Cartridge Actuated Devices, Inc.

426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cartridge Actuated Devices, Inc. and International Union of Electrical, Radio and Machine Work- ers, AFL-CIO. Cases 22-CA-11501, 22-CA- 11716, and 22-RC-8729 15 December 1986 DECISION, ORDER, AND DIRECTION BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 28 July 1983 Administrative Law Judge Thomas T. Trunkes issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Party filed a brief in sup- port, of the judge's decision. 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 and to adopt the recommended Order as modified. The complaint alleges, and the judge found, that the Respondent's supervisors engaged in a variety of conduct which violated Section 8(a)(1) and (3) of the Act. This conduct included, inter- alia, threatening to discharge employees and to close the plant if the employees supported the Union, in- terrogating employees regarding their support of the Union, creating an impression of surveillance, promising employees benefits for not supporting the Union, and discharging two employees for en- gaging in union activities. While we agree with the judge that several of the Respondent's acts were unlawful, we do not agree with all of the judge's findings concerning the alleged unlawful conduct. The relevant facts, more fully set forth in the at- tached decision, are summarized below. The Respondent is engaged in the manufacture, sale, and distribution of explosive devices and other pyrotechnic products. During January 19822 the ' 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. We agree with the judge's finding that the Respondent's discharge of Kathleen Scherer and John Gerstmann for engaging in violent conduct on the picket line, while failing to discipline nonstriking employees who engaged in violent conduct on the picket line, constituted disparate treat- ment in violation of Sec. 8(a)(3) and (1). We do not agree, however, with the judge's observation that Gerstmann's behavior of kicking a vehicle is "the type of impulsive misbehavior that can be expected on a picket line during the course of a lengthy and tense strike." See, e.g., Clear Pine Mouldings, 268 NLRB 1044 (1984). 2 All dates are 1982 unless otherwise indicated. Union began to organize the approximately 80 em- ployees at the Respondent's facility in Byram, New Jersey. On 17 February, after obtaining over 50 au- thorization cards, the Union requested the Re- spondent to recognize it as the bargaining repre- sentative. The Respondent declined on the ground that the appropriate method for ascertaining whether the Union represented a-majority of em- ployees was a Board-conducted election. On 21 February the Union held a meeting for all the em- ployees and explained the Respondent's position. The employees voted to begin striking the follow- ing morning. A Board-conducted election was held 17 June and the strike ended on 18 June.3 1. The judge concluded that in February, before the strike, Supervisor Hazel Waldron committed two separate violations of the Act by stating to em- ployee Nancy Kosiakowski, "[T]his plant will never have a union, they will close this plant down first, you'll all be out of jobs." The unlawful con- duct as found by the judge consisted of a threat of plant closure in violation of Section 8(a)(1) and a threat of discharge in violation of, Section 8(a)(1). Although a statement of this nature is a violation of Section 8(a)(1), we do not believe it constitutes two separate violations of Section 8(a)(1). Rather, Wal- dron's reference to employees being out of jobs, in context, is clearly a reference to what the siutation would be if the Respondent closed the plant. We therefore will modify the judge's decision and find that the statement set forth above constitutes only a single threat of plant closure in violation of Section 8(a)(1). 2. The judge further found that during the same time period, Supervisor Mildred Francisco on two occasions unlawfully created an impression among employees that their union activities were under surveillance. In the first instance the judge' found that Francisco informed employee Chris Hansen to return to work "a couple of minutes early on your break." Hansen objected and Francisco responded, "that's because the bosses across in the trailer are watching us and whoever comes back late they are going to fire because of the union." In the second instance, the day after a union meeting was held in the home of employee Nancy Kosiakowski, Fran- cisco stated to Kosiakowski "be careful; they know." Concerning the first instance, it is clear, that an employer has the right to determine when employ- ees report 'back to work from break periods. In- forming employees that the -employer is observing 3 The tally of ballots in Case 22-RC-8729 reveals there were 41 votes cast for, and 36 against, the Union. There were 30 challenged ballots, a number sufficient to affect the results of the election 282 NLRB No. 66 CARTRIDGE ACTUATED DEVICES them to determine when they return is therefore not unlawful. In this instanlce, however, Supervisor Francisco informed employee Hansen that not only was the Respondent determining when employees came back from break periods with the intent to discipline those employees who came back late, but also that the Respondent was doing so "because of the union." We therefore do not believe that Fran- cisco through this act created an unlawful impres- sion of surveillance. Rather, Francisco's statements to Hansen constituted a threat to discharge em- ployees because of union activities and as such vio- lated Section 8(a)(1). Supervisor Francisco's statement to employee Kosiakowski, however, contained no such threat. Rather, as set forth by the judge, Francisco had de- veloped friendships with many of the night em- ployees. Thus her comment to Kosiakowski was merely stating well-known information: manage- ment knew about the employees' attempt to union- ize. Again, as this statement was made by a low- 'level supervisor and contained no threat as did the statement Francisco made to employee Hansen, we find that this encounter did not create an impres- sion of surveillance in violation of Section 8(a)(1).4 3. The judge also found that Supervisor Francis- co unlawfully interrogated employee John Gerst- mann. We disagree. During mid-February Francis- co approached Gerstmann and asked him what he thought about the Union. Gerstmann responded that he was not sure but suggested that something 'needed to be done to improve working conditions in the facility. Francisco responded by handing Gerstmann a pamphlet published by' the State of New Jersey which indicated employees could' not collect unemployment benefits while on strike. This encounter occurred on the shop floor, involved a low-level supervisor, and contained no threatening language. Based on these facts we find that this en- counter did not constitute an interrogation in viola- tion of Section 8(a)(1).5 ' Contrary to his colleagues, Member Babson agrees with the judge that the Respondent created an impression of surveillance through Fran- cisco's statements to Hansen and Kosiakowski . It is undisputed that Fran- cisco told Hansen that he had to return early from Ins break "because the 'bosses across in the trailer are watching us and whoever comes back late they are going-to fire because of the union " It is further undisputed that following a meeting in Kosiakowsla's home in early February, Francisco approached her and stated, "be careful, they [management] know." Not- withstanding Francisco's friendship with both employees, the statements reasonably tended to interfere with the exercise of their rights under the Act. Furthermore, the admonition to Kosiakowski to "be careful" sug- gested the possibility that the Respondent would retaliate if it learned of the union activities of Kosiakowski and other employees. See, e.g., Union National Bank of Pittsburgh, 276 NLRB 85 (1985) (supervisor's comment to employee after union meeting that, inter alia, she had better "watch" ,herself constituted unlawful impression of surveillance and threat of re- prisal in violation of Sec. 8(a)(l)). s Under all the circumstances, Member Babson finds Francisco's ques- tion of Gerstmann to be an unlawful interrogation. 'See, e.g, United Art- ists Theatre Circuit, Inc.,, 277 NLRB 115 fn. 3 (1985) (supervisory interro- 427 4. The judge also found that prior to the strike, Supervisor Waldron, on three separate occasions, unlawfully interrogated employee Deborah Gould. We agree that Waldron did unlawfully interrogate Gould during a conversation` in February in which she asked Gould who had signed union cards. We disagree, however, with the judge's conclusions that during two other conversations between Wal- dron and Gould, Waldron also engaged in unlawful interrogation. During the first conversation Wal- dron asked Gould` why she (Waldron) had not been invited to a union meeting. Gould responded she did not know and asked if Waldron wished to join' the Union. Waldron answered no. During the other encounter Waldron asked Gould if she was going to a union meeting. Gould responded that she did not know, explaining, in response to Waldron, that she had been advised by another employee that she was going to lose her job. Waldron proceeded to assure Gould that this was not true. As found by the judge, these two individuals are good friends. Waldron's comments did not contain any threats. To the contrary, Waldron attempted to assauge Gould's fears that she would lose her job if she attended a union meeting. Accordingly, we find that the Respondent did not violate Section 8(a)(1) of the Act by this conduct. 5. The judge further concluded that during a meeting of the Respondent's employees on 17 Feb- ruary, the Respondent solicited grievances from the employees and made implied promises to cor- rect these grievances in violation of Section 8(a)(1). In support of this finding, the judge found that at this meeting the Respondent promised to correct maintenance problems connected with employee restrooms and impliedly promised the employees that a dental plan would be implemented. We agree with the judge that the Respondent's promise to the employees to correct the maintenance problems with the restrooms shortly after ' the advent of a union campaign tended to discourage union activi- ty in violation of Section 8(a)(1). We disagree with the judge's finding, however, that the Respondent's comments at the employee meeting concerning the implementation of a dental plan constituted a promise of benefit in violation of Section 8(a)(1). The Respondent maintains that the dental plan had been, under consideration for sever- al months before the advent of the union campaign. In support of this contention the Respondent en- gation of employees "not previously self-identified as union adherents" violated Sec. 8(a)(1)). In reaching this conclusion, Member Babson notes particularly that the conversation took place early in the union campaign, at a time when there is no evidence that Gerstmann was an "open and active union supporter," was initiated by Francisco , and occurred in the context of other unfair labor practices committed by the Respondent. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tered into evidence two memos: one from the Re- spondent's general manager dated 18 November 1981 addressed to the employees at the facility in question and the second from the Respondent's vice president dated 19 November 1981 addressed to the employees at another of the Respondent's fa- cilities. These memos indicate that in November 1981 the Respondent was concluding several months of investigation into dental plans for its em- ployees with the anticipation that the selection of a specific plan was to "be made shortly after the new year. Additionally, in ^ response to questions at the employees meeting concerning the implementation, the Respondent informed the employees that it had been studying various plans for the preceding 6 months but no definite decision had been made as to which plan would be put into effect. There is neither testimony nor a finding by the judge that the Respondent promised anything other than what had been promised months before the advent of the union campaign: a dental plan was on the drawing board. Based on these facts, we find that the Re- spondent's reaffirmation of plans announced to em- ployees months before the advent of the union campaign does not constitute an assurance to em- ployees that grievances would be corrected in order to discourage the employees from obtaining union representation and therefore did not violate Section 8(a)(1) of the Act. Finally, contrary to our dissenting colleague, we affirm the judge's 8(a)(5) and (1) finding and, his Gissel bargaining order recommendation. The judge found that the Union enjoyed majority status, and that the unfair labor practices were of "such a nature that their coercive effects cannot be eliminated by the application of traditional reme- dies, with the result that a fair and reliable election cannot be held." NLRB v. Gissel Packing Co., 395 U.S. 575, 614 (1969). We agree. Thus, Nancy Kosiakowski testified that in early February, shortly after the Union 's demand for rec- ognition, and following a meeting of employees at her house, .Night-Shift Supervisor Hazel Waldron told 'her, in the presence of at least five other em- ployees, that "this plant will never have a union, they will close this plant down first, you'll all be out of jobs." Kathleen Scherer testified that in mid- February she overheard Waldron tell Kosiakowski that "you will never get a union in here; they'll close the place down first." Employees Chris Hansen and Marion Cali testi- fied to threats of plant closure by Supervisor Mil- dred Francisco. Hansen testified that about 2 weeks before the strike, Francisco asked him if anyone had approached him about the Union , and said, "[I]f people try to get a union in here, they are going to fire everybody and then take the plant to [the Respondent's other facility, and] just close this plant right up and everybody is going to be out of a job." Cali testified that Francisco approached her on 18 February and stated, "Marion, they'll never let a union in here; if they do, they're going to close the place." Kosiakowski also testified that in early February Supervisor Ruth Biamonte told her she was as- signed to work on primer caps, a more "onerous and hazardous duty." When Kosiakowski told her that she was not trained to perform such hazardous work, Biamonte replied that she was a "trouble- maker." Wendy Mahler testified that Maintenance Super- visor Harold Rouse told her in mid-February that if "employees went on strike, they could not col- lect unemployment benefits and would be fired." Moreover, Chris Hansen testified that in early Feb- ruary, when he protested being sent to work early from his break, Supervisor ' Francisco told him, "that's because the bosses across in the trailer -are watching us and whoever comes back late they are going to fire because of the union." Finally, in Feb- ruary, Supervisor Hazel Waldron asked Deborah Gould who had signed union cards and, on 17 Feb- ruary, General Manager David Herbage promised the day-shift employees to correct the maintenance problems with the Respondent's restrooms. As