Premier Maintenance, Inc.

10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Premier Maintenance, Inc. and Service Employees International , Union, Local 32-E, AFL-CIO and Donald Abrahams and William Byrd. Cases 39-CA-743, 39-RC-206, 39-RC-207, 39-RC- 227, 39-CA-767, and 39-CA-791 23 October 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 28 April 1983 Administrative Law Judge Julius Cohn issued the attached decision. The Re- spondent and the General Counsel filed exceptions and supporting briefs. The Respondent filed a brief in response to the General Counsel's cross-excep- tions. 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, i and conclusions2 only to the extent consistent with this Decision and Order. We disagree with the judge's fording that the Re- spondent violated Section 8(a)(1) of the Act by "in- structing" employee Spaulding not to sign a union card. Spaulding's credited testimony is as follows: "[Supervisor Perry] said that there would be some- one coming with cards for the Union to sign but don't sign those cards: In other words he was saying that the union had nothing to offer. So then i The Respondent has excepted to some of the judge's credibility find- ings. 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 In finding that Operations Manager Perry's questioning of employee Yezzo violated the Act, we note particularly that Yezzo indicated that he was a union organizer, that after Yezzo indicated that he was a union or- ganizer, Perry indicated that he would "get [Yezzo] for this." We thus note the coercive circumstances of the interrogation and find it to be un- lawful Contrary to his colleagues, Chairman Dotson, noting particularly the fact that Perry knew that Yezzo was a paid union organizer, would not find that Perry's statement to Yezzo violated Sec. 8(a)(1) Chairman Dotson would also reverse the judge's finding that Perry coercively in- terrogated employee Bostick by asking him if he knew anything about a union. Supervisor Perry denied asking Bostick anything about the Union. The judge discredited Perry's denial primarily because Perry admitted asking Yezzo about the Union and because other supervisors asked em- ployees about the Union. Neither of these reasons provides a logical basis for discrediting Perry Furthermore, Bostick's testimony was vague and undetailed. Bostick gave no specific date or time at which the alleged in- terrogation occurred, nor did he provide any additional details about his conversation with Perry In the Chairman's view, the General Counsel failed to sustain his burden of proving that Perry coercively interrogated employee Bostick 8 We correct the judge's Order by deleting his erroneous reference to an impression of surveillance violation which he dismissed. I turned to him and said to him `Well, what do you have to offer?"' From this testimony, we cannot conclude whether Perry, in fact, unlawfully told Spaulding not to sign a union card (as she first seemed to testify) or whether he was simply indi- cating that the Union "had nothing to offer," which we would not deem an unlawful statement. In such circumstances, we, conclude the testimony is too ambiguous to establish a violation.3 We disagree with the judge's fording that the Re- spondent violated Section 8(a)(1) of the Act by granting a wage increase to employee Brown during the preelection period. The record reflects that the Respondent had promised Brown a wage increase commencing in early April approximately 1 year before any union activity. When Brown in- quired about her raise, Marchisio was at first reluc- tant to agree to it for fear of a possible implication of election interference. As soon as Brown assured Marchisio that her raise had been due before the Union began its election campaign, Marchisio agreed to the promised increase. It was only after Marchisio agreed to honor his commitment that Brown stated-without inquiry or prompting from Marchisio-that she did not care about the Union. The fact that the Respondent granted an employee a raise during the pendency of an election cam- paign does not give rise to an inference of an im- proper grant of benefits when the commitment to give a raise was, made well before the election cam- paign got underway.4 8 In agreement with the judge, we find that the Respondent violated Sec. 8(a)(1) of the Act by threatening to install a timeclock if the Union won the election We note that the judge erroneously attributed this statement to Vice President Marchisio when the record reflects that President Diamond made the threat. Chairman Dotson would find that the General Counsel failed to sustain his burden of proving a threat to install a timeclock . The only witness to the alleged threat was employee Felton . The record reflects that Felton had virtually no independent recollection of her conversation with Dia- mond concerning timeclocks Thus, Felton was asked,,"Did you have a conversation with Mr. Diamond?" and she replied, "I think I did. I didn't remember-it just went in one ear and out the other" Even after the General Counsel showed Felton her affidavit, she could not clearly recall what Diamond said . When Felton was asked specifically what Diamond told her she 'stated: "Yes, I been heard that we would punch timeclocks of reporting to work at 6 o'clock and leave around 9 or 9 30. And if we do somebody else's routine that we had to stay three extra hours " Only after further prompting by the General Counsel did Felton even attempt to make a connection between the timeclocks and the Union Felton did not even appear to be certain whether employees were already required to punch timeclocks at the time of her alleged conversation with Dia- mond. In the Chairman's view, the record contains insufficient evidentia- ry support to sustain a finding of a threat of reprisal in the event of a union victory 4 The judge found that the Respondent violated Sec. 8(a)(1) of the Act by granting wage increases and other benefits after the first election and before the second Chairman Dotson would find a violation only insofar as the Respondent announced the increased benefits to its employees shortly before the second election. The record is not clear as to when the actual grant of benefits occurred In the Chairman's view, the Respond- ent could have properly increased wages at the time when the first elec- tion had already been held, no objection to the first election had'already Continued 282 NLRB No. 3 PREMIER MAINTENANCE 11 The judge, relying on T.R W, Bearings, -,257 NLRB 442 (1981), found that the Respondent vio- lated Section 8(a)(1) by promulgating a rule pro- hibiting employees from soliciting union authoriza- tion cards during "working time." Subsequent to the judge's decision, the Board issued Our Way Inc., 268 NLRB 394 (1983), which overruled T.R. W, . Accordingly, we dismiss that portion of the complaint. However, we adopt the judge's finding that the Respondent's rule violated Section 8(a)(3) of the Act because it was restricted solely to union solicitation. In so doing we find this case distin- guishable from Brigadier Industries Corp., 271 NLRB 656 (1984). In Brigadier, unlike here, there was substantial evidence of production problems being caused by employees leaving their worksites, no evidence of union animus, and the Board found significant the fact that the respondent, emphasized that solicitation was permissible on the employees' own time.5 The judge also found that the Respondent re- fused to grant employee Russell and other un- named employees wage increases they normally would have received because of the union cam- paign, thus violating Section 8(a)(1). We agree, however, he failed to fully remedy this violation by awarding backpay. Accordingly, we have amended the remedy.6 AMENDED REMEDY Having found that the Respondent unlawfully re- fused to grant