Camvac International, Inc.

816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Camvac International, Inc. and Local 445, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL- CIO. Cases 2-CA-18209, 2-CA-18524, and 2- CA-18617 April 29, 1988 DECISION AND ORDER BY CHAIRMAN STEIPHENS AND MEMBERS BABSON AND CRACRAFT On May 13, 1983, Administrative Law Judge Winifred D. Mono issued the attached decision. The Respondent and the General Counsel filed ex- ceptions and supporting briefs, and the Respondent filed a brief in answer to the General Counsel's ex- ceptions. 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 2 only to the extent consistent with this Decision and Order. The Respondent and the General Counsel have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law Judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. At flu. 102 of her decision, the judge referred to employee Michael Cea's written statement as G C. Exh. 19, whereas it was received in evi- dence as R Exh. 19. Additionally, in sec V, 13,a, the judge stated that employee Terrano testified that he attended the 8 a m meeting on July 6, 1982, whereas it is clear that the meeting in question occurred on January 6, 1982. These inadvertent errors are insufficient to affect our decision. In sec V,3, of her decision, the judge stated that employee Totals testi- fied that he was the "only one" who asked employee Johnston if other employees had signed authorization cards. The record indicates, howev- er, that Totels testified, in response to a question by the General Counsel, that he was "the one" who asked Johnston if everyone else had signed At fn. 132 of her decision, the judge stated that an examination of the Respondent's new sick leave policy (G C. Exh 20) failed to disclose any provision permitting employees to borrow against future sick leave. However, the minutes of the October 2, 1981 "Camvac Employee Works Committee" meeting (G.0 Exh. 15) indicate that the Respondent an- nounced that the sick leave policy "had been changed" and that an addi- tional stipulation was adopted that provided that "any employee who is sick for three or more continuous days and submits a doctor's note attest- ing to the sickness will be allowed to use sick leave entitlement of future quarters within the year" These errors also are insufficient to affect our decision. 2 In adopting the judge's conclusion that the Respondent did not vio- late Sec 8(a)(3) and (1) of the Act by discharging employee Sunday, we disagree with the General Counsel's contention that Sunday was asserted- ly discharged not for failing to report for work on July 9, 1981, but only for failing to call in his absence. It is clear from the record that the Re- spondent asserted both reasons and that the judge's findings encompass both reasons. In adopting the judge's conclusion that the Respondent violated Sec 8(a)(1) by conducting an employee attitude survey in which it solicited grievances and promised benefits, we disavow the judge's factual finding in sec V,12,a of her decision that Schneible, the Respondent's vice presi- dent and controller, testified that at employee meetings held in early Oc- tober 1981 management officials promised to give consideration to mat- 1. The judge found that the Respondent violated Section 8(a)(1) of the Act by announcing and/or granting five new benefits—a new wage structure, a revised sick leave policy, a revised disciplinary policy, a profit-sharing plan, and a health club ben- efit—within a few months after the Union's demand for recognition on June 24, 1981. The Re- spondent has excepted to these findings. We find merit in the Respondent's exceptions only regard- ing the Respondent's announcement of a revised sick leave policy. The Respondent purchased its facility in Brew- ster, New York, in 1977. In the next several years, the Respondent granted annual wage increases and instituted various changes and improvements in benefits and working conditions. In 1980, after the Respondent became a subsidiary of Bowater, N.A., a British corporation, changes and improvements continued to be made as the Company's fmancial picture improved. In January 1981 the Respondent established and held the first monthly meetings of the Camvac Employee Works Committee (CEWC), the purpose and objectives of which were to include formulation of policy and employ- ee consultation prior to wage reviews and changes in working conditions.3 ters raised in the employees' responses to the attitude survey The record indicates that Schneible, in response to a question by the General Counsel as to whether management promised to look into employee safety com- plaints, merely stated, "We said we would look into various topics." The record further indicates, however, that the Respondent's September 23, 1981 memo to employees stated that it would set up meetings in October "to review the survey and propose actions to try and make improvements in areas where there has been criticism" In our view, this memo shows that the Respondent in fact promised to make changes based on employ- ee complaints raised in the survey In adopting the judge's conclusion that the Respondent violated Sec. 8(a)(1) by Supervisor Richard Cea threatening plant closure to employ- ees, we rely solely on the judge's implicit crediting of the mutually cor- roborative testimony of employees Sinclair and Johnston regarding the critical statement made by Supervisor C,ea In adopting the judge's conclusion that the Respondent violated Sec. 8 (a)(1) by paying employee Johnston advanced sick leave pay because he circulated the employees' petition disavowing support for the Union, we rely particularly on the fact that Johnston's initial iequest for such an ad- vance was denied by the Respondent's officials only a few weeks before he mentioned it to the Respondent's attorney, Spelfogel, on January 6, 1982. Further, in adopting the judge's conclusion that the Respondent violated Sec. 8(a)(1) on January 6, 1982, by inducing and enconragmg its employees to sign a petition disavowing their support for the Union, we agree that the evidence shows that the Respondent did more than merely inform employees of their right to revoke authorization cards and that it gave more than a minimal amount of assistance In this regard, we addi- tionally rely on the fact that on January 6, 1982, Spelfogel advised John- ston that he would be able to receive the advanced sick leave pay, the payment of which violated Sec. 8(a)(1), as indicated above. We note that our finding that the Respondent violated Sec 8(a)(1) by inducing and en- couraging its employees to disavow their support for the Union is not affected by our reversal of the judge's finding that the Respondent violat- ed Sec. 8(a)(1) by making certain statements about the Union at meetings with employees on January 6, 1982 (see discussion at sec 3, infra) 3 The judge found, and we agree, that the Respondent violated Sec 8(a)(2) by dominating the CEWC, a labor organization within the mean- ing of Sec 2(5), and rendering it unlawful assistance and support. 288 NLRB No. 92 CAMVAC INTERNATIONAL 817 Between January and June 1981, after obtaining employee input at the CEWC meetings, the Re- spondent made improvements in, inter alia, holiday pay, mileage allowances, and the cafeteria. It also formalized written policies in the areas of griev- ances, safety, discipline, transfers, and call-ins, and it established a safety committee and a suggestion box. Generally, these changes were announced to employees through the CEWC. Other proposed changes, such as in overtime policy and shift changes, were discussed but not implemented. Of the five benefits granted after June 1981 that are in issue here, all except the health club benefit were discussed at CEWC meetings before implementa- tion. The union campaign began with the solicitation of authorization cards on June 22, 1981. 4 On June 24, the Union sent a mailgram to the Respondent in which it asserted majority status and called on the Respondent to meet for the purpose of negotiating a collective-bargaining agreement. The Respondent made no response to the Union. At the next CEWC meeting, which occurred on July 2, the Respondent announced that it had received a tele- gram from the Union and that it would wait for the Union to take some action and for the National Labor Relations Board to contact the Respondent. According to the minutes of the July 2 CEWC meeting, management representatives indicated the following regarding the benefits at issue here: that the proposed sick leave policy would be typed and circulated for employee comments and would become effective January 1, 1982; that, in response to an employee's suggestion at that meeting regard- ing the disciplinary policy, they would look into the possibility of substituting a 3-month period for the 1-year period that warnings currently remained on file; that the Company was "working to devel- op a pay grade structure with review once a year" and it was "anxious to get the grade system into effect"; and that Bowater had arrived at a proposed/profit-sharing plan for the Respondent. Regarding the proposed profit-sharing plan, the Respondent gave employees a general idea of how it would work and stated that, if approved, the plan would go into effect by January 1, 1982. The Respondent's annual 2-week shutdown com- menced the next day. On the employees' return to work on July 20, the Respondent held individual conferences with each employee in which either its executive vice president, vice president controller, or plant manager 5 explained the new job grading 4 All dates are in 1981 unless otherwise indicated. Michael Davies, William Schneible, and Steve Maughan, respective- ly. system, which was effective immediately, and dis- tributed proposed sick leave and disciplinary poli- cies. 6 The cover memorandum for the proposed policies requested employee comments and advised that, if made part of company policy, the discipli- nary policy would become effective September 1 and the sick leave policy would become effective January 1, 1982. At the CEWC meeting on July 31, the Respondent announced that the savings/- profit-sharing plan would go into effect on January 1, 1982, "depending on IRS approval." Further, in a memorandum to employees on September 23, the Respondent announced that in order to promote physical fitness it would pay one half of the annual membership fees (up to $50) of a health club to any employee who desired to join one, and that it had arranged for a corporate membership at a new rac- quetball club, which would entitle employees to a 15-percent discount on the annual fees and to a waiver of the initiation fee if they joined by Octo- ber 1. The judge found that the Respondent, in an- nouncing and/or granting these five benefits, was motivated by antiunion considerations. Although noting that the Respondent had granted benefits to employees prior to the arrival of the Union, she found that the Respondent previously had not made such major changes all at one time or an- nounced such changes in individual meetings with employees. 7 Moreover, based on her reading of the CEWC minutes, she found that no decision had been made on the salary structure as late as the May 29 meeting and that there was no final deter- mination on the disciplinary or sick leave policies prior to the July 2 meeting. Additionally, the judge found that there was no decision to have a profit- sharing plan prior to June 24, based on the June 1981 correspondence between representatives of Bowater and the Respondent and on the lack of documentation to show written approval of the plan by the Respondent's board of directors. Thus, she rejected the Respondent's argument that it had decided to grant these benefits prior to the Union's demand. Rather, she found that these benefits had been discussed for months without resolution and that it was only with the arrival of the Union that the decisions to grant the benefits actually were made. Thus finding that the Respondent did not rebut the presumption that the granting of benefits 6 The new wage structure resulted in wage increases for at least 50 percent of the employees; no employee's wages were reduced. The pro- posed sick leave policy provided for additional sick days based on senior- ity. The proposed disciplinary policy reduced the length of time that a warning notice remained in an employee's file from 1 year to 90 days The judge additionally stated, in this regard, "it is unusual for a cor- poration to act in such a manner" We do not rely on this statement. 818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD during an organizational campaign is unlawful, the judge concluded that the Respondent interfered with employees' Section 7 rights in violation of Section 8(a)(1). We agree with the judge that the Respondent violated Section 8(a)(1) by implementing a new wage plan or "job grading" system, granting a health club subsidy, and announcing and later im- plementing a profit-sharing plan and a modified dis- ciplinary policy. In so finding, based on the cir- cumstances, we infer improper motive and interfer- ence with employee Section 7 rights, absent an af- firmative showing of some legitimate business reason for the timing of the grant of the benefits. See Montgomery Ward & Co., 288 NLRB 126, 127 fn. 6 (1988). We find that the Respondent did not offer a persuasive business reason that would have demonstrated that the timing of the grant of bene- fits was governed by factors other than the union campaign. We recognize that the Respondent discussed the new wage plan, the disciplinary policy, and the profit-sharing plan at CEWC meetings prior to the Union's demand for recognition. We understand, too, that often employers in such situations are on the horns of a dilemma regarding whether they should still grant benefits that were already dis- cussed with employees prior to the union activity. Here, the Respondent discussed a new wage struc- ture and a new disciplinary policy with employees at CEWC meetings for 4 or 5 months without any action being taken. Once presented with the Union's recognition demand, however, the Re- spondent implemented the new wage structure and circulated the proposed new disciplinary policy within 1 month. Therefore, and for the other rea- sons relied on by the judge, we agree with her conclusion that the Respondent has failed to prof- fer a legitimate business reason for announcing and implementing these benefits when it did. Thus, we infer improper motivation arising from the timing and context of its conduct. See Walter Garson, Jr. & Associates, 276 NLRB 1226, 1240-1241 (1985). We therefore find that the Respondent violated Section 8(a)(1) regarding these benefits. Regarding the profit-sharing plan, we fmd that the Respondent has similarly failed to show that it would have announced implementation of the plan when it did had there been no union activity. In this regard, the evidence indicates that no final de- cision had been made on the plan prior to the Union's recognition demand. A June 8 memo from Bowater's director of human resources, Northrup, to the Respondent clearly indicated that no final decision had been made and that Northrup intend- ed to have further discussions with the Respondent about the plan. Further, the Respondent presented no evidence showing that Bowater's board of di- rectors had approved the plan, despite undisputed testimony that approval by the board of directors was necessary and must have been written down "somewhere." We also note that there is no evi- dence that the Respondent had either sought or re- ceived approval from the Internal Revenue Service for the plan. Thus, on July 31 the Respondent an- nounced the plan at a time when it had not yet re- ceived approval from either Bowater's board of di- rectors or the IRS. Accordingly, we agree with the judge that the Respondent's announcement of the profit-sharing plan violated Section 8(a)(1). Regarding the health club benefit granted in Sep- tember 1981, it is undisputed that this benefit was not raised at any CEWC meetings prior to the Union's demand. In early 1981, Schneible asked Davies to institute a health club benefit, but Davies responded, "[W]e'll think about it, let's hold off a while." In August or September 1981, a nonunit employee informed Schneible that a racquetball club was opening in the area and was offering cor- porate memberships at a 15-percent discount. The Respondent also learned that the new club was of- fering discounts to individuals who joined before October 1. Davies decided that because not all em- ployees would want to join the racquetball club, the Respondent would give each employee $50 to use in conjunction with a program involving physi- cal fitness. On September 23, the Respondent an- nounced that it would pay one-half of the annual membership fees (not to exceed $50) to any em- ployee who wanted to join a health club, and that it had made arrangements with the racquetball club for a 15-percent discount for corporate member- ships. Although the Respondent contends that its im- plementation of the health club benefit was consist- ent with discussions within management prior to the Union's demand for recognition and with the Respondent's benefit history, it is clear that the Re- spondent had not decided to grant the health club benefit prior to the Union's recognition demand. Accordingly, we find that the Respondent violated Section 8(a)(1) by granting the health club benefit in September 1981. Contrary to the judge, however, we find that the Respondent did not violate Section 8(a)(1) by an- nouncing on July 2 that a proposed new sick leave policy would be effective January 1, 1982. At the CEWC meeting on March 20, an employee stated that employees did not have enough sick days and suggested that sick days be prorated based on length of service. The Respondent then decided to conduct a survey on the sick leave policies of other , CAMVAC IN 1 ERNATIONAL 819 plants in the area. At the April 24 CEWC meeting, the Respondent stated that a proposal granting more sick days based on seniority would be pre- pared for the next CEWC meeting. At the May 29 meeting, Schneible went over the proposed sick leave policy. The proposed policy allocated sick leave by quarters, and some employees indicated that they thought that such a quarterly system was not fair to employees who were ill for an extended period of time. The plant manager suggested allow- ing a carryover of sick days from a previous year until March 31 of the new year. Schneible stated that suggestions and criticisms of the proposal should be directed to the personnel director. At the July 2 CEWC meeting, Schneible announced that the proposal "would be typed and circulated for comments, to be effective January 1, 1982." The proposal was circulated to employees for com- ments on July 20. The proposal, as circulated, al- lowed for a carryover of sick days from a previous year until March 31 of a new year. Based on the above, we find that the Respondent had committed itself to proposing a new sick leave policy prior to the Union's demand for recognition and that, therefore, its circulation of the policy on July 20 did not violate Section 8(a)(1) Since April 24 the Respondent had moved steadily along in im- plementing the new sick leave policy, and we are satisfied that the Respondent would have circulated the new policy when it did regardless of the union activity. Accordingly, we reverse the judge's find- ing that the Respondent violated Section 8(a)(1) by announcing and granting new sick leave benefits. 