noted, we have affirmed the judge's ' findings that all of these actions violated Section 8(a)(1) of the Act. In addition, the judge also found, and we agree, that in mid-March, the Respondent, acting through Herbage, unlawfully discharged Scherer and Gerst- mann in violation of Section 8(a)(3) and (1). In this respect, the judge found that Scherer was a "lead- ing union adherent" and Gerstmann a union "sup- porter," and their discharges resulted from the Re- spondent's animus toward the Union and employ- ees at the "forefront of the strike movement." As detailed above, the Respondent's violations were swift, severe in nature, and extensive in number. Threats of plant closure, for example, are among the types of unfair labor practices which "destroy election conditions for a longer period of time than others." Gissel, above, 395 U.S. at 611 fn. 31. Here, the Respondent's threats began the week following the advent of the union campaign. Thus, their coercive effect was heightened even further. See, e.g., Quality Aluminum Products, 278 NLRB 338 (1986). Furthermore, the unlawful discharge of two employees at the "forefront of the strike movement" and the illegal promise to fix the rest- rooms were committed by General Manager David Herbage, a top management official. The effect of CARTRIDGE ACTUATED DEVICES unfair labor practices is heiighteried' -when tley'^ar`e committed by a top management official who is readily perceived as representing company policy. See, e.g., Kona 60 Minute Photo, 277 -NLRB 867 (1985); NLRB v. Permanent Label Corp,, 657 F.2d 512, 521 (3d Cir. 1981) (bargaining order warranted where, inter alia, high-level officers unlawfully threatened reprisals, coercively interrogated em- ployees, and illegally promised benefits). We fur- ther note that the Respondent's violations directly affected a significant number of employees. Thus, the Respondent's threat to close down the plant were made to at least eight employees, Herbage's illegal promise was made to all of the day-shift em- ployees, several employees were coercively inter- rogated, and two employees were unlawfully dis- charged. Finally, our dissenting colleague argues that a bargaining order is unwarranted because there is al- legedly no evidence that "the Respondent's con- duct resulted in any employees being influenced to alter their support for the Union," nor that any em- ployees were "coerced into revoking their authori- zation cards."6 We disagree with this analysis, be- cause in determining whether a bargaining order is appropriate, the Board examines the severity of the violations committed, as well as "the present ef- fects of the coercive unfair labor practices." Qual- ity Aluminum Products, supra at 339 Here, we have examined the nature, severity, and pervasiveness of the Respondent's unlawful conduct, and conclude that the possibility of erasing the lingering effects of the unfair labor practices and of conducting a fair election by use of traditional means is slight. We further conclude that the employees' represen- tation desires expressed through authorization cards would, on balance, be better protected by a bar- gaining order than by traditional remedies. Accord- ingly, we adopt the judge's recommended bargain- ing order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Cartridge Actuated Devices, Inc., Byrain Township, New Jersey, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order as modified. 6 Although authorization cards were signed after the Respondent en- gaged in conduct violative of Sec. 8(a)(1), we note that the Respondent unlawfully discharged Gerstmann and Scherer, employees at the "fore- front of the strike movement," in March. Discharges of union adherents have long been considered by the Board and the courts as "hallmark" violations justifying a bargaining order's issuance. See, e.g., Exchange Bank, 264 NLRB 822, 824 In. 12 (1982), enfd. 732 F.2d' 60 (6th Cir. 1484). 429 r` 1' Delete paragraph 1(e) and reletter the remain- ing paragraphs. 2. Substitute the attached notice for that of the administrative law judge. IT IS FURTHER ORDERED that the complaints in Cases 22-CA-11501 and 22-CA-11716 are dis- missed insofar as they allege unfair labor 'practices not found herein. IT IS FURTHER ORDERED that Case 22-RC-8729 is severed from Cases 22-CA-11501 and 22-CA- 11716 and remanded to the Regional Director for further processing in the manner ,set forth below. As we have found that the strike which com- menced in, February 1982 was an unfair labor prac- tice strike and the parties have agreed that the fol- lowing individuals were hired during the appropri- ate eligibility period as replacements for the strik- ing employees we shall sustain the challenges to the ballots of John Moyes, Wayne Swider, Ann Smith, Suzanne Storch, Roxanne McGinley, Nancy Krizni, Ann Swider, Helga =Masker, Rose Com- pano, Michael Carpenter, Debbie Sutton, Greg An- derson, Donald Pease, Elizabeth' Husted, Claude Genovese, Sandra Keller, Francis Keller, Kevin Connors, 'Keith Dunn, Blaise Kelly, Joe Evans, Craig Peterson, Pat Henderson, and David L. Gor- cica.7 The Regional Director shall open and count the ballots of John Gerstmann, Kathleen Scherer, and Harold Watkins,8 and, thereafter, if the revised tally of ballots shows that'the Petitioner received a majority of the votes cast, the Regional Director shall issue a certification of representative. In such case the challenged ballots of Isadore Surgeon, Peter Marion, and Ken Kreoll' shall be insufficient to affect the results of the election and therefore it will be unnecessary to resolve' such challenges. In the event that the revised tally of ballots shows the Petitioner has not, received a majority of the votes cast, the Regional Director shall issue a supplemen- tal decision ruling on the challenges to the ballots of Isadore' Surgeon, Peter Marion, and Ken Kreoll. If the ' challenges to any of these three ballots are overruled,: the ballot or ballots shall be opened and counted and thereafter, if the revised tally of bal- lots shows that the Petitioner received a majority of the votes cast, the Regional Director shall issue a certification of representative. In the 'event that the revised tally of ballots shows,the Petitioner has not received a majority of the, votes cast, IT Is OR- ' Although the ballot of David L. Gorcica was not listed in the Re- gional Director's report as a ballot that was being challenged, the parties stipulated at the hearing before the judge that this ballot had been prop- erly challenged by the Union, a The challenge to the ballot of Harold Watkins was withdrawn at the hearing. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DERED that the election conducted in Case 22-RC- 8729 is set aside and that case is dismissed. CHAIRMAN DOTSON, concurring in part, and dis- senting in part. I agree with my colleagues that the Respondent violated Section 8(a)(1) and (3) of the Act in sever- al respects.' However, I do not agree with my col- leagues' finding that a bargaining order is necessary and appropriate. Clearly the election process is the preferred method for determining the sentiments of employ- ees. Before foregoing this process a determination of fact based on the evidence must be made as to whether the Union's majority status has been dissi- pated and the holding of an untrammeled election made impossible by an employer 's conduct. In this case there is no evidence that the Respondent's conduct resulted in any employees being influenced to alter their support for the Union. There is no evidence employees were coerced into revoking their authorization cards. To the contrary, authori- zation cards were signed by employees after the Respondent engaged in conduct violative of Sec- tion 8(a)(1). Further, employees indicated their re- solve to support the Union in the face of the Re- spondent's 8(a)(1) violations by striking. I therefore do not understand the majority's view that the Board's traditional remedies would not suffice. As a bargaining order is inappropriate in the present circumstances, I dissent from my colleagues' impo- sition of such an order.2 I also disagree with my colleagues' finding that the strike the Respondent's employees engaged in from 22 February through 19 June was an unfair labor practice ,strike. The testimony reveals that the employees' reason for striking was to gain recogni- tion. Additionally, as I have stated above, the Re- spondent's refusal to recognize the Union was not an unfair labor practice. Therefore I would fmd the strike to be economic in nature. As replacements for the employees engaged in an economic strike are entitled to vote in a representation election, I i In so doing, with two exceptions, I agree with my colleagues' adop- tion, with modifications, of the judge's decision concerning the alleged violations of Sec. 8(a)(1) and (3). I would not find, however, that the Re- spondent's statement at the employee meeting relating to repair of em- ployee restrooms constituted a promise of benefit in violation of Sec 8(a)(1). The Respondent was merely reiterating a promise made to the employees prior to the advent of the union campaign. Moreover, con- trary to my colleagues, I would not adopt the judge's finding that Super- visor Francisco unlawfully interrogated employee Hansen by asking him if anybody had spoken to him about the Union . This encounter occurred on the shop floor, involved a low-level supervisor, and did not contain any threatening langgiage. I would therefore find that this encounter did not interfere with, coerce, or restrain employees in the exercise of their Sec. 7 rights. 2 Accordingly, as I do not believe a bargaining order is warranted I find it unnecessary to pass on the judge's reliance on Trading Port, Inc., 219 NLRB 298 (1975), and Drug Package Co., 228 NLRB 108 (1977). would overrule the challenge to the ballots of the individuals hired to replace the striking employees. Thus, I respectfully dissent from my colleagues' conclusion that the ballots cast by the employees in question not be counted. I agree, however, with my colleagues that the Respondent unlawfully discharged two employees during the critical period and that these discharges constituted objectionable conduct. Therefore after counting the votes of the employees I would find to be economic strikers and the other challenged ballots set forth in the majority's order, if the Union has not received a majority of the votes cast, I would order a second election. 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 threaten our employees with plant closure if they join or support International Union of Electrical, Radio and Machine Workers, AFL- CIO or any other labor organization. WE WILL NOT threaten our employees with dis- charge if they join International Union of Electri- cal, Radio and Machine Workers, AFL-CIO or any other labor organization, or if they support a strike. WE WILL NOT interrogate our employees regard- ing their union membership, activities, and sympa- thies on behalf of International Union of Electrical, Radio and Machine Workers, AFL-CIO or any other labor organization. WE WILL NOT threaten our employees with more onerous working conditions because they support International Union' of Electrical, Radio and Ma- chine Workers, AFL-CIO or any other labor orga- nization. WE WILL NOT promise or grant benefits to our employees in order to dissuade them from union CARTRIDGE ACTUATED DEVICES membership or activities , and to" reward ' them' fcir ceasing to support International Union of Electri- cal, Radio and Machine 'Workers, AFL-CIO or any other labor organization. WE WILL NOT discharge and fail to reinstate em- ployees because they have ,joined, supported, or as- sisted International Union of Electrical, Radio and Machine Workers, AFL-CIO or any other labor organization, or have engaged in protected con- certed activities. WE WILL NOT refuse to recognize, or bargain with, International Union ,of Electrical,,Radio and Machine Workers, AFL-CIO as the exclusive rep- resentative of our employees in the unit described below. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL notify International Union of Electri- cal, Radio and Machine Workers, AFL-CIO that we recognize and will bargain with it as the exclu- sive representative of the employees in the unit de- scribed below -respecting rates of pay, wages, hours, or ' other terms and conditions of employ- ment and, if an, understanding is reached, embody such understanding in a signed agreement . The bar- gaining unit is: All production and maintenance employees, including shipping and receiving employees, x- ray technicians, test technicians,' and quality control employees employed at our Byram Township facility, excluding office clerical em- ployees, professional employees, guards and supervisors as. defined in Section 2(11) of the Act. WE WILL offer Kathleen Scherer and John Gerstmann immediate and full reinstatement to their former jobs or, if those jobs no' longer exist, to substantially equivalent positions , without preju- dice to their seniority or any other rights or privi- leges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL notify each of them that we have re- moved from our files any reference to his or her discharge and that the discharge will not be used against him or her in any way. All our employees are free to become or remain, or refuse to become or remain, members of Interna- tional Union of Electrical, Radio and Machine Workers,, AFL-CIO or any other labor organiza- tion. 431 i tiiam`F. Grant Esq., for the General Counsel. John H. Yauch, Jr. (Yauch, Peterpaul & Clary P. C.), of Springfield, New Jersey, for the Respondent Employ- er. Thomas M. Kennedy, Esq. (Lewis, Greenwald & Kennedy, P.C.), of New York, New York, for the , Charging Party Petitioner. ' DECISION STATEMENT OF THE CASE THOMAS T. TRUNKES, Administrative Law Judge. This proceeding, under Sections 10(b) and 9 of the Na- tional Labor Relations Act, (the Act) was heard pursuant to due notice December 20' through 23, 1982,1 at Newark, New Jersey, based on a complaint and notice of hearing issued in Case 22-CA-11501 on May 28 and an order consolidating cases, first amended complaint, and notice of hearing issued in Cases 22-CA-11501 and 22- CA-11716 on August 26. The petition in Case 22-RC-8729 was filed on March 10, Pursuant to a Stipulation for Certification upon Con- sent Election executed by the parties on May 11, an elec- tion by secret ballot was conducted on June 17. There were challenged ballots sufficient in number to affect the results of the election. On June 23, the Petitioner timely filed objections to conduct affecting the results of the election. Thereafter, on August 26, the Regional Director for Region 22, issued a Report on Objections, Challenged ballots, Order Consolidating Cases and Notice' of Hearing, whereby the Regional Director found that both the objections and the challenged ballots raised , substantial and material issues affecting the results -of the election that can best be re- solved on the basis of record testimony at a hearing. Fur- ther having found that the objections to the conduct of the election were identical to two of the allegations of the unfair labor practice complaints, he ordered a hear- ing, to be held before an administrative law judge, con- solidating the representation case and the unfair labor practice cases. The issues presented at the hearing were as follows: 1. Whether Cartridge Actuated Devices, Inc. (Re- spondent or the Employer), independently violated Sec- tion 8(a)(1) of the Act through various supervisors who allegedly interrogated, threatened, created an impression of surveillance of, and/or made promises to its employ- ees. 2. Whether Respondent discharged its employees Kathleen Scherer and/or John Gersmann in violation of Section 8(a)(3) and (1) of the Act. 3. Whether Respondent's alleged unfair labor practices were sufficiently egregious and pervasive to warrant a bargaining order. 