wage increases we shall order it to make those employees whole for any losses in wages incurred because of its unlawful conduct,' to be computed as set forth in Ogle Protection Serv- ice, 183 NLRB 682 (1970), with interest to be paid on the amounts owing, computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977). ORDER The National Labor Relations Board orders that the Respondent, Premier Maintenance, Inc., Mil- ford, Connecticut, its officers, agents, successors, and assigns, shall been filed as yet, and the Union had not yet filed the second petition. However, the record is clear that the Respondent announced an increase in benefits in a letter dated 1 September to employees eligible to vote in the second election scheduled on 11 September . This announcement of new benefits only 10 days before an election leads to an inference that the Respondent was attempting to influence the election results in viola- tion of Sec. 8(a)(1) of the Act. 5 Members Johansen and Babson did not participate in Brigadier Indus- tries. They agree that it is distinguishable but they do not imply that they adopt the view of the panel majority in that case. 5 The amounts of backpay and the identity of the employees we shall leave to the compliance stage of these proceedings. 7 Smith & Smith Aircraft Co., 264 NLRB 516, 523 (1982). 1. Cease, and ,desist from (a) Coercively- interrogating employees concern- ing their union activities. (b) Promising benefits to employees should they reject the Union as their representative. (c) Deferring wage increases because of employ- ees' support for the Union. (d) Threatening employees with reprisal if' they select the Union as their collective-bargaining rep- resentative. (e) Granting increased wages and benefits in order to induce employees to reject the Union. (f) Promulgating and maintaining a rule against solicitation which is discriminatory. (g) Discharging employees, transferring employ- ees, or otherwise discriminating against employees because of their union activities. (h) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer Donald A. Abrahams immediate and full reinstatement' to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority, or other rights and privileges and make him whole for any loss of earnings in the manner set forth in the sec- tion of this decision entitled "The Remedy." (b) Make whole all employees who were unlaw- fully refused wage increases. In each case where backpay is due under the terms of this Order, it will be computed in the, manner set forth in the section of this decision entitled "Amended Remedy." (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Remove from its files any reference to the unlawful discharge of Donald A. Abrahams and notify him in writing that this has been done and that the discharge will not be used against him in any way. (e) Mail a copy of the attached notice marked "Appendix" to all employees at their home ad- 8 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dresses, and post copies at its office in Milford, Connecticut. Copies of the notice, on forms provid- ed by the officer in charge for Subregion 39, after being signed by the Respondent's authorized repre- sentative, shall be mailed or posted as appropriate by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to em- ployees 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. (f) Notify the officer in charge for Subregion 39 in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the consolidated complaints be dismissed with respect to allegations not specifically found to be violative of the Act. IT IS FURTHER ORDERED that the objections to the 'elections in Cases 39-RC-206, 39-RC-207, and 39-RC-227 are sustained and that the representa- tion cases are severed and remanded to the officer in charge for Subregion 39 for the holding of such elections under the supervision of the officer in charge as soon as feasible under the circumstances. APPENDIX WE WILL NOT discharge or otherwise discrimi- nate against any employee because of that employ- ee's union activity. 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. WE WILL make whole employees who were un- lawfully refused wage increases, plus interest. WE WILL offer Donald A. Abrahams immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL notify, him that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way. PREMIER MAINTENANCE, INC. Michael Marcionese, Esq., for the General Counsel. Lubbie Harper, Esq. (Friedler & Kaplan), of New Haven, Connecticut, for the Respondent. Joseph Yezzo, Representative, of Stamford, Connecticut, for the Union. 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. WE WILL NOT coercively interrogate employees concerning their union activities. WE WILL NOT threaten employees with reprisals or withhold their benefits should they select Serv- ice Employees International Union, Local 32-E, AFL-CIO as their collective-bargaining represent- ative. WE WILL NOT promise benefits to employees to reject the Union. WE WILL NOT grant increased wages and bene- fits in order to induce employees to reject the Union. WE WILL NOT defer wage increases because of employees' union activities. WE WILL NOT promulgate or maintain a no-solic- itation rule that is discriminatory. WE WILL NOT transfer employees from one worksite to another because of the employees' union activity. DECISION STATEMENT OF THE CASE JULIUS COHN, Administrative Law Judge. This pro- ceeding was tried at Stratford, Connecticut, on July 12, 13, and 15, 1982. On a series of charges filed by Service Employees International Union, Local 32-E, AFL-CIO (the Union) on July 16, 1981, and by Donald A. Abra- hams and William Byrd, individuals, on July 31 and August 13, 1981, respectively, the officer in charge for Subregion 39 issued complaints that were finally consoli- dated by Order dated October 8, 1981, alleging various violations by Respondent of Section 8(a)(1) and (3) of the Act. Petitions in Cases 39-RC-206 and 39-RC-207 having been filed by the Union on May 7 and 8, respectively, and consolidated on May 15, 1981, pursuant to a Stipula- tion for Certification upon Consent' Election approved June 11, 1981, an election by secret ballot was conducted June 26, 1981, among the employees of Respondent in a stipulated appropriate unit employed at- Condec and Dorr-Oliver. The -tally of ballots revealed that of ap- proximately 32 eligible voters, 15 cast votes for and 16 cast votes against the Union. Thereafter, on June 30, the Union filed timely objections to the election. The Acting Regional Director having found on September 2, 1981, that the issues raised by the objections may best be re- solved by hearing, issued an order consolidating those matters, on October 8, 1981, with the then existing unfair labor practice complaint. PREMIER MAINTENANCE In addition, a petition in Case 39-RC-227 having ;been filed by the Union on July 13, 1981 , pursuant to a Stipu- lation for Certification upon Consent Election approved on July 28, an election was conducted on September 11, 1981 , among certain employees of Respondent at other locations in the Stamford, Connecticut area, in an appro- priate bargaining unit. The tally of ballots revealed that of approximately 14 eligible voters, 2 cast votes for, and 7 cast votes against the Union and 7 ballots were chal- lenged. The challenged ballots accordingly were suffi- cient to affect the results of the election. Thereafter, on September 16, the Union filed timely objections to the election and on September 18 Respondent also filed timely objections to conduct affecting the results of the election. The Acting Regional Director found that the issues raised by the Union's Objections 1, 2, and 4 may best be resolved on the basis of record testimony at the hearing since they raised substantial and material factual issues. The Acting Regional Director also recommended that Respondent's objections be overruled on the basis of its failure to submit evidence in support thereof. It was further found that the challenges to the ballots of three employees be sustained and accordingly the remaining challenges need not be resolved since their votes would no longer be determinative . On December 22, 1981, the Board affirmed the findings of the Acting Regional Di- rector in his Report on Objections and ordered that the matter be referred to him for the purpose of arranging a hearing. Thereafter, by order dated January 14, 1982, Case 39-RC-227 was consolidated for hearing with the above-noted representation and unfair labor practice cases. The Respondent filed an answer denying the commis- sion of unfair labor practices. