Keystone Lamp Manufacturing Corp.

626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Keystone Lamp Manufacturing Corp. and United Steelworkers of America, AFL-CIO-CLC. Cases 4-CA-12250, 4-CA-12307, and 4-RC- 14652 30 June 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 30 December 1982 Administrative Law Judge Joel A. Harmatz issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed cross- exceptions and a supporting brief. 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, fmdings, 1 and conclusions as modified, 2 to modify his remedy,3 and to adopt the recommended Order as modified. 1. Contrary to the judge, we find that the Re- spondent did not violate Section 8(a)(1) of the Act on five occasions when it questioned open and active union adherents. Instead, we find under all the circumstances that these interrogations were not coercive, following the standards of Rossmore House.4 The judge found in section III,B,2 of the deci- sion that on 6 April 1981 Executive Director of Manufacturing Fisher asked employee DeLong why she was wearing a union pin. DeLong did not reply. The judge also found in section III,B,3,a that on 3 April 1981 Director of Fabricating and Pro- 1 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing the findings In adopting the judge's decision in this case, we do not rely on his gra- tuitous comments in fns 20 and 25, charactenzmg certain complaint alle- gations as poorly drafted and certain representations in the General Counsel's bnef to the judge as misleading, because these comments have no bearing on our decision In par. 2 of sec III,A of his decision, the judge incorrectly stated that the union organizing campaign began in March 1980, rather than in March 1981. We therefore correct this inadvertent error 2 In adopting the judge's decision, we find it unnecessary to pass on the exceptions to his disposition of the interrogation allegations set forth in sec. III,B,1,c and 1,d of the decision, involving conversations between President Glover and employee DeLong, because any finding of an 8(a)(1) violation would be cumulative with no effect on the remedy in this case 3 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest will be computed at the "short-term Fed- eral rate" for the underpayment of taxes as set out in the 1986 amend- ment to 26 U S C. § 6621 4 269 NLRB 1176 (1984), affd 760 F 2d 1006 (9th Cir 1985) 284 NLRB No. 74 duction Hawk lifted the lapel of employee De- Long's jacket where she was wearing a union button and asked her what the pin said, what it stood for, and where he could get one. When DeLong did not reply, Hawk laughed and walked away. The judge found further in section III,B,3,b that on 3 April 1981 Hawk approached employee Zinggeler, referred to her union button, and asked her where he could get one. Hawk then asked her what this was all about and said, "What do you people want: wages? benefits? Well, you are not going to get it." Finally, the judge found in section III,B,4,d that in mid-April 1981 Administrative As- sistant to the President Kern observed employee Eckhart's union button, which stated, "JOIN UNITED STEELWORKERS," and asked her, "Join? Join what?" When Eckhart responded, "The United Steelworkers," Kern asked her what that was. Eckhart did not reply. The judge found that all four of these conversa- tions were unlawful interrogations because the Re- spondent questioned employees about their union buttons for no legitimate purpose and without pro- viding any assurances against reprisals, citing PPG Industries.6 We disagree. The Board overruled the per se rule of PPG in Rossmore House and returned to the Blue Flash 6 test for evaluating whether an interrogation violates the Act: whether under all the circumstances the interrogation reasonably tends to interfere with, restrain, or coerce employ- ees in the exercise of the rights guaranteed by the Act. Here, the Respondent questioned active union supporters who were wearing union buttons openly at work, directing its questions only at the meaning of the buttons and why the employees were wear- ing them. As there were no other coercive circum- stances surrounding these four interrogations, we find the questioning did not violate Section 8(a)(1) of the Act. Therefore, we dismiss these allegations. The judge found in section III,B,5 of the deci- sion that on 10 April 1981 Assistant Controller Thomas summoned employee Elaine Ahner to his office to present the Respondent's position on the union organizing campaign and to discuss the me- chanics of collective bargaining. During this con- versation, Thomas asked Ahner what the Union could do for her. Ahner responded that it could provide "fair and honest representation." Thomas then asked what she thought wages would be, and Ahner replied, "Higher." At that time, Ahner had already signed a union card, had attended several union meetings, and had started wearing a union 5 251 NLRB 1146 (1980) 6 109 NLRB 591 (1954) See also Sunnyvale Medical Clinic, 277 NLRB 1217 (1985) KEYSTONE LAMP MFG. CORP. 627 button to work three or four times a week. The judge found that Thomas questioned Ahner about what she expected to gain through union represen- tation and thus violated Section 8(a)(1) of the Act. We disagree. Thomas knew Ahner was an open and active union supporter, and his questions were directed only at discovering her reasons for sup- porting the Union so that he could argue more ef- fectively in presenting the Respondent's case against union representation. The judge specifically found that Thomas did not make any threats or promises during this conversation. Under all the circumstances, we find that the questioning did not violate Section 8(a)(1) of the Act. Therefore, we dismiss this allegation.1 2. The General Counsel has excepted to the judge's failure to discuss whether or not the re- marks made by Respondent Controller Gary Smith in numerous conversations with employees be- tween April and July 1981 violated Section 8(a)(1) of the Act, as alleged in paragraph 6 of the com- plaint. Based on an admission in Controller Smith's testimony, we find that the Respondent unlawfully created the impression that its employees' union ac- tivities were under surveillance, as alleged in para- graph 6(0 of the complaint. We find it unnecessary to pass on the remaining allegations in paragraph 6 of the complaint, however, regarding unlawful in- terrogations, threats, and promises of benefits, be- cause any findings of 8(a)(1) violations would merely be cumulative with no effect on the remedy already ordered and would require a remand to the judge for further credibility resolutions. In his testimony, Controller Smith admitted that sometime in May 1981 he had a conversation with employee Phillips, a known union activist who wore a union button to work nearly every day, when she came to his office to deliver reports. 7 Chairman Dotson would not find that Bernice Kern, administrative assistant to the president, in a conversation with employee Patricia Eck- hart, unlawfully threatened that the Respondent might go out of business. Shortly after a meeting on the rising cost of overhead, Kern conunented to Eckhart, "Well, we can't stay in business forever." Eckhart asked What she meant, and Kern replied, "Well I am afraid if the union comes in, the company could go out of business." In no other conversation did Kern or any other Respondent official allegedly threaten to close if the Union won the election. Under these circumstances, Chairman Dotson finds Kern's remark to represent an isolated expression of opinion by a supervisor, who was concerned by the Respondent's acknowledged esca- lating costa, and would dismiss the complaint allegation. Similarly, Chairman Dotson finds lawful Personnel Director John Lasky's remark to employee Ahner and Eckhart that the employees should give the Respondent "a second chance" and that, if things did not improve in a year, they could petition again for union representation The two employees saw Lasky in the parking lot and mvited him to join their convergation, and the three of them talked for about an hour, only a small part of which was devoted to discussing the Union. Lasky m no way threatened the employees during the conversation Under these cir- cumstances, Chairman Dotson finds that Lasky's remarks constituted an expression of his own opinion and, contrary to the finding of his col- leagues and the judge, did not constitute an imphed promise of benefits. Smith admitted saying, "I understand that your at- tendance at your meetings is dropping," and testi- fied that Phillips responded, "I'll never tell." Em- ployee Phillips testified that this conversation oc- curred the morning after a union meeting. By tell- ing a union activist on the day after a union meet- ing that he understood attendance at her meetings was dropping, Smith clearly implied that the Re- spondent knew what was happening at these union meetings and created the impression that the em- ployees' union activities were under surveillance. Such a statement violates Section 8(a)(1) of the Act. See Airport Distributors, 280 NLRB 1144 (1986), and David's, 271 NLRB 536, 552 (1984).8 3. We agree with the judge that the Respondent violated Section 8(a)(3) and (1) of the Act by laying off employees Elaine Ahner, Jeanette Eck- hart, and Betty Lou Phillips. In the decision, how- ever, the judge did not clearly identify the facts he relied on to fmd a prima facie case supporting his conclusion that these layoffs were discriminatory. Therefore, we shall set forth the factual findings necessary to support his conclusion on this point. First, we find that Ahner, Eckhart, and Phillips were open and active union adherents. Ahner signed a union card in March 1981, attended union meetings regularly after that, and wore a union button to work three or four times a week from early April until her layoff on 6 June 1981. Eckhart was one of three employees who initially contacted the Union in March 1981, signed a union card in March 1981, attended the weekly union meetings regularly after that, testified at the Board hearing on the Union's petition in late April 1981, and wore several different union buttons to work regu- larly from early April until her layoff on 26 June 1981, including one large button that stated she was a "VOLUNTEER ORGANIZER." Phillips signed a union card in March 1981, attended union meetings regularly after that, and wore a union button to work almost every day from early April until her layoff on 26 June 1981. The Respondent admitted seeing these employees wearing union buttons at work, and Controller Gary Smith testi- fied that Phillips was known as "Norma Rae." 8 Chairman Dotson would not find that Controller Smith's comment to employee Phillips created an impression of surveillance in violation of Sec. kaX1). There is no evidence that Smith obtained his information about the union meeting in a surreptitious or otherwise unlawful manner. In fact, it is quite possible that the scheduling of the union meeting was common knowledge at the plant and that Smith innocently learned about the attendance of the meeting from an employee or other management official. Further, Smith's offhanded comment to Phillips, a known prowl- ion supporter and activist, about the attendance was unaccompanied by any threat or other unlawful conduct. In these circumstances, Chairman Dotson finds no basis for concluding that Smith in any way interfered with, restrained, or coerced Phillips in the exercise of Phillips' Sec. 7 rights, and he would dismiss the complaint allegation 628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD We also find that the Respondent exhibited animus toward its employees' union activities. Thus, the judge found that in early April President Glover ordered Phillips to remove her union button whenever she entered his office. The judge also found that the Respondent asked employees to stay away from union meetings, threatened em- ployees with reprisals if they attended union meet- ings, and threatened to go out of business if the Union won the election. Finally, the judge found that in July, after Ahner, Eckhart, and Phillips were laid off, Supervisor Foster asked union sup- porter DeLong where her union button was and told her she "would get the ax next, just like all the others." We further find that the Respondent selected these three employees for layoff contrary to past practice and using the implementation of the new computer system as a pretext. The judge found that in the past the Respondent had never laid off any clerical employees even though clerical jobs had been eliminated. Thus, in January 1981 several clerical employees were reassigned to other jobs when the new computer system began handling production control and eliminated their jobs; and in March 1981 Elaine Ahner was reassigned to an- other job when the product line for which she did cost accounting was discontinued. Moreover, the Respondent restated this policy of reassignments rather than layoffs at least twice during the union organizing campaign. On 25 March 1981 President Glover assured employees that they would have job security and the Company would continue its past practice of finding other work for them if their jobs were eliminated, during one of his speeches arguing against union representation. At the Board representation case hearing in late April 1981, Supervisor Hinkle testified that although key- punching would be eliminated under the new com- puter system, the Respondent planned to find its keypunch operators other work to do. Further- more, the Respondent laid off Ahner, who had been assigned to do keypunching 3 weeks before it laid off temporary employee Meleski, even though Meleski continued to perform keypunching after Ahner's layoff on 6 June 1981 and it had told Me- leski she would only work until 1 June 1981. Final- ly, the Respondent recalled Melesld and hired a new clerical employee in October 1981 without re- calling either Ahner or Eckhart. We also note that the timing of these three lay- offs indicates they were discriminatory. Thus, all three layoffs occurred in June, before the 28 June cutoff date for eligibility to vote in the union repre- sentatidn election and before the new computer system was fully operational. Moreover, Phillips was recalled to work on 20 August 1981, after the election, although she had been told her layoff was permanent. Therefore, we agree with the judge that the Re- spondent selected these employees for layoff be- cause of their union activities, that there was work available for them to do after their layoffs, and that the new computer system was a convenient pretext for their layoffs. The Respondent has excepted to the judge's failure to discuss the testimony of Com- puter Consultant Van Arsdale, who conducted a study of the Respondent's operations in April 1981 and recommended that certain clerical jobs would necessarily be eliminated under the new computer system. The Respondent contends that the laid-off employees' union activities could not have played any part in its decision to select them for layoff be- cause it relied on Van Arsdale's recommendations in deciding which jobs to eliminate. We do not find this argument persuasive, however, in view of the judge's findings that the Respondent had a past practice of reassigning clerical employees to other work if their jobs were eliminated. 4. We also agree with the judge that the Re- spondent did not violate Section 8(a)(3) and (1) of the Act by laying off employee John Gellis. In adopting this conclusion, however, we do not rely on the judge's discussion of an agreement between the parties, supposedly reached at the representa- tion case hearing in late April 1981, that Gellis would be excluded from the office clerical unit as a plant clerical, because the record establishes that there was no such stipulation. Although the Re- spondent took the position at the representation case hearing that Gellis was a plant clerical, his status was not resolved until the Regional Director issued a decision on 2 July 1981, finding him ineli- gible.9 In dismissing this allegation, we note that, unlike the other three laid-off employees, Galas did not wear a union button to work and only attended one union meeting. Furthermore, there is no evi- dence that the Respondent had a past practice of reassigning its plant employees to other work in- stead of laying them off if their jobs were eliminat- ed, as it had for its office employees. Finally, we note that the Respondent had sound performance- related reasons for retaining the other two plant clerical employees instead of Gellis when it select- ed him for layoff. 9 In sec III,B,8,b of the 4decision, the judge also relied on this sup- posed agreement that Gellis was ineligible to support his discrediting of Gellis in connection with the dismissal of an 8(a)(1) allegation. In adopt- ing the credibility resolution, we do not rely on the Judge's discussion of this nonexistent agreement, but rather on the other independent factors he used to male this credibility determination KEYSTONE LAMP MFG. CORP. 629 5. The judge concluded that a bargaining order was warranted to remedy the Respondent's exten- sive and pervasive unfair labor practices in this case. The judge found that the Union had obtained signed authorization cards from at least 13 of the 22 unit employees by 6 April 1981, the date when it demanded recognition from the Respondent. The judge further found that the Respondent's unlawful conduct had neutralized the effectiveness of con- ventional Board remedies and had created an at- mosphere in which it was unlikely that a fair elec- tion could be held in the future, citing the test set forth in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Although we agree with the judge that a remedi- al bargaining order is appropriate in this case, we note that the judge did not clearly place the Re- spondent's misconduct in either of the two catego- ries identified in Gissel as warranting a bargaining order. Therefore, we shall do so. We find that the Respondent's unfair labor practices fall into at least the second category, which involves "less-extraor- dinary cases marked by less pervasive practices which nonetheless still have the tendency to under- Mine majority strength and impede the election processes."10 On learning that there was union activity among its office clerical employees, the Respondent imme- diately began an antiunion campaign designed to discourage its employees from supporting the Union. In the first 3 weeks of the union organizing campaign, the Respondent threatened to go out of business if the Union won the election, threatened employees with reprisals if they attended union meetings, asked employees to stay away from union meetings, coercively interrogated two em- ployees, ordered an employee to remove her union button whenever she entered President Glover's office on business, and distributed two question- naires to all unit employees soliciting their griev- ances under conditions implying that these griev- ances would be redressed if the Union lost the elec- tion. In the remaining 3 months before the election, the Respondent promised employees that benefits would be improved if the Union lost the election, created the impression that employees' union ac- tivities were under surveillance, laid off three em- ployees because of their union activities, and threatened to lay off other employees because of their union activities." 