2. The judge found that the Respondent unlaw- fully interrogated employee Johnston. We agree with the judge's conclusion but apply a different analysis. In October 1981 Johnston brought a copy of the first unfair labor practice complaint to the plant to show to the other employees. He gave the copy to employee Wood. When Wood failed to return the document for several days, Johnston suspected that Wood had given it to management, and the two men engaged in a heated discussion over the inci- dent. According to Johnston's credited testimony, a week or two later his supervisor, John Rozimus, told him that Plant Manager Maughan claimed that Johnston was circulating union literature in the plant. Johnston denied the accusation, and Rozimus said he would arrange a meeting between Johnston and Maughan so Johnston could resolve the prob- lem. During the meeting between Johnston and Maughan, Maughan asked Johnston if he had passed out union literature, if he had signed an au- thorization card, and if he had passed out cards to other employees. Johnston admitted that he had signed a card, but denied engaging in the other ac- tivities. The judge found, based primarily on credibility, that Maughan unlawfully interrogated Johnston at that meeting. In so finding, the judge rejected the Respondent's contention that Johnston volunteered the information, noting that employees generally do not volunteer such information, particularly when they are aware that management actively op- poses unionization, and that there was no evidence that employees had told Johnston that they had lost interest in the Union at that time. The judge further found that the interrogation was not de minimis in light of the Respondent's overall con- duct. We agree with the judge's conclusion that Maughan interrogated Johnston in violation of Sec- tion 8(a)(1), but in so doing we apply the analysis set forth in Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985), which issued subsequent to the judge's decision. In Rossmore House, the Board stated that interrogation of an open and active union supporter violates Sec- tion 8(a)(1) when, under all the circumstances, the interrogation reasonably tends to restrain, coerce, or interfere with employees' rights guaranteed by the Act. The Board also outlined factors that may be considered in applying this test: the background, the nature of the information sought, the identity of the questioner, and the place and method of inter- rogation. Subsequently, in Sunnyvale Medical Clinic, 277 NLRB 1217 (1985), the Board stated that the analysis set forth in Rossmore House ap- plied to all interrogations, not only those involving open and active union supporters, and that whether the employee involved was an open and active union supporter was an additional relevant factor in evaluating the total context of the alleged inter- rogation. Applying the Rossmore House test to the instant situation, we find that Maughan's interrogation of Johnston was coercive. In so finding, we note the repeated and specific nature of Maughan's ques- tioning that concerned the extent of Johnston's union activity and the absence of any lawful pur- pose behind Maughan's questions. Moreover, there is no evidence that at the time of the interrogation Johnston was an open and active union supporter. Indeed, Johnston testified that when he was solicit- ing authorization cards, he stayed with employees while they signed because he did not want manage- ment to know what he was doing. We also note that Maughan, as plant manager, was a high-level official who could affect Johnston's employment. Under these circumstances, we conclude that 820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Maughan's interrogation of Johnston had a reason- able tendency to restrain, coerce, or interfere with employee rights in violation of Section 8(a)(1) of the Act.8 3. The judge found that the Respondent inde- pendently violated Section 8(a)(1) by making cer- tain statements about the Union at meetings with employees on January 6, 1982. The Respondent ex- cepts to this finding. We find merit in the Respond- ent's exceptions.° The record indicates that on January 6, 1982, the Respondent conducted group meetings for each of its three shifts. The meetings took place during working hours. Each meeting had the same format, with the Respondent's executive vice president, Davies, and its attorney, Spelfogel, speaking on several topics and answering employees' questions. One of the topics covered by Davies was a review of the Company's history and the benefits that had been granted to employees. In this regard, Davies remarked that every time the Company granted benefits, the Union filed unfair labor practice charges. Davies further told the employees that the Respondent would continue to run the business and review and grant benefits as it always had, with or without the Union. On another topic, Davies told the employees that the Union was interested only in dues, initiation fees, and pension funds, and Spel- fogel called attention to the publicity surrounding various criminal investigations of the Teamsters' pension funds and to their officials' reported con- nections to organized crime. The judge found that the Respondent, by stating that every time it granted benefits the Union filed charges, conveyed the impression to employees that the Union was preventing the Respondent from granting benefits, thereby placing responsibil- ity on the Union for a loss of benefits. She further found that by stating that it would continue to op- erate as it always had, with or without the Union, the Respondent conveyed the message that regard- less of whether the Union became the employees' bargaining representative the Respondent would continue to make all decisions, thereby implying that it would be futile to join the Union. Regarding the Respondent's statements about the Teamsters, the judge found that these statements were intend- Member Cracraft agrees that under all the circumstances the interro- gation of Johnston would reasonably tend to restrain, coerce, or interfere with rights guaranteed by the Act. However, because there is no evi- dence to show that Johnston was an open and active union supporter at the time of the interrogation, she would not apply the Rossmore House test. Thus, Member Cracraft does not rely on Sunnyvale Medical Clinic, 277 NLRB 1217 (1985), in finding this interrogation violated Sec. 8(a)(1). 9 As discussed above at fn. 2, we adopt the judge's finding that at these January 6, 1982 meetings, the Respondent violated Sec. 8(aX1) by induc- ing and encouraging its employees to sign a petition disavowing their support for the Union. ed to convey to employees that the Union would seek nothing for them, but would misuse their pen- sion moneys, and that thereby the Respondent denigrated the Union in violation of Section 8(a)(1). We find, contrary to the judge, that the forego- ing statements fall clearly within Section 8(c) of the Act, which provides: The expressing of any view, arguments, or opinions, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit. The Respondent's statement that every time it granted benefits the Union filed charges did, in fact, contain a measure of truth, at least for the 6 months prior to the January meetings. In any event, the statement did not, in our view, contain any express or implied threat of loss of benefits but was merely an expression of views or arguments protected under Section 8(c). The Respondent's re- lated statement that it would continue to run its business and to review and grant benefits as it always had similarly was neither a threat nor promise but rather was permissible campaigning within the Respondent's Section 8(c) rights of ex- pression. 1° Further, we find that the Respondent's statements about the Teamsters were "privileged expressions of opinions which, however false or unsubstantiated, did not rise to the level of interfer- ence, restraint, or coercion prohibited by Section 8(a)(1) of the Act." 11 Accordingly, we conclude that the Respondent did not violate the Act by making any of the above statements, and we re- verse the judge's findings to the contrary. 4. The judge found that the Respondent violated Section 8(a)(3) and (4) by discharging employee Johnston on February 10, 1982. Contrary to the judge, we fmd that the Respondent would have discharged Johnston even absent his union activi- ties, and therefore the discharge did not violate the Act. On February 9, 1982, Johnston was involved in a car accident with the Respondent's personnel di- rector, Andry, in the company parking lot. John- ston and Andry were yelling at each other when the police arrived. Deputy Sheriff Ross apparently 10 See, e.g., Mt. Ida Footwear Co., 217 NLRB 1011, 1014 (1975). 11 North Kingstown Nursing Care Center, 244 NLRB 54, 65 (1979). Moreover, the Board has held that Sec 8(c) protects an employer's char- acterization of a union that employees are capable of evaluating for them- selves. See, e.g , Nestle Co., 248 NLRB 732 (1980), enfd. mem. 659 F.2d 252 (D C. Cir. 1981). CAMVAC INTERNATIONAL 821 took a statement only from Andry. 12 Later that day, Andry filed a harassment complaint against Johnston based on language he allegedly used during their argument. Ross returned to the Re- spondent's facility to arrest Johnston. In the course of making the arrest, Ross found a bag of marijua- na in Johnston's pocket. The next day, Maughan informed Johnston that he was being discharged because of his possession of marijuana in violation of company policy.' 3 The judge found, contrary to the Respondent's contention, that at the time of the discharge it be- lieved Johnston was antiunion," that the Respond- ent was aware at that time that Johnston was still prounion and was assisting the Board in its investi- gation of the Union's charges. The judge found it unlikely that the Respondent trusted Johnston's statements to Spelfogel on January 6, 1982, in view of Spelfogel's testimony that he thought Johnston was seeking a bribe. The judge further found that Spelfogel did not trust Johnston based on the fact that on January 18, 1982, 3 days after a new charge was filed by the Union, Spelfogel had Johnston sign an affidavit stating that the Respondent had not been involved in the circulation of the petition on January 6, 1982. Based on the Respondent's knowledge, as well as the evidence demonstrating the Respondent's general antiunion animus, the judge found that the General Counsel had estab- lished a prima facie case of discrimination. Regarding the Respondent's Wright Line" de- fense that Johnston would have been discharged in any event because of his violation of a company rule, the judge found that the circumstances of the discharge, such as the harassment complaint and the physical search during the arrest, were "suspi- cious"" and that the Respondent's discharge policy was not absolute. In this regard, the judge noted that in May 1981, Finstead, a less senior em- ployee than Johnston, was caught smoking in a nonsmoking area but was merely given a 2-week suspension, although the disciplinary policy provid- ed that the punishment for such an infraction 12 The judge found that Ross was a "friend" of Andry The Respond- ent contends that the record shows that Ross had met Andry once pnor to this incident We find merit in the Respondent's contention The record reveals that Ross testified that he met Andry 3 years before at a restaurant when he "knew the fnend that she was with" 13 The Respondent's disciplinary policy, dated February 1981, provid- ed that "smoking in 'non-smoking' areas" and "using or bnnging onto the company premises alcoholic beverages or controlled substances" would "merit immediate discharge" 14 The Respondent assertedly based this belief on Johnston's state- ments to Spelfogel at their January 6, 1982 meeting about his intent to circulate an antiunion petition 15 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U.S 989 (1982). 16 The judge drew an adverse inference from the Respondent's failure to call Andry as a witness. would be "immediate discharge." The judge found that the Respondent showed no such leniency to the more senior Johnston because of his union and other protected activities. While we agree with the judge's finding that the General Counsel established a prima fade case of discrimination, we reverse the judge's finding that Johnston's discharge violated the Act. Contrary to the judge, we draw no adverse inference from the Respondent's failure to call Andry as a witness, particularly because the facts surrounding the car accident were not implicated in Johnston's dis- charge. Nor do we find it suspicious that Andry waited several hours before filing charges against Johnston, as it is not unreasonable for a person to need some time to decide whether to initiate such an action. Further, we find no evidence to indicate that Deputy Sheriff Ross did not follow usual police procedures in his arrest of Johnston, particu- larly because Ross was aware that Johnston had a criminal record. Regarding the judge's discussion of the Finstead incident to support her statement that the Respond- ent's policy of discharging employees who violated certain rules was not absolute, we find that the Fin- stead incident does not support the theory that the Respondent treated Johnston differently because of his union activities. Finstead was a relatively new employee who was working out of his normal work area when he was caught smoking by Maughan in the coating room, which contained some highly flammable machinery. Given the cir- cumstances, Maughan explained that he felt a 2- week suspension would be an appropriate punish- ment. At the next CEWC meeting, however, em- ployee representatives protested Maughan's lenien- cy and demanded strict enforcement of the Re- spondent's "immediate discharge" policy in the future. The Respondent's representatives at the meeting agreed, and the next infraction involving the "immediate discharge" policy was Johnston's possession of marijuana in February 1982. We fmd that the agreement at the CEWC meeting to en- force strictly the "immediate discharge" policy un- dercuts using the Finstead incident to support a disparate treatment finding. An employer's decision to enforce its rules more stringently in the future is within its discretion and does not suggest discrimi- natory treatment. Tapco Products Co., 253 NLRB 998, 1001 (1981). Thus, we find that the Respond- ent has met its burden under Wright Line by dem- onstrating that Johnston would have been dis- charged because of his possession of marijuana even in the absence of his protected activity. Ac- cordingly we reverse the judge's finding that the 822 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent violated Section 8(a)(3) and (4) of the Act by discharging Johnston. 5. The judge found that the Union had obtained valid authorization cards from a majority of the employees at the time of its initial demand for rec- ognition on June 24, 1981. The judge further found that the Respondent had committed serious unfair labor practices that made it impossible to hold a fair election and that, therefore, a bargaining order was warranted. In its exceptions, the Respondent contends that the Union did not represent an un- coerced majority on June 24 and that, to the extent any violations are found, a bargaining order is not warranted to remedy them. We adopt the judge's finding that the Union had obtained valid authorization cards from a majority of the employees as of June 24, 17 and we further agree with the judge that a bargaining order is warranted to remedy the Respondent's extensive and pervasive unfair labor practices.18 In determining whether a bargaining order is warranted to remedy the Respondent's misconduct in this case, we apply the test set out in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). There, the Court identified two categories of cases in which a bargaining order would be appropriate. The first involves "exceptional cases" marked by unfair labor practices that are so "outrageous" and "per- vasive" that traditional remedies cannot erase their coercive effects, with the result that a fair, election is rendered impossible. 'The second category in- volves "less extraordinary 'cases marked by less pervasive praatices which nonetheless still have the tendency to undermine majority strength and impede the election processes." The Supreme Court stated that in the latter situation a bargaining order should issue when the Board finds that "the possibility of erasing the effects of past practices and of ensuring a fair election . . . by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order." Id. at 613, 614-615. We find that the Respondent's unfair labor practices fall into at least the second category. 17 We agree with the judge that statements made by a card solicitor regarding the number of employees who had signed cards did not invali- date the cards solicited. See the Board's discussion of this issue m Mont- gomery Ward & Co., 288 NLRB at 128-129. 18 Having found that the Umon had obtained authorization cards from a majority of the employees at the time of its recognition demand and that the Respondent had committed serious unfair labor praetices con- temporaneously with its admitted refusal to bargain, the judge found that the Respondent's obligation to bargain commenced on the date it re- ceived the Union's demand Thus, she further found that the RespOnd- ent's changes in benefits, which were made subsequent to the Union's recognition demand and without notice to or consultation with the Union, violated Sec. 8(a)(5). We agree with the judge that the Respond- ent violated Sec 8(a)(5) by its unilateral changes in benefits. On learning on June 26 that there was union ac- tivity at its plant, the Respondent immediately em- barked on an antiunion campaign designed to dis- courage its employees from supporting the Union. Within a month of receiving the Union's demand for recognition, the Respondent granted or an- nounced three new benefits: a new wage structure (under which most employees received wage in- creases and no employee received less pay), a re- vised disciplinary policy, and a profit-sharing plan. Within another month, the Respondent granted a new health club benefit and conducted an attitude survey among employees. The attitude survey so- licited employee grievances and, by a memoran- dum to employees dated 23 September, the Re- spondent promised to review the survey and to try to make improvements in areas in which there had been criticism. Furthermore, at all material times, the Respondent discussed matters relating to terms and conditions of employment with the CEWC, an employee committee that the Respondent unlawful- ly dominated and assisted. The above conduct by the Respondent was clearly a "deliberately em- barked upon. . . course of action designed to con- vince the employees that their demands would be met through direct dealing with respondent and that union representation could in no way be ad- vantageous to them. Obviously such conduct must, of necessity, have a strong coercive effect on the employees' freedom of choice, serving as it does to eliminate, by unlawful means and tactics, the very reason for a union's existence." 19 Also, in Septem- ber or early October, Supervisor Cea threatened employees with plant closure. Further, on January 6, 1982, the Respondent induced and encouraged its employees to sign a petition disavowing their support for the Union. Further unfair labor practices committed by the Respondent include the interrogation of employee Johnston by the Respondent's plant manager in Oc- tober 1981, and the payment of advanced sick leave pay to Johnston in January 1982 in return for his circulating the employee petition disavowing support for the Union. It is clear that the Respondent's unlawful con- duct struck at the very heart of the employees' or- ganizational efforts. The Respondent repeatedly suggested by its actions that it was to the employ- ees' advantage to deal directly with the Respond- ent regarding improvements in benefits and work- ing conditions. Moreover, because it is not the Board's policy to require that unlawfully granted 19 Teledyne Dental Products Corp., 210 NLRB 435 (1974) (bargaining order found proper remedy for unlawful solicitation of grievances with promises of rectification) 4 CAMVAC INTERNATIONAL 823 benefits, such as those given by the Respondent here, be rescinded, they are particularly lasting in their effect on employees and difficult to remedy by traditional means. 2° Further, threats of plant closure are likely to have a lasting inhibitive effect on the work force.21 In light of the violations found here, we con- clude that the possibility of erasing the effects of the Respondent's unfair labor practices and of con- ducting a fair election by the use of traditional remedies is slight. Requiring the Respondent simply to refrain from such conduct will not eradi- cate the lingering effects of the violations. Corre- spondingly, it is not likely that an election would reliably reflect genuine, uncoerced employee senti- ment. We conclude that the employees' representa- tion desires expressed here through authorization cards would, on balance, be better protected by the issuance ofia bargaining order rather than by tradi- tional remedies. Although there has been a signifi- cant passage of time since ihe violations occurred, in light of the circumstances of this case, and par- ticularly the seriousness of the violations and their impact on the entire unit, to withhold a bargaining order here would reward the Respondent for its own wrongdoing. The passage of time, though re- grettable, is not a sufficient basis for denying a bar- gaining order. 22 Accordingly, we adopt the judge's recommended issuance of a bargaining order. ORDER The National Labor Relations Board orders that the Respondent, Camvac International, Inc., Brew- ster, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating its employees about their activi- ties on behalf of Local 445, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. (b) Threatening its employees with plant closure because they engaged in activities on behalf of the Union. (c) Soliciting grievances from its employees with the implied or expressed promise that those griev- ances will be remedied without a union. (d) Promising and granting benefits or improve- ments, such as a new wage plan, a revised discipli- nary, policy, a profit-sharing plan, and a health club benefit, or announcing such benefits or improve- ments in order to discourage its employees from 22 Impact Industries, 285 NLRB 5 (1987); Red Barn System, 224 NLRB 1586 (1978), enfd. 574 F.2d 315 (6th Or 1978.) 