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. The General Counsel and Respondent submitted briefs which have been considered. On the entire record in the case, and from my observation of the witnesses and their de- meanor, I make the following FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Respondent, a Connecticut corporation, has an office and principal place of business in Milford, Connecticut, and has been engaged in providing janitorial services to various companies and facilities in the State of Connecti- cut. During the 12-month period ending July 31, 1981, Respondent received at Milford products, goods, and materials valued in excess of $50,000 directly from points outside the State of Connecticut and during the same in- terval, Respondent provided services valued in excess of $50,000 to other companies in the State of Connecticut each of which was directly engaged in interstate com- merce. The complaint alleges, Respondent admits, and I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 13 V_41_,5- ° rII TItE CABOF.''QRGANIZATION INVOLVIiD The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background For 17 years Respondent has been engaged in provid- ing ' cleaning services under contracts with commercial and industrial companies located in Connecticut . It does its work at more than 50 facilities and employs over 100 people who mostly work part time in the evenings. During the period involved herein, Respondent provided services at-9 or 10 facilities in Stamford, which were in- volved in this proceeding. Respondent is owned by Allan Diamond, president, and Robert Marchisio,, vice president . Marchisid's re- sponsibilities involved the day-to -day functioning of the operations, although both owners participated insetting labor relations policies and wage rates. Both partners vis- ited the facilities on a regular basis. Richard Perry, was operations manager and responsible in the Stamford and Norwalk' area. None of Respondent's employees were represented by a union. Union activity commenced at some of Respondent's fa- cilities in the spring of 1981 and continued until the second election held in September of that year. The exact date of Respondent's knowledge and awareness of this activity is in dispute . However, undoubtedly the ac- tivity began after Respondent hired Joseph Yezzo, an or- ganizer in the employ of the Union on April 20. Accord- ing to Respondent, it had been apprised by the company it serviced at the so-called Condec facility that there had been a theft problem since March, and Yezzo was em- ployed by Respondent as part of its attempt to determine whether any of its own employees were involved in the thefts. Of course Yezzo initiated ; the union campaign almost immediately by distributing union cards and holding meetings at the union hall. He began this activity at the Condec and Dorr-Oliver facilities, and continued at other facilities in the Stamford area. Respondent con- tends that it had no knowledge of the union activity at its jobsites until it received copies of the representation petitions filed on May 7 and 8, 1981. A synthesis of the testimony of Yezzo, the organizer, and Perry, Respond- ent's manager, reveals that the Respondent, at least through Perry, had acquired this information prior to the filing of the petition . Perry testified that during a visit to the Baldwin facility, he was handed an envelope by two employees. Incredible as it may seem, Perry testified that he did not look at the envelope but placed it on the seat of his car. However, a couple of days later, having been told by Marchisio that 'there were rumors going around about a union, Perry was motivated to look at the enve- lope and saw it contained a union business card with Yezzo's name on it. At Condec that Friday, Perry states he approached Yezzo and asked if he knew anything about a union to which Yezzo replied no . Perry states they went into a conference room where,he confronted Yezzo with the 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD card, who still denied it was his. But after Perry in- formed him he could retain his job, Yezzo admitted that it was his card. Yezzo testified that this incident oc- curred on May 5 and, moreover, he stated without con- tradiction that Perry was angry and upset after Yezzo admitted that he had been organizing and Perry stated, "I'll get you for this." In addition, Yezzo also testified, without contradiction, that Perry had asked him if he would testify at a Board hearing against the Union to which Yezzo replied that he would not. Finally, Yezzo told Perry that he was a salaried employee of the Union and advised him to get in touch with his bosses who should consult an attorney and communicate with the Union. On May 5, in addition, the Union sent a letter to Respondent demanding recognition to which it received no response. Yezzo stated that, thereafter, he continued working at Condec, and actively engaged in his organi- zational activity. I find, on the basis of the above, that Respondent had knowledge of union activities prior to the filing of the petitions. In the course of the campaign it is alleged that Respondent committed numerous unfair labor practices that will be separately discussed. B. The Alleged Violations of Section 8(a)(1) of the Act As just noted above, Perry admitted approaching Yezzo at' the Condec facility and asking if he knew any- thing about a union. This statement in context of his questioning of Yezzo concerning the union business card constituted an unlawful interrogation in violation of Sec- tion 8(a)(1). An employee named Nate Bostick at Dorr- Oliver testified credibly that about 2 or 3 days after he had signed a union card, Perry came around and asked if he knew anything about a union. Although Perry denied talking to Bostick about a union, I do not credit him in view of his admissions and inconsistencies in his testimo- ny. In addition it is clear that Perry and other managerial and supervisory employees were circulating throughout all the facilities either questioning or discussing the Union with the employees. Thus, the interrogation of Bostick constitutes an additional violation of Section 8(a)(l). William Byrd, a supervisor at the Condec facility from September 1980 until August 1981, testified that after a meeting of employees conducted by Diamond and Marchisio on May 8, both partners met with Byrd and Al Hickersson, the other supervisor at Condec, and di- rected them to talk to employees, find out how they were going to vote in the election, and try to convince them to vote against the Union. Moreover, Diamond told them that three employees, Donald Abrahams, Uton Smith, and Iver Smith, were brought in by Yezzo and that Diamond wanted to get rid of them any way he could. Byrd and Hickerson were also instructed to tell people who were going to vote for the Union that they would get a 25-cent raise and better holidays and bene- fits. In their own testimony, Diamond and Marchisio did not allude to these matters, as related by Byrd, and did not enter