1° Id. at 613. " Although, as stated supra, Chairman Dotson would not find all the 8(a)(1) violations found by his colleagues, he nevertheless agrees with his Such highly coercive unfair labor practices were likely to have had a profound impact on the em- ployees. Threats of plant closure, termination, and other retaliation against union activities are clearly calculated to have a coercive effect that will linger. The termination of three employees certainly would have serious and prolonged consequences. Furthermore, the unit was small, with only 22 em- ployees; the violations were widely disseminated; and the serious violations directly affected almost one-third of the unit employees. We conclude that the possibility of erasing the effects of the Respondent's unfair labor practices using the traditional Board remedies is slight. Therefore, an election would not reflect uncoerced employee sentiment. Although there has been a sig- nificant passage of time since the violations oc- curred, this does not warrant withholding a bar- gaining order in light of the seriousness of the vio- lations and their impact on the entire unit. Thus, we conclude that the employees' desires for union representation as expressed through the signed au- thorization cards would, on balance, be better pro- tected by a bargaining order. Accordingly, we shall order the Respondent to bargain with the Union as the duly designated rep- resentative of the employees in the unit found ap- propriate. The bargaining order shall be effective 6 April 1981, the date of the Union's demand for rec- ognition, because this occurred after the Respond- ent had embarked on a clear course of unlawful conduct. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Keystone Lamp Manufacturing Corp., Bethlehem, Pennsylvania, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Order as modified. 1. Add the following as paragraph 1(1) and relet- ter the subsequent paragraphs accordingly. "(f) Creating the impression that employees' union activities were under surveillance." 2. Substitute the attached notice for that of the administrative law judge. colleagues that a bargaining order is warranted to remedy the remaining violations committed by the Respondent 630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT coercively interrogate our em- ployees about union activities. WE WILL NOT ask our employees not to attend union meetings. WE WILL NOT order our employees to remove their union buttons. WE WILL NOT threaten our employees with re- prisals if they attend union meetings. WE WILL NOT threaten to go out of business if the Union becomes our employees' bargaining rep- resentative. WE WILL NOT threaten to terminate our employ- ees because of their union activities. WE WILL NOT solicit our employees' grievances under conditions implying that we will redress these grievances if the Union loses the election. WE WILL NOT promise our employees that their benefits will be improved if the Union loses the election. WE WILL NOT create the impression that our em- ployees' union activities are under surveillance. WE WILL NOT tell our employees that we have laid off other employees because of their union ac- tivities. WE WILL NOT lay off or refuse to recall any of our employees because of their union activities, or in any lother manner discriminate against our em- ployees with respect to their wages, hours, or terms and conditions of employment. WE WILL NOT refuse to bargain in good faith with United Steelworkers of America, AFL-CIO- CLC as the exclusive representative for the pur- pose of collective bargaining of the employees in the appropriate unit set forth below. The appropri- ate unit is: All office clerical employees employed by the Employer at its Slatington, Pennsylvania facili- ty, including keypunch operators, order entry clerk, computer operator, payroll clerk, and time recordkeepers, and excluding production and maintenance employees, shipping clerks, production control employees, time study technicians, managers, guards, and supervisors as defined in the Act. WE WILL NOT unilaterally change our unit em- ployees' wages, hours, or terms and conditions of employment without first notifying and bargaining with United Steelworkers of America, AFL-CIO- CLC. 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 offer Elaine Ahner and Jeanette Eck- hart immediate reinstatement to their former jobs or, if those jobs are not available, to substantially equivalent jobs, without loss of seniority or other benefits. WE WILL make Elaine Ahner, Jeanette Eckhart, and Betty Lou Phillips whole for any loss of earn- ings they may have suffered by reason of our dis- crimination against them, with interest. WE WILL, on request, bargain with United Steel- workers of America, AFL-CIO-CLC as the exclu- sive representative of our employees in the appro- priate unit set forth above, with respect to wages, hours, and other terms and conditions of employ- ment and embody any understanding reached in a signed, written agreement. KEYSTONE LAMP MANUFACTURING CORP. Gail Lopez-Henriquez, Esq. and Bruce G. Conley, Esq., for the General Counsel. Barry F. Bevacqua, Esq. (Pechner, Dorfman, Wolfe, Roun- ick & Cabot), of Philadelphia, Pennsylvania, for the Respondent. DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge. On an initial unfair labor practice charge filed on July 13, 1981, a consolidated complaint issued on August 31, 1981, which, as amended, alleged that the Respondent engaged in various independent violations of Section 8(a)(1) and violated Section 8(a)(3) and (1) of the Act by several acts of union-related discrimination. It was alleged fur- ther that by virtue of the unfair labor practices, Re- spondent violated Section 8(a)(5) of the Act by refusing to recognize and bargain with , the Union as exclusive representative of a majority of its employees in the ap- propriate unit in accordance with the principles enunci- ated in NLRB v. Gissel Packing Co„ 395 U.S. 575 (1969). Finally, it was alleged that Respondent engaged in fur- ther 8(a)(5) violations by effecting unilateral changes in working conditions without, first, notifying and negotiat- ing in good faith with the Union. In its duly filed answer, Respondent denied that any unfair labor prac- tices had been committed. The aforedescribed complaint issued against a back- ground showing that an election petition had been filed by the Union in Case 4-RC-14652 on April 6, 1981. Thereafter, pursuant to a Decision and Direction of Election issued by the Regional Director for Region 4 KEYSTONE LAMP MPG. CORP. 631 on July 2, 1981, an election by secret ballot was conduct- ed on July 20, 1981, in the unit determined to be appro- priate. On conclusion of the election, the parties were furnished a tally of ballots that showed that of 22 eligible voters, 7 cast valid ballots for, and 12 against representa- tion by the Union. There were three challenged ballots, which were plainly insufficient to affect the results. Thereafter, the Union filed timely objections to employer conduct interfering with the election. Pursuant thereto, on August 27, 1981, the Acting Regional Director issued a "Supplemental Decision on Objections to Election" in which it was concluded that Objections 1-7 and 131 were the subject of unfair labor practice charges in Cases 4-CA-12250 and 4-CA-12307, and, accordingly, as a complaint was to issue on those charges, it was ordered that the cases be consolidated for hearing, ruling, and de- cision by the judge. Pursuant to the foregoing, the matter was heard by me in Bethlehem, Pennsylvania, on June 7, 8, 9, 14, and 15, 1982. On conclusion of the hearing, briefs were filed on behalf of the General Counsel and the Respondent. On the entire record in this proceeding, including direct observation of the witnesses while testifying and their demeanor, and consideration of the posthearing briefs, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is a Delaware corporation engaged in the manufacture of portable lamps from its facility located in Slatington, Pennsylvania, the sole facility involved in this proceeding. In connection with the operations, Respond- ent, during the calendar year preceding issuance of the complaint, sold and shipped products valued in excess of $50,000 directly to points located outside the Common- wealth of Pennsylvania. The complaint alleges, the answer admits, and I find that Respondent 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. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that United Steelworkers of America, AFL-CIO-CLC is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Overview This consolidated complaint arises from an initial orga- nization campaign waged among Respondent's previous- ly unrepresented office clerical employees at its produc- tion facility located in Slatington, Pennsylvania. It ap- pears that the production and maintenance workers at that facility, a unit numbering about 350, had been con- tinuously represented by the Union since 1962. 1 Objections 8 through 12 had been withdrawn by the Union Organizational activity opened among Respondent's clerical employees in March 1980, 2 when Anita Zing- geler, Jeanette Eckhart, and Darlene DeLong discussed that possibility with a union representative. Thereafter, with the aid of a list of names and addresses submitted by DeLong, blank authorization cards were mailed to the clericals on March 19. Between March 20 and 25, some 15 employees signed and returned by mail to the Union their designations.3 Respondent was swift to respond, opening its counter- campaign even prior to Mareh 25, when the employees were assembled and addressed for the second time by Walter Glover, Respondent's president, in connection with the organizational effort. A third such meeting was conducted by Glover and other management representa- tives on March 30. This, despite the fact that the Union made no attempt to contact Respondent until March 31.4 Later, on April 6, the Union by letter formally requested negotiations as majority representative of a clerical-tech- nical unit, 3 and filed an RC petition in Case 4-RC- 14652. It will be recalled that in that election held on July 20 the employees in the appropriate unit rejected union representation by a vote of 7 to 12. The General Counsel alleges that the results of the election were attributable to a pattern of unlawful con- duct that precludes the holding of fair election in the future even after the application of traditional Board remedies. It is urged in this instance that the valid au- thorization cards executed by a majority of the employ- ees prior to the commission of any unfair labor practices "provides a better test of employee representation than a second election." Pursuant to NLRB v. Gissel Packing Co., supra, the General Counsel argues that the "unfair labor practices were sufficiently serious to warrant the imposition of a bargaining order." The claim for relief in this form is supported by a complaint incorporating a plethora of independent 8(a)(1) allegations, as well as four layoffs allegedly violative of Section 8(a)(3). In this latter regard, Elaine Abner was terminated on June 6 and Betty Lou Phillips, Jeanette Eckhart, and John Gellis were laid off on June 26. By way of defense, it is urged that no violations of Section 8(a)(1) were substantiated and that in each instance the layoffs were uninfluenced by union activity or the im- pending election, but occasioned solely by a lack of work attributable to the installation of a new computer system to which the Company had become committed well prior to the advent of union activity. In terms of remedy, the critical issues presented are whether the General Counsel has substantiated the basis for a Give' bargaining order under the auspices of Sec- tion 8(a)(5) of the Act and, if not, whether the Union's 2 All dates refer to 1981 unless otherwise indicated. 3 The critical date, by virtue of the instant complaint, for assessment of the Union's majority, is April 6 At the hearing the parties stipulated that the appropriate unit as of that date consisted of 22 identified individuals. No possible question concerning authenticity, eligibility, or validity might be raised regarding 13 of the fully executed authorization cards presented m evidence This of course represented a majority of employees m the unit deemed appropriate by the Regional Director on July 2 4 See 0 C. Exh. 6(a). 5 See 0 C El& 7. 632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD objections to the election in Case 4-RC-14652 have suffi- cient merit to warrant a rerun election. Beyond that, sig- nificance attaches to relief in the form of backpay and re- instatement derived from the alleged 8(a)(3) violations founded on the June layoffs. B. Interference, Restraint, and Coercion The independent 8(a)(1) allegations relate essentially to (1) confrontations between rank-and-file employees and supervisors, (2) alleged changes in personnel practices, and (3) programs adopted by Respondent allegedly to combat the Union. Thus, nine witnesses were presented by the General Counsel to testify to allegedly unlawful statements made by supervisors. The alleged violations of Section 8(a)(1) were placed as occurring throughout the preelection period, but most appear to have taken place early in the campaign during March and April. In the main, the issues presented here turn on credibility, but admitted borderline conduct is also involved presenting issues legal in nature. 1. By Walter Glover (a) Walter Glover is Respondent's president and the highest level operating functionary at the Slatington plant. It appears that he learned of the union campaign shortly after the Union mailed authorization cards to em- ployees. It further appears that he addressed the clericals concerning the organization effort on three occasions in late March. His second speech, on March 25 was a hard hitting, emotional plea for rejection of the Union. This basic theme was carried forth to a third meeting held on March 30, and an 8(a)(1) allegation, derives from re- marks admittedly made by Glover on that occasion. Thus, it is contended that Respondent independently vio- lated Section 8(a)(1) because, at that time, Glover "solic- ited employees grievances, thereby promising employees increased benefits and improved terms and conditions of employment in order to discourage its employees from supporting the union." As was true of his March 25 ad- dress, Glover's remarks on March 30 emphasized the ad- verse effects of competition on the portable lamp indus- try and the Company's record in the area of job security. However, on the later date, Glover also argued the dis- advantages of unionization, pointing out the expense of dues and initiation fees, and the possibility of strikes. Fol- lowing Glover's opening remarks, the assembled employ- ees were then addressed by Gary Smith, Respondent's comptroller, who explored the impact of enhanced costs on the Company's welfare. Following this, Glover em- barked on a review of existing company benefits. To il- lustrate the desirability of Respondent's hospital plan, Glover called on employee Pat Rehrig, who had just given birth to a child, to express her evaluation of the existing health program. However, she simply replied that it was "Okay," a response that obviously was taken by Glover as feint praise, causing him to react by stating: "Okay. Just okay? I happen to know its damn good." At this juncture, Glover continued on as follows: All right. Apparently I touched a touchy subject and I didn't mean to, I'm sorry. We will get into that and see what the hell is wrong and try to straighten it out for you. But this is the importance of communication. Now, how much of this very type of thing is in this room? This kind of feeling 'where people don't, really don't feel. We're not being told how and the hell they feel. Here's young lady with a problem. I didn't know she had a prob- lem. But dammit I'm going to find out why and try to do something for her. And the Union can't do any more for her than we will do. Now, if we haven't been aggressive enough, if my management hasn't been aggressive enough to find out and help you with these problems and explain it to you, then danunit I told you the door is open. My door is always open because I want you treated right. This money is spent. I wanted to put out a booklet for a long time spelling out how you should use your Blue Cross, Blue Shield program. Because so many people don't know the benefits that are there and how to use them. Lots of people are still getting taken on the program. They're not taking advantage of what the hell is there for them. That goes for ev- erybody throughout the plant. I put you all on a higher, higher intellect level than a lot of our people on the floor. And those people really need help and if we're running into a situation like we just ran into with Pat, then we need help in this room too. All right. John, do you want to go through those benefits. On consideration of the above in conjunction with the aforedescribed allegation of the complaint, it is conclud- ed first that Glover said nothing that reasonably could be construed as a solicitation of benefits. He did not inquire concerning employee problems or grievances nor did he invite any open exchange of views in that regard. The General Counsel does not expressly state that this was the case, but seems to argue that the vice in Glover's presentation was an implicit promise to remedy a griev- ance held by Pat Rehrig. Contrary to the General Coun- sel, unlike Rezair, Inc., 243 NLRB 876, 880 (1979), the statements made by Glover did not in my opinion sup- port a "compelling inference" that changes would be made in the existing benefit structure to accommodate Rehrig. See, e.g., Raley's; Inc., 236 NLRB 971, 972 (1978). His opening comment to Rehrig was obviously made in the anticipation that she would reinforce his own positive assessment of Respondent's existing hospital plan. True he characterized her failure to respond favor- ably as indicating that Rehrig had a problem, which the Company could solve. That problem, however, was clearly defined by Glover as a misunderstanding on the part of Rehrig concerning the scope of Respondent's Blue Cross, Blue Shield program. He is no way implied or suggested either a possible modification of the cover- age of that program or that special benefits would be made available to Rehrig or any other employee. Glov- er's clearly communicated position was that Rehrig did not glow with enthusiasm concerning the plan because she did not understand it, that management was responsi- ble for not communicating the scope of the plan accu- rately to Rehrig, that other employees might be laboring under a similar misunderstanding, and that management KEYSTONE LAMP MFG. CORP. , 633 would redouble its effort to avoid such misunderstand- ings. To this extent, his remarks did not exceed an area of employer antiunion propaganda, which has been ac- knowledged as privileged. Thus, Board precedent con- firms the employer's right to campaign on the basis of existing benefits. 