21 See Cartridge Actuated Devices, 282 NLRB 426 (1986); Thriftway Su- permarket, 276 NLRB 1450, 1451 (1985). 22 Quality Aluminum Products, 278 NLRB 338 (1986); Exchange Bank, 264 NLRB 822, 824 fn. 13 (1982). supporting the Union; provided, however, that nothing contained shall be construed as authorizing or requiring the Respondent to vary or abandon any benefit previously conferred. (e) Inducing or encouraging its employees to sign a petition disavowing their support for the Union. (f) Promising and granting benefits to employees to circulate a petition disavowing support for the Union. (g) Dominating, supporting, assisting, or interfer- ing with the operation and administration of Camvac Employee Works Committee or any other labor organization. (h) Recognizing or in any manner dealing with the Camvac Employee Works Committee or any reorganization or successor thereof, as the collec- tive-bargaining representative of its production and maintenance employees at its Brewster, New York facility. (i) Refusing to recognize and bargain with the Union as the exclusive bargaining representative of its employees in the appropriate bargaining unit set forth below. (j) Unilaterally changing terms and conditions of employment for its employees at its Brewster, New York facility without consultation with the Union and without affording it an opportunity to bargain about such changes. (k) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Withdraw all recognition from the Camvac Employee Works Committee as the representative of its employees at its Brewster, New York facility for the purpose of dealing with Camvac Employee Works Committee concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of work and completely dises- tablish Camvac Employee Works Committee as such representative; provided, however, that noth- ing in this Order shall require the Respondent to vary or abandon any wages, hours, or other sub- stantive benefits established as a result of discus- sions with Camvac Employee Works Committee, or to prejudice the assertion by its employees of any rights they derived as a result of such discus- sions. (b) On request, recognize and bargain collective- ly with Local 445, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO as the exclusive bargaining representative from on and after June 2.6, 1981, re- 824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD garding its Brewster, New York facility concerning wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The appropriate unit is: All regular full-time and all regular part-time production and maintenance employees of Camvac International, Inc., at its Brewster, New York facility but excluding all office cler- ical employees, professional employees, guards and supervisors as defined in the Act. (c) Post at its Brewster, New York facility copies of the attached notice marked "Appen- dix."23 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 24 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." APPENDIX A 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 interrogate our employees about their union activities. WE WILL NOT threaten employees with plant closure because they engaged in activities on behalf of the Union. WE WILL NOT solicit grievances from our em- ployees with the implied or expressed promise that these grievances will be remedied without a union. WE WILL NOT promise or grant benefits or im- provements, such as a new wage plan, a revised disciplinary policy, a profit-sharing plan, and a health club benefit, or announce such benefits or improvements in order to discourage employees from supporting the Union. However, nothing con- tained herein shall be construed as authorizing or requiring us to vary or abandon any benefits previ- ously conferred. WE WILL NOT induce or encourage employees to sign a petition disavowing their support for the Union. WE WILL NOT promise and grant benefits to em- ployees to circulate a petition disavowing support for the Union. WE WILL NOT dominate, support, assist, or inter- fere with the operation and administration of Camvac Employee Works Committee or any other labor organization. WE WILL NOT recognize or in any manner deal with the Camvac Employee Works Committee, or any reorganization or successor thereof, as the col- lective-bargaining representative of our production and maintenance employees at our Brewster, New York facility. WE WILL NOT refuse to bargain with the Union as the exclusive bargaining representative of our employees in the appropriate bargaining unit set forth below. WE WILL NOT make unilateral changes in terms and conditions of employment for our employees at our Brewster, New York facility without consulta- tion with the Union and without affording it an op- portunity to bargain about such changes. 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 withdraw all recognition from Camvac Employee Works Committee (CEWC), as the rep- resentative of our employees at our Brewster, New York facility for the purpose of dealing with CEWC concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of work and completely disestablish CEWC as such representative; provided, however, that nothing in the Board's Order shall require us to vary or abandon any wages, hours, or other sub- stantive benefits granted as a result of discussion with CEWC, or to prejudice the assertion by our employees of any rights they derived as a result of such discussions. WE WILL, on request, bargain collectively with Local 445, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, AFL-CIO, as the exclusive bargaining repre- sentative from on and after June 26, 1981, for our Brewster, New York facility regarding wages, hours, and other terms and conditions of employ- ment and, if an understanding is reached, embody such understanding in a signed contract. The ap- propriate unit is: , CAMVAC INTERNATIONAL 825 All regular full-time and all regular part-time production and maintenance employees of Camvac International, Inc., at its Brewster, New York facility but excluding all office cler- ical employees, professional employees, guards and supervisors as defined in the Act. CAMVAC INTERNATIONAL, INC. Joel E. Cohen, Esq. and Sandra M Grossfeld Esq., for the General Counsel. Evan J. Spelfogel, Laurence Brown, and Michael Brizel, Esqs. (Burns, Jackson, Summit, Rovins, Spitzer & FeIdes- man), of New York, New York, for the Respondent. David Kramer, Esq. (Leaf: Duell, Drogin & Kramer, P. C. of New York, New York, for the Charging Party. DECISION STATEMENT OF THE CASE WINIFRED D. MORIO, Administrative Law Judge. This case was tried before me on March 29-31, April 1, 2, 5, May 10-14 and 17-18, and June 2, 1982, at New York, New York, pursuant to various complaints issued by the Regional Director for Region 2. The initial complaint in this proceeding issued on September 30, 1981, and was based on an original charge and two amended charges filed in Case 2-CA-18209, by Local 445, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (Local 445). This complaint, in substance alleged that Camvac Internation- al, Inc. (Respondent or Company) violated Section 8(a)(1), (2), (3), and (5) of the Act by the following con- duct: dominating and interfering with the administration of Camvac Employee Works Committee (CEWC), a labor organization, and rendering to that organization unlawful assistance and support; suspending its employee, Gerald Sunday, on June 19, 1981, because he joined and assisted Local 445; by discharging its employee, Gerald Sunday, and refusing to reinstate him because he concer- tedly complained to Respondent about working condi- tions and about the work of CEWC, and because he joined, assisted, and supported Local 445; by failing and refusing to recognize Local 445 and bargain with it not- withstanding that Local 445 represented and uncoerced majority of Respondent's employees, and by implement- ing a new job grade/salary review structure, a new sick leave policy, and a new disciplining policy, all policies that granted additional benefits to its employees in order to induce its employees to abandon their support for Local 445, and without giving prior notice to Local 445 and affording it an opportunity to bargain about the changes. This conduct, the complaint alleges, precluded the holding of a fair election. The answer to this com- plaint, filed on October 6, 1981, basically denied the al- leged unfair labor practices. On December 16, 1981, the Regional Director, issued an amended complaint based on the original charge and three amendments to that charge. This complaint contained the allegations set forth above in addition to several new allegations pertaining to certain conduct by Respondent representatives including the following: soliciting grievances, promising increased benefits, and improved terms and conditions of employ- ment; threatening plant closure if employees continued to engage in activities on behalf of Local 445; interrogating employees about their activities on behalf of Local 445; creating the impression among employees that their ac- tivities on behalf of Local 445 were under surveillance; warning employees not to bring Local 445 literature to respondent premises, by instituting a program that pro- vided partial payment of fees in health clubs in order to induce employees to abandon their support for Local 445, and withot prior notice to a Local 445, and without affording Local 445 an opportunity to bargain about the changes. The answer filed to the amended complaint on December 24, 1981, basically denied the unfair labor practices and alleged three affirmative defenses: the charges that give rise to the complaints were untimely under Section 10(b) of the Act; CEWC was a labor orga- nization that represented a majority of respondent em- ployees and therefore Respondent was precluded from recognizing Local 445 and finally, assuming that Re- spondent had granted certain benefits, such conduct was required by the Act. On February 17, 1982, the Regional Director, issued an order consolidating cases and a con- solidated amended complaint. This consolidated amended complaint set forth all the allegations described above and added a new allegation based on a charge filed in Case 2-CA-18524 by Local 445. According to this new allegation, Respondent on January 6, 1982, through its agent, suggested, encouraged, and supported the circula- tion among its employees of a petition that stated, inter alia, that the employees no longer desired to have Local 445 represent them. The answer filed to this consolidated amended com- plaint on February 24, 1982, also basically denied all the alleged unfair labor practices and reiterated the affirma- tive defenses as set forth above. On March 8, 1982, the Regional Director, issued a complaint, based on a charge filed in Case 2-CA-18617 by Robert Johnston. This new complaint alleged, in substance, violations of Section 8(a)(1), (3), and (4) by the following conduct of Re- spondent's agent: implying that employees would reeeive benefits if they ceased to support Local 445; creating the impression, among its employees, that their activities for purposes of collective bargaining or other mutual aid and protection, including cooperating with the Board, were under surveillance by Respondent; granting its employee, Robert Johnston, a benefit for Johnston's participation in the circulation of an antiunion petition, discharging its employee, Robert Johnston, because of his activities on behalf of Local 445, and because he gave information to the Board in Cases 2-CA-18209 and 2-CA-18524. The answer filed to this complaint on March 15, 1982, again basically denied the allegations and alleged as an affirma- tive defense that Johnston was discharged for bringing il- legal drugs to the Respondent's premises in violation of company policy. On March 9, 1982, an order consolidat- ing cases was issued by the Acting Regional Director. During the hearing the General Counsel moved to amend the complaint to allege that the granting of a profit-sharing plan to employees constituted a violation 826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of the Act. The motion to amend the complaint was granted over Respondent's objections. The issue was liti- gated and briefed. All parties were given a full opportunity to participate in the proceeding, to introduce all relevant evidence, to cross-examine witnesses, to argue orally, and to file briefs. Both parties filed extensive briefs. FINDINGS OF FACT I. JURISDICTION Camvac International, Inc. (Respondent or Company) a Delaware corporation has maintained an office and place of business in Brewster, New York, where it is, and has been at all times material, engaged in the manu- facture and nonretail sale of metallized and coated plastic films and paper. Annually, the Respondent in the course and conduct of its business operations sells and ships from its facility products, goods, and materials valued in excess of $50,000 to points outside the State of New York. The parties admit, and I find, that Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION The parties admit, and I find, that Local 445, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehou- semen and Helpers of America (Local 445) is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. BACKGROUND OF THE RESPONDENT Respondent began its operation in the United States in 1976 and in 1977 it acquired its present facility from the McCordi Corporation. It appears that several of the em- ployees involved in the events in the instant case had been employed by the McCordi Corporation. In 1980 Respondent became a subsidiary of Bowater North America Corporation (Bowater N.A.). Bowater N.A. is part of Bowater Corporation, Ltd., a company based in England and that is apparently, an English corporation. The relationship of Respondent to Bowater N.A. and to Bowater Corporation, Ltd. is not entirely clear from this record. Michael Davies, Respondent's president, testified that Respondent "reports to Bowater in England but they owned [sic] by Bowater in the states." According to Davies, Respondent does "take" advice from Bowater N.A. but many decisions require the prior approval of Bowater Corporation, Ltd. before they can be imple- mented, particularly those matters that impact on the budget. The parties were in agreement that the following indi- viduals were management representatives and/or super- visors within the meaning of the act. E. Michael Davies—Executive Vice President William F. Schneible—Vice President-Controller Steve Maughan—Plant Manager Grace Andry—Personnel Director Chris Grant—Supervisor Richard Cea—Supervisor Hank Kreuzer—Supervisor IV. BACKGROUND OF EARLIER ORGANIZING EFFORTS A local of the International Brotherhood of Painters (Painters) began efforts to organize the Respondent's production and maintenance employees. The exact date this campaign began is unclear from this record, al- though Gerald Sunday, and alleged discriminatee, was one of the employees involved in the organizing efforts, and he testified that the efforts began some 3 to 4 weeks before an election was held involving the Painters on February 27, 1981. 1 The Painters lost the election and there were no further organizational activities until June 1981 when Local 445 began its organizing efforts. These activities will be discussed below. V. THE ALLEGED UNFAIR LABOR PRACTICES A. Camvac Employees Works Committee (CEWC) Michael Davies, Respondent's president, testified that the Company had had departmental meetings with em- ployees2 prior to the existence of CEWC, but in 1980, employees began to express dissatisfaction with these ir- regularly scheduled meetings and they complained about a lack of information concerning the many changes that were occurring during that year due to expansion.2 Davies claimed that as a result of these expressions of dissatisfaction he issued a memorandum, on December 22, 1980, to employees wherein he announced that regu- lar factory meetings would be held twice a month. 4 The memorandum contains the statement that the purpose of the meeting was to inform employees of the objectives of the Company and to provide a forum for both sides to state their complaints. The memorandum outlined the format of the meetings, stated that minutes would be taken, and set the date and time for the meetings. 5 In ad- dition, the memorandum directed the employees to choose a representative from each department to repre- sent them, and it stated that these representatives would be paid overtime for their attendance at the meetings. According to the memorandum, Michael Davies, Wil- liam Schneible, Steven Maughan, and Fran Gallagher also would be participants in the meetings. On January 19, 1981, an employee meeting was held on the Respondent's premises during working hours. It is unclear whether this meeting was held pursuant to the December 22 memorandum or was arranged under other circumstances. In any event, the minutes of this meeting are entitled, "Camvac Employees Work Committee Meeting" and the entire format for the meeting basically Michael Wood, another employee, assisted Sunday in his activities and Robert Johnston, the other alleged discnminatee, was the observer for the Painters at the election. 2 Company handbooks (G C Exhs. 111 and 112) contain the following statement, "grievances of a general nature should be raised at the regular production meetings" The record fails to reveal evidence of meetings other than these production meetings prior to January 1981 3 Respondent did not call employee witnesses regarding this assertion 4 R. Exh. 10 The memorandum is entitled, "Factory and Supervisory Meetings" It contains no reference to CEWC and it is the contention of the General Counsel that this memorandum does not relate to CEWC. 5 The first employee meeting was to be held on January 19, 1981. CAMVAC INTERNATIONAL 827 followed the outine contained in the December 22 memorandum. It appears that this was the first CEWC meeting and William Schneible testified that the decision to have such a committee was made by Michael Davies. As had been outlined in the December 22 memorandum, there were employees representatives present who were paid their regular pay for the time spent at the meeting.6 In addition, Davies, Schneible, Maughan, and Gallagher were present. Schneible prepared a document following the January 19 meeting, which was distributed to com- mittee members and that stated that the basic purpose of the committee was to involve employees in the develop- ment of the Company in several areas including griev- ance, safety, disciplinary policies, and to allow consulta- tion with employee representatives about employment conditions. 7 Schneible testified that he set the time and place for the meeting, called the _meeting to order, and was the "administrator of the meeting." Subsequent meetings, according to Schneible, followed the same gen- eral format.° The meetings were held in the company conference room during working hours and commenced with Schneible reading minutes from prior meetings, which minutes had been recorded by Fran Gallagher.'° Therafter, he opened the floor to discussion by the em- ployee representatives concerning grievances or sugges- tions arising in their respective departments. An examina. tion of several of the minutes of these meetings estab- lishes that Respondent's president, vice president, plant manager, and personnel director fully participated in all the discussions. 11 They also reveal that proposal policies relating to discipline and sick leave were drafted by Schneible and that surveys, on which policy changes were made, were conducted by the personnel director. There is no evidence that CEWC was incorporated under the laws of any state, had a constitution, by laws, officers, or collected dues. There also is no evidence of any meetings held by employees other than the monthly ones held with management. B. Local 445 Activities Robert Johnston, an alleged discriminatee, testified that in June 1981, around the middle to the end of that month, he met with Joseph Amita, a business representa- tive for Local 445. 12 He explained to Arnita that there had been an election in February 1981, which the Paint- ers had lost, and Amita advised him that there could not be another election for a year. Johnston testified that Arnita then gave him about 50 to 60 authorization cards for distribution to the employees and, according to John- 6 EmPloyee representatives not scheduled to work at the tune the meetings were held were paid at the overtime rate G C Esti 4. 