specific denials. Byrd, on the other hand, stated that he spoke to employees in the manner instructed and, thereafter, reported to the two officials about a week before the election concerning the employees he knew who were definitely voting no, and those whom he thought were going to vote yes. Byrd said he continued to keep his employers updated numerous times before the election. Inquiring of employees about the manner in which they intend to vote is clearly violative of Section 8(a)(1), particularly in this situation when there is no evi- dence that Byrd or anyone else in supervision assured the employees against reprisals. I Employee Ollie Spaulding who worked at NCSS facil- ity in Stamford2 testified that in June, Perry spoke to her in the hallway and said there would be someone coming with cards for the Union but she should not sign. He said that the Union had nothing to offer. In his testimony, Perry stated that he called a meeting with Spaulding and others at NCSS to warn them that Yezzo was trying to get into the building and that he was a union organizer. The complaint alleges that this conduct on the part of Perry unlawfully created the impression that the union activities were under surveillance. Actually, I credit Spaulding who said she was the only one spoken to by Perry because the one other employee at the facility was upstairs at the time. At this point, Spaulding had already signed a union card, the petitions at Condec and Dorr- Oliver had already been filed, none of which could have occurred without union activities having taken place. A threat or a prefatory statement does not necessarily convey to employees that their activities have been under surveillance. 3 Moreover, although Perry testified that he referred to Yezzo by name in his conversation with Spaulding, the latter did not indicate in her testimo- ny that any particular employee had been designated by Perry as the one who was soliciting authorization cards. The Board has stated, "Such generalized statements to employees, which are not directed to any employees' or- ganizing activities, are insufficient to create the impres- sion of surveillance."4 Accordingly, I shall dismiss this allegation alleging that Respondent violated Section 8(a)(1) by unlawfully creating the impression of surveil- lance. It is also alleged that by telling Spaulding not to sign a union card, Perry further violated Section 8(a)(1) as such statement contained an implied threat of reprisal. In Met- ropolitan Life Insurance Co., 256 NLRB 626, 633 (1981), Administrative Law Judge Steven B. Fish, with Board approval, stated that "an employer is free to noncoerci- vely convince his employees that it was against their in- terest to execute authorization cards, but cannot order them to refrain from doing so." In the instant case Perry told Spaulding that Yezzo was coming around with union cards and then, in effect, instructed her not to sign one. I find this conduct to constitute a threat in violation of Section 8(a)(1) of the Act. Vice President Robert Marchisio testified with respect to Respondent's policy about wage increases. He stated that at Condec and Dorr-Oliver, as well as the other Stamford facilities, an employee within 6 months would receive a raise if properly doing his job and his attend- 1 Struksnes Construction Co., 165 NLRB 1062 (1967). z This facility was among those where the election on September 11 was conducted. ' See Brooks Shoe Mfg. Co., 259 NLRB 488 (1981). 4 Palby Lingerie, 252 NLRB 176 (1980) PREMIER MAINTENANCE 15 ance was good. However, Marchisio further' stated, he= denied requests for raises before the election because he had been advised that they could not be given during that period. Moreover, he told Perry to inform employ- ees who requested' raises that the Company could not give raises to them because- of the Union. A reference was made to an employee named Gregg Russell , who, in the period prior to the election, had, been transferred from Condec to the Bowater facility' to a job which in- volved move responsibility. Marchisio said that type of transfer would ordinarily give rise to a wage increase but Russell did not receive it because Respondent learned after the transfer that he was cheating the Company. Nevertheless, during the course of the investigation, Marchisio submitted an affidavit in which he stated that Russell deserved a pay raise but he told Perry' not to give it to him because of the upcoming union election. In the same statement Marchisio referred to Russell and other employees who had requested wage increases but had not received them for the same reason., Marchisio further testified before the elections at Condec and Dorz-Oliver, he did not freeze wages and benefits at other Stamford facilities. Thus, it is clear that wage increases were only withheld at the Condec and Dorr-Oliver plants that were confronted with an elec- tion. Deferring wage increases, which normally would have been granted as a matter of company policy, tend to im- press'on employees that their union activities and/or the union campaign and the possible success of the Union at the pending election are the reasons for denying the wage increases at the time. Particularly in the case of employee Russell who appeared to have had a valid re- quest for a wage increase in view of his added responsi- bilities, Respondent's refusal to grant him a raise and, in addition, increases to other employees who would nor- mally have received' them constitute a violation of Sec- tion 8(a)(1) of the Act. Blackstone Co., 258 NLRB 945, 948 (1981). Although Respondent asserts that it took this action, or nonaction, on advice of counsel due to the pending election, this does not militate against a finding of violation of the Act. Dorn's Transportation Co., 168 NLRB 457 (1967). Valerie Felton, an employee at Bowater, an affiliate of Condec, testified that she had a conversation with Dia- mond, in which he said that if the Union were put in, the employees would have to punch timeclocks and report to work at 6 p.m. and leave about 9 or 9:30 p.m. Al- though Felton's recollection had to be refreshed by re- ferral to her affidavit, the testimony is in some respect bolstered by Marchisio who stated that he had been thinking of putting in a timeclock at Condec as a result of employees coming in at all times and leaving early. Although he said the problem had existed before and he had been thinking of taking this action for the last 17 years, he brought it up again and, of course, this was just after the representation petitions were filed. In this over, all context, I credit Felton and find that Marchisio's statement constituted a threat to install a timeclock, a condition not then obtaining at Condec and, accordingly, violated Section 8(a)(1) of the Act. ' 'IJ_has7beeii previously noted that Byrd, then a supervi- sor, had been instructed to promise employees increases in wages, holidays, and vacations provided the Union lost the election. Moreover, Byrd stated that he imple- mented this by telling it to a number of employees and making these types of promises . As I have credited Byrd, who was corroborated by the testimony of Abrahams that Byrd promised him a 25-cent increase if he voted against the Union, this promise of benefits premised on the defeat of the Union in the election clearly violated Section 8(a)(1) of the Act. In the same vein, Marchisio conceded giving a raise, to employee Viola Brown after the filing of the petition. He did state, however, that she had received this raise be- cause it had been previously promised . On the other hand, Brown testified that she had been due for a raise early in April and had not received it. She asked Perry about it without success. Again, when Marchisio came down, she asked him about the raise that had been prom- ised since last year, and was