6 As an incident thereto, employers are not only free to clarify the existing benefit structure but to give assurances that it will continue to maintain an educational dialogue along those lines in the future. For these reasons, it is concluded that the allegation that Re- spondent violated Section 8(a)(1) through Glover's March 30 solicitation of grievances and implied promise of benefits is not substantiated and shall be dismissed. (b) The complaint further alleges that about April 6, Glover prohibited an employee from wearing a pin "which designated said employee's support for the Union." It is undisputed that Betty Lou Phillips wore a union pin from April 6 until her layoff on June 26. Also clear is the fact that during the campaign, in April, she delivered a report to the office of Glover while wearing her union button. Glover, observing the button, asked Phillips to remove it, stating "when entering through that door, I want that pin removed. This is my office. Is that understood?" Phillips apologized and never again wore the pin within Glover's office. She admitted, how- ever, that this limitation did not extend in other areas of the facility where she freely wore her pin throughout the campaign. The General Counsel argues that although Glover's instruction was limited to the vicinity of his im- mediate office, "it nonetheless created an atmosphere which would tend to coerce the employee in her exer- cise of a protected right." In my opinion, the question presented is border line. It is true that the statement by Glover amounted to a strong expression of distaste for union activity and a desire to insulate his surroundings from its trappings. Such expressions of union animus, though perhaps coercive, would appear to fall with free speech guarantees protected by Section 8(c). More sig- nificantly, however, from a practical point of view it is difficult to imagine how Section 7 activity would tend to be either enhanced by intervention of the statute to guar- antee Phillips the right to brandish union insignia within her boss' office or impaired by this limited restriction that plainly was inapplicable to areas frequented by em- ployees. Nonetheless, it is my duty to apply Board policy, which in this area is not only established, but broad-brushed in terms of its proscriptive scope. Thus, restrictions of this nature are unlawful absent a showing of special circumstances indicating an interference with production, discipline, or presenting a hazardous work condition:7 No such showing having been made by Re- spondent herein, the instruction by Glover to Phillips violated Section 8(a)(1) of the Act. (c) The complaint alleged that about April 3, 1981, Glover "interrogated an employee regarding said em- ployee's support for the Union." In this regard, DeLong testified that although on a staircase leading to the em- ployees' lunchroom, on April 3 she crossed paths with 'Arrow Elastic Corp, 230 NLRB 110, 113 (1977), and cases cited at fn 13 thereof 7 Hesse Corp., 244 NLRB 985, 987 (1979). Glover, who while observing her union button, stated, "I can't believe it. Why Darlene? Why did you let it get this far/ You of all people. I just can't believe it." Ac- cording to DeLong, Glover then asked, "What I had against the company." 8 On the face of DeLong's testi- mony, I am not convinced that a Glover engaged in co- ercive interrogation. From her account, his remarks were completely rhetorical and not of the type calculated to elicit a response. Thus, her testimony does not indicate that she made a response, or that she was given an op- portunity to do so. Surprise is frequently couched in the language of the interrogatory, though inquiry is by no means intended. It was the General Counsel's burden to establish that the employee was in fact "interrogated," and as this proof responsibility was not met here, I shall dismiss the 8(a)(1) allegation in this respect. (d) The final allegation implicating Glover in 8(a)(1) activity pertains to a conversation with DeLong in his office on the day of the election, July 20. DeLong had previously been employed in the production and mainte- nance unit, and decided to return to that unit after learn- ing that the Union had failed in the election. Later that day, but after the election, she was summoned to Glov- er's office where she was told first that she had been a good worker, and then asked by Glover "why did you do it?" DeLong indicated that she wanted job security whereupon Glover questioned this, asking whether she was aware of "how many clerical employees had been laid off?" According to DeLong, Glover also mentioned that she was held in such high esteem that if her supervi- sor had wanted to elevate her to the position of assistant supervisor, he would have approved. Glover then asser- tedly returned to a critical posture, stating, "The leader- ship you had in this, you sit there and you don't have the balls to give me an explanation. . . we people had hurt him for the last time." Based thereon, the complaint al- leged that Glover interrogated DeLong regarding her union activities, and "implied a promise of promotion" to her in order to discourage her union support. The testi- mony of DeLong is too vague to support reasonable construction that a union related promise of promotion was made to her." It is clear, however, that Glover questioned her concerning her union activity, that this occurred without required safeguards, and hence that it violated Section 8(a)(1). I so find. 8 Glover denied that he had any such conversation with DeLong He admits to an exchange with employee Joanne Levandusky with a some- what similar focus. I prefer the testimony of DeLong in this instance. 9 Glover admitted to such an encounter. He acknowledged that he ex- pressed curiosity about DeLong's reasons for resigning from the clencal unit in that her retransfer to the production and maintenance group ren- dered her automatically subject to layoff Beyond that he could recall none of the conversation. I credit DeLong. is The reference to the fact that Glover would have approved a pro- motion if recommended by a supervisor seemed purely hypothetical, and was conveyed by DeLong in such cryptic fashion as to suggest nothing other than Glover's recognition of her competence and outstanding per- formance as an employee in the clerical unit. I simply did not take De- Long's testimony to mean that Glover was thereby implying that his ap- proval m any way hinged on her support, or lack of support for the Union. 634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. By Donald Fisher Fisher, at times material, served as Respondent's exec- utive director of manufacturing. It is alleged that Re- spondent violated Section 8(a)(1) through his interroga- tion of an employee on April 6, and by his direction on April 8, that an employee remove a union button. Concerning the first incident, Fisher confirmed the tes- timony of DeLong that on April 6 he "asked her why she was wearing the pin." DeLong on that occasion af- forded no response. The inquiry, having been made with- out safeguards providing assurances against coercion, and lacking in legitimate justification, was unlawful. I find that Respondent thereby violated Section 8(a)(1) of the Act. PPG Industries, 251 NLRB 1146 (1980). With respect to the second incident, DeLong testified that about 2 months later about June 8, she was called to the office of Fisher. When he observed her union button, he told her to: "Take it off." Although DeLong indicates that this instruction was unqualified as stated, she contin- ued to wear the button in work areas, but did not consid- er this to be a violation of Fisher's instruction. Fisher, on the other hand, denied ever having a conversation with DeLong in which he prohibited her from wearing the union pin in or out of his office. He testified further without contradiction that DeLong during the entire preelection period visited his office on a daily basis. In this instance, the testimony of DeLong is considered un- reliable. That of Fisher seemed the more probable when viewed in the light of undisputed facts. Indeed, I consid- er it entirely unlikely that Fisher would have elected to make an issue over the insignia some 2 months after sev- eral employees within the clerical unit began wearing union buttons regularly. It was my overall impression that in this instance DeLong was either confused or failed to recall and relate all that actually transpired on that occasion. In any event, her testimony is rejected and accordingly, the evidence does not substantiate that Re- spondent violated Section 8(a)(1) in this respect. 3. By Jim Hawk (a) Hawk, at times material, was Respondent's director of fabricating and production. According to the com- plaint, Respondent independently violated Section 8(a)(1) through his separate interrogation of employees concern- ing union activity on April 3, and his solicitation of grievances under conditions implying a promise of bene- fit. The first was substantiated by testimony of DeLong, who related that on April 3, Hawk lifted the lapel of her jacket and inquired about ". . . what the pin said, what it stood for, where he could get one." She went on to indicate that Hawk "laughed and walked away" when she refused to talk about it. 11 Although I have my own views regarding this type of dialogue between a supervi- sor and an employee who openly manifests union sup- port, I am duty bound to adhere to Board precedent. In this regard I fmd that Hawk's expression cannot be ex- " In this respect I credited the testimony of DeLong Hawk did not deny the inquiry I did not believe his effort to euphemize the conversa- tion by indicating that DeLong frequently wore funny pins, that he had no idea that the pm she was wearing pertained to the Union, and that when he saw it he just bent down and asked her what it said eluded from the all-inclusive holding of the Board con- cerning "inquiries . . . [which] convey an employer's displeasure with employees' union activity," whose "co- ercive impact is not diminished by the employee? open support of the union or by the absence of attendant threats." 12 Accordingly, I find that Respondent violated Section 8(a)(1) of the Act by this seemingly innocent in- quiry about what the union button said. (b) Hawk was implicated in a second incident on April 3, which was founded on testimony of Anita Zinggeler. Consistent with the pattern of conduct related by DeLong, Zinggeler testified that Hawk approached her on that date and referring to her union button, asking where he could get one. He went on to inquire about what "this was all about" stating "what do you people want: wages? benefits? well, you are not going to get it." I prefer the testimony of Zinggeler, an encumbent em- ployee at the time of the hearing, over Hawk's denial that he ever discussed union buttons with her or ever even observed her wearing such a button." On the au- thority cited above, I find that Hawk's questioning of Zinggeler concerning her union button, constituted coer- cive interrogation and that Respondent thereby violated Section 8(a)(1). 4. By Bernice Kern Kern, during the organization campaign held the posi- tion of administrative assistant to the president. (a) It is alleged that Respondent violated Section 8(a)(1) by Kern's attempt to dissuade an employee from engaging in union activity "by requesting said employee not to attend union meetings." In this respect, testimony was offered by former employee Patricia Eckhart to the effect that on the day following "one of the first union meetings," Kern inquired whether Eckhart had attended the meeting and about what had transpired. Eckhart claims that she did not respond. According to Eckhart, Kern then stated, "I want to ask you as a personal favor to me if you would please stay away from the union meetings." Kern admitted to questioning Eckhart wheth- er she attended, and also acknowledged that she ex- pressed curiosity about what transpired at the meeting. However, she denied having told Eckhart to stay away from meetings. 14 The interrogation by Kern concerning union activity as plainly coercive, and violated Section 8(a)(1). With respect to the alleged instruction that Eck- hart refrain from attending union Meetings, as stated by me at the hearing, the latter's testimony was merely in- 12 See Harrison Steel Castings Co., 262 NLRB 450 (1982), and cases cited at ft, 5 thereof. 13 For reasons that should appear obvious, I dismissed at the hearing the allegation that Hawk in this conversation , solicited grievances under conditions implying a promise of benefit It is difficult to grasp just how such an allegation might be maintained in the face of Zmggeler's testimo- ny that Hawk said that no enhanced benefits would be achieved '4 On balance, I regarded Eckhart as the more credible witness In so rulmg, I have not overlooked the fact that, prior to the hearing, Eckhart voluntarily quit her employment Eckhart also testified that about a week after this meeting, Keen asked her if she was planning to attend the next meeting. I am not entirely certain that this matter is embraced by the complaint, but if it is, I consider it to be cumulative to the unlawful inter- rogation already found against Kern and as having no effect on the remedy. KEYSTONE LAMP MFG. CORP. 635 dicative of a "non-instructive request." The parties were informed that no violation would be predicated thereon absent clear authority to the contrary. On further reflec- tion, with the aid of legal arguments advanced by the General Counsel, I regard Eau Claire Press Co., 260 NLRB 1072 (1982), as dispositive and conclude that the Board has deemed such a request to have a tendency reasonably to coerce. Accordingly, I fmd that Respond- ent thereby violated Section 8(a)(1) of the Act. (b) With respect to a further allegation, Eckhart testi- fied that shortly after the meeting that had been held concerning the "rising cost of overhead," 15 she was proofreading orders with Kern in the latter's office, when Kern interrupted to state, "Well, we can't stay in business forever." Eckhart inquired about what she meant Kern indicated, "Well I am afraid if the union comes in, the company could go out of business."18 Consistent with the position of the General Counsel I find this prediction did not satisfy the standard set forth in NLRB v. Gissel Packing Co., supra, 395 U.S. at 681. It was not "carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably proba- ble consequences beyond his control. . . ." Accordingly, although the threat was seemingly an isolated expression of a supervisor's personally held fear, which was prob- ably inspired by recently held management meetings stressing the problem of escalating costs in the highly competitive lamp industry, it nonetheless tended reason- ably to coerce and hence violated Section 8(a)(1) of the Act. (c) Zinggeler testified to a_ further conversation with Kern that occurred in early April. Zinggeler described the incident as follows: I was standing at the coffee machine and she came over to me and pointed to my button that I was wearing that said "JOIN, UNITED STEEL- WORKERS." And she said, "Join? Join what?" And I said "the United Steelworkers." And she said, "Oh, I like mine better." She point- ed to her button that said "I'D RATHER BE ME," and that is all she said.17 Zinggeler acknowledged that, under the circumstances, she was convinced that Kern knew full well what the button meant and that Kern was not interested in Zing- geler's response to her inquiry. 18 To label the incident described by Zinggeler as interrogation is to succumb to the 'entrancing notion that any statement that begins with an "interrogatory pronoun" and ends with a "question mark" is calculated to elicit a response. Dialogue is often marked 13y rhetorical questions that are neither under- " See Gr.0 Exh. 9(b) 16 Kern admitted to an observation that the Company could price itself out of the market, but denied adverting to the possibility that it could go out of business. I believe Eckhart. '7 A replica of the button appears as G.C. Exh 8(b). The "PD RATHER BE ME" button was a response worn by those who opposed the organizational effort. 