8 Employees testified that Schneible was the chairman of the meeting 9 It appears Schneible was always present, but at subsequent meetmgs Davies and Maughan alternated It also appears that there was some con- sultation with employees about the time for future meetings. ston, he gave several cards to Gerald Sunday to distrib- ute to the employees." Johnston claimed that he began distributing the authorization cards about June 22, 1981, and that when he distributed the cards to the employees, he was "careful" to stay with the employee while the employee signed the card because he did not want man- agement to know what he as doing. 14 He claimed that he gave cards to employees on an individual basis and waited until the employee signed the card and returned it to him. He also claimed that he told the employees when he gave them the cards to read them because there could not be an election due to the fact that an election had been held only 4 months before. He distributed the cards on June 22 and 23, 1981. Johnston initially testified that he secured about 20 signed authorization cards on those 2 days. Subsequently, Johnston stated that eventually he returned 30 to 39 signed authorization cards to Amita on June 24, 1981, and he claimed 7 or 8 of those cards had been secured by Sunday. On June 24, 1981, Local 445 notified Respondent that it represented a majority of the employees and it de- manded recognition as the collective-bargaining repre- sentative." C. The Authorization Cards The parties stipulated that a production and mainte- nance unit was an appropriate unit and that on the day of the demand the total number of employees in the unit was 61. 16 An examination of the authorization cards es- tablishes that 27 authorization cards bear a June 22, 1981 date, 17 12 authorization cards bear a June 23, 1981 date," one has a June 24, 1 g81 date," and 3 have a July 16, 1981 date. 2° It is undisputed that Johnston secured the majority of the cards. He testified, as noted, that Sunday had secured seven or eight signed authorization cards. Johnston did not specify the individuals who al- legedly signed cards for Sunday, although he did claim that they were the night shift employees.21 Sunday, testified that he secured authorization cards from the employees who worked the night shift includ- ing Garry Ferguson, Michael Cea, Rodger Sequist, Mi- chael Gander, William Mitchell, Billy Somoskey, Kenny Lahart, and Michael Wood. Sunday claimed that he gave the authorization cards to the employees in the cafeteria at 7 a.m., which was the end of the shift. These employ- ees asked a few questions about what Local 445 could do for them and Sunday responded that the Union could secure better benefits for them. At the conclusion of his remarks, he observed the employees sign the cards, which he then collected and returned to Johnston. 22 The ii Sunday was Johnston's brother-in-law 14 The authorization card on its face states that the employee designat- ed the Union as its representative. 12 G.C. Exh. 18 16 G C. Exhs 83(a), (b), and (c). 10 Gallagher was subsequently replaced by Grace Andry It is undis- 12 G C. Exhs. 28, 32-35, 38-44, 50-62, and 68-69(a). puted that both held management positions, i.e., personnel director, al- though the title was not always precisely the same 18 G.C. Exhs. 29-31, 33, 19 GC.Exh 64. 36-37, 45-47, 49, 63, and 65. " GC Exhs 5-23. 12 According to Johnston, Sunday and another employee, Michael Wood, were also to meet with Arrata at Wood's apartment, but they failed to keep the appointment. 20 G C Exhs 48, and 66-67 21 At the time Sunday worked the night shift 22 The only one who did not sign at this point was Michael Wood. According to Sunday, Wood signed the card while at his machine. 828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cards are dated as follows: Kenneth Lahart, 6/22/81; Mi- chael Cea, 6/23/81; William Mitchell, 6/23/81; Garry Ferguson, 6/23/81; Jerry Sunday, 6/22/81; William So- moskey, 6/23/81; and Michael Gaader, 6/22/81. Sunday explained that the cards contained different dates, al- though all the men allegedly signed at the same time, be- cause the men were coming off a night shift that began on June 22, and ended on June 23, 1981. Michael Gaader was not called to testify. Ferguson, Cea, Sequist, Somos- key, and Mitchell all testified that it was Johnston who gave the card to them. The only employee who testified 'that he was given a card by Sunday was Tom Dillon and, according to Dillon, the authorization card was given to him on July 16, 1981, several days after Sunday had been discharged. The affidavit secured by the Board agent, from Sunday, during the investigation failed to disclose any mention of Sunday's solicitation of authori- zation cards from employees.23 Ferguson, Cea, Sequist, Somoskey, and Mitchell, as set forth above, testified that it was Johnston, not Sunday, who gave them the card to sign. Michael Cea testified that Johnston told him the signing of the card was the vote, there would be no election. Garry Ferguson stated that at the time he signed the card, either for the Paint- ers or the Teamsters, someone, he did not know who, told him that signing the card was only to have someone from the Union come to talk to the employees. 24 Wil- liam Somoskey testified that Johnston told him that sign- ing the card meant that someone from the Union would talk to the men, although he did admit that he read the card before he signed it. 25 William Mitchell testified that he was told when he signed the card that there would be a vote, although he also stated that when he signed the card he knew he wanted the Union. Roger Sequist stated only that he signed a card for Johnston. In addition to these individuals who claimed that it was not Sunday who solicited them to sign an authoriza- tion card, three other individuals testified that it was not Johnston who solicited them. Rick Reuther stated that he signed the card at the request of Gary Sinclair. He did not claim that he was unaware of what he was sign- ing or the purpose for which he signed the card. Patricia Palumbo was asked to sign the card by a friend, Dean McCue, whose only statement to her was not to let man- agement officials know that she had signed. Tom Dillon, who said that Sunday asked him to sign, testified that he signed the card because he wanted the Union to repre- sent him. Several employees testified concerning statements al- legedly made to them at the time they signed the author- ization card. Charles Telesca testified that several em- ployees were present when he signed his authorization card, including Paul Scarcello, Pat Prinz, and Dean McCue. Telesca further testified that Johnston ap- proached him, asked him if he wanted to sign the author- ization card, and told him that he would get more money and better benefits and "so he signed." Telesca 23 R Exhs. 2 and 3. 24 Ferguson was not employed at the time of the Painters election 25 Somoskey testified that it was Respondent's counsel who, during an interview, first mentioned that signing the card might be for a reason other than having the Union represent him claimed that Johnston also told him he was one of the last employees to sign It is not clear whether that state- ment was made before or after he signed. Telesca also recalled that the card had the word membership on it, but he did not know if it was for an election because Johnston did not say, and some employees thought there would be an election and some did not think that. Ricky Verbasco stated that Johnston asked him to sign an au- thorization card and told him everybody else had signed it. Verbasco testified, "I was one of the last persons to sign it, because he, he don't even like to ask me that, about it. So, you know, I know. I just said the hell with it and I'll sign it." Steve Totals testified that Johnston or- dered him to sign an authorization card, but he refused without more information. At this point Johnston showed him a sheet with a list of names and said, "It would be the best thing for you to sign, and everybody has signed. So I felt that well, if I didn't I'd be the only one, so I signed the card." Although Totals testified that Johnston had said it would be rough on him if he did not sign, he also said that he had the card in his possession about a week before he signed it. 26 He further testified that he was the only one who asked whether others had signed the authorization cards, and it was at that point that Johnston showed him the list of those who had signed. Doug Sarles did not recall who asked him to sign a card. He testified that he had the card in his possession for several days before he signed it. He recalled some- thing was said about an election, but he could not recall what was said. According to James Wilde, Johnston asked him to sign a card and told him there would be better wages and benefits. Johnston also said other em- ployees were signing the card. Agnes Bennett testified that Johnston asked her to sign and told her it would be better for all of them if everyone signed. Johnston also said some others had signed. Bennett claimed that she read the card and knew it was for the Union. The cards secured on July 16, 1981, were secured from employees Joe Pastore, Tom Dillon, and Denny Moore. The circumstances surrounding Dillon's signing the authorization card were discussed above. Pastore tes- tified that he was solicited on two occasions to sign an authorization card for Local 445. The first was in June 1981, and Pastore recalled only that someone named "Billy" asked him to sign, and he refused. 27 The second time Johnston asked, him he signed the card. When Johnston asked him to sign he told him, "that, you know, how come I hadn't signed, you know, because he said a lot of people had signed up, you know, and he told me—he said, you know it will be good you know to get a Union in and he said he thought it didn't really make a difference if I signed or not because he said like they already had 42 signatures or something and it was already two-thirds of the vote and that is all he needed, that's all he really needed." Johnston also allegedly told him that only one production employee had not signed. Pastore testified that he knew that he was signing to join the Union and that he signed of his own free choice. 26 Totals' card is dated 6/22/83. G.C. Exh 50 27 Apparently Billy Somoskey. CAMVAC INTERNATIONAL 829 Moore testified that Johnston told him that the authori- zation cards were in Johnston's car and Moore could get one. Moore went to the car alone and took an authoriza- tion card and signed it. D. The Alleged Surveillance John Terrano, employed as an electrician, testified that about the time he signed a card" for Local 445, Andry asked the employees, including Terrano, to come to a meeting at the town pub. 29 Andry stated that she was concerned about the fact that the employees had signed cards for Local 445 and she wanted to discuss the matter with them. Andry asked Terrano to come to the meeting but he replied that he had to work late that evening. Andry told him that it was her idea to hold the meeting and Terrano did not have to attend. The following day Andry asked Terrano to do some maintenance work on a refrigerator and he agreed to do it. He was engaged in doing the repair work and was not visible because he was down on the floor at the time that Steve Maughan walked into the room. Maughan, according to Terrano, asked Andry whether she had anything to report. Ter- rano testified that Andry appeared to be signaling Maughan not to talk and the two left the area. Andry was not called to testify. Maughan did not testifiy about this alleged incident. E. The Alleged Unlawful Discharge of Gerald Sunday It is the contention of the General Counsel that Gerald Sunday was discharged because of statements he made about the Union at a CEWC meeting held on July 2, 1981, and/or because of his history of union activity. Specifically, the General Counsel relies on Respondent's knowledge of Sunday's activities on behalf of the Paint- ers and Local 445; the fact that he was discharged a week after he made statements at the CEWC meeting; and the conflicting versions concerning his suspension and discharge. Respondent contends that Sunday had been suspended prior to the advent of Local 445 for an infraction of a company rule and that he was discharged on July 9, 1981, in accordance with the Company's pro- gressive disciplinary policy, for another infraction of a company rule. The record reveals that Gerald Sunday had been em- ployed by Respondent for approximately 8 years prior to his discharge on July 10, 1981. 30 He commenced his em- ployment as a machine operator and in 1978 he was pro- moted to a supervisory position. About November 1980, however, he was demoted from that position and again became a machine operator. Whether subsequent actions by Sunday were motivated by his demotion is not clear, but Sunday testified that sometime in January 1981 he, together with a fellow employee, Michael Wood, began organizing efforts on behalf of the Painters. Sunday claimed that he discussed these activities with Respond- ent's supervisors, Feliz Spatoro, Richard C,ea, and Frank 38 Terrano could not recall the date he signed the card. Terrano's card (G.C. Exh. 54) shows a date, June 22, 1981 39 Grace Andry, as noted, is personnel director and an admitted super- visor. 3° Sunday had been employed by the McCord' Corporation Kreuzer, with whom he had been friendly before his de- motion. Spatoro, according to Sunday, told him that sometime during this period, managment was aware of the union activists. Spatoro left Respondent's employ- ment on or about July 1, 1981, and did not testify. Kreu- zer also did not testify regarding this point. Cea testified that he knew Sunday was prounion, but he did not know of Sunday's activities on behalf of the Painters. The Painters lost that election and there were no further ac- tivities until June 1981. Sunday's alleged involvement in soliciting authorization cards for Local 445 has been dis- cussed above. Sunday testified that in addition to solicit- ing authorization cards, he discussed his efforts to orga- nize on behalf of Local 445 with his supervisor, Feliz Spatoro, in the week of June 22, 1981. 31 Spatoro, ac- cording to Sunday, stated that he was aware of these ac- tivities, as were management representatives, and they knew who was the individual trying to organize the em- ployees. Sunday did not testify that Spatoro actually named the individual. Respondent contended, through its counsel, that Spatoro had left its employ in early June 1981. The General Counsel, however, introduced a memorandum directed to employees in which Davies ex- pressed his regrets on Spatoro's departure from the Com- pany, which was to be effective July 1, 1981.32 Michael Davies testified that Sunday was a competent employee who, because of his length of service, was knowledgeable about the business. He claimed, however, that Sunday's lateness and absentee record presented an entirely different picture. As noted, Sunday had been de- moted in November 1980 and the memorandum issued at that time stated that he was relieved of his duties because of his continued failure to organize his department.33 Subsequent to this demotion, Sunday received a warning notice on December 16, 1980, because of his failure to call to report his absence, which was in violation of company policy. 34 He received another warning on May 6, 1981, for lateness on four occasions in the weeks ending May 2, 1981.35 On June 16, 1981, Sunday was suspended for not working on Friday, June 12, 1981. 36 In June 1981, Sunday had been schedued to work the late shift from 11 p.m. to 7 a.m., commencing on Sunday evening and completing his workweek on Friday morning. According to Sunday, in late May 1981 he spoke with his supervi- sor, Hank Kreuzer, about substituting one of his vacation days for Sunday, June 7, 1981, and Kreuzer agreed to the arrangement and marked his calendar to note the change. Sunday did not work on June 7, 1981, but did work the following Monday, Tuesday, Wednesday, and Thursday. He did not work that Friday evening. The following Sunday, which was the start of a new week, Sunday worked his regular shift without any comment being made. On Monday evening when he arrived at 31 Sunday testified that he was a friend of Spatoro. 33 G.C. Exh 27. 33 G.C. Exh. 109. 34 R. Exh. 6. Sunday was warned in this memorandum that repeated failure to call in would result in disciplinary action. 35 R. Exh. 5 36 Organizing efforts on behalf of the Teamsters had not started at this point. 830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD work he was given a memorandum that stated that he was suspended for failing to report to work on Friday, June 7, 1981. The following day Sunday protested the suspension to Kreuzer, reminding him of their agree- ment. Kreuzer denied that there had been such an agree- ments 6 Hank Kreuzer testified that about 3 weeks before June 7, 1981, he was approached by Sunday, who asked whether he could take off on Sunday, June 7, 1981. Kreuzer claimed that he approved the request, but it was understood that Sunday would work the following Friday evening, June 12, 1981. Kreuzer denied that there had been any discussion about substituting a vacation day. According to Kreuzer, he had scheduled Sunday for work on Friday, June 12, 1981, although he was un- certain during his testimony about whether he had noted this on his calendar. He first ascertained on Monday, June 13, 1981, that Sunday had not worked on the previ- ous Friday and had not called in to report the reason for his absence. Kreuzer then advised Steve Maughan and Grace Andry of Sunday's absence, and it was their deci- sion that Sunday would be suspended for 1 day. It ap- pears that there was some form of grievance procedure in existence at the time but Sunday apparently did not file a grievance about the suspension. On July 2, 1981, there was a regularly scheduled CEWC meeting. Sunday testified that it was during this meeting that he addressed Davies about Local 445.37 According to Sunday, he became irritated with the dis- cussions at the meeting because he thought they were dealing with trivia and, in an angry outburst, he said to Davies, "I would like to know why we are ignoring the main issues about this Company, and that is the Union that is hanging over our heads." This comment, Sunday testified, was an "attention-getter." Davies responded that the Company did not care if there was a union. Schneible asked whether Sunday was satisfied with CEWC meetings as a forum, to which Sunday replied that he was not, and he referred to the problems about sick leave, changes in work, leave changes in work shifts, and wage scale. Davies, Maughan, and SchneibIe all deny that Sunday talked about the Union at this meet- ing. Gary Sinclair, an employee, testified that he was at a CEWC meeting in July 1981. 38 During the meeting there was some discussion aboiut sick days and at this point Sunday stood up and said, "Why are we talking about this when we got more important issues, the only time something gets done around here is when the Union is hanging over your head." At this point Schneible asked, "Why the employees wanted a union. Aren't the Works Committee meetings—aren't they, you know helping out." Sunday replied that the meetings were not enough. Sinclair testified that he was present only during the first part of the meeting. Kerry Ryan, an employee, called as a Respondent witness, testified that at the July 2, 1981 CEWC meeting he heard Sunday, near the end of the meeting, say, "Who are we trying to kid, every- body knows what's going on, we all know guys on the 37 Sunday, nut:tally, was not certain that Davies was at the meeting. 