told that he was not at liber- ty to give her one because there was union activity about. She finally received her raise on May 5 but only after she told Marchisio that ' she did not care about the Union, who then gave her, 30 cents stating that the extra nickel was for inflation. Although Marchisio said he gave her the increase only because she had been prom- ised one, he did not deny any of the conversation as de- scribed by Brown . I find that Respondent further violat- ed Section 8(a)(1) by giving a previously denied wage in- crease to Brown, after she stated that she, did not care about the Union. However, the General Counsel's contention that Marchisio's statements to Brown constituted an addition- al violation of Section 8(a)(1) by unlawfully creating the impression of surveillance when he told Brown that he could not give her a raise because of the union activity going on is without merit. As previously noted, this type of generalization with reference to ongoing union activi- ties does not constitute unlawful creation of impression of surveillance. s However, Brown further testified that just prior to the election, she told Marchisio that, on June 26, the date of the election, she would be on vacation and could not be , in to vote. Marchisio said he would pay her to stay, and vote and, she said she would and did. This promise of payment to an employee in order to vote clearly violated Section 8(a)(1). Through the testimony of Respondent's witnesses, it is conceded that subsequent to the election on June 26 at Condec and Dorr-Oliver, ; Respondent increased wages and benefits not only at those 'two facilities but also at the others in the Stamford area which comprised the unit which was voted at the September election and were at this time in the, process of being organized by the Union. Marchisio testified quite , candidly that after the peti- tions were filed but before the election at Condec and Dorr-Oliver, the starting rate for new employees 'at. these facilities was increased from $3.50 to $3 .75 per hour. Further, Marchisio testified, as did Diamond, that after 5 Palby Lingerie, supra 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the June 26 election, it was decided to similarly increase the starting rate at all its Stamford facilities, this despite the fact that they were aware the Union was' about to file objections to the election. Although Marchisio and Diamond contended that this change was the result of a long study of existing conditions rather than the union campaign, I place little credence in that response. In ad- dition, they stated they were unaware of activity at fa- cilities other than Condec and Dorr-Oliver. On the' other hand, Perry testified that he had learned by early May of the organizational activities at other facilities. In any case, the matter was put to rest by the distribution by Respondent of a letter on September 1 to all employees who were eligible to vote in the September 11 election. This letter indicated the current pay rates, holiday pay, and vacation pay that represented increased benefits over what had previously been obtained. It has long been held that the grant or promise of new benefits during an election campaign is unlawful. The Supreme Court has said: "The danger inherent in well- timed increases in benefits is the suggestion of a fist inside the velvet glove. Employees are not likely to miss the inference that the' source of new benefits now con- ferred is also the source from which future benefits must flow and which, may dry up if it is not obliged." NLRB v.'Exchange Parts Co., 375 U.S. 405, 409 (1964). Howev- er, it must be concluded that the grant of benefits is re- lated to the union activity of the employees rather than the application of an employer's normal practices. The former represents conduct that interferes with the rights of employees to engage in organizational or union activi- ties. In the instant case, the September 1 letter to the Stamford employees involved in the September 11 elec- tion flowed, I am convinced, from the Union's organiza- tional campaign. This is highlighted by Respondent's ref- erence in the letter that only it can "deliver" on its promises. I find that the granting of the wage increases and other benefits to the Stamford employees after the first election and prior to the second election violates Section 8(a)(1) of the Act.6 Finally on May 8, Respondent held a meeting of em- ployees in the lobby of the Condec facility during which Diamond read a notice and thereafter distributed it to the employees. The notice stated: It has been brought to our attention that, one or two employees have been pressuring other employees to sign union authorization cards. Further, we have been informed that such activity has and is being carried on in the working areas and on working time. This is not permitted under the law. Should such activity continue, those involved shall be sub- ject to strict disciplinary action including discharge. No evidence was presented by Respondent of alleged "pressuring" of employees to sign union authorization cards. The rule as published and distributed refers to and prohibits only solicitation on behalf of the Union, and as such is clearly discriminatory and violates Section 8(a)(1) and also Section 8(a)(3) of the Act.7 Moreover,'even though an employer may maintain and enforce a nondiscriminatory no-solicitation rule that would prohibit solicitation by unions and other employ-' ees in working areas during working hours,8 it does have an obligation to clarify any ambiguity that may arise as to its meaning. The Board has held that a rule prohibit- ing solicitation during "working hours" or on "working time" is presumptively invalid and that 'an employer who enforces such, a rule must clarify to the employees, in order to overcome such a presumption, that it does not apply to breaktimes, mealtimes, or other nonwork peri- ods. TRW, Inc., 257 NLRB 442 (1981). No such clarifi- cation exists, nor was there any evidence of such pre- sented herein. Thus, as noted, Respondent violated Sec- tion 8(a)(1) of the Act by promulgating and distributing this rule. C. The Alleged Violations of Section 8(a)(3) of the Act 1. Joseph Yezzo Yezzo was hired on April 20, 1981, by Perry who, had been instructed by Marchisio to hire someone on a part- time basis of approximately 3 hours an evening to check on the employees at Condec. Marchisio stated that at the beginning of March he had been warned by the Condec management that there appeared to be a theft problem at Condec and Respondent's employees were among those under suspicion. ,At this time Yezzo was a full- time em- ployee and organizer for the Union. As indicated above, Yezzo immediately began distribution of authorization cards and commenced organizing the people at Condec and Dorr-Oliver. He stated that shortly thereafter, as he learned that Respondent had employees at additional sites, he started this activity at other, locations enlisting the help of other union organizers in these efforts. In ad- dition, since late April, he held meetings weekly for the Condec and Dorr-Oliver employees that were also at- tended by employees from the other facilities. On May 5, as discussed above, there was the confron- tation between Perry and Yezzo in which the former showed Yezzo his union business card and thereafter, ac- cording to Yezzo, Perry stated he would get him for this. Perry, testifying subsequent to Yezzo at the hearing, acknowledged all this except the last threat, but did not specifically deny it or allude to it in his testimony. On May 8 Perry informed Yezzo he would be termi- nated at Condec but would remain with the Company in another job as a regular cleaning employee at' another fa- cility. This assignment was located at an electronics sur- veillance company where he would' be the only employ- ee of Respondent working and would be locked in while doing his job. Yezzo asked Perry why he was being transferred, but Perry replied that was all he could, say. Yezzo told Perry he would have to think it over 'and the following night he called Marchisio and told him he 6 Blackstone Co, 258 NLRB 945, 951 (1981), affd in pertinent part 685 7 Atlas Metal Parts Co., 252 NLRB 205 (1980). F 2d 102 (3d Cu. 1982). 