4. Whether Respondent violated Section 8(a)(5) and (1) of the Act by refusing to grant recognition to the Union on February 17, 1982. CARTRIDGE ACTUATED DEVICES INC. ' Unless otherwise specified, all dates refer to the year 1982. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. Whether a strike commenced by employees of Re- spondent on February 22 was either at its inception, or at any time thereafter, an unfair labor practice strike. 6. Whether any or all the challeges to the ballots of the challenged voters should be sustained. 7. Whether the election should be set aside by, virtue of Respondent's unlawful conduct. All parties were afforded full opportunity to partici- pate at the hearing. Briefs were filed by the General Counsel, Respondent, and the Charging Party. On the entire record in the case and from my observa- tion of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a New Jersey corporation with an office and Place of business located in Byram Township, New Jersey (the Byram facility), is engaged in the manufac- ture, sale, and distribution of explosive devices and other pyrotechnic products . During the past 12 months, Re- spondent sold and shipped from its Byram facility prod- ucts, goods, and materials valued in excess of $50,000 di- rectly to points outside the State of New Jersey. Re- spondent admits, and I find, that it is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION International Union of Electrical, Radio and Machine Workers, AFL-CIO (the Union, the Charging Party, or the Petitioner) is, -and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act, as admitted by Respondent. III. CREDIBILITY OF WITNESSES Before one can judicially make findings and conclusion as to whether any of the alleged violations did occur as contended by the General Counsel, it is necessary to make credibility findings with respect to the testimony of the various witnesses presented at the hearing. In addi- tion to considering the demeanor of the witnesses, the Board has stated: [I]t is abundantly clear that the ultimate choice be- tween conflicting testimony also rests on the , weight of the evidence, established or admitted facts, inher- ent probabilities, reasonable inferences drawn from +the record, and, in sum, all of the other variant fac- tors which the trier of fact must consider in resolv- ing credibility. [Northridge Knitting Mills, 223 NLRB 230, 235 (1976).] From my observation of the witnesses , the analysis of all the submitted briefs, and the review of the transcribed record, I have concluded that the witnesses presented by all sides in this case were less than candid in relating cer- tain incidents that occurred . Accordingly, it has been necessary to reconstruct the factual matter of this case in order to arrive at various conclusions. Thus, on occas- sion I have credited and discredited testimony of the same witness, as I have concluded that certain portions of testimony of witnesses were unreliable, either through deliberate fabrication, faulty recollection, or a combina- tion of both. Each specific allegation of the complaint that is in dispute shall be discussed and analyzed with the object of arriving at as complete objective truth as is possible under the circumstances. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Operations of Respondent As stated earlier, Respondent is engaged in the manu- facture, sale, and distribution of explosive devices and other pyrotechnic products. According to David Herb- age, the general manager of Respondent's facility at all times material, "The plant is situated on top of the tallest hill or small mountain in Byram Township, surrounded by woods. The main production building has , seven double bays. It's a block and concrete building; approxi- mately 60 feet across from it is a trailer which is used as an office building. There's a small production building which contains also rest rooms situated off to one side. Behind that is a trailer that's used as a cafeteria building and down the hill from that is a test and x-ray building; magazines off down another road and so on." In early 1982, there were approximately 80 employees of Respondent at its Byram facility. Until June 19, Gerard C. Stickling was president and Ralph P. Dodd was vice president.2 Other supervisors of the facility in- cluded David Herbage, general manager; Edward Soohoo, quality manager; Hazel Waldron, night-shift su- pervisor; Kirk Klenk, 'assistant production manager; Ruth Biamonte and Mildred Francisco, both first-shift supervi- sors; and Harld Rouse, maintenance supervisor. All the above-named individuals are admitted by Respondent to be supervisors within the meaning of Section 2 (11) of the Act. B. Union Activity of the Employees In early January, employee Nancy Kosiackowski (Nancy) telephoned Anthony Corrao, an official of the Union, advising that employees of Respondent were in- terested in joining a union. Thereafter, a ,meeting be- tween union officials and employees of Respondent was held on January 31 . At this meeting, union authorization cards were distributed to the employees, and approxi- mately 36 cards were signed and returned to Corrao. Corrao explained that the cards could be used for a rep- resentation election or a card check to prove majority status. The following week, Corrao met with a few of the employees at the home of Lorrie Snook . Corrao collect- ed another eight authorization cards from Snook at her house. Another meeting was held the following Sunday. At this meeting, various employees complained with re- spect to alleged unfair labor practices committed' by su- pervisors of Respondent (detailed, infra). Further, em- ployees complained about unsafe and unsanitary condi- tions at the facility. Additionally at this meeting the Union collected 12 more authorization cards. 2 On June 19 Stichling died , and Dodd succeeded him as president. CARTRIDGE ACTUATED DEVICES 433 The following Thursday the union officials met with six employees in a public restaurant. Corrao explained the procedures for filing an NLRB representation peti- tion and the steps to be taken by employees to further the organizing campaign. The following Sunday another meeting was held. Fur- ther instances of alleged unfair ,labor practices by, Re- spondent were brought to the attention of union officials by employees., At this meeting, six more authorization cards were collected by the Union. On February 17, having obtained in excess of 50 union authorization cards, Corrao, accompanied by Union Rep- resentative Rick Fiore and six employees, visited, Re- spondent's office at lunchtime and met with Herbage and Soohoo. Corrao announced that a majority of the em- ployees had designed the Union as their representative and he desired recognition. Herbage responded that the Union could file,a petition for an election with the Board that he believed to be the appropriate means for obtain- ing recognition. Corrao explained that alternative means should be either a ,card check or a secret-ballot election to be conducted by a neutral party. Herbage again stated that the appropriate procedure should be the filing of a petition with the Board. Corrao next remarked that it was brought to his attention that various supervisors of Respondent had committed acts constituting unfair labor practices and that there were a number of unsafe condi- tions at Respondent's facility. Further discussions were held with respect to the petition after which Herbage telephoned the corporate office of Respondent. He fur- ther emphasized to the union agents that they should file a petition for an election. Corrao requested that Herbage reconsider his position to which Herbage responded that Respondent would seek advice from legal counsel. Following the meeting with Herbage, the Union held another meeting with the employees on February 21, at which time it announced what had transpired when the request for 'recognition had been made. As employees i elt very strongly with respect to union -representation, the Union conducted a secret-ballot election to determine whether they desired to strike. The employees voted overwehlmingly for a strike, which began the following morning, February 22, and lasted until June 18.3 C. The 8(a)(1) Allegations 1. Threats of plant closure a. Hazel Waldron Kathleen Scherer, an employee of Respondent and an alleged 8(a)(3) discriminatee, testified that sometime in mid-February in bay 7 of Respondent's facility, she ob- served a conversation between Waldron and Nancy. Standing behind Waldron, she heard her say, "You will never get a union in here; they'll close the place down fast." According to Nancy, following a meeting of employ- ees at her house in early February, the following day in bay 7 of Respondent's facility, Warldon stated to her in the presence of several employees, including Scherer, "[T]his plant will never have a union, they will close this plant down first, you'll all be out of jobs... " Waldron denied having any such conversation with Nancy. b. Harold Rouse Kevin Faulkner, an employee of Respondent, testified that on the Monday of the week the employees went on strike, in the workshop of Respondent's facility, Rouse stated to him, "I heard that you were supposed to be going to a union meeting and that if you do the compa- ny-we will have to shut the company down, because we don't want one in here." When Faulkner inquired how Rouse had found this out, he responded that he heard it from one of the coworkers of Faulkner. Rouse did not testify to refute this statement of Faulkner.4 c. Mildred Francisco Chris Hansen, an employee of Respondent, testified that about 2 weeks before the commencement of the strike in bay 2 of Respondent's. facility, Mildred a/k/a Molly Francisco inquired whether anyone approached him about' the Union. After he responded negatively, she stated, "Because you know if the union-if people try to get a union in here, they are going to fire everybody and then take the plant to Fairfield,5 just close this plant right up and everybody is going to be out of a job." There were no witnesses to this alleged conversation. Marion Cali, an employee of Respondent, testified that on February 18, her supervisor, Francisco, during lunch- time, stated to her, "Marion, they'll never let a union in here; if they do, they're going to close the place." Francisco, denied having made any such statements to either Hansen or Cali. d. Ralph Dodd Faulkner testified that on the Friday preceding the strike, at approximately 7:30 p.m. while he was cleaning the office area, a meeting of Respondent's spervisors, at- tended by Dodd, Herbage, Soohoo, Pete Buwen, Kirk Klenk, and Waldron took place. Faulkner, while vacuum cleaning, overheard Dodd state that he did not want a union. Faulkner further testifies that "[Dodd] said if it does turn out to be that the union does get in there or try and push their way in there, he will close the plant down completely." Waldron, who is Faulkner's supervisor, testified that she never assigned him duties to clean the office located in the trailer, although he had,been assigned at times to vacuum the lunchroom. According to Waldron, the office cleaning was performed by employees of the main- tenance department, either Steve Talmadge, the night maintenance man, or Ray Schwinoff, the day mainte- nance man. Herbage testified :that he does not recall ever attending a meeting with Dodd and other , supervisors 8 Although both Soohoo and Herbage essentially confirmed what oc- curred at the meeting for recognition, they both denied that anything had been said about unfair labor practices. ' Rouse is no longer employed by Respondent. s Respondent operates another facility located in Fairfield, New Jersey, which is not a subject of this proceeding. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after 5 p.m. Further, he asserted that at no time had he ever heard Dodd state that if the Union were successful, the plant would be closed. Dodd testified that'he visited the Byraht facility in January, but not February.' Howev- er, he denied holding any meetings - with supervisors at any time in either January or February in which he stated that the Byram facility would be closed if the Union were successful in organizing the employees. Discussion and Analysis With respect to the alleged threat by Ralph Dodd that he would close the plant down should the Union be suc- cessful in its organizational effort, the General Counsel presented one witness, Kevin Faulkner, to support this allegation. I cannot credit Faulkner's account. Although this is vital information, none of it was communicated to the General Counsel until shortly before the trial which necessitated an amendment to the complaint to include the alleged violation. The evidence revealed that Faulk- ner had submitted information with respect to other al- leged unfair labor practices, discussed, infra, but failed, to reveal any information with respect to the alleged unfair labor practice committed by Dodd. In addition, although Faulkner described in great detail the conversation that occurred at the alleged meeting at 7:30 p.m., in contrast, he could not recall any events that occurred at any of the union meetings that he attended during the same time frame in February. Additionally, I was not impressed with Faulkner's testimony in general. I found it to be in- consistent and illogical in other areas as discussed , infra. Accordingly, I have' concluded that the alleged meeting at 7:30 p.m. in the office of Respondent's facility never took place. Assuming arguendo that the events occurred as Faulk- ner had testified, although Respondent acknowledges that should Faulkner be credited in this aspect, it would require a fording of an 8(a)(1) violation, citing Perko's Inc., 236 NLRB 884, 896 (1978), I disagree. In Perko, as in Avon Convalescent Center, 200 NLRB 702, 708 (1972), the Board found that communications among supervisory staff of respondent employer were overheard by employ- ees although the communcations to the employees were unintentional, and a violation was found. The facts of those cases are distinguishable from the instant case. In those cases the conversations were held in, locations where employees would reasonably be expected to over- hear them, whether the employer intended that the' em- ployees overheard them or not. In the instant case, the alleged meeting, if it had taken place, did take place after normal business hours in Respondent's office located in a trailer, far from all, the nonsupervisory employees. I cannot conclude that this meeting was , a setup among Respondent's supervisory staff in order to permit Faulk- ner to overhear their discussion to instill a fear or threat of