's "track record" as to wages it had secured for represented employees performing work similar to that performed by unit em- ployees. The remaining question is whether the timing of Re- spondent's misrepresentations afforded the Union suffi- cient opportunity to make an effective reply. Ziolkowski contends that it did not. He creditably testified that he first learned of the meeting on the evening of November 24 when he spoke to Llamas on the telephone. However, her account of what transpired there did not reflect that Respondent had made material misrepresentation, and he did not receive a copy of the November 20 letter until November 25. Thus, it was during a meeting with em- ployees on the evening of Tuesday, November 25, the night before the election, that he first learned of the mis- representation. Only a few employees attended this meet- ing and, according to Ziolkowski, he did not thereafter have sufficient time to prepare a reply and have it repro- duced prior to the election which was held on Wednes- day, November 26. On election day, the employees com- menced work between 7 and 8 a.m. and the election was held from 11:45 a.m to 1:15 p.m. I therefore recommend that Objection VIII be sustained The remaining objections are based on the same con- duct as are the allegations of the complaint which I have considered above. Since I have found that Respondent did not unlawfully terminate or interrogate employees, I shall recommend that Objections II, VIII, and X be overruled. However, I have found that, during the criti- cal period herein, Respondent, by the conduct alleged in Objections I, IV, V, and XI, violated Section 8(a)(1) of the Act, thereby undermining the Union's majority and preventing the holding of a fair election, while cotermi- nously refusing to recognize and bargain with the Union as alleged in Objection III. Accordingly, I shall recom- mend that Objections I, III, IV, V, and XI be sustained. As I have found that said unlawful conduct interfered with the employees' exercise of a free and untrammeled choice in the election held on November 26, 1980, un- dermined the Union's majority, rendered doubtful or im- posible the holding of a free and fair second election, I shall recommend that the said election be set aside and the petition in Case 31-RC-1175 be dismissed. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. On October 1, 1980, the Union was designated as the majority representative for purposes of collective bargaining of Respondent's employees in the unit de- scribed as follows: 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All regular part-time and full-time production and maintenance - employees of Respondent at its Concord, California location, excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. The aforesaid unit is a unit 'appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Commencing about October 7, 1980, the Union has requested, and is requesting, Respondent to bargain col- lectively with, it as the' exclusive bargaining representa- tive of the employees in the unit described above with respect to wages, hours, and other terms and conditions of employment. 5. By refusing to recognize and . bargain with the Union as- the majority representative of its employees while coterminously engaging in conduct which under- mined the Union's, majority status and prevented the holding of a fair election, Respondent has violated Sec- tion 8(a)(1) and (5) of the Act - 6. Respondent has interfered with, restrained, and 'co- erced employees in violation of Section 8(a)(1) of the Act by soliciting grievances from employees and implic- itly promising to correct any inequities found; by threat- ening employees with loss of-employment if they select- ed the Union as their collective-bargaining representa- tive; by inducing employees to revoke their union -au- thorization cards; and by transferring an employee to full-time status with accompanying benefits and wage in- crease; and by granting certain other employee wage in- creases in order to induce them to withdraw or withhold their support from the Union. - 7. The aforesaid unfair labor practices affect commerce within the meaning of- Section 2(6) and (7) of the Act. 8. Respondent has not engaged in the other unfair labor practices alleged in the amended consolidated com- plaint herein. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, I shall recommend that Respondent cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. [Recommended Order omitted from publication.]