38 Sinclair, a friend of Sunday's, placed the day of the meeting as July 3, 1981. floor are trying to get the Union in." Ryan was unsure whether that statement was made before or after Davies stated that he had received a telegram from Local 445. When questioned by respondent counsel as to why he had failed to mention this statement to him prior to the hearing, Ryan replied that "It slipped my mind." Denny Moore, an employee, also called as a respondent witness, recalled at some CEWC meeting he saw Sunday stand- ing up and leaning forward and saying something about the Union. He could not recall what was said, but he re- membered it being about the Union, "because it was a touchy subject." Sunday testified that at the conclusion of this meeting he asked for a private meeting with Davies and Schnei, ble. They agreed and during the meeting that followed, Sunday discussed two subjects, his request that he be given consideration for a better position and his further request for an investigation of his suspension in June 1981. He testified that he also told them that he thought Steven Maughan was undoing the work being accom- plished by CEWC because he was a "hot head." Davies and Schneible agreed to consider his request for a better position and agreed to speak with Hank Kreuzer about the suspension. On the following Monday or Tuesday, July 5 or 6, Sunday claimed that Schneible passed his machine and said, "We haven't forgotten about you. We'll get together." Sunday denies that he was advised of a specific day for the meeting to discuss the issues he had asked to be considered. On Thursday, July 9, 1981, Sunday was not at work. He claimed that he did call in to report his absence, but he was unable to speak with Hank ICreuzer, his supervi- sor, because Kreuzer was on vacation. He spoke with a fellow employee, Dean McCue, about 8 a.m., and McCue advised him that there were no supervisors avail- able to whom he could relay the message about Sunday's absence. Sunday testified that he then told McCue to tell Chris Grant, a supervisor, as soon as he saw him that he would not be at work on that day. He made McCue, "promise up and down—I said, I don't want to get into trouble. Make sure you tell the guy." According to Sunday, Steven Maughan was on vacation on that day and he did not bother to ask to speak to either Davies or Schneible because he knew they would not be at work at that time." On the following day when he went to work he met a fellow employee, Gary Cardeilo, who told him that Davies was "ticked off" at him because he had not called in the previous day. When he heard this he checked with McCue and McCue told him that he had told Chris Grant that Sunday would not be coming to work, in accordance with Sunday's request. Sunday then met with Davies and told Davies that he had called in and he explained to him about McCue and Grant.4° Sunday claimed that during the meeting Davies had Grace Andry check the story and Davies told Sunday that Grant admitted that McCue had told him that Sunday had called and Grant had left a note to that effect on Steven Maughan's desk. During this meeting, 39 Sunday did not claim that he attempted to reach either Davies or Schneible later in the day, despite his deep concern 49 The two were alone during this meeting. CAMVAC INTERNATIONAL 831 according to Sunday, Davies said that Sunday had been scheduled to meet with him on that Thursday to discuss the issues about promotion and suspension previously raised by Sunday. Sunday claimed that he told Davies that he had no knowledge about such a meeting for Thursday and he stated that he also told Davies, "I would have crawled out of a sick bed to get there, be- cause I felt it was that important." Davies told him to return later that day. About 2 p.m., a meeting was held in Schneible's office. Sunday testified that present at the meeting were Davies, Maughan,'Schneible and Sunday. Maughan opened the meeting by saying that, "you and Camvac should part company." When questioned about why, he was told it was because of his attendance record. Sunday explained that his absence record was caused by the sickness he had that particular year and he asked them to consider his prior record, which he claimed was good. Sunday stated that he had not been warned previously that additional absences would result in dismissal. Davies testified that at the meeting held with Sunday on July 2, after the CEWC meeting, Sunday discussed his promotion possibilities and requested a review of his June suspension. Davies further testified that he agreed to investigate the suspension, but he questioned Sunday about why he had failed to use grievance procedures. Sunday replied that he was angry about the suspension and, therefore, had not bothered to use the grievance procedure, Davies also admitted that he told Sunday, during this meeting, that he would give consideration to his request for a promotion, although his attendance record created a problem. Davies claimed that he did check with ICreuzer after this meeting about the suspen- sion and was convinced that the suspension was justi- fiecl.41 He, thereafter, had discussions with Schneible and Maughan about the possibility of giving Sunday an op- portunity in another position. Maughan was opposed to the idea but Davies decided to eve Sunday an opportu- nity to be a quality control inspector based on a 90-day probationary period. On Wednesday, July 8, according to Davies, he saw Sunday in the plant and told him that there would be a meeting on the following morning, and Sunday agreed to come. Schneible also claimed that he confirmed with Sunday that there was to be a meeting on July 9. Davies testified that on July 9 he was at work at 7:30 a.m. and he checked with Richard Cea and Chris Grant about Sunday's whereabouts and was told Sunday was not present. Davies became upset, in part, he claimed, because he had opposed Maughan in deciding to give Sunday another chance. He called Sunday's home and was told by his father that Sunday was at work. On hearing this, Davies became angry and told Schneible that unless there had been an accident, Sunday would have to be fired. The following day Sunday came to his office, told him he was sorry that he had not called to report his absence, but explained that late the previous evening he had received a message from his 41 Kreuzer iestdied that only Maughan checked with him about Sun- day's failure to work and he did this in June. Kreuzer did not testify about any investigation on the issue by Davies in July. lawyer about an appointment he had the next day.42 Sunday claimed he had no opportunity to call Davies. Davies told Sunday that he had to consider the matter. Davies testified that he did discuss the situation with Schneible and Maughan and the decision was made to discharge Sunday because he had received two prior warnings, a suspension, and then was absent on July 9 without notifying the Company. At the meeting held that afternoon with Sunday, Maughan advised Sunday of the decision. Steven Maughan testified that Jerry Sunday was dis- charged because of excessive absences and his failure to call in on Thursday, July 9. Maughan further testified that Sunday, apparently in the exit meeting on Friday, June 10, 1981,43 claimed that he had called in to report his absence, although Maughan could not recall the name of the person Sunday alleges he spoke to about being absent on July 9, 1981. 44 According to Maughan, however, the normal procedure was for the employee to call either his supervisor or the personnel department. Maughan initially stated that he checked with Sunday's supervisor, Kreuzer, and ascertained that Sunday had failed to report that he would be absent on July 9, 1981.45 When it was called to his attention that Kremer was on vacation that week and he therefore could not have discussed the matter with him, Maughan could not recall the person with whom he had investigated the matter. Dean McCue testified that he took phone calls from employees who called in to report an absence. However, when questioned about whether Sunday had requested him on July 9, 1981, to tell Chris Grant that he would not be in that day, he could not recall receiving such a message. On cross-examination McCue stated that it was possible that Sunday had spoken to him on that day. Christopher Grant testified, that to his knowledge, Sunday had not called in on Thursday, July 9, 1981. He denied that McCue had told him on July 9, 1981, about Sunday's absence and he denied that he had written a note to Maughan about Sunday's absence. Grant, howev- er, further testified that he was not questioned by anyone in management about whether Sunday had called in to report his absence. F. The Alleged Disparate Treatment Re Gerald Sunday The General Counsel contends that Respondent acted in a disparate manner concerning Sunday in that it failed to apprise Sunday prior to his discharge that future ab- 42 According to Davies, Sunday said he was unable to call because he had an appointment in court concerning his pending divorce, 43 This was the only meeting at which Maughan was present when Sunday was presented and in which the issue of Sunday's failure to call in was discussed. Davies, as noted, was present at the meeting. The con- tradiction between Maughan's testimony that Sunday claimed he did call In and Davies' testimony that Sunday admitted not calling in was not ex- planted. 44 The General Counsel's brief argues that Maughan said that Sunday said he spoke to Dean McCue. Actually Maughan said he could not recall who Sunday said he spoke to when he called. 45 Maughan indicated that he had checked with Kreuzer on Friday, July 10. 832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sences would result in his discharge, although such warnings had been given to other employees for similar types of infractions. Moreover, he contends that Sunday was not placed on probation prior to his dismissal as were other employees. In support of this position the General Counsel introduced certain records pertainings to various employees. 46 Respondent contends that the records introduced by the General Counsel relate to vio- lations prior to February 1981 when no formal discipli- nary policy existed, or violations subsequent to Septem- ber 1, 1981, when the new policy was implemented. Initially, it should be noted that Sunday had been absent 14 times during the period January to July 1981. It is undisputed that several absences were due to illness, Sunday had the flu during the first few months of that year a fact known to his supervisor.47 In addition, Sunday had received a warning on December 16, 1980, for being absent and not calling in,48 he had received an- other warning on May 6, 1981, for four latenesses" and he had been suspended on June 16, 1981, for being absent and failing to call in." The warning notice given to Sunday on December 16, 1980, states that a future failure to call in an absence would result in disciplinary action being taken. The record regarding other employees establishes the following: Doug Strong: On December 9, 1980 Strong was sent home for the day for arriving at work on December 5, 1980 under the influence of alcohol. Strong also failed to call in, in violation of the Company policy and he was put on probation for 30 days. He was advised that further misconduct would be grounds for dis- charge.61 Respondent argued in its brief that the discipline given to Strong differed from that accorded to Sunday because there were two different disciplinary policies in oper- ation at the time of the misconduct of the employees. That statement, however, does not reflect the testimony of Michael Davies, who testified that the disciplinary policy before and after February 1981 was basically the same, the difference was that after February 1981 it was in a written form. Michael Wood: A file note reflects that Wood's supervisor spoke to him on August 24, 1981 regarding his excessive absences in that year. The note reflects that Wood was advised that further absences with out explana- tion could merit dismissal." 46 G C. Exhs. 84-103. G.C. Exh 105. An examination of Sunday's record for 1980 estab- lishes that he had one absence in January 1980 and two absences in No- vember 1980. In addition it appears that Sunday had two absences in 1979 (G.0 Exh 106) 43 R Exh. 6 42 R. Exh 5. 50 This involves the suspension described above 51 G C. Exh 84 52 G.0 Eich 86. Respondent claimed that Wood was not absent as fre- quently as Sunday in 1981. There was no documentary evidence regarding Wood's absence record. On Novem- ber 16, 1981, Wood was placed on probation, rather than being discharged, because of additional absences. It is the position of Respondent that Wood was put on probation because the new disciplinary policy, effective in Septem- ber 1981, provided for this type of discipline. This policy was not in effect at the time of Sunday's employment. Jewett Johnston:53 On October 8, 1980 Johnston was notified that his performance record was unacceptable and that he was discharged. At the time of the discharge Johnston had been absent with notifying the Com- pany on numerous occasions, had been suspended one week for these infractions," and had been warned approximately two weeks prior to his dis- charge that future absences would result in his dis- charge. Respondent contends that Johnston received several ad- ditional opportunities to correct his errors that were not given to Sunday, because there was no formalized system of progressive discipline in existence at the time of Johnston's infractions and Johnston had had a good record for 4 months after his suspension. Respondent claimed that at the time of Sunday's discharge a formal- ized discipline system did exist that did not permit such "flexibility." However, as noted, this formalized disci- pline system, according to Davies, only memoralized in writing the policy previously in existence, apparently at the time of Johnston's discharge in October 1980. Michael Davies: Michael Davies was warned on August 25, 1981 about excessive absences and was advised that re- peated absences would result in suspension." On October 8, 1981 Davies was placed on proba- tion for excessive absences." Respondent contends that Davies was placed on proba- tion and not discharged in accordance with the new dis- ciplinary policy, which policy became effective on Sep- tember 1, 1981, after Sunday's discharge. Dick Simone: On February 8, 1981 Simone was warned about excessive lateness and advised that further lateness would result in a written warning and a 90 day pro- bation. 6 7 On February 11, 1982 Simone was placed on pro- bation because of lateness on two days following the warning and warned that future similar conduct would result in dismissal. 53 Not related to Robert Johnston. 54 At the time, Sunday had been Jewett Johnston's supervisor, and he had suspended Johnston. 55 G.C. Exhs 91 and 92. 56 G C Exh. 93 57 G C. Exh 94 CAMVAC INTERNATIONAL 833 Respondent contends that these warnings were also in accordance with the new disciplinary policy. Kerry Ryan: On or about August 27, 1981 Ryan did not come to work and did not call. Ryan had been absent 11 days at that point and was late almost every day. Ryan was placed on a 90 day probationary period. 58 Respondent contends that Ryan was placed on proba- tion, rather than being discharged, because of a misun- derstanding on the part of his supervisor that the new disciplinary policy was then in effect Moreover, Re- spondent argues Ryan was absent only 11 days during the year, while Sunday had been absent 14 days between January and July 9, 1981. In addition, the General Counsel introduced records regarding Richard Wallace, Carl Brockmueller, Susan Roe, and Dean McCue." The record regarding Wallace establishes that he was absent 14 days in 1979 and was no longer on the payroll as of November 5, 1979. 6° Carl Brockmueller, who was hired in November 1980, was absent 12 times in a 4-month period. Maughan testified that Brockmueller was about to be discharged but quit prior to being discharged. Susan Rose was absent 15 times in 1980. Schneible testified that she was no longer on the payroll after early 1981, but it is unclear whether she quit or was discharged. The attendance record for Dean McCue establishes that he was absent 11 times in 1981; of these absences, 5 days were due to a work relat- ed injury and 5 days were excused absences without pay. On April 17, 1981, McCue received a disciplinary warn- ing notice for failing to work overtime as scheduled. G. The Alleged Unlawful Grant of Benefits The General Counsel contends that Respondent, on becoming aware of the existence of Local 445 on June 24, 1981, announced/or implemented, on July 20, 1981, a new wage structure, a new disciplinary policy, and a new sick leave policy. Subsequently, Respondent announced/or implemented a profit-sharing plan and health club benefits. Respondent conceded that the vari- ous benefits were announced and/or implemented after June 24, 1981, bit contends that in announcing and/or implementing these benefits it was following its past practice of reevaluating and improving employee benefits when the economic conditions of the Company warrant- ed such action. Further, it contends that plans concern- ing the wage structure, disciplinary policy, sick leave, and profits sharing had been the subject of numerous dis- cussions at CEWC meetings for months before the Teamsters engaged in organizational activities, and the decision to grant the benefits had been made before the receipt of Local 445's demand for recognition. 58 G.0 Exh. 96. 59 0 C. Exhs. 97, 99, and 100-102 60 Although Respondent contended that Wallace was discharged, the record reflects only that he was no longer on the payroll after November 3, 1979; it does not reflect that he was discharged. 1. Benefits granted prior to July 1981 It appears that after Respondent purchased the McCordi facility in 1977 it instituted a number of changes in the working conditions at the plant. Davies testified that, as a result of wage reviews from 1977 to 1980, wages for skilled employees increased dramatically, as did those for unskilled employees. In addition, the medical coverage was changed several times, a dental plan was added, life insurance coverage was increased, attendance, Thanksgiving, Christmas bonuses were grant- ed, and plant facilities were improved. These various benefits were granted as the Company's economic pic- ture improved. Davies also testified that between Janu- ary and June 24, 1981, as a result of matters raised at CEWC meetings, employees were granted increases in wages and mileage when they were called in to work outside their regular worktime, holiday pay was in- creased, and a formal grievance policy was established." Schneible testified that the improved medical coverage and dental plan were the results of his efforts, and both were instituted in about June 1980.62 2. Events prior to July 20, 1981, which relate to alleged new benefits According to Davies' testimony, the rapid expansion of the Company made management officials aware of the need to delegate more authority to supervisors to decide which employees should receive pay increases or promo- tions and when these actions should occur. It soon became apparent, however, that this delegation as result- ing in what employees considered disparate treatment, i.e., the supervisors were not following a common policy. The result was employee dissatisfaction and morale problems, with employees seeking a more struc- tured or defined policy. This dissatisfaction resulted in discussions about "job grading," which began, according to Davies, in early January 1981 at CEWC meetings." Davies claimed that a final decision was made about es- tablishing a new job grade structure, to a great extent, by May 1981. The one area in which the Company was having difficulty was in the area of the jobs in the serv- ice department and regarding those jobs, respondent offi- cials sought advice from its parent corporation. Davies testified that he received this advice64 about June 14 or 15, 1981, but he did not make the announcement about it until July 20 because the plant was closed in the early part of July. 65 The new wage structure was implement- ed on July 20, 1981. 61 There were some other minor improvements set forth in the minutes of the CEWC meetings G.C. Exhs. 5-10. 62 Schneible claimed that he had lost substantial benefits by his transfer to Respondent and, because of this, he had undertaken to investigate how to secure this improved plan at less cost to the Company and thus gam back the benefits he had lost. 63 The term "job grading" is used interchangeably with wage struc- ture. 64 This advice was oral. Respondent did not produce written docu- ments concernmg this matter. 65 Davies did not explain why the announcement about the new wage structure was not made between June 14 and 24, 1981, before the tele- gram came from Local 445. 834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD According to Davies, there had been discussions about the need for a new sick leave policy at several CEWC meetings, and as a result of these discussions a survey was conducted in March 1981 by Grace Andry. This survey established that the Company did not provide as many sick days as did some of its competitors. Company representatives, when they became aware of this fact, began drafting proposals relative to the sick leave policy, and by May 1981 a plan had been drafted that provided additional days based on seniority. Davies claimed that this proposal was presented to the CEWC members, ap- parently in May 1981, and basically was accepted by CEWC members at that time, although there were some reservations about how days could be carried over from quarter to quarter. CEWC members decided to present the proposal to the employees for their comments and suggestions. The proposal was presented to the employ- ees on July 20, 1981, the same time the document on the wage structure was given to them. The employees were asked to note their comments in spaces provided for that purpose. Davies testified that there was no adverse com- ments and the proposal, therefore, became effective Jan- uary 1982. The disciplinary policy, Davies claimed, also had been discussed at length at the CEWC meetings from early January 1981. These discussions resulted in a formalized disciplinary policy being adopted in February 1981.66 Notwithstanding this policy, employees expressed dissat- isfaction and there were continued discussions about the length of time a warning notice should remain in an em- ployee's file. Davies claimed that these discussions con- tinued throughout May, June, and July 1981, and, as a result of a suggestion made at the July 2 meeting of the CEWC, there was a "modification" of the disciplinary policy, and this notification was set forth in the docu- ment presented to the employees on July 20. Under the policy as "modified" if an employee received verbal warnings and a written warning he would be placed on a 90-day probationary period during which time he could not receive pay increases or bonuses. If, at the conclu- sion of the 90 days he had not received another repri- mand, the warning notice would be removed from his file and he would start with a clean slate. The new pro- cedure reduced the amount of time a warning notice re- mained in an empoyee's file from 12 months to 3 months. This new disciplinary policy was to become effective September 1, 1981. 