plant closure. In the instant case, at best, Faulkner ac- cidently overheard the conversation; at worst, he was spying on a company meeting. With respect to the allegation that Harold Rouse threatened Faulkner with plant closure if he attended a union meeting, although Rouse, no longer employed by Respondent, did not appear to refute the allegation of Faulkner that such threat was made, I do not credit Faulkner that the alleged threat was communicated to him. As Respondent indicated in its brief, it makes no sense for Rouse to inform Faulkner that Respondent would close down the facility should Faulkner attend a union meeting. This illogical statement, coupled with my observation of Faulkner, as detailed, supra, has con- vinced me that the General Counsel has failed to sustain this allegation. With respect to the allegations of threats of plant clo- sures by Waldron and Francisco, witnesses for the Gen- eral Counsel clearly and vividly portrayed situations in which the two shift supervisors threatened a plant shut- down should the Union be successful. Both shift supervi- sors denied the allegations . Of the six witnesses present- ed, I was not particularly impressed with the testimony of Nancy, Scherer, Waldron, or Francisco on this issue. I have concluded that Nancy, the most ardent union leader of the employees, and Scherer, an alleged discri- minatee, have much to gain should the Charging Party be successful in this proceeding . On the other hand, both Waldron and Francisco, being shift supervisors of Re- spondent, might fear being disciplined should they admit any commitment of any unfair labor practices. Although Respondent argues that Francisco testified candidly by stating that she does not recall conversations that she may have had with employee Cali and therefore should be credited, I have concluded that her answers were not as candid as Respondent would have me believe. When asked if she -ever threatened to close down the plant, her response was, " [W]hy would I do that? My job would be in jeopardy, as well as theirs." It is true that her job would be in jeopardy should the Employer close the plant, but it is untrue that her job would be in jeopardy by making threats to employees to discourage them-from their union activities-Both Cali and Hansen, two other employees who testified of Franciscos threat, impressed me as being sincere and forthright. Accordingly, I credit their accounts that the threats of plant shutdown were, in fact, conveyed to them by Francisco. Of six employees who allegedly witnessed the threat of plant shutdown conveyed by Waldron to Nancy, only Nancy and Scherer were presented to testify to the ac- count. Although, at times, I was not particularly im- pressed with testimony of either of these two witnesses, I was less impressed with Waldron's denial of any unfair labor practices. I find that Nancy and Scherer corrobo- rated each other's account of the incident involving the alleged threat of plant shutdown by Waldron, and Wal- dron's denial of same was unconvincing. Although no direct evidence was presented that the threats of plant shutdown by Waldron and/or Francisco resulted from any instruction or orders from senior plant officials, an inference may correctly be deducted, based on the, totality of the evidence in this matter,, that both Francisco and Waldron, who were on friendly terms with unit employees, were simply following instructions in order to protect their respective positions. Assuming, arguendo, that the inference was incorrectly drawn, the Board holds that supervisors who do commit unfair labor practices, do bind their employer.6 Accordingly, as 6 Glenroy Construction Co., 215 NLRB 866, 867 (1974). CARTRIDGE ACTUATED DEVICES both Waldron and Francisco are admittedly supervisors within the meaning of Section 2(11) of the Act, I fmd tha Respondent did violate Section 8(a)(1) of the Act through these two -supervisors by their threats to em- ployees of plant closure. 2. Threat of discharge a. Waldron The General Counsel alleges that Waldron, Rouse, and Kenk threatened employees with discharge if they joined the Union-or supported a strike. To support the allegation against Waldron, the Gener- al Counsel presented both Nancy and Faulkner. Nancy testified that in the same conversation, as detailed supra, under "Threats of Plant Closure," Waldron stated that they would all be out of jobs. Faulkner testified that several days prior to the strike, Waldron spoke with him in the old lunchroom of, the fa- cility. After he denied knowing anything of the Union, she stated, "Well, if I hear you are joining one or any- thing, you could be fired." Accordingly to Faulkner, ap- proximately 2 hours later, she stated to him, "I have a feeling that you are trying to go ahead and join the Union and that if you do the same thing will apply as I told you before; I am watching you and Lorri [Snook] very closely and I think you are trying, to cause some trouble." Waldron denied these accusations. b. Rouse To support the contention against Rouse, the General Counsel presented Wendy Mahler, a unit employee, who testified that some time in January in bay 3 of the facility in the presence of another employee, Rouse informed her that if the employees went on strike, they could not col- lect unemployment benefits and would be fired. c. Klenk The General Counsel alleges that on February 15, Klenk distributed a leaflet in the cafeteria in the facility that threatened employees with discharge if they en- gaged in a strike. To support this contention, the General Counsel presented Nancy who testified that she observed Klenk distributing a blue leaflet in the cafeteria that later was indentfied as Respondent's Exhibit 2. She further stated that she observed a newspaper clipping stating that people who go on strike do not receive unemploy- ment benefits. Klenk denied distributing the pamphlet in question. Dicussion and Analysis With respect to Waldron, for the reasons listed, supra, I do not credit the testimony of Faulkner. However, Nancy's testimony of the events that occurred at the same time and place that the threat of plant closure was made by Warldrou is credited. As stated ealier, Rouse did not testify. Mahler credibly testified that Rouse indicated to her, "I think in January sometime" that if the employees went on strike they could not collect unemployment and would be fired. Al- 435 though it is improbable that this statement was made by Rouse in January (it was probably made closer to mid- February), I find no reason to discredit Mahler that the statement was made. It may very well have been that Rouse was attempting to explain that employees on an economic strike are replaceable and may never return to their former employment . However, the words used by Rouse, as testified to by Mahler, fall far short of this pro- tected speech. Accordingly, I find that Rouse's statement to Mahler constitutes a violation of Section 8(a)(1) of the Act. With respect to the ,pamphlet allegedly distributed by Klenk, assuming, arguedo, that I credit Nancy's account that Klenk distributed such pamphlets in the cafeteria, a review of the pamphlet in question indicates that , it is a document distributed by the New Jersey Department of Labor and Industry that indicates by question and answer various benefits or lack thereof under the unem- ployment insurance benefit laws of the State of New Jersey. In the pamphlet, one of the questions and answer is as follows: Q. Suppose I'm on strike? A. If your unemployment is due to a labor dis- pute where you, were working, you will be disquali- fied for benefits for the entire period. The pamphlet presented into -evidence encircled the question and answer as stated, herein. Neither the General Counsel nor the, Charging Party urged in each respective brief that the distribution of the pamphlet was a violation under the Act. No evidence was ,presented that Klenk spoke to anyone with respect to the pamphlet. As the pamphlet is a Government- issued document, which on its face, summarizes unem- ployment insurance benefits granted by the State of New Jersey, I fmd that the distribution of the pamphlet if, in fact it did take place, is not a violation of the Act. 3. Threats of more onerous working conditions The General Counsel alleges that about early Febru- ary, Ruth Biamonte, an admitted supervisor of Respond- ent, threatened employees with more onerous working conditions because they supported the Union. To support this.,allegation, Nancy testified that Biamonte informed her that she "would be assigned to primer cups; "7 Nancy answered that this was hazardous work that she was not trained to perform. Biamonte responded that she was a troublemaker. Nancy then stated that she was "going home sick" as she was very upset. Shortly thereafter, Biamonte informed Nancy that she need not work on the primer cups but to continue her own assignment. Biamonte denied informing Nancy that she was assign- ing her to work on primer cups because she was a trou- blemaker. Discussion and Analysis Although Biamonte denied the conversation with Nancy, I credit Nancy that the conversation did occur. Primer cups are stainless steel cups filled with an explosive powder. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By this time, it was apparently well known throughout the facility that Nancy was a leading union adherent. She already had been threatened with plant closure and dis- charge by Waldron, who also accused her of being a troublemaker. Respondent argues that there is no evi- dence that the alleged threat related to any, protected ac- tivity. However, the evidence in its totality indicated that during this period of time, there was activity among the employees seeking union representation, and activity among the supervisory staff of Respondent to discourage the activity. No evidence was presented by Respondent to establish that Nancy was a "troublemaker" in matters unrelated-to her union activity. Accordingly, I find that by characterizing Nancy as a "troublemaker" Biamonte could only be referring to her union and protected con- certed activities. The fact that Biamonte retreated rather quickly and allowed Nancy to continue her normal duties is of no consequence. That the threat was not car- ried out could be interpreted as a warning to Nancy that if she continued to pursue her protected activities, she would be assigned to an onerous and hazardous duty which she stated that she was fearful of performing. Bearing in mind that she did have fears of performing the duty, one can easily draw the conclusion that Nancy, in her desire to avoid performing the primer-cup duty, would be extremely cautious not to engage in any pro- tected activities for fear that she would be assigned to the primer cups by Biamonte. Standing by itself, the threat does not appear to be, one of much consequence. However, in conjunction with other unfair labor prac- tices committed by Respondent's supervisory staff, I am compelled to conclude that the threat of Biamonte to assign Nancy to work on the primer cups constituted a violation of Section 8(a)(1) of the Act. 4. Interrogation The General Counsel alleges that both Waldron and Francisco interrogated employees regarding their union membership, activities, and sympathies. a. Waldron The General Counsel presented two witnesses to sup- port the allegations with'respect to interrogation of em- ployees by Waldron. The first witness, Faulkner, testified that Waldron had interrogated him as to his union activities prior to threat- ening him with discharge, as related above. The second witness, Deborah Gould, an, employee su- pervised by Waldron, testified that she was interrogated by Waldron on two occassions. The first incident oc- curred in the beginning of February when Waldron in- quired'why she had not been invited to a union meeting. Gould responded that she did not know, and inquired whether Waldron wished to join the Union, to which Waldron answered negatively. In another conversation in February, Gould testified that Waldron asked her who had signed union cards, and Gould then told Waldron who they were.8 On a third occasion in February, Gould 8 Gould did not indicate which names were given to Waldron. testified that Waldron asked if she were going to a union meeting. When Gould responded that she did not know, Waldron requested an explanation. Gould explained that she had been advised by another employee that she was going to lose her job. Waldron assured Gould that this was not true. Waldron denied having any conversations with Faulk- ner. She did acknowledge a conversation with Gould. According to Waldron, Gould informed her that there had been some union activity, including signing of cards, and asked if she had been given a card or wanted one, to which Waldron responded negatively. Gould then stated that she had signed a card and was not sure if she wanted to join the Union as an employee had told her she could be fired if caught being involved in union ac- tivity. Waldron stated that that was not true and that she would not be fired. Waldron denied that she initiated the conversation and had interrogated Gould or any other employees with respect to their union activities. b. Francisco With respect to Francisco, the General Counsel pre- sented three different employees to support the allega- tion. Hansen testified that prior to being threatened with a plant shutdown and discharge of employees by Francis- co, in the same conversation, Francisco asked him if any- body had spoken to him about the Union, to which he responded, "No." Gerstmann testified that on February 18 in bay 1 of the facility, Francisco approached him and asked what he thought about, the Union. He responded that he was not sure, but suggested that something need be done to improve working conditions in the facility. According to Gerstmann, Francisco handed him Respondent's Exhibit 2, pointing to the section stating that he could not collect unemployment benefits if he went out on strike. Francisco denied interrogating any employees with re- spect to their union activities. Discussion and Analysis As indicated, supra, I was not impressed with the testi- mony of Faulkner and discount his testimony relating to interrogation by Waldron, as I have discounted other tes- timony of his relating to other alleged violations to which he was called to testify. However, I was very im- pressed with the testimony of Gould. She was specific as to time, place, and conversation she had with Waldron. 