8 Republic Aviation v. NLRB, 324 U S. 793 (1945) PREMIER MAINTENANCE 17 would have to decline the offer. He thereby terminated his employment. The complaint alleges that by transferring Yezzo from the Condec facility to another, Respondent violated Sec- tion 8(a)(3) of the Act. Respondent contends, on the other hand, that the security problems at Condec had "abated" and there was no longer any need for Yezzo, and consequently it offered him a job at another build- ing. I am not persuaded by this argument. Marchisio tes- tified that he had been informed by Condec officials that a security problem existed at the facility in early March. Now it is urged that the security problem had abated by the latter part of April, and yet, Respondent only hired Yezzo on April 20. Other than this self-serving state- ment, no evidence has been adduced that the security problem, if one did exist, was no longer troublesome by the latter part of April. What is clear is that Respondent became aware of Yezzo's activities as an organizer at least several days before May 5, when Perry confronted him with his business card from the Union and based on the credited testimony of Yezzo, threatened that he would get Yezzo for this. Then just 3 days after that, on May 8, Perry, without further explanation, informed Yezzo of his transfer to the other facility. Interestingly, of the sites at which Respondent had employees in the Stamford area, the one to which Yezzo was to be trans- ferred involved a single employee so that Yezzo would be indeed isolated and clearly have no one to organize. Accordingly, I find that by reason of its transfer of Yezzo from Condec to the one-man facility, Respondent violated Section 8(a)(3) and (1) of the Act.10 2. Donald Abrahams Abrahams was hired and commenced work at Condec on April 30, 1981. He testified that he signed a union card and attended meetings. July 24 was Abrahams' last day of employment. The following evening he was unable to get to his job at Condec because he was re- quired to work overtime on his daytime job which was under the C.E.T.A. progam. Abrahams testified that in the afternoon he called his mother and asked her to tele- phone Respondent before 4:30 p.m. and inform Respond- ent that he would be working late. She reported to him that she was unable to get through on the phone and then he tried to call from work, but with the same result. Abrahams had been traveling to Condec with his two uncles, the Smiths. When he had to work overtime the next night, he instructed his uncle, Uton Smith to tell his supervisor that he was working overtime and could not get in to work. Sidney Bingham, called as a witness by Respondent, testified on cross-examination that Uton Smith gave him a message that Abrahams had been trying but was unable to come to work, nor could he 10 Respondent in its brief stated that Yezzo was offered the other job because "there were no supervisory jobs available at Condec " No proba- tive evidence was presented to establish that Yezzo possessed the statuto- ry indicia for supervisory status and absent such evidence , I find that he was an employee within the meaning of the Act Respondent has argued that Yezzo was not constructively discharged. I find it unnecessary to discuss that question since it is not alleged that Yezzo was constructively discharged, and it is clear that Yezzo declined the job at the facility to which he was transferred reach the office. Bingham said he was the supervisor and did not bother relaying the message because Perry, the manager, seldom came around and sometime Bingham did not see him when he did come. Uton Smith further testified that the following evening he saw Perry in the cafeteria and the latter asked him what had happened to Abrahams. Smith informed Perry that Abrahams was unable to get in to work. Perry then told him that Abrahams was fired, and Smith later re- peated this to Abrahams. As a result Abrahams did not report to work any longer. Perry denied having spoken to Smith concerning Abrahams and, of course, denied telling Smith he had been fired. Further, he testified that he had not told Abrahams at any time that he was fired. I credit the testimony of Smith and of Abrahams, rather than Perry, who in the course of his testimony was at times evasive and also inconsistent. Abrahams then filed an unfair labor practice charge. Abrahams stated that about a week later he called Marchisio and asked what happened to his job, relating that he had been fired by Perry. Abrahams asked if he could get back his job and Marchisio responded that he would call when an opening came but he never did. Marchisio claimed that Abrahams called him in October and wanted to come back to work. Marchisio told him there was still a charge against the Company and he could not give him the job back unless he cleared it with the National Labor Relations Board. Finally, Abrahams' employment record contained the following handwritten legend: Note: Joe Yezzo brought Donald Abrahams into work 4/30/81. One day before eligibility for elec- tion 5/1/81, so he could vote? Something not right. Byrd, a supervisor, testified that after the May 8 meet- ing at Condec, Diamond met with the supervisors and told them that there were three people brought in by Yezzo he thought was part of a union and he wanted to get rid of them any way he could. Diamond named the three as being Abrahams, Uton, and Iver Smith. Byrd testified credibly on this matter and, moreover, these statements attributed to Diamond were not specifically denied or referred to by Diamond in the course of his testimony. The General Counsel contends that Respondent dis- charged Abrahams because of its belief that, having been referred by Yezzo, he was involved in the union activi- ties. On the other hand, Respondent contends it never fired Abrahams, but that he merely had absented himself without calling and never returned to work. With regard to Abrahams' calls to be reemployed, Respondent avers that it was under no obligation to put him back to work, particularly in view of its policy concerning employees who are absent without calling in. At the outset, Abrahams had signed a union authoriza- tion card and also attended union meetings, clearly pro- tected activities under the Act. Although Respondent in- dicates that these actions constituted minimal union ac- tivity, it is clear that Respondent undoubtedly believed Abrahams was engaged much more deeply as indicated by the note written on his employment record as quoted 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above, coupled with Diamond's statement to Supervisor Byrd that he would like to get rid of Abrahams and his uncles in view of their referral by Yezzo. However, it is long settled that the Act is violated if an employer acts against employees in the belief that they have engaged in protected activities, whether they actually did so.l1 Moreover, the employment record notes and Diamond's statement ' 'to Byrd reveals Respondent's feelings and animus toward Abrahams. The, main thrust of Respondent's argument is that Abrahams was never fired but that he just failed; to return to work after July 24. Based on the credited testi- mony of Bingham, a witness called by Respondent, that Uton Smith informed him of the reason for Abrahams' absences as well as Perry's statement to Uton Smith that Abrahams had indeed been fired, I fmd that Abrahams was discharged