3. The minutes of CEWC meetings relative to the new benefits An examination of the minutes for the January 19, 1981 meeting reveals that disciplinary procedures were discussed by the participants and an agreement was reached that a more formal disciplinary policy should be drafted that would set forth the number of warnings and suspensions employees must receive before they could be 66 As noted, Davies testified that this disciplinary policy was the same one that had existed previously, it simply was reduced to writing. It pro- vided for a progressive disciplinary policy that included two written warnings, a suspension, and, finally, discharge. discharged.67 The minutes for the February 20, 1981 meeting contains an attachment entitled, "Proposed Dis- ciplinary Policy." 69 This proposed policy contained the statement that an employee had to receive two written warnings and a suspension before he could be dis- charged. It also provided that warnings would be re- moved from an employee's file on the anniversary date of the warning. These minutes also disclose that there had been discussions about the possibility of the Compa- ny granting a pension plan and/or some other type of in- vestment and savings plan provided the profit picture im- proved in 1982. 69 In addition, these minutes refer to the lack of a "fair pay scale." The minutes of the March 20, 1981 meeting state that various pension plans were being examined and the possibility existed that some plan could be decided on in 1982. 7° These minutes also contain the statement that the disciplinary policy was to apply to all employees, the pay Scale issue still needed "looking into"71 and the committee members were debating the issue of whether the Company should adopt a pension- or a profit-sharing plan." During this meeting in March 1981, Sunday made the suggestion that sick leave should be prorated based on years of service and the committee members decided that a survey should be made to deter- mine how the matter was handled in other plants in the area." The minutes of the April 24, 1981 meeting con- tain the following statement, "The Pension/Profit Shar- ing Plan consultants are expected to get back to Camvac with some helpful proposals and suggestions in the summer." There is also a statement in these minutes that a proposal regarding additional sick days based on serv- ice would be prepared for the followmg meeting. At the May 29, 1981 meeting, Schneible apparently discussed a proposed sick leave policy, but there was a criticism voiced about it by Sunday, and it was decided that other suggestions for a sick leave policy should be forwarded to Grace Andry. 74 There was also general discussion at this meeting about the salary structure without any deci- sion being made about the matter, and it was noted that there would be further discussions about the issue at the next meeting. 75 At the July 2, 1981 meeting Mike Wood stated that warning notices should not remain in the em- ployee's file for 12 months, but should be retained for only a 3-month period. 76 At this meeting Mike Wood also stated that the Company was not addressing the "hard, cold facts," apparently referring to salary in- creases. Schneible responded that the Company was working to develop a pay grade structure with review once a year. 77 Sunday again stated that the proposed 67 G C. Exh. 5, par 10 The minutes state that the policy then in exist- ence provided for a certain number of writen warnings and suspensions, but the employees wanted it more formalized 68 G C Exh 6 68 G.C. Exh 6, p 5. 70 G.C. Exh. 7, p 2 71 G.C. Exh. 7, p. 3. 72 G C Exh 7,p 4 73 G.0 Exh 1, p 6 74 G C. Exh. 9, p. 4. 75 G C. Exh. 9, p 5 76 GC. Exh. 10, p. 1 77 G C Exh 10, p. 2. CAMVAC INTERNATIONAL 835 sick leave policy was not satisfactory. Schneible replied that the policy would be typed and circulated for com- ments, and it would become effective January 1, 1982.78 In response to criticisms about the pay increase Steven Maughan stated that the Company was anxious to put the grade system into effect. During the meeting, Schnei- ble stated that Bowater N.A. had determined that a savings/profit-sharing plan would best suit the needs of the employees because of their age group. The minutes contain the following statement attributed to Schneible, "If approved this plan should go into effect by January 1, 1982.79 H. The Events on July 20, 1981 The plant, in accordance with Respondent's normal procedures, was closed for 2 weeks in early July 1981, but it reopened about late July 1981. Schneible testified that on July 20, 1981, in a series of meetings conducted with the production employees on an individual basis by either Davies, Maughan, or Schneible, employees were advised of the new wage structure, sick leave, discipli- nary policies, and were given documents that explained these benefits. 8° Schneible stated that this was the first time that proposed benefits were announced to employ- ees, in this manner. According to Schneible, the new wage structure plan was implemented on July 20, 1981, but the other plans were not implemented at that time because no fmal decision had been made regarding those plans; they were given to the employees for their com- ments. Schneible further testified that there had been dis- cussions about the sick leave and disciplinary policy but they had not commenced until May or June 1981. Al- though Schneible claimed that these issues arose in the CEWC meetings, he testified that the actual proposals presented on July 20, 1981, were given directly to the employees for their consideration because, in the past, when management came up with a "real measure" the CEWC members usually wanted it presented directly to the employees. Schneible stated that a draft of the new plans had been given to CEWC members prior to the presentation of the actual plans to the employees. This draft, according to Schneible, was similar to the docu- ments given to the employees on July 20, 1981. Schneible testified that the new wage structure policy resulted in wage increases for at least 50 percent of the employees, and no employee had wages reduced by virtue of the policy. 8' There had not been a prior change in the wage structure, Schneible stated, although there was a general review of individual salaries every November. The prior sick leave policy provided that all employees with 1 or more years of service would receive 5 sick days. The new proposed policy provided for addi- 78 G C. Exh 10, p 5. The minutes do not contain the actual language of the policy G.C. Exh 10, p. 7 69 G.0 Exhs. 19, 20-21 81 Respondent, in its brief, argued that the new waged proposal "nega- tively" affected new hires. It is sigmficant that the first page of the docu- ment, howeNrei, states, "Many employees will be receiving raises immedi- ately to bring their wages up to the salary levels of their grade classifica- tion No employees will be asked to take a decrease, although a few em- ployees will currently be earnmg more than the posted salary level for their grade classification." tional sick days to employees based on their seniority status. The new disciplinary policy reduced the length of time that a warning notice remained in an employee's file. I. The Profit-Sharing Plan Davies claimed that there had been inquiries by the senior employees and during CEWC meetings about the possibility of a pension- or profit-sharing plan. 8 2 In early March 1981 Davies received a memorandum from J. P. Northrup, director of human resources for Bowater N.A., relating to retirement benefit planning." In this memorandum Northrup suggested that Davies start to gather the necessary statistical material, in the event the Company decided on such a benefit, the cost could be determined. The memorandum also mentioned the cost of a profit-sharing plan and it included the statement that the two could discuss the matter during a meeting they already had scheduled for March 13, 1981. On March 12, 1981, Northrup forwarded another memorandum to Davies that outlined some of the items to be considered in the profit-sharing retirement program, and copies of that memorandum were sent by Northrup to Alexander, and Alexander, Bowater's consulting actuaries. 84 Davies claimed that after this meeting with Northrup in March 1981 and after discussions with other Respondent's repre- sentatives, it was decided that a profit-sharing plan rather than a pension plan would be more appropriate because of the age of their work force. According to Davies, he then forwarded the necessary statistical figures to North- rup in April or May 1981 so that the cost of the profit- sharing progaram could be determined." On June 8, 1981, Northrup forwarded a memorandum to Davies that outlined some "general figures regarding a potential level of benefit." The memorandum also stated, "assuming such a plan were instituted at Camvac for 1982 the fol- lowing schedule should provide a rough estimate of Company costs." In the concluding paragraphs of the memorandum Northrup stated that he looked forward to meeting with Davies to discuss "the plan design and im- plementation," and he advised Davies not to wait too long before acting because IRS approval took several months." Although these memoranda, which referred to the early stages of these plans, were offered in evidence by Respondent, there was no such documentary evi- dence offered regarding Respondent's decision to have a profit-sharing plan, or concerning Bowater N.A.'s ap- proval of such a plan. It is undisputed that this type of plan needed the approval of Bowater N.A. Davies, in re- sponse to an inquiry whether there were such memoran- dum stated, "There's a reference in some document. I don't remember it's the sort of thing that -must be written down somewhere." Although Northrup's memorandum 82 As stated above, the minutes of the CEWC January meeting dis- close that there were discussions about the possibility of a pension or some type of plan There was also a mention in the March minutes about the possibility that some plan could be worked out in 1982 83 R. Exh. 26 84 R Exh. 27. 85 Respondent did not Introduce a copy of this correspondence. 86 R Exh. 28 There was some raw data attached to the memorandum. 836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD stated that he wanted further consultation on the matter, there appears to have been none. Rather, according to Davies, on June 15, 1981, two Bowater N.A. representa- tives, Clyde Mott and John Foxx, were in this country on their regularly scheduled trip." There were discus- sions about the profit-sharing plan, and Mott and Foxx told Davies that he could go ahead with the plan." In- sofar as this record reflects, this is the only approval Davies received from Bowater N.A. Neither Mott nca. Foxx was called to testify. On June 22, 1981, Northrup wrote to Foxx and stated, "A copy of my memorandum regarding a profit sharing plan has been enclosed for your files. I shall keep you posted on this and other Camvac Inc. developments." 99 On June 24, 1981, North- rup forwarded to Bowater N.A.'s actuarial consultants a copy of Respondent's employees W-2 earnings for 1980. 9° Northrup testified that the latest date for the de- cision on the profit-sharing plan was on June 15, 1981, when Mott and Foxx approved the concept of the plan, the amount of money, and similar details. Northrup also stated that approval of such a plan by Bowater N.A. was necessary and that such approval was required by the board of directors. On July 2, 1981, Schneible, at a CEWC meeting, explained the proposed plan and an- nounced that, if approved, the plan would go into effect by January 1, 1982. IRS approval had not been secured at this point. The plan became effective January 1, 1982. J. The Attitude Survey James Northrup testified that he knew Daniel Shea, a labor relations consultant, because they had worked to- gether at W. R. Grace & Co. Northrup knew that Shea had some expertise in the area of labor relations, and in the period before the Painters election Northrup claimed that he either called or met with Shea and discussed that situation. Thereafter, on March 10, 1981, Shea visited Northrup and advised him of his new connection with a management consulting firm, and during the meeting they discussed the possibility of Shea doing consulting work for Respondent in the area of employee rela- tions. 91 The conversation was in general terms, but ac- cording to Northrup, the two did discuss the need for su- pervisory training, improvements in the benefits pro- gram, and the possible use of an attitude survey." On March 13, 1981, Northrup met with Respondent's repre- sentatives to discuss a retirement benefit program. During the meeting the Respondent's representatives ac- knowledged that the rapid growth of the Company re- 87 Managing director and personnel director, respectively, of Bowater N.A 88 Respondent, in this brief, stated that Davies at this point already had obtamed upper level management approval. The record, however, discloses that by June 15 the last commumcation Davies had on the matter was from Northrup on June 8, 1981, and in that communication Northrup stated that he desired to meet with Davies to discuss the plan There were no written communications or other evidence introduced to show that an official of Bowater N.A had approved the plan before June 1, 1981 $9 R Bah 33 9° R. Exh 34 91 Shea had recently become associated with a firm called Internation- al Managerial Advisers, Inc , a management consulting firm. 92 Shea was not called to testify quired a more structured management, and they ex- pressed their desire to ascertain the employees' opinion on various subjects. In response to these statements, Northrup advised them about Shea and his discussion with Shea in various areas, including the area of employ- ee attitude surveys. According to Northrup, on March 24, 1981, Davies called him and told him that Respond- ent would use Shea's services. Thereafter, on March 30, 1981, he contacted Shea, told him of the interest of Davies and Schneible, and advised Shea to speak with them. Northrup testified that on June 15, 1981, when he and Davies met with Mott and Foxx, they discussed the profit-sharing plans and the fact that Respondent had made arrangements with an outside firm to provide su- pervisory training and to conduct an attitude survey among the employees. Mott and Foxx agreed with these plans. Northrup was unaware whether there were writ- ten contractual arrangements made between Shea and the Respondent. It appears from testimony by Davies that his communications with Shea were verbal. The attitude survey was not conducted until August 27, 1981. Davies testified that the survey was not con- ducted at an earlier time because Shea wanted to have the supervisory training held before the attitude survey was conducted, and Shea had other commitments to ful- fill. In addition, the plant, as noted, was closed in the be- ginning of July 1981. Davies also stated that he was con- cerned whether the survey should be conducted at all because of the telegram from Local 445. Northrup checked with the then labor counsel for the Company, who advised them that it was legal for them to continue with the attitude survey. The decision to have the survey conducted, according to Davies, was made in March 1981, and management officials "got down to fixing the timing it would be in the beginning of June." At the July 2, 1981 CEWC meeting Davies announced that a labor relations consultant had been retained "to advise man- agement how to solve their problems" and it was an- nounced at the meeting that a survey would be conduct- ed." The survey was conducted solely by Shea with the three shifts of employees. The information sought by the survey related to employee attitude regarding working conditions, supervision, compensation, and benefits." On September 23, 1981, Davies, by memorandum, an- nounced that, as a result of the survey, there would be meetings held in October 1981 to review the results of the survey and to propose actions in areas where there had been employee criticism." K. The Alleged Discriminatory Health Benefit On September 23, 1981, Davies, also by memorandum, announced that Respondent would pay one-half of the annual membership fees (not to exceed $50) to any em- ployee who wanted to join a health club. In addition, the memorandum stated that Respondent had made arrange- ments with a racquetball club for corporate membership, 93 G.C. Exh. 10, p. 2. This was the first mention to employees about the hiring of a labor relations consultant. 94 G.C. Exh. 22 95 G C. Exh. 23 CAMVAC INTERNATIONAL 837 which membership entitled employees to a 15-percent discount on annual membership and initiation fees." Schneible testified that he had received certain health club benefits while employed at Bowater N.A. He men- tioned this fact to Davies in early 1981, but Davies de- cided that they were not able, at that time, to consider this type of benefit. About August or September 1981 a nonunit employee, John Dyson, spoke with Schneible about a new racquetball club opening in the area that was offering corporate membership at a 15-percent dis- count." According to Schneible, Dyson inquired wheth- er Respondent would secure such a corporate member- ship for its employees. Schneible claimed that he investi- gated the matter, found that the corporation did not have to pay anything, and reported the results of his in- vestigation to Davies. They discussed the matter and de- cided, that because of the fact that all employees would not or could not make use of the racquetball club, they would give each employee $50 to use in connection with some program devoted to physical fitness. The $50 was to be given to all employees and was not only for the unit employees. At the time of the hearing the majority of the nommit people had taken advantage of the pro- gram although about 10 percent of the unit employees had taken advantage of the offer. On the same day Davies, in a third memorandum, ad- vised the employees about the two telegrams he had re- ceived from Local 445 in which the Union claimed to represent the employees, and requested the Respondent to bargain with it." The memorandum further stated that the Company believed the "only true measure of employee's desires is an elections by secret ballot." It further referred to the fact that charges filed by Local 445, were under investigation, and there could be unfair labor practice proceedings. The memorandum also stated that the employees, after all the facts were known, might want to secure the return of their authorization card." L. Events During October 1981 1. The attitude survey meeting According to Schneible, in early October 1981, meet- ings were held with employees during which the result of the attitude survey were discussed and management officials promised to give consideration to matters raised in the attitude survey response. In addition, employees were reminded of the various benefits that they had re- ceived, and slides were shown demonstrating these bene- fits. Schneible testified that this was the first time that an attitude survey was conducted among the employees. 2. The alleged threat According to the testimony of employees Gary Sin- clair and Robert Johnston in September or early October 1981, Richard Cea, a supervisor, threatened that the Re- spondent would close its facility if the employees contin- ued to support the Union. Sinclair stated he was with 9 ° G.C. Exh. 24. " Dyson was not called to testify. 