1 was further convinced of the likelihood that the conver- sation with Waldron took place by Waldon's acknowl- edgement that Gould was, and still is, a good friend of hers. I do not believe that Gould, a good friend of Wal- dron, would purposely and deliberately fabricate a false- hood under oath in this proceeding. With respect to the alleged interrogations by Francis- co; I credit the conversations testified to by Gerstmann and Hansen against the denial of Francisco. Although Respondent would have me believe that the shift super- visors did not in any manner interfere, with the activities of employees, the totality of the evidence convinces me otherwise. Of particular significance are Charging CARTRIDGE ACTUATED DEVICES Party's Exhibits 1, 2, and 3-notes taken by Francisco relating to the possible union activity of employees. The evidence revealed that these notes were taken as a result of management's requesting the supervisors to inform it of such activities. Although 11 am not convinced that management ordered or suggested that any supervisors commit any unfair labor practices in order to accomplish their desired end, I am convinced that the shift supervi- sors, especially Francisco and Waldron, in order to please management, where their true loyalty rested, in spite of their friendliness with fellow employees under their supervision or otherwise, did make statements as al- leged by the employees who testified as to the alleged violations. Respondent argues that Francisco would have no reason to keep track of any employees not under her supervision, such as Gerstmann. However, Charging Party's Exhibits 1, 2, and 3 clearly reveal that Francisco, although she did not supervise' employee Myrtle Acker- son, did take notes to pass along to higher authorities. It is also noted that one employee indicated that Francisco, although on a later shift, did come to the facility earlier than her scheduled shift time, and therefore had opportu- nity to interrogate, threaten, or commit what any other unfair labor practices she may have been charged with. In summary I fmd that, through Francisco and ' Wal- dron, Respondent interrogated employees in violation of Section 8(a)(1) of the Act. 5. Creating an impression of surveillance To support the allegations that Respondent created an impression among employees that their union activities were under ' surveillance by Respondent, the General Counsel presented three witnesses. Faulkner testified that Rouse stated to him, "I heard that you were supposed to be going to a union meeting and that if you do the Company-we will have to shut the company down, because we don't want one in here." Hansen testified that Francisco informed him to return to work, "a couple of minutes early on your break." When Hansen objected, Francisco allegedly stated to him, "that's because the bosses across in, the trailer are watching us and whoever comes back late they are going to fire because of the union." Nancy testified that following a meeting she had con- ducted in her home in early February, Francisco stated to her, "Be careful; they know." Francisco denied making the statements attributed to her. Discussion and Analysis Although Rouse did not testify to deny the, allegation of Faulkner, as discussed supra, I do not credit Faulk- ner's testimony in any respect. The alleged threat of Rouse and the alleged impression of surveillance are dis- counted by me as they do not make any sense. With respect to the alleged statements of Francisco, I credit both the version of Hansen and that of Nancy over Francisco. I have concluded that the statements were made by Francisco to the two employees on two different occasions, despite her denial. As I had indicated previously, the statements made by Francisco were not 437 made out of malice,' but perhaps out of friendship to- wards the employees. According to Nancy, she had been nicknamed "the peacemaker." I have concluded that be- cause of her friendship with unit employees , Francisco undoubtedly heard discussions involving union matters. Further, -as she had been instructed to write reports to her, superiors with respect to union activities, she was well aware that management knew of some of the activi- ties of the employees. Although she may have had good intentions, nevertheless the statements made to Hansen and Nancy both constitute violations of the Act. (Stride Rite Corp., 228 NLRB 224, 230 (1977).) 6. Promises The General Counsel alleges that "[o]n or about Feb- ruary 17, 1982, Respondent, acting through David Herb- age, at Respondent's facility promised its employees that it would fix the bathroom, implement a dental plan, and grant wage increases in order to induce its ' employees from joining or supporting the union." In early `February, Respondent held a meeting of the day-shift employees in its cafeteria. In addition to the day-shift employees, the meeting was attended by Herb- age, Kirk Klenk, and Ruth Biamonte. , , Gerstmann' testified during this meeting that various employees complained to Respondent's officials of mat- ters that affected their working conditions. One of the employees inquired of Herbage what happened to the dental plan that the employees were supposed to have received. Herbage replied that Respondent was studying six different plans for the past 6 months and that no defi- nite decision had been made as to which plan the Com- pany would put into effect, Another employee inquired of benefits, including eyeglasses. Again Herbage respond- ed that Respondent was considering a plan. Another em- ployee suggested that there was an odor in the rest- rooms, they were unheated, and the toilets were always backing up: Herbage, responded that all these problems were being taken care of According to Nancy, at this meeting, "[Herbage] promised us raises if we were entitled to them, better safety conditions; he was going to fix the bathroom; that we didn't need a union because the company itself is going to do the best they can. It just takes a little time." Scherer testified that Herbage stated that he was aware that there were hard feelings among employees and a lot of dissention and that he was going to try to improve conditions of the employees. A question was raised about an employee's raise to which he responded he would see what he could do. Another question was raised with respect to a dental plan to which he stated that it was going to be enacted. In defense of the allegations, Respondent presented Herbage, who admitted calling a meeting with the em- ployees in the cafeteria in early February. When asked about a dental plan, he responded that the carrier had not been selected and that he would keep employees abreast ' of any information with respect to a dental plan being considered by, Respondent. He acknowledged fur- ther that an employee raised the subject of a union. He responded that he did not feel that the employees needed 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a union as Respondent and the employees could work out their own problems among themselves, that he had an open-door policy, and that employees who could not clear up any problem with their immediate supervisor were free to discuss it with him and he would do his best to resolve it to everyone's satisfaction. When the issue of restroom improvement was discussed, he acknowledged that a problem did exist and stated that a decision had been made to renovate the restrooms by Respondent's own maintenance department and that the work would commence as soon as Respondent could fit it into the maintenance schedule. Another employee complained that he had not received a raise after a 6-week probation- ary period, to which Herbage responded that he would investigate the matter and whatever was appropriate would be done. Ralph P. Dodd, president of Respondent since the summer of 1982, testified that prior to his assumption to his present position, the president was Gerard C. Stichl- ing, who died in June 1982. Dodd testified that he had suggested to Stichling as far back as 1978 that Respond- ent institute a dental plan for the benefit of its employees. Respondent offered into evidence memoranda from both Herbage and Dodd, dated November 18 and 19, 1981, re- spectively, informing the employees, not only of Re- spondent's plant in Byram but also its employees in Fair- field and other facilities owned by Respondent that a dental plan for all employees was being considered, and that a selection of an insurance carrier would be made in the early weeks of 1982. Discussion and Analysis There is no dispute among the witnesses who testified that the meeting in question took place in early Febru- ary. The evidence establishes that by the end of January the Union had obtained 37 union-authorizations cards and, during the first week of February, it obtained at least'20 more authorization cards. Further, as I indicated previously, threats and interrogations were performed by supervisors of Respondent during the early part of Feb- ruary. I, therefore, have drawn the conclusion that by the time the meeting was conducted by Herbage, he was well aware of the organizational efforts being conducted by the Charging Party among the employees of Re- spondent: No evidence was obtained to explain the specific reason for the meeting of the employees in the cafeteria. Although Herbage testified that from time to time meet- ings were held with employees, no evidence was ad- duced that solicitation of grievances was obtained from the employees at these other employee meetings. I con- clude, therefore, that the meeting held in early February was for the specific purposes of soliciting grievances from employees, at which time Respondent assured em- ployees that the grievances would be corrected, in order to discourage the employees from obtaining union repre- sentation. The Board has held (Uarco, Inc., 216 NLRB 1, 2 (1975), that "it is not the solicitation itself that is coer- cive and violative of [the Act], but the promise to cor- rect grievances or a concurrent interrogation or polling about union sympathies that is unlawful; the solicitation of grievances merely raises an inference that the employ- er is making such a promise which inference is rebuttable by the employer." In Uarco, the Board found that the employer did not possess union animus, and its preelec- tion conduct did not occur in the context of other unfair labor practices. Prior to the Uarco decision, the Board consistently held that the solicitation of grievances at preelection meetings carried with it an inference that an employer explicitly promised to correct complaints that the employees might raise. In each of those cases, the employer had no past practice of soliciting grievances. (See, e.g., Reliance Electric Co., 191 NLRB 44 (1971), enfd. 457 F.2d 503 (6th Cir. 1972).) In Reliance Electric, the employer, while soliciting grievances during a union's organizing campaign, stated that it would "look into" or "review" grievances, although it did not commit itself to any specific corrective actions. The Board found the actions of the employer in Reliance Electric unlawful, reasoning that the employees of the company could an- ticipate a correction of their grievances, thus making it unnecessary to have union representation. I fmd that the facts of the instant case to be more akin to Reliance Elec- tric than to Uarco. Although Respondent argues that the dental plan had been considered by Respondent long before the advent of the Union, the fact is that the dental plan had not beem implemented at the time the union activity com- menced. Thus, when an employee questioned Herbage concerning the dental plan, it is obvious that the employ- ees, considered a dental plan of great importance and per- haps influenced, in part, some of them to sign union-au- thorization cards in January. Although Respondent, through its several supervisors, acknowledged that there was a problem with,the restrooms, and that a plan was under way to renovate them, there is no evidence that this plan had previously been communicated to the em- ployees, and it was made evident during the hearing that this problem was a serious one that required constructive action. Thus, the promise by Herbage to have the rest- room facilities repaired tended to discourage union activ- ity and membership of the employees. With respect to the promise of increase of wages, I do agree with Re- spondent that the question polled was a specific one con- cerning a specific employee's problem. This was not a wage increase promised to all employees, and in fact, Herbage agreed to investigate a situation whereby a spe- cific employee appeared to be entitled to a wage increase following the probationary period. I do not consider this a promise of wage increases, and thus fmd no violation by Respondent. In summary, the meeting held by Herbage, in which grievances were solicited by him, and during which im- plied promises were made to correct the grievances, in connection with other 8(a)(1) violations committed by supervisors, violated Section 8(a)(1) of the Act. (Carbon- neau Industries, 228 NLRB 597, 599 (1977); K'& K Gour- met Meats, 245 NLRB 1331 (1979).) CARTRIDGE ACTUATED DEVICES 439 7. Threats to replace employees because they engaged in a strike The General Counsel contends that about April 6, Herbage threatened to replace employees of Respondent because they were engaging in a strike. Nancy testified that at the commencement of the strike, she had been on workmen's compensation, having been injured while at work for Respondent. On April 5, Nancy allegedly received a telephone call from Herbage, informing ,her that he had obtained a report from the in- surance company that she was able to return to work. He therefore requested that she report to work the fol- lowing day, April 6.' She responded that she had not re- ceived a, release from the doctor to return to work, and further added that she would not cross the picket line to come back to work. According to Nancy, Herbage re- plied that he would not'know "if I would still have a job there, or available." She again stated that she would not cross the picket line. Herbage testified that he never made a telephone call to Nancy dicussing her return to work on April 6. He further testified that he never threatened any employee that they would lose their jobs if they crossed a picket line. However, Herbage did assert that John Hefferan handled questions with respect to workmen's compensa- tion. According to Herbage, he believed that Hefferan had spoken to Nancy on the telephone. Hefferan did not appear as a witness to either affirm or deny the conver- sation with Nancy. Discussion and Analysis I credit Herbage's account that it was not he who spoke to Nancy on April 5. I also accept his theory that probably Hefferan did. I find it easy for Nancy to have confused the names Herbage and Hefferan. No evidence was adduced at the hearing to prove or disprove that Hefferan is a supervisor or agent of Re- spondent. He may be a clerical employee who "handles workmen's compensation," and spoke to Nancy as one employee to another. Accordingly, I have concluded that the General Counsel has failed to sustain this allega- tion of the complaint. D. The 8(a)(3) Allegations 1. Discharge of Kathleen Scherer The General Counsel contends that Respondent dis- charged Kathleen Scherer on March 15 because of her union activities. Scherer testified that she engaged in picketing for the Charging Party following the commencement of the strike. Her normal hours schedule for picketing was 9 a.m. to noon. On March 2, she notified Nancy, one of the leaders of the strike, that she had some personal busi- ness for the following afternoon and wished to be re- lieved of her picketing duties early. She reported to work on March 3 at 6:30 a.m.' She left the picket line be- tween 9 and 10 a.m. Nancy confirmed that Scherer had informed her that she, wished to leave early on March 3, and testified that she did leave the picket line at approxi- mately 10 a.m. is Fiore, a union representative, testified that he saw Scherer on March 3 as she walked past the window of a pizza parlor where he was having lunch. Aware that her picketing duties were from 9 a.m. to noon, and this was approximately noontime, he inquired what she was doing. She answered that she had worked from 6 to 9 a.m. and she was off at this time. He invited her to join him for lunch with two other individuals named Ted Kenny and Harold Morrison. Harold Morrison, an International representative of the Union, verified Fiore's story. He added that Scherer was accompanied by a young lady named Blesson when she came to the pizza parlor. According to Morrison, Scherer remained in the pizza parlor with the union rep- resentatives until they left approximately 12:25 p.m. Wendy Reskovac (Reskovac) testified that she first became employed by Respondent in July 1981 as a secre- tary. She testified that on March 3, accompanied by em- ployee Diane Irving (Irving), she left Respondent's facili- ty in her automobile to pick up lunches at noontime. As she drove through the picket line,' she noted a woman making an obscene gesture and yelling at her. She later ascertained from Irving that the woman was Scherer. After purchasing the lunches, Reskovac returned to Re- spondent's facility. As she approached the picket line on her return, she slowed down as there were several dogs in the middle of the road. After the dogs were removed from the road, she started to pull away. She observed Scherer standing on the passenger side of the car with everyone else on the driver's side. As she passed by, she heard a scraping noise.9 She testified that the damage, to her car amounted to $71. Diane Irving, a quality control inspector employed at Respondent's facility since September 1980, verified Res- kovac's story. She added that after she heard the scrap- ing noise, Reskovac drove a little further up the road. Irving alighted from the automobile and saw a long scratch on the car. Although she did not see Scherer scratch the car, at the time she heard the scraping noise, she turned around and observed Scherer "right almost up against the car." No one else was on that side of the automobile. Following this incident, Reskovac and Irving reported the incident to Respondent. Thereafter, on March 15, Herbage sent a letter to Scherer, notifying her that as a result of the incident, her employment with Respondent was terminated, effective immediately. 