18 Kern afforded a slightly different version of the conversation. Ac- cording to Kern, she ran into Zinggeler and stated, "Where is your button," While pointing to her own, and indicating, "I'm wearing mine, where is yours?" stood as, nor conveyed with the intention of, seeking in- formation from the listener. This is precisely what oc- curred here. If a violation has been established in this ex- change, it must be founded on the view that during an organization campaign supervisors may not lawfully make smartalecky comments about an employee's openly declared union sympathy. Although one might say that Kern's conduct was tantamount to an expression that she did not like the fact that Zinggeler was proration, with- out more, authority does not compel a conclusion that such an intimation violates Section 8(a)(1). The allegation predicated on Zinggeler's testimony in this respect shall be dismissed. (d) Jeanette Eckhart afforded somewhat similar testi- mony in support of a further 8(a)(1) allegation. The latter related that in mid-April, Kern observed Eckhart's union button and said, "Join? Join what?" Eckhart responded, "The United Steelworkers." Kern inquired about what that was. Eckhart did not answer." In this instance, I find that Kern's statement did constitute "interrogation" and shall sustain the 8(a)(1) allegation to this effect, (e) The final allegation implicating Kern in coercive interrogation was based on testimony of Betty Lou Phil- lips, which in its entirety is set forth below: GENERAL. COUNSEL: Are you acquainted with Bernice Kern? PHILLIPs- Yes. GENERAL COUNSEL: And who is she? PHILLIPS: Supervisor of the Main office. GENERAL COUNSEL: Did you have a reason to have contact with her in the course of your work? PHILLIPS: Yes. I was giving reports, also. Noth- ing further. GENERAL COUNSEL: During the same time period, do you recall any conversations with her? PHILLIPS: There again, it is the same as with Hinkle. I mean, it was no big deal. We just laughed it off, really. GENERAL COUNSEL: What was said? PHILLIPS: The company had put out pins that said "I'D RATHER BE ME" and Ms. Kern hap- pened to be wearing the company pin, and I had the union pin on, and she said "Where is your pin?" and I said "I have mine on," and that was it. GENERAL COUNSEL: That was the whole conver- sation? PHILLIPS: Yes. It was nothing. It was the sense of Phillips' testimony that since April 6 she wore a union button everyday. It is also clear from the record that the "I'D RATHER BE ME" buttons did not appear until after the dissemination of unionpins. Phillips acknowledged that there was much "kidding" about the Union between supervisors and herself, and she acknowledged that had Kern been observed without her pin, she might have made the same reference to Kern as Kern had made to her. It is difficult to conceive that this 19 Kern denied any such conversation, asserting that she did not get along with Eckhart and hence avoided her. Consistent therewith, evi- dence reveals ill will existed between them, but I credit Eckhart. 636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD incident could have any real impact on the propriety of a bargaining order or that considering its cumulative nature, it could be of any remedial significance whatever. Nonetheless, the evidence is just as worthy of analysis as any other violation charged by this complaint. It is my impression from a composite of the testimony of Phillips and Kern that the latter's statement was calculated and understood solely to draw attention to Kern's own an- tiunion medallion. I find that Kern's comment on the oc- casion had no reasonable tendency to coerce and, ac- cordingly, the 8(a)(1) allegations based thereon shall be dismissed. 5. By Preston Thomas At times material, Thomas was Respondent's assistant controller. The complaint alleged that about April 10 he coercively interrogated an employee, threatened the em- ployee with a loss of benefits, and offered a permanent position to an employee if she withdrew support of the Union. The employee in question was Elaine Ahner, who at the time held the position of keypunch operator. According to Ahner's testimony, she was called to a conference with Thomas that he opened by inquiring how she liked her new assignment to keypunch. Accord- ing to Ahner, he then asked, "What could the union do for me?" She replied, "Fair and honest representation." When next he inquired about what she thought wages would be, she replied, "Higher," while observing that there would be a "written guarantee of our benefits." Thomas then assertedly stated that "benefits would have to start from scratch, from the bottom, that we would have to start all over with our benefits; that we wouldn't get what the union had." According to Ahner, he indi- cated variously that if the Union came in employees would not have the same benefits as now, and that bar- gaining would have to start from scratch or at the bottom. Ahner also testified that Thomas indicated that because she was at the bottom of the seniority list, she would probably be laid off in August when the computer system was to be placed on line. Ahner also claims that in reference to her vulnerable position as a keypunch op- erator, Thomas stated that he would offer her "a perma- nent position at Keystone, if I would change my mind about the Union." She claims to have looked at Thomas and replied, "Well, I don't know." Thomas assertedly then indicated "would you think about it?" Ahner indi- cated 'maybe." Thomas acknowledged that he met individually with Ahner to present the Company's position in connection with the union campaign. He claims to have proceeded in accordance with a preset "agenda" given to him by Gary Smith. He acknowledged that he discussed the me- chanics of collective bargaining, but denied stating that the Company would come in "at the bottom." Instead he claims to have stated that if higher wages were sought the Union might have to trade off some benefits, going on to point out that the Company would come forth with a proposal, which was not necessarily at the bottom, and from that a compromise would be negotiat- ed. He denied ever having used the word "bottom," but admitted to indicating that existing company benefits were subject to negotiation. He denied offering Ahner a permanent position. He did admit to asking Ahner if the fact that she would be eventually laid off had bearing on her "making an objective decision on union representa- tion." According to Thomas, when Ahner answered at- firmatively, he decided that there was no point to con- tinuing and he terminated the conference. Although Thomas did not strike me as an impeccably credible witness, Ahner did not impress as capable of giving an accurate accounting of the precise words used by Thomas in describing the give and take aspects of collective bargaining. Furthermore, I did not believe her testimony that she was offered a permanent position if she signified a withdrawal of union support. The latter struck as too pat, while lacking a truthful ring. On the basis of credibility, I reject the allegations that Thomas either threatened loss of benefits if the Union were desig- nated, or offered a permanent position if Ahner with- drew her support from the Union. Nonetheless I am in- clined to find that Thomas questioned her concerning what she expected from the Union, and by virtue there- of, Respondent violated Section 8(a)(1). 6. By Ron Hinkle The complaint alleged that Respondent violated Sec- tion 8(a)(1) through Ron Hinkle's offer to consider changing an employee's work hours if she ceased activity on behalf of the Union. In this connection, it appears that Jeanette Echkart in January 1981 was reclassified to the position of payroll clerk. Previously, she had worked as a "timekeeper" and worked from 7 a.m. to 3:30 p.m. Hinkle, her supervisor, did not arrive until 8 a.m. In February, after Eckhart became payroll clerk, Hinkle told her that he wanted to change her time to 8 a.m. to 4:30 p.m. Eckhart protested, indicating that the proposed change was "inconvenient" because it would interfere with her ride to work. She continued to report at 7 a.m. It is the sense of Eckhart's further testimony that, about March 27 "before 7 a.m.," Kern came walking through the office, and observed Eckhart, Zinggeler, and computer operators Bob Dieter and Bill Balliet engaged in conversation. Later that day a memo came out indicating that her time had been changed, and she met with and was informed by Hinkle to the effect that henceforth she would work from 8 a.m. to 4:30 p.m. Eckhart assertedly asked Hinkle whether there was a possibility that she could have her time changed back to 7 a.m. to 3:30 p.m. According to Eck- hart, Hinkle responded, "When all this is over, we will see what we can do about it." There is no evidence that Respondent suspected or knew of Eckhart's proclivities toward the Union as of March 30. In any event, Hinkle's account struck as the more probable. He admitted that he changed Eckhart's hours about March 30, but with little fanfare. He testified to simply having explained to Eckhart that because of the incident witnessed by Kern earlier that morning and the fact that during the first hour, Eckhart was unsupervised, he had been instructed to change her starting time to 8 a.m. Hinkle denied having made any statement to the effect that this deci- sion would be reviewed in the future. Considering the fact that Hinkle previously sought this change in Febru- KEYSTONE LAMP MFG. CORP. 637 ary, and Eckhart herself concedes to the incident ob- served by Kern that morning, it is entirely likely that the shift in hours was made by Hinkle pursuant to instruc- tion from higher levels. In these circumstances, I consid- er it most improbable that Hinkle, whose role in the an- tiunion campaign appears to have been quite limited, would have made any comment holding out any possibil- ity that this determination might be reversed or reconsid- ered after the union campaign. Accordingly, I shall dis- miss the 8(a)(1) allegations based on Eckhart's testimony in this respect. 7. By Horace Brobst Brobst is Respondent's director of shipping, ware- house, assembly, receiving, and salvage. Obviously, his jurisdiction includes the shipping department that is sub- ject to the immediate supervision of Keith Cebrosky. Ac- cording to shipping department employee John Gellis, Brobst in early April came into his work area and stated that he had heard that there was a union meeting the night before. Gellis answered, "Yes," whereupon Brobst allegedly asked if Gellis had attended. Gellis again an- swered in the affirmative, whereupon Brobst assertedly asked whether Gellis was for or against the Union. Gellis indicated that he did not know and was not sure. At this point, a coworker, Linda Schuler, expressed her own opinion about why employees might be for the Union, including the fact that many, with seniority, were con- cerned that the new computer system would eliminate their jobs. Brobst could not recall having such a conversation with Gellis, while explicitly denying that he questioned Gellis about union activity or that he ever inquired con- cerning Gellis' feelings in that regard. In this instance, I am willing to give Respondent the benefit of the doubt and shall reject the uncorroborated testimony of Gellis The allegation that Respondent violated Section 8(a)(1) in this respect shall be dismissed. 8. By Keith Cebrosky (a) As indicated, Cebrosky was the front-line supervi- sor in the shipping department, who reported to Brobst. Gellis testified to several encounters with Cebrosky, his immediate supervisor. Gellis first related that in April, on the day of a union meeting, Cebrosky came to his desk and stated, "You are not going to that union meeting to- night, are you?" Gellis failed to respond, whereupon Ce- brosky allegedly injected, "cause if you are, I will be very angry and you won't like me in the morning." Geilis asserted that Linda Schuler heard the statement, and in a raised voice rejoined, "No one is going to tell us what to do." Cebrosky appears to deny questioning Gellis concern- ing the meeting, but admits to the balance of Gellis' ac- count of that conversation. Cebrosky claims, however, that this was just an extension of the kidding that took place between him and Gellis every morning. However, he acknowledged that his remark was taken seriously by Gellis. It is noted in this connection that, according to the account of Gellis, Schuler reacted as if she, too, failed to take Cebrosky's remark in a jolting matter. I credit Gellis, and find that Respondent violated Section 8(a)(1) by Cebrosky's coercive interrogation concerning Gellis' plans to attend the union meeting, as well as his further statement warning that unspecified reprisals might be taken against Gellis were he to attend. (b) Although Cebrosky testified that he never again discussed the Union with Gellis, the latter testified that following the preelection hearing on April 28 or 29, he and coworkers Schuler and Gayle Pope met with John Lasky, Respondent's personnel director, and Gary Smith, the comptroller. Apparently, Respondent sought to ex- clude all three from the unit, and at this meeting sought to explain to them what had transpired in this regard at the aforesaid hearing. According to Gellis, the three em- ployees manifested disinterest. Apparently, at the end of work that day, Cebrosky was summoned to Glover's office. Gellis, apparently connected the two and asked Cebrosky whether he had gotten into trouble because of the behavior of the employees at the meeting. Cebrosky allegedly responded that he had in fact been called in be- cause Glover learned that employees were bored at the meeting, and Glover "wanted to know what was going on." Cebrosky assertedly told Gellis that he then in- formed Glover concerning his suspicions concerning the union sentiment of Schuler and Gellis, informing Glover that Gellis "is a young guy and he is not getting paid very much. . . . He had been here almost 3 years, and Gayle Pope has only been here 2 years. . . . He was here a year longer and she is getting paid more than him, and why wouldn't he be for the union?" Cebrosky admits to being called to Glover's office, and to Gellis' having inquired whether he was in any kind of trouble with Glover concerning the Union. Ce- brosky claims that he informed Gellis that he "was called up to Mr. Glover's office and it wasn't even any- thing about the union." He went on to explain that he simply had been "chewed out" by Glover because of a job discrepancy. In this instance, the testimony of Gellis is rejected. Thus, Gellis indicated that a determination had been made pursuant to agreement of the parties at the preelection hearing that he was ineligible to partici- pate in the election because he held the status of a plant clerical, rather than an office clerical. He indicates that at least by May 1 he knew of his ineligibility. It is fair to infer that Glover and Cebrosky were equally mindful of this fact and in the light thereof Genie allegiances would have been academic at the time of this alleged conversa- tion. His account is deemed improbable. Accordingly, I shall dismiss the allegation that Respondent thereby cre- ated the impression that union activity was subject to surveillance.20 20 This allegation exemplifies a counterproductive effort to compart- mentalize alleged misconduct within conventionally accepted descriptions of unfair labor practices. Contrary to the relevant allegation in the com- plaint, were Gellis' testimony credited, the comments imputed to Ce- brosky mvolved a direct acknowledgment, rather than creation of any "impression," that Gellis' union leanings were under discussion Further- more, it is difficult to imagine about how, on Gals' account, one could deduce that surveillance was in any sense the source of management's knowledge in that regard. The tactic of the General Counsel whereby in- cidents are placed under familiar per se labels might well be a substitute for thoughtful analysis at the prosecutorial level, but hardly enhances ef- ficiency within the overall administrative process. 638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 9. By Fred Foster (a) It is alleged that Respondent violated Section 8(a)(1) through Fred Foster's coercive interrogation and threat of discharge. Darlene DeLong was offered to sub- stantiate the charges implicating Foster. The latter appar- ently was a low level supervisor, who recently had been upgraded from quality control inspector to a supervisor in the production and maintenance unit in December 1980. 21 DeLong, who before becoming an office clerical, had a long history of employment in the production and maintenance unit, and who was friendly with Foster, tes- tified that during the second week of July 22 Foster ap- proached her at her work station and inquired about where her union pin was, going on to state that DeLong ". . . was the next to go, that. . . [she] would get the ax next, just like all the others." Foster conceded concern- ing the possibility that if DeLong was not wearing her pin, he might have asked her where it was. He denied using the words, "you are the next to go," but explained his belief about what was said as follows: There was a whole lot of kidding going on between some of the girls and some of the supervisors. And I believe I made a statement that she better watch that she doesn't get the axe next. It was laid off or fired. The rumor was sort of who was going to get the axe. I credit DeLong. It will be recalled that as of June 26 at least three members of the office clerical unit had been laid off. The fact that Foster and DeLong enjoyed a longstanding friendship and from his perspective the remark was in a kidding or teasing vein does not remove the sting from his expressed view that DeLong was to be singled out to join those clericals already terminated in the wake of the new computer system." Based on the credible testimony of DeLong, I find that Respondent violated Section 8(a)(1) through Foster's coercive inter- rogation, and his threat implying that DeLong could be selected for termination because of her union activity. (b) By virtue of an amendment to the complaint, it is further alleged that Respondent violated Section 8(a)(1) in late April or early May when Foster informed an em- ployee that another had been laid off because of union activity. DeLong attested to this mid-April encounter. Despite its seriousness, unlike other matters to which DeLong testified, this allegation was not included in the complaint initially but added some 10 months later. In any event, in this respect, DeLong testified that although she and Foster were having coffee in the employee lunch room, DeLong asked, "What happened to your buddy?" a reference to Foster's friend, Glenn Shoff, a quality con- trol inspector who had been laid off on the previous 21 Quality control as a separate department was phased out in April 1981. 22 The plant was closed during the first 2 weeks of July. DeLong, however, was among certain clericals who worked during the shutdown. 23 Respondent sought to mitigate Foster's remark through an observa- tion that it somehow related to the phasing out of the quality control de- partment. It will be recalled that the quality control function ceased to exist after April 8, 1981, and DeLong had been removed from that de- partment in the spring that year. Friday. In response Foster assertedly stated, "He wore a union pin. That's why they got rid of him. They didn't lay him off because they eliminated his job."24 Foster admitted to a conversation in April after Shoff was laid off. He claims that it centered on the fact that Shoff was the last of the inspectors employed and the fact that Foster was pleased that he had moved into su- pervision when he did because, if not, he would have suffered the same fate as Shoff. Foster denied any refer- ence to union buttons and further denied having made any statement that Shoff was fired because he wore a union button. In this instance, the testimony of Foster is preferred as the more probable. I credit his denials and shall dismiss the somewhat belated allegation that Re- spondent violated Section 8(a)(1) through any statement on the part of Foster that an employee had been termi- nated because he manifested union support. 