despite the fact that he had not been per- sonally told of that action at the time. Presumably, Respondent would contend that even if it had discharged Abrahams, it had done so for reasons of Abrahams' failure to report to work without calling. I find no merit to this defense. Although Respondent may well have had a policy of discharging employees who failed to appear for work and did not advise the Compa- ny in advance, Diamond testified that after a first such absence, Respondent's officials attempted to sit down and explain the importance of a phone call to the Company. Such an employee is then instructed in the future to call or face termination. No evidence was adduced by Re- spondent to show that Abrahams' absence was a recur- rent problem or had been warned. In addition, it is noted that Marchisio had testified that when Abrahams had called to see whether he could get back his job, he was told that he could not be taken back until the matter was resolved by the National Labor Relations Board.12 Such a statement is significant at this point because Marchisio had not advanced Abrahams' absence as the reason for not being reemployed. Accordingly, I fmd that Respond- ent discharged Abrahams in violation of Section 8(a)(1) and (3) of the Act because of his actual engagement or perceived engagement in union , activities. 13 3. William Byrd Byrd was a supervisor at Condec since September 1980, reporting to Perry. His schedule involved working from,6 to 10:30 p.m., 5 days a week, and on Saturday he came in to shampoo the carpeting. While on vacation in July 1981, after election had been held at Condec, he gave an affidavit to the NLRB. On his return from vaca- tion on July 29, Byrd was informed that a new supervi- sor, Bingham, had been appointed. Perry told Byrd that 11 See NLRB v. Link-Belt Corp., 311 U.S 584, 589-590 (1941). 12 This in and of itself appears to be a violation of the Act which, however, is not alleged in this complaint. 12, In its brief Respondent seeks to apply the Board's doctrine set forth in Wright Line, 251 NLRB 1083 (1980). Because that theory presupposes an otherwise valid motive for discharging an employee, it would have no applicability to a situation where an employer contends it had not dis- charged the employee but rather he had quit. As the alternative that Abrahams was terminated because he was absent without calling in, I have found such defense without meat and indeed pretextual. The Board has held unnecessary a -Wright'Line analysis in such a situation. Limestone Apparel Corp., 255 NLRB 722 (1981); ' Bingham was there to supervise the "place" (Condec) and that Byrd's hours had been reduced, more work was added to his regular routine, and there would be no more Saturday work for him. Also on that date he met Marchisio ` in the lobby at Condec who said he knew Byrd had given a statement'to the Board. This was ac- knowledged' by Marchisio in his testimony. Further, Marchisio said that he lost a few people at Dorr-Oliver and was going to get rid of' a few more because he t'hought' most of the votes came from Condec. Marchisio did not specifically deny this' latter statement and al- though Hickerson, also a supervisor at Condec, was present, he did not testify at the hearing. On Friday of the week of his return from vacation, Byrd sustained a nose bleed and left work to return home. Marchisio acknowledged that Byrd notified one of the supervisors before leaving.14 Having left on Friday, the following workday, Monday, August 3, Byrd called, Perry and told him the doctor advised that he stay out a ,week because of his condition. At that point Perry told him he was sorry but he could not keep his job open any longer. Byrd filed an unfair labor practice charge on August 13. Byrd obtained a note from the. doctor on September 15 and testified that he did so in order to return to his job and present it to Respondent. However, he also stated that he 'did ,not give this doctor's note to the Company because by then they had already terminated him. Perry, testified, in agreement with Byrd, that, on August 3 the latter had called and said he had seen a doctor and would have to be out for a week, and he told Byrd to get a doctor's slip. At this point the accounts of the incident diverge because Perry testified that he re- ceived another call from Byrd on August 10 who stated that the doctor had ordered him to stay out another week and, according to Perry, he told Byrd again to get a doctor's note. It is undisputed that, Byrd obtained the note from the doctor which is dated September 15 and was never sent or tendered to Respondent by Byrd. The initial issue concerning Byrd is whether he had been discharged at all by Respondent who contends that it never did so but rather Byrd merely did not return to his job nor did he tender a note from the doctor as re- quested by Perry, On the other hand, the General Coun- sel contends that Byrd had informed Perry on August 3 of his physical condition and doctor's instructions and had further offered to supply a doctor's note but Perry had said that they could no longer keep open his job. It is urged that this statement by Perry conveyed the im- pression to Byrd that he was terminated as of August 3. Clearly these contradictory contentions arise from a con- flict in credibility between Byrd and Perry. Although in prior resolutions I have not found Perry to be a very credible witness, nevertheless, it is the burden of the 14 Byrd, who apparently suffered from high blood pressure, was prone to nose bleeds In January of that year he had such an incident and left the premises without notifying anyone. Marchisio told him on his return that this could not be tolerated and actually fired him However, the other employees walked out in protest and as a result Marchisio asked him to return. In addition Byrd was not asked then to bung in a doctor's note although he had been hospitalized for 9 days. PREMIER MAINTENANCE General Counsel to support his contention by a prepon- derance of the evidence which, in the case of Byrd's al- leged discharge, I find he has not sustained. I base this on certain discrepancies in the testimony of Byrd him- self. According to Byrd he had only one telephone con- versation with Perry and that this occurred on August 3, it is agreed. Apart from whether there was a subsequent conversation on August 10 as stated by Perry, Byrd's statement on August 3 that he had seen a doctor and was ordered to stay home a week conflicts with the doctor's note dated September 15, which was received in evi- dence. This clearly states that he saw Byrd for the first time on August 6 and repeats that Byrd was under his care from August 6 to September 8. It would appear that Byrd had not seen the doctor on August 3 when he called Perry and informed him of his condition. It is also mystifying that Byrd did not obtain a note from the doctor until September 15 despite the fact that he had been discharged by the doctor on September 8, and had offered to do so to Perry on August 3. Even securing the note on September 15, allegedly to reclaim his job, conflicts with Byrd's testimony that he believed he was terminated on August 3 and his filing of the unfair labor practice charge on August 13. In addition it is conceded that during this period of his absence, Byrd continued to work at his full-time daytime job. Although it is conceivable the doctor may have told Byrd that his condition would warrant his working day- time but his second job might be too much for him to bear, it is also possible that Byrd could have substantiat- ed this in a timely note to Respondent Byrd's course of conduct relies on his statement that Perry told him on August 3 his job could not be held for him. I cannot find that these words attributed to Perry even if said, which were vague as to date of termination, and spoken