2. Discharge of John Gerstmann a. Incident of March 16 Gerstmann testified that on March 16, approximately 4 p.m., he, as well as six or seven other pickets, were sta- tioned at the picket line. Approximately nine vehicles, accompanied by two police cars, one at the front of the line and one at the rear drove through the picket line. Following the lead police car was a passenger car fol- lowed by a truck. According to Gerstmann, for no 9 She later deduced that the scraping sound was caused by Scherer's scratching of her car. 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reason the truck decided to pass the passenger car. In doing so, the truck almost hit a woman standing approxi- mately 15 feet to the right of Gerstmann. The truck headed toward Gerstmann who beleieves he was about to be hit by the truck. Instinctively, Gerstmann kicked out at the truck. At the time he was wearing sneakers and claimed that no damage was done to the truck. Nev- ertheless, the driver of the truck jammed his brakes caus- ing an automobile behind him to strike the back of the truck resulting in damage to the grill of the automobile. The police immediately arrested Gerstmann for kicking the truck. Tony Corrao, one of the union officials who was present at the scene on that date, verified the account of Gerstmann. Mark Williamson, an assembler employed by Respond- ent from February, 11, testified that at approximately 4 p.m. on March 16, he was leaving the facility having completed his tour of duty. He was the driver of the truck following the passenger car that was immediately behind the police car leading the caravan down the road. As the truck passed the picket line, he observed Gerst- mann standing on the left side of his truck and, as he passed, Gerstmann spun around, lifted -his foot, and kicked the truck on the driver's side underneath the mirror. According to Williamson, Gerstmann was ex- tremely close to the truck, necessitating Williamson to slam on his brakes. An automobile behind him driven by Chris or Sandy Keller, two employees of Respondent, also braked and slid into the back of his truck. Accord- ing to Williamson, the doors of the truck were in the process of being repaired and contained body putty and body filler. Approximately 2 square inches of the materi- al had been knocked off the door that required further repair work.1 ° Also, two tail lights of the truck were damaged due to the collision with the automobile that slid into the truck. Williamson estimated the damage to the lights to be approximately $44 for the material, plus labor. He estimated the cost to repair the door to be ap- procimately $200, necessitating at least 10 hours of labor. Williamson further observed damage done to the auto- mobile that had slid into his truck. According to him, the grillwork was broken, the hood was bent, and the mold- ing around the headlight was broken. After observing the damage, he requested that the police arrest Gerst- mann, which they did. Sandra Keller, employed by Respondent as an assem- bler since March 12, testified that she was in the automo- bile directly behind Williamson's truck, leaving work with her husband. As the convoy approached the picket line, she observed Gerstmann kicking the front end of Williamson's truck. From her viewpoint on the passenger side of the car, it appeared that Gerstmann's foot was about to be run over by the truck's back tire. The truck suddenly stopped, and her car, sliding on the gravel, rammed into the back of the truck. Her car sustained damage to the grill, the fender, and the hood, amounting to approximately $100-$150. 10 No repairs were made as Williamson stated the truck is being scrapped. The following day, Herbage notified Gerstmann by letter that he had been observed kicking William's vehi- cle, blocking traffic, and causing an accident. As a result, he was terminated effective immediately. b. Incident of March 9 Gerstmann testified that on March 9, while he was at the picket line, Frank Black, operator of Frank L. Black Bus Company, passed another vehicle on the road and narrowly avoided striking Gerstmann. Another striking employee, Lorrie Snook, was struck by a mirror protrud- ing from the vehicle causing her to fall on Gerstmann. According to Gerstmann, Black transported employees back and forth to Respondent's facility both before and during the strike. Herbage testified that he was riding in the bus driven by Black on that morning. He asserted that the bus was delayed going through the picket line. He observed that four of the pickets were blocking a passenger van that could not proceed. Black, in order to pass the pickets, went off the side of the road. He recalled that Snook was standing a short distance from the bus, and to the best of his knowledge no one was struck by the bus that then proceeded up the road to Respondent's facility. Herbage further asserted that Black was an outside con- tractor, and although he was not disciplined for anything that may have occurred that day, he voluntarily discon- tinued transporting employees 'from that day forward. c. Incident of February 24 Wendy Mahler testified that approximately a week after the strike began, while she was on the picket line, she, accompanied by several other strikers, approached the gate to Respondent's facility for the purpose of col- lecting her paycheck. Harry Rouge informed the strikers that they could not enter the premises with their picket sign. She passed on this information to Fiore who in- structed her to go back. She returned to the gate. An in- dividual named Lynn Carpenter, otherwise unidentified, who was inside the gate told Mahler to come in and grabbed her hand. Rouse, on the other side, pulled Mahler's arm and ripped the picket sign off her neck, after which she fell to the ground. She sustained a rope burn on her neck and pulled muscles in her arm as a result of this incident, which required her to visit a phy- sician and have X-rays taken at a nearby hospital. Herbage testified that he was aware that there was a "melee there, of some sort or other." He acknowledged that Mahler filed a charge against Rouse, who was found guilty of the charge."' Herbage conceded that no action was taken against Rouse as a result of the incident.' 2 He explained that he believed that to the best of his ability Rouse was trying to handle' the incident. Herbage did not see the incident occur, although he admitted being in the area at the time. He asserted that when he turned around to observe the incident, he saw Rouse under attack, protecting himself from harm. 11 No further information was obtained, but it appears quite clearly that the charge against Rouse was for an assault on Mahler. 12 Nor was any disciplinary action taken against any of the strikers. CARTRIDGE ACTUATED DEVICES 441 Waldron testified that on the first payday after the strike commenced, either Thursday or Friday, February 23 or 24, several strikers approached the gate in order to enter the facility to receive their last pay. The strikers were asked to remove their picket sign and to enter the premises in an orderly fashion where all would be paid at the maintenance shed . According to Waldron, Scherer slipped through the gate with her picket sign on and Jim Huff, another striker, followed her. She testified that it was Huff, trying to get Scherer out, who pulled her sign off. The melee ensued following that. When order was restored, Herbage and Waldron remained at the gate and paid the strikers. On cross-examination, Waldron ac- knowledged that Mahler was present at the gate. How- ever, she stated that she neither observed Rouse pulling the picket sign off Mahler nor Mahler being knocked down to the ground. d. Incident of late February With respect to another incident occurring approxi- mately several days after the commencement of the strike, Hansen asserted that in the vicinity of the plant, he was struck by an automobile driven by Kirk Klenk, a supervisor of Respondent. As a result of this incident, Klenk was fined and had his license suspended for 6 months. The record is bare of any evidence that Re- spondent took any disciplinary action against Klenk for this incident. Evans, came to the taven and announced that someone had put sugar in his gas tank . It was at that time that em- ployees left the tavern. As indicated previously, Rouse, no longer employed by Respondent, did not testify. Bia- monte, although called by Respondent to testify as to other matters, offered no evidence to shed- light on the incident. Herbage testified that he had received a tele- phone call from Klenk that trouble might be brewing. Herbage later ascertained that criminal complaints were filed as a result of the incident . When asked why this was not done, he testified as follows: Any incident that occurred after the plant was closed, no shift was running, of that nature, was not something that was happening under the auspices of the company; the company had no-has no control over what people do on their own time and, fur- thermore, there were charges being lodged in the Municipal Court over this incident. I didn't want to-I personally did not know what happened, and I felt that 'this incident was best sorted out by the courts. Discussion and Analysis It is well established that a striker who engages in seri- ous acts of misconduct while on strike may forfeit the protections normally afforded by the Act. In Alcan Alu- minum Corp., 214 NLRB 236 (1974), the Board stated at 236: e. Incident of March 26 Corrao, Hansen, and Gerstmann all testified to an inci- dent occurring on March 26. They essentially verified each other's account of the incident. According to these witnesses, on Friday, March 26, at approximately 4 p.m., the pickets at the picket line left their posts . Some of the pickets were gathered with some union representatives at the union trailer located on the picket line at apporoxi- mately 6 p.m. One of the nonstrikers situated between the facility and the picket line challenged the strikers to settle the matter "once and for all." Corrao instructed the strikers not to accept the challenge, which they needed. Shortly thereafter, several vehicles came down the road from the facility, and within minutes several nonstriking employees, as well as Supervisor Biamonte, attacked some of the striking pickets. During this fray, CGerstmann was knocked unconscious and 'fell into a creek, where he was pulled out by a policeman who came on the scene to halt the fracas. In addition to Bia- monte, two other supervisors of Respondent , Rouse and K1enk, were present at this scene, according to the Gen- eral Counsel's witnesses. Klenk testified that on March 26, the day he believed the fight occurred on the picket line, he was in a tavern. He stated that he observed nothing of the fight occurring on the picket line as he never left the tavern . He asserted that with him at the tavern were Supervisor Biamonte and several nonstriking employees . They left the tavern prior to his departure, and he was aware that they were going to go through the picket line toward Respondent's facility. He denied any awareness that a fight was to occur. He acknowledged that one of the employees, Joe In determining whether a striker has , through his misconduct, forfeited his rights to preferential recall, the Board has, at all times,, considered whether the alleged misconduct is of such gravity as to require, in the public interest, removal of the protective mantle which the Act affords striking employees. Not every impropriety committed in the course of events does, in fact, deprive the employee of that mantle. Our inquiry necessarily considers all surrounding circumstances to include analysis of the severity and frequency of the misconduct of the em- ployees involved and the quality of the evidence tending to establish that misconduct. In deciding whether a striker's misconduct on the picket line warranted a discharge , the Board established certain principles in Coronet Casuals, Inc., 207 NLRB 304, 305 (1973), in which it stated the following: In deference to the rights of employers and the public, the Board and the courts have acknowl- edged that serious acts of misconduct which occur in the course of a strike may disqualify a striker from the protection of the Act. Thus, strikers have been deemed to lose the Act's protection when they seized the employer's property, or engaged in acts of `brutal violance' against a nonstriker . At the same time it is true that not every impropriety committed in the course of a strike deprives an employee of the protective mantle of the Act. Thus, absent vio- lence, the Board and the courts have held that a picket is not disqulaified from reinstatement despite 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD participation in various incidents of misconduct which include using obscene language, making abu- sive threats against nonstrikers, engaging in minor scuffles and disorderly arguments, momentarily blocking cars by mass picketing, and engaging in other minor incidents of misconduct . Consistent with these cases, the Board and the courts have long held that minor acts of misconduct must have been in the contemplation of Congress when it pro- vided for the right to strike and that this right would be unduly jeopardized if any misconduct, without regard for the seriousness of the act, would deprive the employee of the protective mantle of the Act. In the same case at 305, the Board further stated Each striker's eligibility for reinstatement must be judged solely upon incidents in which the striker in question is alleged to have participated. Unauthor- ized acts of violence on the part of individual strik- ers are not chargeable to other union members in the absence of proof that identifies them as partici- pating in such .violence. Upon proof that strike mis- conduct on the part of a particular striker has oc- curred, the burden of proving the innocence of the striker shifts to the General Counsel who, in order to gain reinstatement for the striker, must show that the conduct was not sufficiently serious to justify the employer's refusal to reemploy the striker in question. Scherer It is obvious from the testimony of General Counsel's Respondent's witnesses that there is a factual dispute re- lating to the, incident involving Schere. I credit the ac- counts testified to by Reskovac and Irving for the fol- lowing reasons. 