10. The parking lot incident The complaint alleged that Respondent violated Sec- tion 8(a)(1) about May 1 by John Lasky's solicitation of employee grievances, thereby promising increased bene- fits and improved conditions of employment to discour- age employees from supporting the Union. The allega- tion was subject to substantiation through testimony of Elaine Ahner and Jeanette Eckhart. Both testified that after work in early May they were in the parking lot when they spotted Lasky, and invited him to join them. A composite of the testimony of Eckhart and Ahner in- dicates that the conversation lasted about an hour and that all three at some point embarked on a discussion of the Union, with Lasky making the appeal that the Com- pany be given "a second chance," while arguing that if things did not improve in a year, the employees could petition for the Union again, adding that in such a case the chance of success would be greater. Other than the fact that Gary Smith later joined them, there appears to be nothing of further significance to have transpired during this conversation. Lasky acknowledged that the Union was discussed on that occasion, though a very small segment of the entire conversation. He acknowl- edged that he discussed the mechanics of collective bar- gaining and that Eckhart repeatedly indicated that she felt that she was underpaid. In this latter respect, Lasky indicates that he informed Eckhart that her rate was in conformity with area wage surveys prepared by neutral agencies. He denied asking her what she felt was a good "raise" 25 and denied ever having made a statement ap- 24 The quality control inspectors were excluded from the production- maintenance unit, historically, represented by the Steelworkers. 25 According to Eckhart, Lasky inquired both about what the Compa- ny could do to improve itself and what she thought would be a good raise. Ahner was the first to testify Unlike Eckhart, her testimony fails to impute any statement to Lasky that could be construed as a "solicitation of grievances." In this respect I credit Lasky and reject the uncorroborat- ed testimony of Eckhart I would note in connection with this issue of credibility, that the brief filed by counsel for the General Counsel in- cludes a representation that "Ahner corroborated Eckhart's testimony." In this respect, the General Counsel's observation is at odds with my reading of the record. However, because of this misstatement, I was im- pelled needlessly to reread the entirety of Ahner's testimony three times to assure myself that my own reading was accurate and that the corrobo- Continued KEYSTONE LAMP MFG. CORP. 639 pealing that the Company be given a second chance and things will improve or to have suggested that if this were not the case a petition could again be filed in 12 months. I credit the testimony of Eckhart and Ahner to the extent that it is mutually corroborative. 26 Thus, I find that Lasky 'did appeal that they give the Company a second chance, thereby implying that benefits would be forthcoming if the Union were defeated. Accordingly, in this respect, I find that Respondent violated Section 8(a)(1). 11. The questionnaire Lasky admitted that on March 31, he distributed a questionnaire among clerical unit employees. That docu- ment was of his personal design and its opening para- graph recited as follows: Listed below are a number of questions that will help the Management formulate Company policies. Answer the questions and deposit the questionnaire in the Question Box located by the badge rack. Do not sign your name. It is not mandatory that you complete the Questionnaire. What you say or don't say will not be used to reward or punish you. The questions are being asked only for the purpose of what is good or bad about the Company. The questionnaire consisted of nine multiple choice ques- tions that probed the quality of employee relationships with supervision and other conditions of work and also afforded an opportunity for employees, if they chose, to make "any other comments." 2 7 Lasky conceded that a week after the distribution, he met with those who cooperated by completing the ques- tionnaire, and on that occasion, reviewed the answers. He indicates that although he expressed the Company's position on the issues raised and the results, he refrained from making "any promises to the people." Lasky went on to testify that on April 6 he distributed a second questionnaire and followed basically the same procedure with respect to employee responses in connec- tion therewith. 2 8 In testifying about the origin of the questionnaires, Lasky admitted that he received no guidance from any procedure utilized by the Company in the past, but drew exclusively on his experience and background as an in- ration was not buried somewhere in her extensive testimony I cannot imagine why any party would choose to make more difficult the task of ferreting out and assessing facts in a case involving so many allegations and diverse incidents by careless and misleading representations. 26 Lasky did not impress me as entirely trustworthy His indication that he would not have made allegedly unlawful statements to either Ahner or Eckhart because of their manifest union support left me unim- pressed Any sensitivity to possible commission of unfair labor practice charges did not prevent his admitted participation in conversations con- cerning the Union with these individuals. Indeed, as a general proposi- tion, I was not persuaded by Respondent's arguments founded on alleged instructions issued to supervisors from attorneys, and from higher levels of management that they refrain from involvement with the organization drive. Such directives, if made, admittedly went unheeded on a number of occasions. Accordingly, the mutually corroborative testimony of the General Counsel's witnesses in this respect is credited. 27 See G.C. Exh. 13. 28 See G.C. Exh 19. dustrial psychologist. There is no evidence that the Com- pany had employed such a procedure in the past. Lasky admitted that the questionnaires were distributed solely to the clericals, and not to represented production and maintenance employees. Lasky denied that he informed, either directly or indirectly, employees that the Compa- ny would take action to correct discrepancies between any position expressed by employees and company policy. Consistent with the contention of the General Counsel, the conduct of Lasky with respect to the questionnaire entailed an unprecedented inquiry concerning potential grievances held by the employees. It was timed to sug- gest that it constituted a precipitant reaction to union ac- tivity and was confined to those employees about whom the Union had manifested an organizational interest. Al- though there is no evidence that specific promises were made, the implication to employees was clear enough. Thus, I agree with the observation by counsel for the General Counsel that as was true in Gordonsville Indus- tries, 252 NLRB 563, 568 (1980), the survey conducted herein was "a specific, calculated response to the em- ployee-union organizational campaign, [and] there can be little doubt that the purpose of this extraordinary and un- precedented action was to convey employees that the days of benign neglect were over." Thus, in the circum- stances presented here, employees would necessarily assume that Lasky's sudden concern for 29 their views had been awakened by union activity and that the stated purpose of the questionnaire to ascertain "what is good and what is bad about the company" involved "some- thing more than a sterile fact finding venture." See Arrow Molded Plastics, 243 NLRB 1211, 1215 (1979). In sum, the entire issue falls squarely within the framework of Reliance Electric Co., 191 NLRB 44, 46 (1971), in which the Board stated as follows: Where, as here, an employer, who has not previ- ously had a practice of soliciting employee griev- ances or complaints, adopts such a course when unions engage in organization campaigns seeking to represent employees, we think there is a compelling inference that he is implicitedly promising to cor- rect those inequities he discovers as a result of his inquiries and likewise urging on his employees that the combined program of inquiry and correction will make union representation unnecessary. 29 Cf Jeffco Mfg. Co., 211 NLRB 787 (1974), in which the Board dis- missed an 8(a)(1) allegation founded on the solicitation of grievances. There, however, management's action was merely an implementation of established employer policy memorialized in writing Also inapposite are cases where employees themselves created the impetus for an airing of their complaints and those in which an employer expressly disavowed that it would rectify any grievances or revise its basic personnel policies as they impacted on the employees. Uarco Inc., 216 NLRB 1 (1974), and Hayes Albion Corp, 237 NLRB 20,24-26 (1978) Consistent with the con- tention of the General Counsel, I agree that Respondent's statements that accompanied the questionnaires did not disavow an intention to favorably resolve grievances. The statement "no one will be rewarded or punished for participating or refusing to participate in this survey," as the General Counsel observes, relates solely to the question of employee participation, and does not reach the question about what action the Company intended to take with respect to breakdowns m its policy reported by the partici- pating employees. 640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Accordingly, I fmd that on March 31 and April 6, Re- spondent violated Section 8(a)(1) of the Act by utilizing the questionnaire and follow-on meeting& with individual employees whereby their complaints were solicited under conditions affording a "compelling inference" that inequities would be resolved in the manner favorable to the employees on dissipation of the restraints created by union activity. 12. Publication of work rules By another somewhat belated amendment to the com- plaint, it was alleged that Respondent violated Section 8(a)(1) of the Act by, on April 7, 1981, threatening to "more rigorously enforce and discipline its employees for violations of its Work Rules and Discipline schedule, in order to discourage its employees from supporting the Union." It is undisputed in this regard that on April 7 a copy of work rules was distributed by mail to all em- ployees at the Slatington facility, including management, supervision, production and maintenance, and clerical employees. Accompanying those rules was a letter over signature of Donald Fisher, which recited as follows: Enclosed are Keystone Plant Work Rules which are necessary for the orderly operation of the plant. Each employee is required to read, understand, and comply with the Plant Work Rules. Effective April 13, 1981, these rules will be rigor- ously enforced and disciplinary action will be taken if violations occur. This .gives you one week to digest and understand the Work Rules„ The work rules as distributed were identical in context to those that had been published throughout the plant through bulletin board postings prior to the advent of the Union. 30 Furthermore, John Lasky testified credibly that determination to distribute the work rules on the above basis had been arrived at well prior to the advent of union activity and was spawned by widespread cheat- ing in connection with the incentive system covering production and maintenance employees. My belief of this testimony warrants the conclusion that Respondent has met its burden of showing that the conduct complained of here was merely an exercise of supervisory authority disassociated from organizational activity. Accordingly, the allegation that Respondent thereby violated Section 8(a)(1) of the Act shall be dismissed. 13. The evaluation system The complaint alleged that Respondent attempted to discourage union support in violation of Section 8(a)(3) and (1) of the Act by June 1981, implementing a formal "evaluation system for its employees . . . ." In this re- spect it is noted that historically, Respondent's clerical employees were subject to annual evaluations. In June 1981, Respondent for the first time used a formal apprais- al form in connection with employee evaluations con- ducted at that time. See General Counsel's Exhibits 11, 15, and 16. The forms rated employees on a qualitative basis in various employment areas, including attendance 3° See Budget Rent-A-Car System, 237 NLRB 1294, 1303-1304 (1978) and punctuality. Opportunity was afforded to supervisors to make specific notations concerning strengths and weaknesses with recommendations for improved per- formance. The new form in a completed state was of- fered for review by the employee at the time of the eval- uation. In the past the supervisors took notes but failed to utilize any formal document in effecting the periodic reviews.31 As I understand the General Counsel's position in this regard, it is argued that the 8(a)(1) and (3) violations derive solely from the fact that this represented a change in working conditions implemented during the preelec- tion period. Although this is so, I am not entirely certain whether introduction of the evaluation sheet would be viewed by employees as advantageous or detrimental, but I would surmise that opinions in that regard prob- ably would vary among them. In any event, here again I am convinced that the Respondent has met its burden of disassociating the change from union activity. Based on the credited testimony of Lasky, I find that the "per- formance appraisal form" was devised by Lasky in De- cember 1980 on suggestion of Glover, and it was at that time determined that it would be utilized on review of the clerical employees scheduled for June of that year. As this determination was made well prior to the advent of the Union, I fmd that it in no fashion related to the organization campaign and simply reflected what the Employer would have done had the employees not en- gaged in union activity. See Famous-Barr Co., 174 NLRB 770, 771 (1969). Accordingly, the allegation that utilization of the new employee appraisal form violated Section 8(a)(3) and (1) of the Act shall be dismissed. C. The Layoffs 1. Preliminary statement In June, during the critical preelection period, Re- spondent laid off four employees, each of whom is al- leged to have been terminated in violation of Section 8(a)(3) and (1) of the Act. The first took place on June 5 and involved Elaine Ahner. The complaint avers that Respondent "timed and implemented" the action in view of Anher's support of the Union. The remaining individ- uals named as discriminatees by this complaint are Betty Lou Phillips, Jeanette Eckhart, and John Gellis, all whom were terminated on June 26. Respondent, in the case of Gellis, as was true of Almer, is alleged to have "timed and implemented" the layoff in retaliation for his union support Unlike the others, Phillips was reinstated on August 20, and her layoff during the interim is al- leged to have been inspired by union considerations. In the case of Eckhart, Respondent is alleged simply to have terminated her union activity. Basically, Respondent defends on grounds that the ter- minations were economically oriented, disassociated from union activity, and specifically caused by elimination of their work through installation of a new computer system. 3i An exception to this practice existed with respect to the evaluation afforded employees at the completion of their initial probationary period. A wntten form was used historically m that connection KEYSTONE LAMP MFG. CORP. 641 2. The foreground to the economic defense Prior to 1980, Respondent's computerized operations depended on an outmoded system that functioned through dated computer language, was slower, and re- quired labor intense, keypunch operations. The inefficien- cy in the existing system was called to the attention of Walter Glover by Controller Smith, and the latter em- barked on a studied effort to upgrade the system during the first quarter of 1980. In April 1980, a decision was made to lease an IBM "System 34," a modernized com- puter with greater functional capacity. The lease was formally executed on April 16, 1980, and delivery was scheduled for September of that year. It was anticipated that Respondent's existing production control, order- entry, and payroll functions would be adapted to the new computer arrangement. Preliminary to the computer going on line to service any of these three areas, extensive work was required to develop data base information that had to be processed in a form enabling it to be fed into the new computer. Files had to be built incorporating this data, which then had to be keypunched prior to entry on the new system through a terminal, with the visual aid of a CRT screen. To handle these efforts, Respondent in September and October 1980, utilind its own personnel as well as tem- porary employees hired from a manpower contractor. On January 1, 1981, the new computer system went on line but solely with respect to the production control area. After production control went on line, the comput- er was made available for initial consideration of the ad- aptation of the accounting functions. Early in 1981, how- ever, it was decided that the IBM MAPEC32 software package would not accommodate that end of the busi- ness, and therefore Respondent elected to custom tailor a software package specifically for the order- entry billing system. To do so, Respondent retained an outside con- tractor with expertise in the computer field. The latter on April 30, 1981, presented a report reflecting cost sav- ings to be realized by placing the order-entry billing system on the System 34. In that document it was ob- served that the impact would result in definite elimina- tion of one position in the shipping office and two in the tabulating department, at a total labor cost savings of $27,872 annually. On a tentative basis it was indicated that three other positions in the shipping office and one in the main office could be eliminated. 