90 The second telegram was dated July 28, 1981—G.C, Exh 25 99 G.C. Exh. 113 Johnston near the coating room when Cea told them that, "the plant would shut down if the Union gets into Camvac, they'll close the doors." These comments came, "just out of nowhere" and Cea walked away at that point. '°° Johnston testified that the conversation had continued for some time before Cea made the statement, "Bowater will shut down Camvac as soon as the Union gets in." Johnston claimed that when he left, Sinclair and Cea were still talking. Richard Cea denied that he made the statement. Michael Cea, the brother of Richard Cea, testified that on one occasion, he could not recall the date he was in a conversation with his brother, and Sin- clair and Johnston also were present. He claimed that he was talking to his brother about the Company closing down and his brother, "just mentioned that a company was shut down due to a union and he didn't think that it was going to happen at Camvac but anything was possi- ble." Cea further testified that his brother said, "that there was a plant that was trying to go union and Bowater didn't particularly care for it and he had heard that they had shut it down." On cross-examination Cea stated that it was he who had said to his brother that there was a rumor that plans for the new addition to the facility at Brewster were being canceled. 101 In an affida- vit submitted to the Board, Cea said that someone asked about a Bowater N.A. plant being shut down because of the Union, and his brother replied that he did not know about expansion plans, but a plant was closed in England and the Union was partly responsible for it. His brother, however, also said that anything was possible, but it was not likely that it would happen."2 3. The alleged interrogation The General Counsel contends that in late October 1981, Steven Maughan interrogated Robert Johnston about his union activities, created the impression that Johnston's union activities were under surveillance, and warned Johnston not to bring union literature to the plant. Johnston testified that in October 1981, after he re- ceived a copy of the first complaint, 103 he brought it to the plant because employees were questioning him about what was happening with the charges. He gave the copy to Michael Wood, an employee, for his examination. The following day when he asked Wood to return it to him, Wood said he had forgotten the document. When he re- ceived this same response on three occasions Johnston began to suspect that Wood had given the complaint to management. He approached Wood about the matter and the two had a heated discussion that resulted in both par- ties leaving their work area, apparently to engage in a physical fight on the outside. The fight did not take place and both returned to work. According to John- 100 Sinclair admitted that he had received several warnings from Cea and that the two had a personality clash. 1" R EA. 20. A memorandum was sent to employees on October 7, 1981, in which the Respondent stated that plans to expand at the Brew- ster location were continuing. The memorandum also stated that if market conditions made the Brewster location noncompetitive, however, then a decision might be made to expand at other locations. 192 G C. Exh 19. 1.5'3 This complaint issued on September 30, 1981. 838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ston, about a week or two after this incident, he was ap- proached by his supervisor, John Rozimus, who told him that Maughan claimed that Johnston was circulating union literature in the plant.'" Johnston denied the ac- cusation. He claimed that Rozimus then said that he was tired of the accusations against Johnston, and he stated that he would arrange a meeting with Maughan for Johnston to resolve the problem. During the meeting that followed with Maughan, Maughan asked Johnston if he had passed out union literature, and Johnston denied it. Maughan then asked Johnston if he had signed a union card, and Johnston replied that he had signed a card. Maughan also questioned Johnston whether he had distributed cards to other employees, and Johnston denied that he had distributed cards.'" Johnston ad- vised Maughan that he should consider the serious theft problem in the plant rather than harassing him. Maughan, according to Johnston, said he would look into the theft problem and also check about what hap- pened in the plant. Maughan claimed that he had been advised by Grace Andry that Robert Johnston was causing a disturbance in the plant in his efforts to retrieve some papers from Michael Wood. Maughan told Rozimus to caution John- ston about causing problems in the plant. Maughan, ad- mittedly, did not instruct Wood's supervisor to talk to Wood about the disturbance. 106 According to Maughan; Johnston asked for a meeting to explain his version of the incident. During the meeting Johnston asked why he was being harassed, and he denied having caused a dis- ruption in the plant. Johnston asked for information about his accuser; Maughan refused to give it to him but he did agree to check the information he had received. Johnston volunteered, during the course of the meeting, that he had been active on behalf of the Teamsters, but he had lost interest in the project because employees no longer wanted the Union. According to Maughan this was the only comment made about the Union.107 M. The Events on January 6, 1982 The Meeting The General Counsel contends that the Respondent, by virtue of certain conduct on January 6, 1982, was re- sponsible for a petition signed by employees, on that date in which employees expressed their disavowal of the Union as their collective-bargaining representative. Re- spondent argues that it was not responsible for the peti- tion, it was a result of actions solely attributable to em- ployees. Respondent's only role regarding the petition was to advise employees of their legal rights when they 104 was not alleged to be a supervisor 105 Johnston also claimed that he told Maughan three other employ- ees, unnamed, were the organizers. 106 Maughan admitted that Andry had not actually observed the mci- dent, Patrick Ercole testified that both Wood and Johnston walked out of the warehouse, and they looked as though they were going to fight, they were both screaming. Michael Wood testified that he and Johnston were cursing at each other 1" Subsequent to this meeting, and amended complaint issued in De- cember 1981 that contained the allegations of the alleged threat to close the plant by Cea and the alleged interrogation by Maughan. requested information from management representatives about how they could revoke their authorization cards. It is undisputed that three meetings were held on the company premises on January 6, 1982, at 7:30 and 8 a.m., and 4 p.m. with the employees on the three shifts. The meetings took place during working time and continued for approximately 30 to 45 minutes. Michael Davies and Evan Spelfogel both spoke to the employees, although there is disagreement about which of the two individuals was the prime speaker. Davies and Spelfogel both testi- fied concerning the reasons for these meetings. Accord- ing to Davies, it was necessary to have a meeting to clear the air because employees had been asking about the "Union situation," there was confusion about wheth- er there was going to be an election, newer employees were unaware of prior events, and some employees had questioned management officials about how they would secure the return of their authorization cards. 108 In addi- tion, Davies testified that the meeting would provide an opportunity for Spelfogel, who had been retained as Re- spondent's counsel in December 1981 to answer any questions the employees might have about the legal as- pects of the situation. Evan Spelfogel testified that during his initial meeting with Davies, Maughan, and Schneible in December 1981 he was told that employees had stated that they were confused about whether there was going to be an elec- tion and about the various charges and complaints that had been filed with the Board. In addition, he was told that several employees, as early as September 1981, had expressed their desire to secure the return of their au- thorization cards. The Respondent's representatives in- formed him during this meeting that they thought it would be advisable to hold a general meeting, with the employees, to clear the air regarding the rumors and the status of the proceedings. At this point Spelfogel claimed that he advised the management officials that they had to be careful about the "Do's and the Dont's" when they held such meetings in order to ensure that unfair labor practices were not committed. Davies then requested Spelfogel's presence at the meeting to ensure that the right things were said and done and so he, Spelfogel, could be available to respond to employee questions about Board procedures and the technical aspect of labor law. Spelfogel agreed to do this and subsequently the meeting was scheduled for January 6, 1982. Davies and Spelfogel claim that Davies did most of the talking, with Spelfogel interjecting a remark only when Davies re- quested him to do so. The employees contend that it was Spelfogel who spoke the most. 108 Maughan testified that in September 1981 he was approached by employee Charles Telesca, who inquired about how he could have his card returned to him Telesca testified that sometime in the winter, he could not state precisely when, it could have been after the January 6, 1982 meeting, he asked Grace Andry about how he could get his card returned to him He claimed other employees were with him, but he could name only one employee Maughan also testified that at the Christ- mas party either Telesca or Bill Somoskey approached him and asked how he cold secure the return of his card Telesca did not testify regard- ing this alleged conversation Somoskey testified that he Wanted his card returned, but he did not claim that he told this to management, nor did he state when he came to the decision about wanting his card returned. CAMVAC INTERNATIONAL 839 Davies testified that he commenced the meeting by 'in- troducing Spelfogel to the employees and explaining his position with the Company. He then discussed the chronological events concerning the union situation be- ginning with earlier efforts by the Painters' union. He spoke about the various charges and complaints filed with the Board, and told the employees that the Re- spondent had sought to have an election, but this request had been refused by Local 445. 1" He requested Spelfo- gel to tell the employees about the rights and obligations of all the parties. Spelfogel then advised the employees that it was their obligation to continue to perform their work, the Union had the right to organize and file charges, and Respondent had the right to carry on its business as it had in the past. Davies then outlined the Respondent's history, and gave six or seven examples of benefits already made possible because of the Company's expansion. He further stated that the Company planned additional expansion and would continue its policy of granting benefits with or without a union."° According to Davies, he told the employees that the Union did not appear to have much interest in their welfare, and he based his opinion on the fact that whenever Respondent granted a benefit to the employee's the Union filed unfair labor practices. The Union, Davies stated, was interested only in dues and initiation fees, and he asked Spelfogel to explain to the employees what the Teamsters usually sought in their contracts. In response to this question, Spelfogel stated that the Union generally wanted a union-security and checkoff clause and, when possible, their own pension plan. Davies asked the employees to take note of the newspaper reports about Teamsters pen- sion plans that showed their plans "to be in a 'slightly bad light," constantly under investigation. Again Davies asked Spelfogel to comment, and Spelfogel responded by giving examples of situations in which union officials had been indicted in connection with the misuse of pension funds. At either the first or second meeting an employee asked what would happen to the profit-sharing plan if the Union won. Davies testified that Spelfogel replied, "whatever you got in your profit sharing, I mean that's yours it can't be taken away from you even if things closed down you'd probably get your money out." Someone, apparently at the second meeting, also ques- tioned whether the Respondent would continue to give an attendance bonus if the Union became the bargaining representative. To this inquiry, either Davies or Spelfo- gel stated that they did not know, "everything was up for negotiation if the Union got in." The subject of card revocation was discussed next. It appears that it was Davies who initiated the discussion of this subject matter at all three meetings. He commenced his discussion by telling the employees that prior to the meeting employ- , I 1 ° 9 Davies testified that he was aware by January 6, 1982, that there could not be an election because of the outstanding complaints in which a bargaining order was being sought, but he testified that he nevertheless thought that it was possible that the parties could voluntarily agree to such an election. 11 ° Spelfogel explained that the use of the words with or without the Union meant that Respondent would conduct business in an ordinary way without regard to whether its actions would impact on the Union's organizing effort. ees had approached management officials and supervisors and had sought to secure information about how they could revoke their authorization cards. Davies reminded the employees that the phone number of the Board had been posted, and he stated that management could not assist the employees in their efforts." Notwithstanding this comment, Davies testified that an employee at the first meeting, did ask how the employees could go about securing the return of their cards. Davies repeated that he could not assist them. At this point another employee questioned him about how it had been done at other places: According to Davies, Spelfogel replied that in other companies employees had written to the Board or had gone to the union in groups, or sent letters to the union, but he could not advise them about which method was the most effective. At the second meeting an em- ployee, Steve Doyle, said employees had signed cards because they thought it was for an election. Spelfogel re- plied that different unions had different cards. At the third meeting an employee asked what they should say in the letter, but Spelfogel replied that he could not tell them Spelfogel, at one of the meetings, mentioned that there had been a revocation of cards at a company in the same general area. Spelfogel described the procedures of the unfair labor practice hearings and gave an estimate of the amount of time it would take to complete the proc- ess. At the conclusion of the meetings, Davies stated that it appeared that the situation would continue for some time, employees would have to do their work, and the Company would not put a freeze on everything in antici- pation of the fmal decision on the matter. Davies testified that at the conclusion of the third meeting he heard em- ployees talking about signing something, but Spelfogel ushered all management people out of the room and he left without seeing the petition."2 The basic structure of all three meetings was the same, according to Spelfogel. Spelfogel testified that Davies talked about a number of subjects at the meetings. He began the speech by giving a summary of the Board pro- ceedings, he outlined the benefits the employees had re- ceived, referred to the alleged criminal activity by the Teamsters regarding pension funds, gave estimates re- garding the length of time if would take to complete the Board proceedings, and explained the future plans of the Company. Davies told the employees that the Company intended to continue, "to carry on its practice developed in the past with or without a union, to continue to review and from time to time continue to make improve- ments as economics dictated." Spelfogel testified that Davies mentioned the CEWC and commented on the fact that a number of improvements had come about as a result of recommendations of that committee. Spelfogel recalled that Davies mentioned that the Union was inter- ested only in its own good, and Davies reminded the em- ployees that during that year, whenever the Company at- tempted to grant a benefit, the Union filed an unfair labor practice charge. Spelfogel stated, that at Davies' " 1 This notice had been posted in September 1981. " 2 On cross-examination, Davies testified that Spelfogel had told him before the third meeting that Johnston was going to circulate the peti- tion. 840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD request, he outlined the items usually sought by the Union including, union security, dues checkoff; pension, welfare and seniority clauses Spelfogel claimed that Davies at one point stated that the Union would demand some things, which if they were successful in securing, would impede the Company's flexibility in operating the plant. At one of the meetings, in response to a question concerning negotiations, Spelfogel testified that Davies told the employees that wages and benefits were negotia- ble. At this point employees asked whether they would lose their attendance bonus; they also asked what would be the impact on the profit-sharing plan. Spelfogel testi- fied that Davies responded that all things were negotia- ble. Spelfogel further testified that regarding this ques- tion, he explained to the employees that the money they had contributed into the profit-sharing plan was protect- ed. Spelfogel stated that Davies mentioned the publicity surrounding the criminal investigations concerning the Teamsters pension funds. Spelfogel claimed that he told the employees about three particular criminal investiga- tions relating to Teamsters pension funds and about re- ports of alleged connection with organized crime by Teamsters officials. Spelfogel further testified that it was Davies who opened the discussion about the revocation of authorization cards. At the meetings, Davies, accord- ing to Spelfogel, stated that a number of employees had told various officials prior to the meeting that they no longer wanted the Union and they wanted information about how they could have their cards returned to them. At the meeting, Davies told the employees that as the company representatives had stated previously when asked this question, the Company could not assist or advise them. Spelfogel said he then confirmed Davies' statement. After the topic was opened by Davies, how- ever, employees at the three meetings did make com- ments about the authorization cards. The gist of some of these -comments made by some employees was that they thought they had signed an authorization card in order to have an election. Davies informed them that this was not the situation. Spelfogel testified that he then ex- plained the rationale of Gissel to the employees and ad- vised them that under certain situations the Board could direct the Company to bargain with a union even though an election had not been held. Employees at all meetings then asked how they could revoke their cards, and Davies again replied that the Company could not help. Some employees asked whether employees at other com- panies had been able to secure their cards and, according to Spelfogel, Davies responded that they had been suc- cessful. Spelfogel testified that he then said that he was aware of plant where employees had been successful in securing the return of their cards and employees asked Spelfogel to tell them how it had been accomplished. At this point Spelfogel testified that he then explained that in some cases the employees had gone individually or in groups to the Union to ask for their authorization cards. According to Spelfogel's testimony, employees then stated that they had tried this method without success. Spelfbgel claimed that he told the employees that at one plant with which he was familiar the employees , had written to the Board and to the union requesting the return of their card. Spelfogel testified that he explained to the employees about how employees employed at a plant in the area had attempted to secure the return of their cards from either the local involved in the instant case or a sister local. Spelfogel claimed that he did not tell the employees which of these various methods had been successful. There were some questions by employ- ees concerning what should be contained in the letter to be sent, but Spelfogel replied that he could not respond to that question because he could not assist in the prepa- ration of the letter." 