1. Neither Reskovac nor Irving had any reason to fab- ricate a tale against Scherer. 2. Although Reskovac did not know Scherer personal- ly, Irving positively identified Scherer as being on the picket line and in a position to be the only person on the picket line who could have scraped the automobile in question. Although the actual scraping of the vehicle was not seen by any of the witnesses presented by Re- spondent, inasmuch as the credited evidence indicates that Scherer was the only person on the side of the auto- mobile at the time the scraping was heard by the two in- dividuals in the automobile, I have concluded that Scherer did, in fact, scrap the vehicle. 3. I find the testimony of Scherer to be illogical. As Respondent indicated in its brief, there, was no reason for Scherer to have left the picket line at 10 a.m. in order to visit a friend in the hospital at 3:30 p.m. She lived nearby the picket line, and the hospital was not too far a dis- tance. The testimony that she had to do some shopping prior, to the hospital visit does not hold water. Should her account be credited, she left the pizza parlor at ap- proximately 12:30 p.m. and could have performed all necessary shopping prior to the visit to the hospital at 3:30 p.m. 4. The account of Nancy that Scherer was replaced by her on the picket line is not credited. I have concluded ,that Nancy, as one of the leaders of the striking' employ- ees, was aiding a fellow striker in obtaining her job back. 5. The testimony of the- two union representatives who swore that Scherer was with them in the pizza parlor during lunchtime on March 3, when the incident alleged- ly occurred, is not credited. At best, they are mistaken as to the date of the incident. Evidence revealed that Fiore testified at an earlier proceeding that he did not recall the date he lunched with Scherer in the pizza parlor. As with Nancy, I find that the union representatives were doing their best to protect Scherer in order to have her reinstated at Respondent's facility. 6. I further credit the amount of damage done to Res- kovac's car as related by her. Accordingly, standing by itself, the facts would warrant a conclusion that Re- spondent was justified in discharging Scherer for her acts on the picket line. (Newport News Shipbuilding Co., 265 NLRB 716 (1982).) Gerstmann The facts are essentially undisputed in the matter in- volving Gerstmann. In applying the principles as laid down in Coronet Casuals, I have concluded that Re- spondent was not justified in discharging Gerstmann. The rationale for my conclusion is as follows. 1. I credit Gerstmann that the reason for kicking the car was not a deliberate willful act, but one performed spontaneously by him, based on fear that the truck almost had hit him. I do not accept Respondent's ration- ale that Gerstmann was deliberately provoking the truck to hit him to cause an incident. 2. Although I credit Respondent's witnesses that the damage to the truck was fairly extensive and if the damage had been repaired in a body shop the bill would be in excess of $200, the fact is that the truck never was repaired and later was , junked for reasons other than Gerstmann having kicked the door of the truck. 3. I do not hold Gerstmann liable for the chain reac- tion caused by his kick. The evidence revealed that the driver suddenly stopped his truck causing a passenger vehicle behind the truck to run into the truck causing ex- tensive damage to the automobile. I find there was no reason for the truck to stop suddenly on hearing a thud. The driver saw what Gerstmann had done, and I do not credit that he stopped the truck suddenly in order to avoid hitting Gerstmann. He could have and should have continued onward without incident. Also, the automobile driving behind the truck obviously was driving too close to the truck. The road was one of gravel and the car slid into the truck causing the damage to the automobile. As with the truck, the evidence indicated that the car was not repaired. Although neither the Board nor I will condone the misconduct of strikers on the picket line, I am of the opinion that Gerstmann's conduct is the type of impul- sive misbehavior that can be expected on a picket line during the course of a lengthy and tense strike. Accord- ingly, I conclude that the striker misconducted raised by Respondent is insufficient to warrant the discharge of CARTRIDGE ACTUATED DEVICES Gerstmann. (Southern Florida Hotel & Motel Assn., 245 NLRB 561, 564 (1979).) Disparate Treatment Assuming, arguendo, I drew the conclusion that the damage done to the truck and the passenger car was sub- stantial, for which Gerstmann was responsible, as I found in the Scherer incident, I still would not conclude that the discharge of Gerstmann was warranted. Additionally, although as I stated above, standing by itself, I would find that Scherer's discharge was warranted, the facts surrounding the discharge of both Gerstmann and Scherer do not stand by themselves. The nonaction of Respondent in taking disciplinary action against other nonstriking employees in the other incidents, detailed supra, must be taken into account. Although each inci- dent is in many ways different from each other, the Board has held that "[i]t was not incumbent on the Gen- eral Counsel to show an identical situation with a dia- metrically opposite result." (United. States Gypsum Co., 259 NLRB 1105, 1106 (1982).) Cases are legion where the Board has found a violation of Section 8(a)(3) of the Act, based on disparate treatment of striking employees as compared to treatment accorded to nonstriking em- ployees. (Kaiser Steel Corp., 259 NLRB 643 (1981); Tal- bert Mfg., Inc., 258 NLRB 776 (1981); and Lincoln Hills Nursing Home, 257 NLRB 1145 (1981).) Without condoning the conduct of Scherer and assum- ing that Gerstmann's conduct would also bconsidered unprotected, I have concluded that the treatment accord- ed these two individuals, in comparison to the treatment accorded to individuals, especially supervisors of Re- spondent, who charitably could be described as having committed unprotected activities, is of such disparate nature that I can only conclude that the discharge of Gerstmann and Scherer resulted from Respondent's animus toward the Chargining Party and toward its em- ployees who were in the forefront of the strike move- ment. There is no question, as evidence by the various 8(a)(1) independent violations found, supra, that Re- spondent demonstrated its animus toward the Union. In addition, Respondent, through Supervisor Francisco, knew that Scherer was one of the leading union adher- ents and that Gerstmann was a supporter of the Union. Respondent attempted to brush aside the General Counsel's disparate treatment theory. With respect to the incident involving Klenk, although acknowledging that Klenk, a supervisor of Respondent, was convicted in the municipal court for hitting Hansen with his automobile, Respondent argues that his conviction is being appealed. Respondent further stated, "There was no evidence as to the extent of his [Hansen] injuries, the circumstances sur- rounding the incident, who was present, what knowledge Herbage had of the incident or what if any action he took against Klenk and why. The incident occurred shortly after the strike when feelings of both sides are naturally high." I fmd no merit in these arguments of Re- spondent. Striking a pedestrian with an automobile is a serious matter, notwithstanding the extent of an injury. As to the circumstances surrounding the incident, who was present, Herbage's knowledge, or what action was 443 taken against Klenk, Respondent was in full possession of these facts, but chose not to submit them at the instant hearing. I can only conclude that Herbage, although aware of the incident, took no action against Klenk. With respect to the incidents involving Wendy Mahler and Lorrie Snook, I do find merit in- Respondent' s argu- ment that no action was taken against anyone involved in those two situations. The evidence, as testified to by various witnesses in- volving Mahler, indicated that there was mass confusion as to who was knocked down, who did the knocking down, and who was responsible for the entire situation. I, therefore, credit Herbage who stated that according to him, Rouse was trying to handle the incident, he saw Rouse being under attack, and he took no action against anyone. With respect to the incident involving Snook on March 9, neither the General Counsel nor the Charging Party has indicated against whom' Respondent should have taken disciplinary action. The bus that struck Snook was driven by Frank Black, an independent con- tractor. The evidence is undisputed that following this incident, Black refused to transport any ' more of ' Re- spondent's employees. As Black was the only one against whom Respondent could have taken any action, the question became moot when Black voluntarily discontin- ued transporting the nonstriking employees. The evidence that carried the most weight to, support the General Counsel's theory of disparate treatment cen- tered about the incident of March 26. As I indicated, the General Councel's witnesses credibily testified that the strikers were attacked without any provocation on their part by both nonstriking employees and supervisors of Respondent. Although Respondent describes the matter as a "fiasco," it should be noted that Gerstmann almost drown in a creek and, were it not for a policeman pull- ing him out, in all probability he would have drowned. This was far more serious than the incidents for which both Scherer and Gerstmann were discharged. The 'rea- sons submitted by Herbage for taking no action are re- jected. Certainly Respondent had'control over its own supervisors and the action of the supervisors are imputed to that of Respondent. The fact that employees were on their, own time is insignificant. Both Gerstmann and Scherer were on their own time when they committed the acts for which discipline was rendered. Although Herbage stated that he personally did not know what had happened and believed that the incident should best be sorted out by the courts, it should be pointed out that he did not personally know what happened' with relation to both Scherer and Gerstmann. Scherer and Gerstmann were discharged immediately after Herbage became aware of the respective incidents from the respective, ag- grieved parties. Respondent did not afford ,either Gerst- mann or Scherer an opportunity to relate their, version of the incidents before effectuating its decision to discharge both of them. Additionally, it should be noted that Gerstmann had been arrested following his kicking of the truck, but this did not impede Respondent from taking action against Gerstmann. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In summary, I find and conclude that the General Counsel has established that the discharges of both Scherer and Gerstmann by Respondent constituted dis- criminartorily motivated disparate treatment, and that Respondent has not demonstrated to my satisfaction that it would have discharged either of these two individuals in the absence of their protected activities. (Wright Line, 251 NLRB 1083 (1980).) E. The 8(a)(5) Allegations The General Counsel alleges that Respondent violated Section 8(a)(5) and (1) of the Act by: 1. Engaging in a course of conduct, as described, supra, which precluded the holding of a fair rerun elec- tion among the employees in the appropriate unit. 2. Failing and refusing to recognize the Union since February 17 as the exclusive collective-bargaining repre- sentative of the employees in the appropriate unit. I find merit in the position of the General Counsel. The General Counsel alleges, Respondent admits, and I find that the following employees of Respondent con- stitute a unit appropriate for the purposes of collective- bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees, includ- ing shipping and receiving employees, x-ray techni- cians, test technicians and quality control employees employed by the Employer at its Byram Township facility. I further find that on February 17, the number of em- ployees in the unit amounted to 83 and, of this number, 65 had signed valid union-authorization cards designating the Union as their collective-bargaining representative. Accordingly, I find that the Union represented a majori- ty of the employees in the unit. I further find that the Union made a lawful demand on Respondent, seeking recognition as the exclusive collective-bargaining repre- sentative of the employees, and further requested Re- spondent to bargain collectively with the Union. The question thus presented is whether the Union is entitled to recognition on the basis of its card count or whether Respondent may refuse such recognition until and unless the Union establishes its majority in an elec- tion conducted by the National Labor Relations Board pursuant to Section 9 of the Act. I find that Respond- ent's activities, as detailed herein, constitute independent violations of Section 8(a)(1) and (3) of the Act "which have made the holding of a fair election unlikely or which have in fact undermined a union's majority." NLRB v. Gissel Packing Co., 395 U.S. 575, 610 (1969); Trading Port, 219 NLRB 298 (1975); and Drug Package Co., 228 NLRB 108 (1977). I find that the threats to close Respondent's plant, standing alone, is sufficiently egregious conduct to warrant a bargaining order. Added to this are the discharges of Scherer and Gerstmann, plus other independent 8(a)(1) violations, as detailed, supra. Thus, I find that the totality of Respondent's conduct is more than sufficient to, meet the criteria established by the Supreme Court in Gissel. These unfair labor practices are of "such a nature that their coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be had." Gissel, supra at 614. Additionally, I find that the "possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of tra- ditional remedies, though present, is slight and that em- ployees' sentiment