33 In May 1981, Respondent elected to go ahead with the contractor's recommended package. The target date for actual imple- mentation of the reprogramed order-entry system was set for the close of the annual plant shutdown in July. As of July 13, when plant operations resumed in full, the order-entry system joined production control as a com- pletely online computerized system. Also noteworthy is evidence that prior to the advent of the Union office clerical employees generally were aware of the threat posed by the new computer system 32 The software provided by IBM for use with the System 34 of rel- evance here, is called MAPEC According to testimony of Gary Smith, this was a pseudonym for "manufacturing, accounting, production, inven- tory control system" or "something like that" s3. See R. Exh. 9. to their jobs. 34 Consistent with these fears, it is urged by the Respondent that the layoffs under scrutiny here were prompted exclusively by the elimination of positions dic- tated by implementation of the System 34, as distin- guished from considerations proscribed by the Act. 3. The individual cases a. Elaine Ahner Ahner was initially employed in January 1979. On her employment application, it was signified that she was hired to perform cost-accounting on the "Fulton" line. Fulton was a marketing line at one time produced in a separate facility owned by the "Kiddie Group," a con- glomerate of which Respondent is also a segment. That production facility was located in Burwick, Pennsylva- nia. In 1978, Burvvick manufacturing operations were ter- minated. However, the Fulton line and marketing capa- bility were retained. Production thereof was transferred to Respondent's Slatington plant. This arrangement lasted for 3 years until February 1981, when the Fulton line was fmally terminated. There is little basis for questioning Respondent's obser- vation that in consequence of the elimination of the Fulton line, four positions were eliminated in February 1981. Because the Fulton line enjoyed its own independ- ent marketing showroom, a vice president in charge of that operation, as well as his assistant, was terminated." In addition, the job of a "designer" at Slatington was eliminated, but the occupant thereof was retained to re- place a Keystone designer who retired. Finally, the cost accounting position held by Elaine Almer was eliminat- ed. However, Ahner was not terminated. Instead, on March 30, she was reclassified as a keypunch operator in the tabulating department." In her new position, Ahner did keypunch work in conjunction with the effort to build up data base files for input into the new computer system. She worked under the supervision of Ron Hinlde. She acknowledged that at the time of her trans- fer to keypunch everyone in that department was inse- 34 See testimony of Betty Lou Phillips 35 Karen Eaton, the assistant to the vice president of Fulton, did not leave Respondent's employ until May 22, 1981 The Fulton vice presi- dent, Arnold Mems, was terminated on June 30, 1981 36 The March transfer of Abner occurred within the 6-month period prescribed by Sec. 10(b) of the Act. However, this action was not chal- lenged specifically by the complaint Nonetheless, the General Counsel seems to argue that the transfer was founded on illicit considerations. Firstly, I note that the matter was not fully litigated In any event, the transfer occurred before Respondent is shown to have had knowledge of Ahnees union sentiment, and is found to have been triggered purely by economic considerations. I note in this regard that Abner was not viewed as an entirely trustworthy witness It was my impression that she deliber- ately understated the extent of her performance on the Fulton line prior to the March transfer, and that her expressions that thereafter her work remamed in tact were no more than unreliable, self-serving argumenta- tion. Instead, I prefer the testimony of Preston Thomas, which to an extent is confirmed by that of Gary Smith, that as early as February, Abner was informed that the decision had been made by management to eliminate the Fulton line and that anyone specifically hired to service the latter would have to be laid off. Thomas went on to testify credibly that because Abner was recognized as a good worker, he, on that occasion, indicated that he wanted to give her an opportunity to find a job else- where before laying her off. 642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cure in that the keypunch position eventually would be eliminated by the new system. After the transfer, according to Preston Thomas, he had a conversation with Ahner in April in which Abner asked how long she would be employed by the Compa- ny. To this, Thomas responded that he could not make any promise concerning specific length of employment, but that the possibility looked good that she would be employed through May, but that June and July would be questionable and she definitely would be laid off in August sometime. It is noteworthy that although Abner was laid off before Elaine Meleski, a keypunch operator, Data Processing Manager Hinkle, on April 28 at the preelection hearing, testified both that Meleski was spe- cifically informed that her eniployment would end on June 1 and that there was no chance that she would be retained on a permanent basis. On May 11, Abner was again transferred, this time from keypunch to the main office under the supervision of Bernice Kern. Gary Smith explained the transfer as having been triggered by a medical leave of absence that was taken by an employee in the personnel department. The latter was replaced by a main office clerical, thus creating a temporary vacancy in the main office, which was filled by Abner. According to Smith, at the end of May, the individual who had gone on medical leave re- turned. Accordingly, on June 1, her replacement re- turned in the main office, thus, bumping Ahner. 37 Abner was permitted to work the balance of that week but was laid off on Friday, June 5. According to Smith, follow- ing elimination of Ahner's cost accounting job in March, the Company needed spare hands, but as of June 5, there was nowhere else to assign Ahner. The General Counsel contends that the above explana- tion for the layoff of Ahner was pretextual, and that in reality Miner was laid off because of her support of the Union and in order to prevent her from voting in the election. Consistent with the General Counsel's position, Almer was a known advocate of the Steelworkers. She executed an authorization card, and attended union meet- ings. Her sympathy was overtly manifested by the fact that she wore union insignia three to four times a week commencing in April and continuing right through to the termination of her employment." b. Betty Lou Phillips Phillips had been employed by Respondent since May 1962. Excepting a 5-year period commencing in 1963, 37 The testimony of Gary Smith in the above respect is not lacking in confirmation from Ahner. Thus, Ahner acknowledges that when trans- ferred to Kern's office, she inquired of Gary Smith regarding the reason for the transfer Smith, according to Ahner, informed her that Zunlin was out sick, and that Cindy Babyak would replace the latter in person- nel, going on to explain that it was necessary for Abner to replace Babyak. Beyond this, Smith's testimony concerning Zimlm's return and Babyak's restoration to her Job in the main office was allowed to stand uncontradicted. It is credited. 35 Although Anita Zmggeler and Jeanette Eckhart named Ahner as having attended the initial meeting with Union Representative Al Ca- valla, Ahner's own testimony does not disclose that she was present on that occasion. On the contrary, she indicates that her first contact with the Union was when she received the blank authorization card in the mail. Ahner would be the most reliable source in this particular area. she worked continuously for Respondent until her layoff on June 26, 1981. At the time, Phillips was a keypunch operator in the tabulating department under the supervi- sion of Ronald Hinkle. Throughout the period prior to her layoff, Phillips had openly manifested union support by wearing a union button, a fact that drew the attention of Glover, Hinkle, and Kern. Indeed, Gary Smith acknowledged that Phil- lips wore a union button just about everyday, that her union sympathy was well known to Respondent, and that among the clerical people she was referred to as "Norma Rae." June 26 was the last workday prior to the 2-week July shutdown. Following the shutdown, the order-entry bill- ing system was scheduled to go on line. However, with respect to payroll it does not appear that the system had been turned over for preliminary action to place that process on the computer, a step then scheduled for Sep- tember. 3 9 As indicated, I have little doubt the order-entry billing system, when placed on line on July 13, was expected to render obsolete the functional element of Phillips' previ- ous job. In support of the defense, Gary Smith claims, that on consultation with Ron Hinkle, the latter recom- mended that Pat Rehrig, a former payroll clerk, who was skilled in segments of computer operation, be re- tained as the sole employee in data processing. 4° Hinkle recommended that Phillips be let go, commenting "she really did not make any effort to learn any other job [sic] in make any effort to learn any other job in the depart- ment." 4 ' In addition, Hinkle recommended that Elaine Meleski, a keypunch operator who was hired to work on a temporary basis, be laid off. Shortly before her termination, Phillips, on June 11, was given a business-as-usual, annual evaluation by Hinkle. Her undenied testimony establishes that she at that time was informed that her work was good, that she did not make many errors or need assistance with her job, and that her record for absenteeism and lateness "was excellent." 4 2 33 The facts bearing on the staged out adaptation of the new System 34 to various accounting systems appears to suggest that there would be a need for a ugh volume of keypunch work during the period after June 26, in connection with data accumulated via the July inventory and in ultimately placing the payroll system on line It is also noted that the work previously performed by Phillips included responsibility for manual operations in connection with a segment of the order-entry billing system. As of June 26, even if the need for her skills and experience re- mained, it is clear that if all went as expected, functionally her position was destined for elimination after the July shutdown. On the other hand, underlying her separation was on assumption by management that the newly devised system would be functionally effective after going on line, or m other words, no emergency would arise that would require stop-gap manual performance of order-entry until the validity of the new program was proven through sustained operations. 40 Rehrig was skilled in the operation of computers and was capable of performing some programming. There was evidence that Rehng was also among those who wore a union button. When, and for how long, she did so was not developed on the record. In any event, the special skills that Rehng possessed would have insulated her from layoff no matter what the degree of her union activity. 41 There is no indication that Phillips was encouraged or afforded an opportunity in this regard 42 See G.C. Exh 11. KEYSTONE LAMP MPG. CORP. 643 On June 26, Phillips was informed of her discharge by Gary Smith, in the presence of John Lasky. According to Smith she was told that "her particular job had been eliminated . . . we didn't have anymore work for her, and she was *being laid off at the time." When Phillips charged that she was being laid off because of her union activity, this was denied by Smith who indicated "this is what the order entry system has done to the company and you're particularly [sic] function that you were doing has been eliminated."'" Phillips was told at that time that her layoff was permanent. However, as matters turned out the treatment ultimate- ly extended in her case suggested that Respondent was not rigidly bound to the view that it had no place for those whose jobs were eliminated by the new computer system. Thus, about 1 month after the election on August 20, Phillips was recalled. According to Glover, he intervened and recommended her recall because of her considerable service with the Company and because a vacancy emerged by virtue of a resignation. On recall, she was not placed in the tabulating or data processing department, but was first assigned to the main office where she performed miscellaneous clerical functions, in- cluding proofreading, filing, and teletype for a 6-week period. At the end of that period, she was assigned to production control and continued to work in that area as a computer terminal operator.44 c. Jeanette Eckhart Jeanette Eckhart was hired in March 1978 as a time- keeper. At the time of her layoff, however, she was a payroll clerk. Her reclassification to payroll clerk took place in 1980 when Pat Rehrig, the incumbent in that job, was sched- uled for maternity leave. Rehrig began training Eckhart in October 1980. Eckhart did not formally assume her new position until January 1, 1981. Eckhart was among the clericals who made the initial contact with Union Representative Al Cavalla. She signed an authorization card, attended union meetings, and most significantly, wore the various union buttons including a relatively large pin of 2-1/4 inch diameter that in highly visible lettering dubbed her a "VOLUN- TEER ORGANIZER."45 Lasky and Smith acknowl- edged that they were mindful, at an early stage in the campaign, that Eckhart was a protagonist of the Union. Respondent's defense is that the layoff of Eckhart "was based solely on the impact of the new System 34 computer."'" Two weeks earlier, Eckhart, on June 11, had received her annual evaluation. 47 Furthermore, nei- 43 The foregoing is based on the credited testimony of Gary Smith. 44 The only evidence bearing on her postrecall work history seemed at odds with testimony that Phillips was rehired to fill a vacancy, Nonethe- less, it remains a possibility that Glover's testimony was accurate in this respect, and Respondent shall be given the benefit of doubt. However, the record fails to suggest that Phillips was any more competent to per- form office functions or to operate a computer terminal after her layoff, than she was prior thereto. 45 See G.C. Exh. 8(a). 45 See R. Br. 23. 47 See G C Exh. 16. ther the functions nor skills of the payroll clerk had been outmoded or displaced by the production control, order- entry billing, or any other system to be placed on line within reasonable proximity of her layoff. Nonetheless, as I understand Respondent's testimonial explanation for her layoff, Eckhart was "bumped" out of her position as payroll clerk by her predecessor in that position, Pat Rehrig. According to the testimony of Gary Smith and Ron Hinkle, the latter recommended replacement of Eckhart with Rehrig, because Rehrig did not have enough to do, and was an experienced computer techni- cian, who was familiar with the language used by the System 34 and had engaged in some programming on the new equipment. Accordingly, it was recommended that Rehrig be retained as the "all around more capable indi- vidual." Nonetheless, Smith, who according to Respond- ent, "thought Eckhart should have the job," testified concerning his deliberations concerning Hinkle's recom- mendation as follows: MR. BERACQUA: Did you argue for Ms. Eckhart, or did you just agree with Mr. Hinkle's choice when he asked for that, between Rehrig and Eck- hart? MR. SMITH: I couldn't argue with Ron. I knew he was right. I felt very badly, because at the time that Pat Rehrig left for pregnancy leave I was under the impression she was not coming back. She was going to start a family and not come back to work. We had three timekeepers at the time, two timekeepers. One would fill in as a floater. The two timekeepers were Jennie Eckhart and Joanne Le- vandusky, and Anita Zinggeler filled in for them and knew the job. Of the three I picked Jeannie as the best one and the one that I thought would do the best job out of the three. It was a natural step up from a timekeeper up into a payroll clerk's posi- tion. And I chose Jeannie for that job. I recom- mended her for it, and all during this time she was having a rough time of it with Kern who was re- viewing her work. When Pat Rehrig came back to work, she felt insecure about it. She didn't know where she stood at the time, and I reassured her that, Jeannie, this your job. You have it, we will find other work for Pat. And now it was time that I had to make some hard decisions based on recom- mendations by the managers to me. But I knew that Ron was giving me the best rec- ommendation. Pat was an all around more capable individual. I had a responsibility to the company to make that—to go with that recommendation. But I did feel like hell, because I was really backing Jean- nie on this payroll clerk's job all the way. But I did decide to go with that recommendation. On his own testimony, it is clear that Smith, in allegedly accepting Hinkle's recommendation, had gone back on his word to Eckhart. Furthermore, despite his expressed concern for Eckhart, he also elected not to reclassify Eckhart to her original position as timekeeper. His expla- nation for this appears below: 644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD No, there was no other positions [sic] available at the time. With Jeannie, she was a former timekeep- er. The decision between Jeannie and Pat, it was just the right business decision to go with Pat. With Jeannie, I compared Jeannie with the timekeepers and thought about transferring her back into being a timekeeper, which means that one of the other time- keepers would have had to go. But at the time they were set in their positions. They both had more time than Jeannie did in the jobs, and we still had the payroll application to transfer over to the new system. And at the time we believed that we would eliminate the timekeep- ing position with a new data collection system that was being installed for payroll purposes. So if I would have transferred her over to timekeeping, it would have been a matter of three or four months down the road and I would have had to lay her off later.48 From the foregoing, it is apparent that the action taken with respect to Eckhart involved a reversal of form. She had received assurances that she would be retained as payroll clerk even if Rehrig returned from maternity leave. It is also apparent from the evidence that in the position of payroll clerk, Eckhart survived a rocky be- ginning, including a personality conflict with Office Manager Kern. Later the quality of her performance as payroll clerk began to show progress. Indeed, Gary Smith himself testified that on the day of the layoff he mentioned to Eckhart "that she was really starting to learn her job." d. John Gellis Gellis was hired in September 1978. At the time of his layoff, he was employed as a shipping clerk under the immediate supervision of Keith Cebrosky, who reported to Horace Brobst, the director of the shipping operation. The duties of Gellis included various clerical functions, including the matching of existing production to orders and assisting other clericals in typing bills of lading and manifests. He also maintained a filing system. Gellis signed a union card and attended at least one union meeting, However, unlike the other alleged discri- minatees, he did not wear a union button, or otherwise openly manifest union support. Furthermore, according to his own testimony, as early as May 1, he was aware that as a plant clerical, he had been declared ineligible to vote in the ensuing election.49 42 Smith's reasoning in this latter regard did not pan out. As of the date of the instant heanng, the original timekeepers remained m Respond- ent's employ Also noteworthy N an inconsistency between Smith's testi- mony in this regard and the finding of the Regional Director in his Deci- sion and Direction of Election, dated July 2, 1981, p. 3, based on evi- dence developed at a hearing on April 29 and 30, that the duties of "timekeepers" were to be modified but not eliminated. See G C Exh. 3. It is also noted that a temporary employee, Meleski, was recalled to per- form keypunch work on October 7. However, after keypunch was elimi- nated, Meteslu worked 4 hours a day entenng payroll information on the CRT screen and making adjustments to payroll under the tutelage of Pat Rehrig. Eckhart was not offered recall when this opportunity arose 42 I reject the representation by the General Counsel that "at the time of his discharge, it was still unknown whether or not Gel's would be in the bargaining unit." I am aware of the finding made by the Regional As was true of Jeanette Eckhart and Betty Lou Phil- lips, Gellis received his regular employment appraisal on June 11, 1981. At that time, his strong points were listed in the area of cooperation, quality of work, and job knowledge. His weak points and criticism were limited to shyness, fear of making errors, and reluctance in seek- ing assistance of supervision. The appraisal form of Gellis included notations concerning Gellis' complaints concerning his wage rates in relation to both Gayle Pope, another clerical, and an unnamed newly trained auditor. 