in context of obtaining doctor's notes, were sufficient to constitute a constructive discharge. Instead of Byrd following through with his offer to submit a doctor's note, he filed an unfair labor practice charge. Also, although it is true Respondent had learned that Byrd had given an affidavit to the Board while on vaca- tion, it took no action against Byrd even though he re- ported 2 days late from vacation without notifying Re- spondent. Finally the fact that Byrd's duties were changed on his return from vacation again does not change this result since Respondent's installation of an- other supervisor above Byrd affected both him and Hickerson, also a supervisor, and Byrd was not singled out thereby because of his having supplied an affidavit to the Board. On the basis of all the above, I find that the General Counsel has not sustained her burden of show- ing by a preponderance of evidence that Byrd was dis- charged because he had cooperated with the Board in- vestigation, or even indeed that he had been discharged at all. Accordingly, I shall recommend dismissal of the allegations that Byrd had been unlawfully discharged in violation of Section 8(a)(1) of the Act. IV. THE OBJECTIONS IN THE REPRESENTATION CASES 19 A. Cases 39-RC-206 and 39-RC-207 The Union filed timely objections to conduct allegedly affecting the outcome of the election. Ater investigation, a hearing on objections was ordered relating to the trans- fer of employees for the purpose of influencing the elec- tion and promises of economic benefits for the same pur- pose The Regional Director, during the course of the in- vestigation, found other objectionable conduct not spe- cifically alleged with respect to interrogation of employ- ees, threatening of more onerous working conditions, and promulgating a rule prohibiting employees from en- gaging in union activities on working time and working hours. I have found extensive violations of Section 8(a)(1) of the Act that are coextensive with the objec- tions consolidated herein as well as the additional objec- tionable conduct found in the investigation. The Board has stated that "conduct of this nature which is violative of Section 8(a)(1) is, a fortiori, conduct which interferes with the exercise of a free and untrammelled choice in an election." Playskool Mfg. Co., 140 NLRB 1417 (1963). This is so "because the test of conduct which may inter- fere with `laboratory conditions' for an election is consid- erably more restrictive than the test of conduct which amounts to interference, restraint or coercion, which vio- lates Section 8(a)(1)." Dal-Tex Optical Co., 137 NLRB 1782 (1962). I find, therefore, that Respondent did engage in conduct interfering with the election and that the Union"s objections thereto are sustained. B. Case 39-RC-227 A hearing was ordered with respect to timely objec- tions filed by the Union to the effect that the Employer had a supervisor maintain surveillance at the election, that the Employer granted wage increases to unit em- ployees after the filing of the petition on July 13, and that the Employer solicited its employees to withdraw their union designations. i s As I have found that Re- spondent violated Section 8(a)(1) of the Act by granting wage increases to employees in this unit after the filing of the petition, I further find, in accordance with the Dal-Tex principle, that such conduct interferes with the exercise of a free election, and the Union's objection thereto is sustained. As to the objection that a supervisor surveilled the election the record reveals that, during the course of the election, Tom Woody was stationed at the polls check- ing off employees' names on a copy of the Excelsior list as they proceeded to the voting (Excelsior Underwear, 156 NLRB 1236 (1966)). Marchisio testified that at this time, Woody acted as a supervisor, filling in for Perry, at least three times a week every week, visiting various Stamford facilities Moreover, it is also conceded that Woody replaced Taylor, an admitted supervisor. It has 15 The Regional Director's Report on Objections was adopted by the Board absent exceptions thereto In this election determinative challenges had been filed but the Board adopting the Regional Director's recom- mendation that the challenged ballots to three employees be sustained and that it was, therefore, unnecessary to rule on the remaining chal- lenged ballots as they were no longer determinative 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been long established that the stationing in the polling area of a supervisor conveys to employees that their union activities are being observed and that such conduct destroys the laboratory conditions necessary for a free election. See Electric Hose & Rubber Co., 262 NLRB 186 (1982). A fortiori, when the supervisor, as here, is en- gaged in a checkoff of names on the Excelsior list. Ma- sonic Homes of California, 258 NLRB 41, 48 (1981). Ac- cordingly, this objection is sustained. The final objection alleges that Respondent solicited its employees to withdraw their union designations. Al- though the record is replete with evidence that the Re- spondent and it supervisors sought to dissuade employees from signing cards and voting for the Union, there is no specific evidence of any attempt to solicit withdrawals of the authorization cards. In any case sufficient grounds have already been established to set aside the election. Accordingly, I shall recommend that this objection be overruled. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and take certain af- firmative action designed to effectuate the policies of the Act. Having found that Respondent discharged Donald A. Abrahams, in violation of Section 8(a)(1) and (3) of the Act, I recommend that Respondent be ordered to offer him reinstatement and to make him whole for any loss of earnings and other benefits resulting from his discharge by payment to him of a sum, of money equal to the amount he normally would have earned as wages and other benefits from the date of his discharge to the date on which reinstatement is offered, less net earnings 17 Sterling Sugars, 261 NLRB 472 (1982). during that period. The amount of backpay shall be com- puted in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977).16 I shall also recommend that Respondent remove from its records any reference to the unlawful discharge of Abrahams, and inform him that this will not be used as a basis for future personnel actions concerning him.' 7 CONCLUSIONS OF LAW 1. Respondent is an, employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by: (a) Coercively interrogating employees concerning their union and other protected activities. (b) Threatening employees with reprisals and with- holding of benefits should they select the Union as their collective-bargaining representative. (c) Promising benefits to employees should they reject the Union as their representative. (d) Deferring wage increases because of employees' support for the Union. (e) Increasing wages and benefits. in order to induce employees to reject the Union. (f) Creating the impression that it has the union activi- ties of employees under surveillance. (g) Promulgating and maintaining a rule against solici- tation that is discriminatory and overly broad. 4. Respondent violated Section 8(a)(3) and (1) of the Act by discharging Donald A. Abrahams and transfer- ring Joseph Yezzo because of their union activities, and further by promulgating and maintaining a no-solicitation rule prohibiting only union solicitations. - 5. The unfair labor practices are unfair practices affect- ing commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent did not violate Section 8(a)(1) of the Act by-unlawfully discharging William Byrd. [Recommended Order omitted from publication.] 16 See generally Isis Plumbing Co., 138 NLRB 716 (1962)