once expressed through cards would, on balance, better be protected by a bargaining order . " Gissel, supra at 614. With respect to the allegation that Respondent violat- ed Section 8(a)(5) and (1) of the Act by failing to recog- nize the Union on February 17, the Board, in, applying Gissel, found that "[i]n view of the nature of all the Em- ployers' unfair labor practices," the employer violated Section 8(a)(5) of the Act by refusing to recognize the union "while coterminously engaging in conduct which undermined the Union's majority status and prevented the holding of a fair election." Trading Port, supra at 301. Applying the Board's rationale to the instant case, I find and conclude that Respondent, by refusing to recognize the Union and bargaining with it on February 17, violat- ed Section 8(a)(5) and (1) of the Act. (Drug Package, supra at 111 fn. 21.) V. NATURE OF THE STRIKE Both the General Counsel and the Charging Party argued that the strike undertaken by the employees com- mencing on February 22 was an unfair labor practice strike. Respondent, on the other hand, asserts that the strike was an economic strike. Were this a case of first impression, I would be inclined to agree with Respond- ent's position. The Charging Party concedes that the strike called was basically economically motivated. The evidence at the hearing was established through striking employees who, one by one,, trooped up to the witness stand and testified that their motive for striking was to obtain relief via union recognition. Much was made out of whether the picket signs contained language to indi- cate that the strike was one of the unfair labor prac- tices.13 However, this case is not one of first impression. Legal principles have been established by the Board in recent years. In 1975, when presented with this issue in Trading Port, supra, the Board held (at 299-300): When we add to these prestrike indicators of union animus and evident intent not to bargain in any cir- cumatances the Respondent's later daily 8(a)(1) threats during the strike, we are constrained to con- clude that the strike was essentially for recognition and an unfair labor practice strike. Thus, by the time of the strike, Respondent had commited (and thereafter continued to commit) unfair labor prac- tices of such magnitude and pervasiveness that the possibility of a fair election had completely van- ished. As we find infra, by the time of the strike Re- spondent had forfeited its right to an election, and was obligated to recognize and bargain with the Union on the basis of the Union's clear majority ' Whether the signs did contain such language is immaterial as that would be self-serving. CARTRIDGE ACTUATED DEVICES showing. This obligation the Respondent did not meet. The strike for recognition was prompted by Respondent's unlawful refusal to bargain. It was virtually impossible to resolve the related economic demands of the employees because of what, by the time of the strike, had become an unlawful refusal by the Employer even to recognize the Union. If Respondent's unlawful conduct did not solely cause the strike, it at least prolonged and aggravated ... it. Hence, we find the strike to have been an unfair labor practice strike. Two years later, the Board in Drug Package, supra at 112 asserted: The Board has long held that when employees strike for recognition which should have been granted at the time they went on strike and where the employer engaged in contemporaneous wide- spread illegal conduct designed to frustrate the stat- utory scheme, and bargaining in,particular, striking employees are unfair labor practice strikers. Such is exactly the situation here and although the com- ments at the time of the strike vote related to eco- nomic demands, it was virtually impossible to re- solve those demands because of Respondent's refus- al to recognize the Union. For the foregoing rea- sons, we conclude the strike was an unfair labor practice strike. In 1981, again the Board was presented with this ques- tion. Applying Gissel and Drug Package, it again found that a strike occurring following the withholding of rec- ognition was an unfair labor practice strike John Cuneo, Inc., 253 NLRB 1025, 1027(1981). Applying the principles enunciated by the Board in the above cases, L find and conclude that the strike that com- menced on February 17, 1982, was an unfair labor prac- tice strike from its inception. VI. REPORT ON OBJECTIONS TO THE ELECTION The record establishes that the petition for a represen- tation election in Case 22-RC-8729 was filed on March 10. Pursuant to Stipulation for Certification upon Con- sent Election executed on May' 11, an election was con- ducted on June 17. The tally of counted ballots revealed that 41 votes were cast for the Petitioner, 36 against the participating labor organization, and there were 30 chal- lenged ballots. Thus, the challenges were sufficient in number to affect the result of the election. On June 23, the Petitioner filed timely objections to the conduct af- fecting the result of the election. Four of the enumerated objections were withdrawn, leaving two to be resolved by me. 1. The basis for Objection 1 was the alleged threat of loss of employment made by Herbage to Nancy about April, 6. Having concluded that the General Counsel failed to prove this allegation, and having recommended dismissal of the allegation, a fortiori, I find that the Peti- tioner has not sustained its burden of proof with respect to the first objection. 445 2. The second objection related to the discharge of both Scherer and Gerstmann. Having found that these two discharges constituted violations of Section 8(a)(3) and (1) of the Act, a fortiori, I also' find that the dis- charges constitute objectional conduct and, therefore, I find merit in this objection. Accordingly, the objection is sustained. Having found that Respondent committed serious unfair labor practices by virtue of the discharges of Gerstmann and Scherer, I reccommend that the election held in Case 22-RC-8729 on June 17 be set aside and the petition dismissed. VII. THE CHALLENGED BALLOTS Having found that Respondent has engaged in such egregrious conduct as to warrant a bargaining order under the Gissel doctrine, I deem it moot at this time to rule on the eligibility of voters in Case 22-RC-8729. 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. International Union of Electrical, Radio and Ma- chine Workers, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. An appropriate unit of Respondent's employees for purposes bargaining is a unit of all production and main- tenance employees, including shipping and receiving em- ployees, x-ray technicians, test technicians, and quality control employees employed by the Employer at its Byram Township, New Jersey facility, excluding office clerical employees, professional employess, guards,' and supervisors as defined in Section 2(11) of the Act. 4. Since February 17, 1982, International Union of Electrical, Radio and Machine Workers, AFL-CIO has been, and is now, the exclusive representative of all em- ployees in the aforesaid bargaining unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act, and by refusing to bargain with the Union since on and after February 17, 1982, Respondent has violated Section 8(a)(5) and (1) of the Act. 5. The strike that commenced on February 22 and continued, to June 18, 1982, was an unfair labor practice strike from its inception. 6. By the following conduct that interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act, Re- spondent engaged in unfair labor practices within the meaning of Section 8(a)(1), of the Act: (a) Threatening its employees with plant closure if they joined or supported the Union. (b) Threatening its employees with discharge if they joined the Union or supported a strike. (c) Interrogating its employees regarding their union membership, activities, and sympathies. (d) Threatening its employees with more onerous working conditions because they, supported the Union. (e) Creating' an impression among its employees that their union activities were under surveillance. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) Promising or granting its employees benefits to dis- suade them from union membership or activities and to reward them for ceasing to support a union. 7. Respondent violated Section 8(a)(3) and (1) of the Act by discharging and failing to reinstate Kathleen Scherer on March 15, and John Gerstmann on March 17, 1982. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 9. Respondent has not committed any other unfair labor practices except as noted above. 10. Respondent's unlawful conduct interfered with the respresentation election conducted on June 17, 1982. 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. As I have found that Respondent unlawfully dis- charged Kathleen Scherer and John Gerstmann, I shall recommend that Respondent be ordered to offer them jobs for which they are qualified, without prejudice to any seniority and other rights and privileges they would have acquired as such employees. It will further be rec- ommended that Scherer and Gerstmann be made whole for any loss of earnings suffered by reason of the dis- crimination against them by payment to them of the amount they normally would have earned from the date of their respective discharges until the date of their re- spective reinstatments, less net earnings to which shall be added interest to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1959); Isis Plumb- ing Co., 138 NLRB 716 (1952); and Florida Steel Corp., 231 NLRB 651 (1977). Having concluded that the strike that began on Febru- ary 22, 1982, was an unfair labor practice strike from its inception, I recommend that it will effectuate the pur- poses of the Act to order Respondent, in addition to taking certain action designed to remedy the unfair labor practices found herein, to offer to all strikers who make unconditional offers to return to work immediate and full reinstatement ' to their former jobs or, if those jobs no longer exist, to substantially equivalant positions, without prejudice to their seniority or other rights and privi- ledges, and make them whole for any loss of earnings they may suffer as a result of Respondent's refusal, if any, to reinstate them, by payment to each of them a sum of money equal to that which each would have earned as wages during the period commencing 5 days after the date on which each one unconditionally offers to return to work to the date of Respondent's offer of reinstatement, 14 less any net earnings during such period, with backpay and interest thereon to be computed in the manner prescribed by the Board in F. W. Woolworth Co., supra; Isis Plumbing Co., supra; and Florida Steel Corp., supra. As the adminstrative law judge stated in Drug Package Co., supra at 134: 14 Drug Package Co., 228 NLRB 108, 113 (1977). "The pervasiveness and substantiality of the 8(a)(1) infractions found above "strike at the heart of the employees rights safeguarded by the Act." Cf. L. E. Johnson Products, Inc., 179 NLRB 67, fn. 1 (1969). Accordingly, I shall recommend a broad Order to prevent further infractions of the Act by Respond- ent in any manner. See R & R . Screen Engraving, Inc., 151 NLRB 1579, 1587 (1965)." The instant proceeding is on a par with Drug Package. Therefore, I, too, will recommend a broad Order. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed15 ORDER The Respondent, Cartridge Actuated Devices, Inc., Byram Township, New Jersey, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Threatening its employees with plant closure if they join or support the Union. (b) Threatening its employees with discharge if they join a union or support a strike. (c) Interrogating its employees regarding their union membership, activities, and sympathies. (d) Threatening its employees with more onerous working conditions because they support a union. (e) Creating an impression among its employees that their union activities are under surveillance. (f) Promising or granting to its employees benefits in order to dissuade them from union membership or activi- ties and to reward them for ceasing to support a union. (g) Disccharging and failing to reinstate employees be- cause they have joined, supported, or assisted a union or have engaged in protected concerted activities. (h) Refusing to recognize and bargain with Interna- tional Union of Electrical, Radio & Machine Workers, AFL-CIO as the exclusive representative of its employ- ees in the following appropriate unit: All production and maintenance employees, includ- ing shipping and receiving employees, x-ray techni- cians, test technicians, and quality control employ- ees employed at Respondent's Byram Township fa- cility, excluding office clerical employees, profes- sional employees, guards, and supervisors as defined in Section 2(11) of the Act. (i) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Notify International Union of Electrical, Radio and Machine Workers, AFL-CIO that it recognizes and will 15 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses CARTRIDGE ACTUATED DEVICES bargain with it as the exclusive collective-bargaining'r`ep- resentative of the employees in the unit described above in paragraph 1(h) of this Order respecting rates of pay, wages, hours, or other terms and conditions of employ- ment and, if an understanding is reached, embody the un- derstanding in a signed agreement., (b) Offer to Kathleen Scherer and John Gerstmann im- mediate and 'full reinstatement to their former jobs or, 'if their jobs no longer exist, to substantially -equivalent po- sitions without prejudice to their seniority or other rights and privileges. (c) Make Kathleen Scherer and John Gerstmann 'whole for any loss of pay suffered by them by reason of their'discriminatory terminations in -the manner set forth in the remedy section of the decision. (d) Remove from its files and records any references to the discharge of Kathleen Scherer on-March 15, 1982, and John Gertsmann on March 17, 1982. (e) Notify both Scherer and Gerstmann that the re- moval has been done, and that evidence of these unlaw- ful actions will not be used as a basis for future discipline against them. (f) On application, offer immediate and full reinstate- ment to their former positions or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to ' their seniority or other rights and priviledges, to all employees who engaged in a strike on February 22, 1982, or thereafter,- dismissing, if necessary, any person hired by Respondent on or after that date, and make them whole for any loss, of pay which they may suffer by reason of Respondent's refusal, if any, to reinstate them in the manner set forth ,in the remedy section of the decision. 447 (g) Preserve and,' on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (h) Post at its premises at Byram Township, New Jersey, copies of the attached notice marked "Appen- dix."16. Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (i) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges unfair labor practices not found herein. IT IS FURTHER ORDERED that the election in Case 22- RC-8729 is set aside and that Case 22-RC-8729 is dis- missed. 16 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 Nation- al 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."