5° Furthermore, in the course of the evaluation interview, Brobst stated that following the July shut- down, he would receive a raise.51 It is also noted that Gellis testified credibly and with- out contradiction that in mid-April, his immediate super- visor, Cebrosky, informed him that he had been instruct- ed by Preston Thomas to tell Gellis ". . . that even after the computer did come in, that there would be 90 per- cent chance that I would still have a job." According to Respondent, "Gellis was laid off by the company be- cause his key punching job in the shipping department had been eliminated by the System 34 computer." 52 I have no doubt that a significant and preponderant seg- ment of the duties performed by Gellis were eliminated under the new system. In addition, I also believe that it absorbed other duties previously performed on a manual basis by other clericals in the shipping department. As for the selection of Gellis, it appears that three clericals were assigned to his department; namely, Gellis, Linda Schuler, and Gayle Pope. Brobst testified that in early or mid-June Smith informed Brobst that a cutback was necessary in his department. Brobst, who had antici- pated that a substantial amount of work would be elimi- nated by the computer, claims to have previously decid- ed to layoff Gellis, for reasons set forth below: MR. BERACQUA: Who did you decide on? MR. BROBST: I had decided on Mr. Gellis. MR. BERACQUA: And can you tell us why? Mn. BROBST: Yes. There are three people work- ing in the shipping office: Linda Schuler, John Director after the discharge of Gellis in the Decision and Direction of Election. See G.C. Exh. 3, p 3 Nonetheless, this findmg is not necessari- ly inconsistent with the clear, unambiguous testimony of Gellis, which was left to stand unexplained on this record as follows MS. LOPEZ-HENRIQUEZ Were you eligible to vote in the election on July 20? MR GELLIS: No. MS. LOPEZ-HENRIQUEZ. Why not? MR. GELLIS: Because at the hearing they had ruled that I was in- eligible because I was plant clerical and not office clerical JUDGE HARMATZ: Now, when was that determination made? Was that determination made pursuant to agreement of the parties at the R-case heanng? MR. GELLIS. Yes. JUDGE HARMATZ So that would be sometime m April, at the end of April—at least by May first, you already knew that you would be inehgible to vote in that election? MR GELLIS Yes. The above segment of the transcript appears with corrections by me. The changes relate solely to nonsubstantive matters 5° See G.C. Exh 15 51 The above is based on the credited, uncontraclicted testimony of Gelhs 52 See R Br 26. KEYSTONE LAMP MFG. CORP. 645 Gellis and Gayle Pope. Because of the way we are structured there with our supervision, if someone is missing or if someone is out for any reason you have to have someone to take over the duties, cer- tain responsibilities there to deal with the people. Gayle Pope was the person who we had used in that respect several times, and she did a very good job. I felt that Gayle was potentially management material, and she had proven that by being aggres- sive in the past. Whereas on the other hand, Mr. Gellis was very shy and timid and just, in my opin- ion, could not work with the people on the floor. That was my opinion. MR. BERACQUA: You said that Ms. Pope filled in or substituted for a supervisor. Can you explain that? MR. BROBST: Yes. You have to understand the different job titles there. Gellis was primarily cleri- cal. Gayle Pope worked with the card file and in- ventory system whereby she would deal with the people on the floor constantly working with the lift operators, not being their immediate supervisor, but she had to deal and work with them. They respect- ed her and worked with her. At times when someone was missing, she would serve as the dock supervisor when someone was missing. MR. BERACQUA: How old is Ms. Pope? Mn. BROBST: I'm not exactly sure. I think she is around the mid 30's or somewhere in there. I'm not really sure. I would judge her to be that. BERACQUA: The recommendation, then, that you gave M. Smith in early to mid-June, or if you recall it, was who? Mn, BROBST: I told him that I wanted to retain Gayle Pope for the reasons that I just gave, and that if anybody had to leave it had to be Gellis, No. 1. . „ . .11UUGE HARMATZ: How about Schuler? MR. BROBST: Linda Schuler was a long time em- ployee who filled in for the man who does all the routing of the orders, who was also a salaried em- ployee. When he was out on vacation or reserve duty which he had twice a year, she would fill in for him 4. Concluding analysis regarding alleged discrimination As heretofore indicated, there is no reason to question the fact that computerization of production control and the anticipated adaptation of the order-entry billing to the System 34 forbode an elimination of jobs. Nonethe- less, this fact does not end the inquiry. For the allega- tions of discrimination herein require assessment of whether Respondent would have elected to avoid lay- offs, and to defer cost savings by reducing the work force over a period of time on the basis of attrition, had the alleged discriminatees not engaged in organizational activity. In this respect it is noted that Respondent's economic defense is interposed in the context of a strong prima facie case to the effect that office clericals Abner, Eck- hart, and Phillips were singled out for discrimination. The elements of timing, knowledge, and animus combine in their cases persuasively to suggest that their layoffs were interwoven into an overall campaign of intimida- tion designed to assure a defeat of the Union at the polls. Thus, the appropriate unit consisted of 22 employees. By virtue of the layoffs, the voting group was substantially reduced under circumstances unambiguously prejudicial to the organizational effort. For Ahner, Eckhart, and Phillips were known union activists, who on a continu- ous basis openly manifested their union support. There was no doubt of their sentiment from beginning to end. The continuity with which they wore union buttons amounted to conduct that drew attention, if not the rath, of management representatives on several occasions. Respondent's union animus is evident on a broadened scale through other conduct as well. Most telling to the instant analysis was the reaction to the Union by Re- spondent's highest ranking official at the Slatington plant, Walter Glover. Thus it took only a few days for Glover to respond personally to the Union's initial thrust. His several meetings with employees included ses- sions as early as March 25 and 30, during which he per- sonally delivered hard hitting, though legitimate, antiun- ion speeches stressing the precarious competitive posture of the Company. Glover argued against union represen- tation by exalting present benefits enjoyed by the cleri- cals, while warning that the Union could call strikes but not prevent layoffs. He even went so far as to voice the opinion that employees who sign union authorization cards "signed away their rights." Beyond that, however, Glover's zeal to influence em- ployees carried his discourse into an area that seriously beclouds the defense. Thus, at the antiunion meeting of March 26, Glover discussed the effects of computeriza- tion, an issue that furnished substantially, if not entirely, the initial impetus for unionization. The commitment per- sonally expressed by Glover at that time is difficult to reconcile with the layoffs of the three office clericals. In this regard, Glover stated as follows: Now, another point I want to bring up. Seniority, job security, the computer, I made references to this the other day. We are a company [sic] with a heart. Now, we have reached a point in production con- trol where we no longer needed Wilma. She could go. We no longer needed a Bobby Scott, he could have gone. So I said no. These people have tenure with this Company, they have time with the Com- pany. We find a place for them. We put them into other jobs. We'll find, we'll train, we'll retool for these people to fmd a place for them. Reathie, I'm very concerned about you, you've got 25 years with the Company and you know here you see your job may be possibly disappearing, but I don't want you to have insecurity. I'm gonna, you're not gonna be hurt, I'm gonna find some damn place for you. But don't take that power away from me. 646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD This view was carried forth by Ron Hinkle, at least with respect to keypunch, when, at the preelection hear- ing held on April 29 and 30, he testified as follows: Q. And you said that Reathie Ahner was a key punch operator, you have Rehrig as a key punch operator, and Elaine Ahner? A. Right. Q. Okay, that's the three? A. And, Elaine Meleski—well, she's a part-time. Yes, you're right. Q. Now, those are three full-time permanent key punch operators; correct? A. Yes. Q. You said that when you have the new system functioning, key punching is eliminated? A. That's right. Q. What's going to happen to those three people? A. We are going to try to find other positions for these people, as far as I understand. Q. Is it the current plan to retain them in the data processing department? A. No. Q. No. So, they will no longer be in the data- processing department? A. No. Q. But the company will attempt to fmd them other positions? A. Yes. Q. And you don't know where? A. No. Q. Who does know that, do you know? A. No, I don't know. Q. No final plans have been made, yet? A. No. Consistent with the foregoing there is no evidence that at any time prior to June 5, 53 a single office clerical at Slatington was terminated because his or her job had been eliminated.54 In contrast with treatment accorded Ahner, Eckhart, and Phillips, as stated by Glover on March 26, layoffs had been avoided when the System 34 was placed on line to handle the production control function in January 1981. In this regard, Glover named two employees who no longer were "needed" at that 53 I am not unmindful of testimony to the effect that Ahner had been told in April that there was a possibility that she would be laid off in June or July but definitely in August. Although the matter is not free from doubt, on balance, it is concluded that the clear assurances afforded by Respondent's president, Glover, ought be given primacy over the speculation by his "lieutenants" 54 The ternunation of Gellis presents a distinct issue. He, like Quality Inspector Glen Shoff, was not within the clerical unit and it does not appear that the policy expressed by Glover on March 26 concerning Job security applied to those outside the voting group Furthermore, it is my conclusion that the overt support of the Union manifested by Ahner, Eckhart, and Phillips constituted a contimung thorn to Respondent, and unlike Gellis, who did not wear union insignia, who did not otherwise openly proclaim his sentiment, and who was known to be ineligible to vote in the election, Respondent was plainly on notice that the three office clericals were unwavering votes for union representation. In short, though Gellis might have been a suspected union adherent, his case lacks the attributes of chscnmmation deemed controlling with respect to the office clericals. I shill dismiss the 8(a)(3) and (1) allegations based on the layoff of Gellis. time, going on to state that a place was found for them and they were put in other jobs. Glover underscored the lengths to which the Company would go to avoid layoffs by stating: "We'll find, we'll train, we'll retool for these people to find a place for them." Going on to describe the Company as possessed of "a heart" and one that would treat employees fairly, Glover's assurances were in no sense conditioned on the availability of work. The only limitation was his plea that the employees not take this "power away." The defense offers no explanation reasonably tending to reconcile its position in June that continued employ- ment would depend on work availability, on the one hand, and Glover's message to employees in March that the System 34's threat to office clericals would be ab- sorbed without impairing their job security. Why this re- versal, and just who made the decision to do so is a matter left open by the Respondent's evidence. On the other hand the assurance against layoff and Glover's plea that employees not remove his authority to make good thereon were registered prior to the appearance of union buttons. Later, however, Ahner, Eckhart, and Phillips defiantly and on a regular basis used such insignia to openly manifest their prounion sentiment until the date of their terminations. Their conduct in that regard was a direct betrayal of Glover's March 26 appea1 55 that they not "take that power away." Indeed, the terminations were not inconsistent with the proclivity suggested by Glover's remark to Darlene DeLong on the day of the election to the effect that union supporters "had hurt him for the last time." In the light of his prior comments concerning job se- curity and personally conveyed union animus, it is not surprising that Glover's testimony sought to mitigate his role in connection with the June layoffs. Thus, Glover denied that he was present in the plant during June and July." And although further denying that he participat- ed in the decision concerning who would be laid off, he claims to have been informed in this respect as "the deci- sions were made." By implication, Respondent thereby was in a position to place responsibility for the reversal of Glover's announced policy in other unidentified man- agement representatives. However, I believe Glover's in- volvement was far greater. As the highest ranking man- agement official at Slatington, and having laid his own record for fairness on the line 57 in professing concern to employees for their job security, I am convinced that, contrary to his testimony, Glover, if not the architect, was directly involved in deliberations both to effect the June layoffs, and regarding who would be included therein. The Spector of discrimination also appears in Respond- ent's action with respect to postlayoff vacancies. Al- though Phillips was reinstated after the unfair labor prac- 55 The depth of Glover's animus toward such activity is evident through his admitted inability to tolerate the wearing of prounion insignia within the confines of his office 56 It is clear, however, that he was present on July 20, the day of the election, at least long enough to coercively interrogate Darlene DeLong. 51 In his March 30 speech adverted to his "track record" reflecting that he had ". . . run a pretty damn fair company." KEYSTONE LAMP MFG. CORP. 647 tice charges were filed, Elaine Ahner and Jeanette Eck- hart were passed over during this period. Instead, in Oc- tober, Respondent recalled Elaine Meleski to perform keypunch work. The latter had less service with the Company than Ahner, who as will be recalled had also been trained in keypunch operations. Furthermore, Me- leski, who had also been laid off on June 26, previously was considered merely as a temporary, part-time employ- ee. After her recall, however, Meleski was removed from keypunch, and without affording Eckhart recall, she was trained to enter payroll data on a CRT screen under scrutiny of Pat Rehrig. In a similar vein, Respond- ent hired Bonnie Hewitt on October 5 to perform gener- al office duties, for which Abner and Eckhart could qualify. Hewitt had not worked for Respondent for 4 or 5 years. According to Gary Smith, Hewitt was hired on a recommendation of Barbara Meinhart, a supervisor. Smith claims that he accepted the recommendation be- cause Meinhart knew what had to be done in the main office and felt that Hewitt could do the job. Smith's testi- mony was unsubstantiated and suspect. There is no indi- cation that the job for which Hewitt was employed in- volved unique capabilities or expertise. The preference afforded Hewitt at the expense of Eckhart and Ahner not only reflects adversely on Respondent's basic deci- sion to effect the layoffs, but also is deemed to be an ex- tension of the unlawful discrimination against them Also tending to support the view that the continuing union activity on the part of Almer, Eckhart, and Phil- lips furnished the supervening cause for Respondent's change in attitude towards job security, is evidence sug- gesting that the System 34 remained in a transitional state as of June 26. Thus, the possibility is suggested that the layoff might well have been premature, when consid- ered in the light of Respondent's assigned justification. In this connection, it is noted that consistent with Glover's March 26 assurance, Elaine Ahner was not terminated when her job was eliminated, but on March 30 was simply assigned for training in a different classification. Smith explained this action as due to the fact that "we were in the middle of the transferring from one type of computer setup into a new computer system. . . we had a lot of things in the state of flux, and we needed person- nel from time-to-time to do. . . the ordinary type work that was necessary to help in the transition." However, Respondent's own evidence suggests that the transition, as of June 26, had not concluded and indeed, that at least with respect to the payroll area "things" remained in a state of "flux." At that time, the order-entry billing system was 2 weeks away from actual operation, and was yet to be tested on a functional basis as an online system. In addition, payroll was not scheduled to go on line until September 1981. Indeed, it does not appear that the computer had been released for preliminary payroll applications as of June 26. Furthermore, Smith described the payroll application as "involved" because the data collection system required information to be collected di- rectly from the production floor. In this regard, Reathie Abner initially performed the keypunch in connection with payroll, but later was transferred to a different area, whereupon Meleski was recalled in October as her re- placement. At this point, payroll data remained to be keypunched, and after this work was exhausted, Meleski continued to enter payroll information on a CRT screen and terminal. The totality of the circumstances, suggest that the transitional period, and the work generated by the transition between systems was in an indefinable, un- predictable state at the time of the June layoffs. For the above reasons, parol testimony to the effect that, at the time of their layoffs, no work was available to which Ahner, Echkart, and Phillips could be assigned was not believed. In any event, even were I to accept such evidence, the management policy declared by Glover on March 26 to the effect that layoffs would be avoided was not conditioned on the availability of work. On the totality of the credible proof, I remain convinced that Glover abandoned this stance in the case of Ahner, Eckhart, and Phillips out of frustration with their con- tinuing overt manifestation of union support. It is con- cluded that the System 34 afforded a convenient pretext for confirming the point made earlier on March 30 by Glover himself that "no union can prevent a layoff" and as an object lesson reemphasizing his warning of March 26 that employees not take "away" his "power" to be "fair." Accordingly, it is found on balance that Respond- ent has failed by credible proof to demonstrate that Ahner, Eckhart, and Phillips would have been laid off "in the absence of protected conduct." Wright Line, 251 NLRB 1083, 1089 (1980). Hence, I find that Respondent violated Section 8(a)(3) and (1) of the Act by laying off Ahner on June 5 and by taking similar action with re- spect to Eckhart and Phillips on June 26. IV. CASE 4—RC-14652 As is accurately stated in the Acting Regional Direc- tor's "Supplemental Decision on Objections to Election," the objections to employer conduct interfering with free choice in the July 20 election are coextensive with cer- tain alleged unfair labor practices set forth in the instant complaint. Furthermore, by virtue of findings heretofore made, the subject matter of Objections 4, 5, and 6 (dis- crimination) and Objection 13 (interrogation) have been substantiated as unfair labor practices within the meaning of Section 8(a)(1) and/or (3) of the Act. Accordingly, the objections are sustained and based thereon it shall be recommended that the election be set aside.58 V. THE REMEDY A. The Alleged 8(a)(5) Violation 1. Preliminary statement The General Counsel in the face of the Union's failure to receive majority designation in the course of the elec- tion conducted on July 20, urges nonetheless that Re- spondent be found to have violated Section 8(a)(5) and (1) of the Act on the strength of authorization cards exe- cuted by a majority of the employees. In this regard, the General Counsel seeks to bring this case within NLRB v. 58 As I have concluded that the evidence does not substantiate the un- lawful conduct specified in Objections 1, 2, and 3 These objections are hereby overruled. 648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Gissel Packing Co., 395 U.S. 575 (1969), where the Su- preme Court authorized the issuance of a bargaining order if necessary to remedy collateral unfair labor prac- tices in cases falling within either of the following classi- fications: 1.Where an employer's unfair labor practices are "outrageous," "pervasive," and "of such a nature that their effects cannot be eliminated by the appli- cation of traditional remedies with the result that a fair and reliable election cannot be held," or 2. Where an employer's unfair labor practices are "less pervasive," but have the "tendency to under- mine the majority strength of the Union and impede election processes," "if . . . the possibility of eras- ing the effects of past practices and of insuring a fair election (or a fair rerun) by the use of tradition- al remedies, though present, is slight and . . . em- ployee sentiment once expressed through cards, would, on balance be better protected by a bargain- ing order. . . ."59 2. The appropriate unit The complaint alleges that the following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All office clerical employees employed by the em- ployer at its Slatington, Pennsylvania facility, in- cluding key punch operators, order entry clerks, computer operator, payroll clerk and time record- keepers, and excluding production and maintenance employees, shipping clerks, production control em- ployees, time study technicians, managers, guards and supervisors as defined in the Act. In its duly filed answer, Respondent denied this allega- tion. The denial, however, was unsupported by any evi- dentiary presentation. On the other hand, the above-de- scribed unit was found to be appropriate after a hearing in the Decision and Direction of Election issued by the Regional Director on July 2, 1981. The election conduct- ed on July 20, 1981, was held in the unit, and it does not appear that the Employer sought review of the Regional Director's unit determination. Accordingly, under estab- lished Board policy, the Regional Director's finding is entitled to conclusive weight in this proceeding. See Sec- tion 102.67(0 of the National Labor Relations Board Rules and Regulations. See also Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). On this basis, it is con- cluded that the unit set forth above constitutes the ap- propriate collective-bargaining unit herein. 3.The request for recognition By letter dated April 6, 1981, the Union, over signa- ture of Nicholas Sava, requested recognition as the ex- clusive bargaining representative of a unit of office cleri- cal and technical employees. Although the unit defined therein was not coextensive with that ultimately deemed 59 395 U.S. at 614-615. appropriate, the demand for bargaining was legally effec- tive. Pilot Freight Carriers, 223 NLRB 286, 304 (1976). 4. The Union's majority As of April 6, the appropriate collective-bargaining unit set forth above consisted of 22 employees. Credible testimony on this record shows that as of that date the Union possessed authorization cards that validly mani- fested a clear, unambiguous designation of the Union on the part of at least 13 employees." Accordingly, I find that as of April 6, the Union had been designated by a majority of Respondent's employ- ees in the appropriate unit. 5.The refusal to bargain The findings heretofore made attest to the fact that Respondent during the critical preelection period en- gaged in serious unfair labor practices including coercive interrogation, instructing employees to remove union in- signia, requesting that employees refrain from attending union meetings and threatening unspecified reprisals if they chose to do so, threatening that Respondent might go out of business if the Union were designated, stating that an employee might be terminated because of her union support, implying that benefits would be forthcom- ing if the Union were defeated, soliciting employee grievances under conditions implying that management would take favorable action on them, and terminating, for discriminatory reasons, three known supporters of the Union. These unfair labor practices not only depleted the ranks from which the Union surely would be expect- ed to draw support, but signaled to all employees in the appropriate unit the lengths to which Respondent would go to thwart organization. Moreover, the Respondent's unlawful use of questionnaires conveyed to every member of the collective-bargaining unit the implied message that management policy would be reshaped to conform to their criticism on the Union's demise, and amounted to an unfair labor practice that would continue to stir the imagination of employees even after applica- tion of conventional Board remedies. In sum, this combi- nation of unlawful intimidation, discrimination, and in- dustrial bribery, sufficed to neutralize the effectiveness of conventional Board remedies to create an atmosphere in which it could be considered likely that a fair election could be held in the future. Accordingly, it is found that Respondent by refusing to recognize the Union as the ex- clusive representative of employees in the appropriate unit on and after April 6, 1981, violated Section 8(a)(5) and (1) of the Act. The complaint further alleged that Respondent violat- ed Section 8(a)(5) and (1) of the Act by unilaterally im- plementing the evaluation system without notifying and 60 This group mcluded William Balliet, Barbara Jean Skrapits, Pat Rehr's, Jacqueline Ruch, Deanna Gombert, Dom DeFuso, Anita Zing- geler, Joanne Levandusky, Melissa Horvath, Pat Eckhart, Betty Lou Phillips, Elaine Almer, and Jeanette Eckhart As there is no basis for challenging the effectiveness of these designations, and as they represent a clear majority of employees m the appropriate unit as of April 6, It is unecessary and I do not pass on the cards of Reathie Ahner, Cynthia Babyak, and Mary Rodenbach KEYSTONE LAMP MFG. CORP. 649 first consulting and negotiating with the Union. This alle- gation relates to the appraisal forms that have been pre- viously discussed in connection with an 8(a)(1) allega- tion. As the appraisal forms would affect conditions of work and hence constitute a mandatory subject of collec- tive bargaining, Respondent, further violated Section 8(a)(5) and (1) of the Act by unilaterally implementing the new appraisal form, without first negotiating and bar- gaining with the Union. A similar allegation with respect to the distribution of Respondent's work rules is dis- missed on the ground that the evidence failed to disclose that Respondent thereby effected any change in prexist- ing conditions of work. B. General Remedial Recommendations Having found that Respondent has engaged in certain unfair labor practices, it shall be recommended that Re- spondent cease and desist therefrom and take certain af- firmative action deemed necessary to effectuate the poli- cies of the Act. Respondent's overall unlawful campaign included a comprehensive pattern of intimidation that not only threatened the existence of employee rights, but reflected a proclivity to violate the Act to a degree war- ranting a broad cease-and-desist order. Accordingly, it shall be recommended that Respondent be ordered to cease and desist from "in any other manner" interfering with, coercing, or restraining employees in the exercise of their Section 7 rights. See Hickmott Foods, 242 NLRB 1357 (1979). Having concluded that Respondent unlawfully and for discriminatory reasons laid off and failed to reinstate Elaine Ahner and Jeanette Eckhart, it shall be recom- mended that Respondent offer each of these employees immediate reinstatement to her former position, or if not available, to a substantially equivalent position and make each whole for any loss of earnings she may have suf- fered by reason of the discrimination against her by pay- ment of a sum of money equal to the amount they nor- mally would have earned from the date of discharge to the date of a bona fide offer of reinstatement, less net in- terim earnings during that period. It having been found that Respondent discriminatorily laid off Betty Lou Phillips on June 26, 1981, it shall be recommended that Respondent make her whole for earn- ings lost from June 26 to her reinstatement on August 20, 1981, less net interim earnings. All backpay due shall be computed on a quarterly basis in the manner prescribed in F. W Woolworth Co., 90 NLRB 289 (1950), and shall include interest as speci- fied in Florida Steel Corp., 231 NLRB 651 (1977).61 CONCLUSIONS OF LAW 1. The Respondent Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Petitioner-Charging Party is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. Respondent independently violated Section 8(a)(1) by coercively interrogating employees concerning union 65 See generally Isis Plumbing Co., 138 NLRB 716 (1962). activity, by requesting that employees not attend union meetings, by threatening them with unspecified reprisals if they attend union meetings, by instructing an employee to remove union insignia, by soliciting employee griev- ances under conditions implying that they will be re- dressed if the Union were rejected, by implying that ben- efits would be forthcoming if the Union were rejected, by informing an employee that another had been termi- nated and that she too would get the axe because of her union activity, and by threatening to go out of business if the Union were designated. 4. Respondent violated Section 8(a)(3) and (1) of the Act by, on June 5, 1981„ terminating Elaine Abner, and by, on June 26, 1981, terminating Betty Lou Phillips and Jeanette Eckhart, to discourage union activity. 5. All office clerical employees employed by the Em- ployer at its Slatington, Pennsylvania facility, including keypunch operators, order entry clerks, computer opera- tor, payroll clerk and time recordkeepers, and excluding production and maintenance employees, shipping clerks, production control employees, time study technicians, managers, guards and supervisors as defmed in the Act constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 6. The Union, since April 6, 1981, is, and has been at all times material, the designated representative of the majority of the employees in the unit described above and is the exclusive bargaining representative of the em- ployees within the meaning of Section 9(a) of the Act. 7. Respondent, since April 6, 1981, has refused to bar- gain in good faith with the Union as the exclusive repre- sentative of employees in the unit described in paragraph 5 above with respect to their rates of pay, wages, hours of employment, and other terms and conditions of em- ployment. 8. The Respondent violated Section 8(a)(5) and (1) of the Act, by about June 11, 1981, implementing a formal evaluation system for appraising job performance of its employees without first notifying and bargaining in good faith with the Union as exclusive representative of em- ployees in the aforedescribed appropriate unit. 9. The unfair labor practices found above have an affect on commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6 2 ORDER The Respondent, Keystone Lamp Manufacturing Cor- poration, Slatington, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating employees concerning union activity. 62 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 650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) Requesting that employees not attend union meet- ings, and instructing them to remove union insignia. (c) Threatening employees with reprisals if they attend union meetings. (d) Telling an employee that union activity led to an- other employee's discharge and could lead to termina- tion. (e) Soliciting grievances of employees under condi- tions implying that they would be redressed in the event that the Union is defeated, and otherwise promising ben- efits to discourage employees from supporting the Union. (1) Threatening to go out of business if the Union were designated. (g) Discouraging membership in a labor organization, by laying off, refusing to reinstate, or in any other manner discriminating against employees with respect to their wages, hours, or tenure of employment. (h) Refusing to bargain in good faith by declining to recognize the Union as majority representative of em- ployees in the appropriate collective-bargaining unit as their exclusive representative and by unilaterally chang- ing a condition of work without notification or prior consultation and bargaining with the Union. (i) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Elaine Ahner and Jeanette Eckhart immedi- ate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision. (b) 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. (c) On request, bargain with the Union as the exclusive representative of employees in the unit defined below, respecting rates of pay, wages, hours, and other terms and conditions of employment and if an understanding is reached, embody it in a signed, written agreement. The appropriate unit within the meaning of Section 9(a) of the Act consists of the following: All office clerical employees employed by the em- ployer at its Slatington, Pennsylvania facility, in- cluding key punch operators, order entry clerks, computer operator, payroll clerk and time record- keepers, and excluding production and maintenance employees, shipping clerks, production control em- ployees, time study technicians, managers, guards and supervisors as defmed in the Act. (d) Post at its facility in Slatington, Pennsylvania, copies of the attached notice marked "Appendix."'" Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Re- spondent'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 customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) 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 RECOMMENDED that the election con- ducted on July 20, 1981, in Case 4—RC--14652 be set aside. 63 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."