3 Spelfogel further explained to the employees about the pending unfair labor practice pro- ceedings and gave estimates about how long it would be before the completion of those proceedings. Davies then, according to Spelfogel, stated that while these unfair labor practice complaints were being processed, the Re- spondent would continue to grant improvements in wages and benefits as it had in the past, with or without a union. Davies also commented that he expected the Teamsters to continue to follow their practice of filing unfair labor practice charges whenever the Company granted a benefit to the employees. At the end of the third meeting Robert Johnston started to circulate a peti- tion, but Spelfogel ushered all management representa- tives out of the room. Patrick Prinz, an employee, recalled that at the 4 p.m. meeting on January 6, 1982, Spelfogel basically wanted to know "if we wanted to get the Union out." In re- sponse to a question about what was specifically said at the meeting, Prinz testified as follows: Okay, they weren't talking direct. They couldn't . • • they said it was illegal for them to talk to us direct. They had to use other instances and a couple things were brought up about—getting back union cards and about signing union cards and he just. . . about telling us that there was ways that you can get your union cards back to get the union out. They talked about a lot of things. At another point Prinz stated as follows: The [sic] spoke . . . the one thing I remember they brought up was that they were trying to give us an idea how we can get our union cards back and that how other companies went about doing it. They couldn't come out and tell us how to do it be- cause they said it was illegal. . . . Prinz testified that Spelfogel gave examples of how em- ployees were able to secure the return of their cards at other companies by either signing a petition or asking the individual who had given them the card to return it to them. Either Spelfogel or Davies said that they could not give exact information about how employees should go about getting their cards returned, but they did state that they would put the employees in "touch" with someone who could assist them. Although the name of this person was not mentioned during the January 6, 1982 meeting, Prinz testified that he thought they were referring to Johnston. Prinz further testified that there 118 claimed that this question was asked by Robert Johnston at the third meeting. CAMVAC INTERNATIONAL 841 was a discussion about the length of the proceedings, and the point stressed by management representatives was how long the case would continue." 4 At one point Davies told the employees that whenever the Company attempted to give a benefit, the Union filed a charge and therefore the Company was not going to be able to give any further benefits. Davies also spoke about the benefits the Company had given, the charges that were filed, the right of the employees to join a union, the lack of inter- est by the Union in the welfare of the employees, and the Union and organized crime. Prinz described the dis- cussions at the meetings as very "run around." Prinz also claimed that the company representatives, although they made statements to the effect that they could not assist with the petition, nevertheless did explain the procedure the employees could use to secure the return of their cards including the filing of a petition with the Board. Prinz did not recall any employee at the meeting asking a question about how to secure the return of the card, but he did know of an employee, Charlie Telesca, who, at some time prior to the meeting, had sought the return of his authorization card. Paul Scarcello, an employee, testified that he attended the 4 p.m. meeting. During the meeting Spelfogel spoke about several things but in general he told the employ- ees, "we really didn't need a union, the Company was doing fine as it was right now." It was Scarcello's recol- lection that Spelfogel initiated the discussion about card revocation and, although Spelfogel did state that it was not legal for the Company to tell the employees to seek the return of their cards, he gave an example of employ- ees signing a petition in an effort to secure the return of their cards," Spelfogel also spoke about the Union and organized crime, and the possibility of employees losing their benefits if they had the Union." 16 On cross-exami- nation Scarcello admitted that Davies spoke about vari- ous matters including the benefits the Company had given to the employees, the company efforts to have an election that the Union did not want, the earlier Painters election, and the unfair labor practice charges that had been filed by Local 445. Concerning this last remark, Scarcello testified that Davies stated that the Union filed charges whenever the Company attempted to give a ben- efit to the employees. Scarcello recalled that Davies re- marked that the Union seemed to be interested only in dues and not the employee's welfare. Davies also stated that, with or without a Union, the Company would con- tinue its practice of granting benefits. Scarcello stated that at one point an employee asked what would happen to the attendance bonus and, "they said we would lose most of our benefits, such as our attendance bonus."7 He repeated on cross-examination that Spelfogel told the employees that if they jointly prepared a petition, they might be able to secure the return of their authorization 114 Prinz testified that Davies said that as long as there were problems with the Union the "benefits wouldn't be able to come in." " 5 Scarcello signed the petition to revoke his authorization card. 118 At another point in his testimony Scarcello stated that Spelfogel had spoken only about the petition and that it was Davies who spoke about the benefits. 117 Scarcello testified that in employee discussions after the meeting, employees expressed concern about their benefits. cards, and he advised them that the petition should be sent to the Board or the Union. John Terrano, an employee, testified that he attended the 8 a.m. meeting on July 6, 1982, He claimed that Spel- fogel did most of the talking and initiated the conversa- tion about revocation of the authorization cards. There- after, a supervisor, either Dick Cea or Peter Pertano, asked how employees could secure the return of their authorization cards. Spelfogel told the employees that they could ask the person who had given them the card to return it to them, or the employees could sign a peti- tion asking for the return of their cards. Terrano de- scribed the meeting as one in which, "it's kind of like °saying things but not saying them." The employees were told by either Davies or Spelfogel, or both, that the Union was not a good idea, they rip off employees, and it was to the employees' benefit not to have a union. Spelfogel again spoke about employees getting their cards back, otherwise the situation could "drag" on for years. On cross-examination, Terrano testified that Spel- fogel said something to the effect that if the Union were not around, management could do more for the employ- ees insofar as benefits, raises, etc., were concerned. He recalled some discussions about unfair labor practice charges being filed when the Company tried to do some- thing for the employees, but could not recall whether it was Davies or Spelfogel who said that the Union was in- terested in dues and initiation fees and the employees could not look forward to "gaining anything with the Union coming in." Terrano recalled some statements about the possibility of employees having to go on strike but he did not recall whether Spelfogel or Davies made the statement. In response to a question by Spelfogel, during the hearing, about whether management repre- sentatives had said in this meeting that they could not assist employees in their efforts to secure the return of their cards, Terrano stated the following: Well, I remember you guys saying how to get them back but also saying that you weren't telling us to get them back. So you could take it either way. I mean, you planted the seed and then either they take it or they don't take it. You know, I re- member you saying that you weren't specifically telling us how to get them back. Terrano, again on cross-examination, stated that Spelfo- gel told the employees that they could ask for the return of their cards from the employees to whom they had given them, or they could write a letter and seek the return of their card. Terrano did not recall Spelfogel saying that employees at other locations who had the same local, or a sister local, were successful in having their cards returned to them. Terrano signed the petition on January 0, 1982, after lunch. Joseph Spatoro, an employee, attended the 4 p.m. meeting held on January 6, 1982. According to his testi- mony, both Davies and Spelfogel spoke during the meet- ing. He could recall certain matters discussed specifically by Spelfogel, although regarding other items be was not certain which of the two spoke about the issue. He re- called that Spelfogel talked about the charges being filed 842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD against the Company because of the recent benefits granted to the employees, although he did not recall if Spelfogel attributed the filing of the charges to the Union. According to Spatoro, Spelfogel spoke in a "neg- ative" fashion about the Union and at one point men- tioned criminal activity in connection with the Union. Spatoro also testified that it was Spelfogel who initiated the discussion about the employee authorization cards and, although Spelfogel did not suggest to the employees that they should attempt to secure the return of their cards, he did mention the methods used by employees at other locations to secure the return of their cards. These" methods included the filing of a petition with the Board; the Company, and Union. On cross-examination Spatoro recalled items that either Davies or Spelfogel talked about, including the Board proceedings, the Union's lack of interest in the welfare of the employees, and their in- terest in collecting dues and initiation fees. At the con- clusion of the meeting the employees were permitted "to sit around and have a cup of coffee," and it was during this time that Johnston circulated the petition. Richard Pinkos, an employee, testified that he attended a meeting on January 6, 1982, at 8 or 9 a.m. He could not recall whether it was Maughan or Spelfogel who said that the word had been brought up to them that ern, ployees "wished to have their names revoked from Union cards." He further testified' that it was either, Maughan or Spelfogel who said,—"if you so desired to get your named off the union cards the petition will go around that they should sign and that it should be pre- sented to the Labor Relations Board." Pinkos stated that it was either Maughan or Spelfogel who first discussed the circulation of the petition. Robert Johnston also attended the meeting at 4 p.m. According to Johnston, the meeting began with Davies' introduction of Spelfogel to the employees. Spelfogel then told the employees that the Union was connected with organized crime and was not interested in the wel- fare of the employees, but was interested only in their dues and money. Thereafter, Spelfogel, stated that the Company wanted to provide more benefits for the em- ployees, but whenever they attempted to do this the Union filed unfair labor practice charges. Johnston fur- ther testified that Spelfogel made the statement that, in his experience, this type of case could last 4 or 5 years, and he told the employees that, "he has known other companies when people got petitions up, to have it signed, and to state they don't want the Union, even though they did sign the card and it worked." Spelfogel, -according to Johnston, stated that these petitions had been recognized and the union cards were disregarded. At the conclusion of the meeting, according to the testi- mony of Johnston, the employees discussed the matter among themselves and they indicated that they wanted the return of their cards. Johnston attributed this desire to Spelfogel's comments about organized crime, which comments had given the employees the -impression that they would be found in the river. Johnston told the em- ployees that he had already started to circulate a peti- tion, he gave this petition to the employees to sign, and some did sign at that time. 119 That evening Pat Ercole asked Johnston for the petition so he could circulate it on the third shift. 119 The following day Ercole returned the petition to Johnston and it did contain the name of employees on the third shift. Johnston apparently, made copies of the petition because he claimed that he gave one copy to Davies who smiled and said, "Thanks." He brought another copy or copies to Schneible, asked Schneible if he would have them mailed, and Schneible told him to give them to Bernadette, a secretary in the office. 12° Although Johnston did not testify that he gave the petition to Bernadette, he did testify that about 15 to 20 minutes later John Rozimus returned the envelope to him and told him that the Company could not be in- volved. He told Rozimus that he did not have the money to send the petitions by registered mail. 121 Rozimus left and spoke with Maughan and when he returned he handed Johnston $6 to mail the petitions. Rozimus told Johnston that the money came from the employees fund because the Company could not be involved in anything to do with the petitions. Finally, Johnston testified that he gave the envelopes to someone else to mail, although he did not identify this individual. Johnston's testimony regarding these last events was not rebutted. N. .Johnston 's Meeting with Spelfogel on January 6, 1982 Johnston testified that about 9 a.m. on January 6, 1982, he was approached by several employees who told him they wanted their authorization cards returned to them. When he questioned them about the reason for their re- quest they told him that the talk by the lawyer earlier that morning had convinced them that they did not need a union. Johnston then made a quick decision as he testi- fied: So right then and there, with all the pressure on me, I figured I better jump on the bandwagon or end up losing my job. So a few minutes later, Mike Davies walked by and I asked him if I could have a conversation with the lawyer. Davies said the meeting could be arranged and at about 11 a.m. Johnston was told that a meeting had been ar- ranged with the lawyer in the conference room. John- ston went to the conference and after introductions Spel- fogel, who had a yellow piece of paper with the notation I, Robert Johnston on it, told him he was going to write down what was said during the meeting. According to Johnston, Spelfogel commenced the meeting by asking Johnston his views on the CEWC, and Johnston replied that he did not believe in it, it existed only to make em- ployees think they did not need a union. Johnston claimed that he also told Spelfogel that the employees were reluctant to talk at CEWC meetings while 118 Johnston contended that he started to circulate a petition sometime around his lunch break, and that by the 4 p.m. meeting he had five signa- tures 119 Ercole was not alleged to be a supervisor. 128 Bernadette was not called to testify. 121 Johnston claimed that Spelfogel told him that the petition had to be sent by registered mail CAMVAC INTERNATIONAL 843 Maughan was present, although they did not have the same reluctance with Davies. Johnston conceded that he started the discussion about the authorization cards by telling Spelfogel that the employees, that day, had asked for the return of their cards and had talked about a peti- tion. Johnston claimed that Spelfogel then stated, "Yes, if you get a petition going, it would look better if it comes from you because the Company knows that you got the majority of the cards signed and that when you get the petition signed, who to give a copy to—that one copy goes to the National Labor Relations Board and one COPY to (inaudible)." Spelfogel then asked Johnston about a conversation he had with Maughan, during which Maughan allegedly interrogated Johnston about the Union. 122 Spelfogel, at some point, again returned to the topic of the petition and advised Johnston that the Company could not be involve in the matter of the peti- tion. Johnston testified that he agreed to circulate the pe- fition, 123 and he said to Spelfogel, "Listen if I bring the petition around, is the Company going to screw me." Spelfogel asked him what he was referring to, and John- ston explained that the Respondent had refused to com- pensate him for an injury he had sustained in the compa- ny parking lot due to the Respondent's failure to sand the ice. He further told Spelfogel that it was Schneible who not only had refused to pay him, but had told him he would have to sue Respondent. Spelfogel said he would investigate the matter. Prior to the termination of the meeting Spelfogel told Johnston that there would be a 4 p.m. meeting and at the meeting Spelfogel would give Johnston the opportunity to talk to the employee, but the company representatives could not be in the room, therefore, when management officials left the room, that would be Johnston's opportunity to speak to the employees about signing the petition. 124 Spelfogel asked Johnston to sign an affidavit at the conclusion of the meeting, that Johnston did sign, although he testified that the affidavit did not contain all that was said in the room that day. 125 Johnston claims that later that day he was called to the conference room and was told by Spel- fogel that the Respondent would pay him for the time lost due to the injury, he could borrow sick days from the new year, and the money would be in his paycheck the following Thursday. 126 The moneys were not in the following paycheck, and Johnston spoke to Schneible about the matter, whereupon Schneible checked with someone and returned and gave a check to Johnston in the amount of $81.54.127 On cross-examination Johnston testified that when he was approached on January 6, 1982, by four or five em- ployees, who requested the return of their authorization cards, he "knew he had to do something," the Company was putting pressure on him. In response to that pres- 122 A charge had been filed regarding this interrogation by Maughan 123 Johnston claimed that he agreed because he wanted to convince the Company that he was on the side of the Company. 124 Johnston claimed that Spelfogel told him in this meeting that the petition had to be sent registered, certified mail, but he did not tell him what should be contamed in the petition. 125 R. Exh 16 126 Johnston claimed that prior to this time, he had never heard of this policy of borrowing days. 127 G.C. Exh 78. sure, Johnston replied that Schneible had accused him of "bad-mouthing" the savings program; Maughan had ac- cused him of distributing union literature on Respond- ent's premises; on one occasion, Maughan had refused to allow him to work overtime; and his supervisor, Rozi- mus, on several occasions, said that management thought he was "throwing his weight around." Johnston claimed that there were other instances of harassment, but he could not recall them. In the affidavit submitted to the Board Johnston stated that on January 6, 1982, employees approached him after the first company meeting that morning and told him that the lawyer had spoken to them about getting "rid" Of the Union and told them also that a petition seeking the return of their cards should be circulated. The em- ployees were upset and told him to do something. As a result Johnston, according to his affidavit, decided to so something; "I decided that I had better bring around this petition or else I would get into trouble, so I went to Mike Davies and I told him I would like to talk to the lawyer. Davies said it could be arranged." 128 Johnston's efforts to explain that paragraph during his testimony are confusing. Thus he testified, "I said I'd better bring, I de- cided I'd better bring it around. I didn't decide on it, that I was going to do it, until our meeting took place." Later he elaborated on this statement and said, I decided that, you know, I should get a petition, but I didn't know what to do, how to go about doing a petition or any- thing and I really made the decision that I was going to do it after I talked to Mr. Spelfogel up in the office. I didn't know what a petition was." Johnston claimed that he sought the private meeting with Spelfogel to see if the Company would "stay off his back" if he jumped on the bandwagon and circulated the petition. He denied that he sought a bribe in the form of sick pay for circulating the petition. Evan Spelfogel testified that on January 6, 1982, he met with Robert Johnston around noon. 129 He had planned to speak with Johnston regarding some of the al- legations in the complaint; however, before he had the opportunity to do so, he was advised that Johnson wanted to speak with him. At the outset of their meet- ing, Spelfogel explained to Johnston that he, Johnston, did not have to meet with him, and whether he agreed to speak or not would have no bearing on his job. He further told Johnston that he was not interested in his union sympathies. Johnston agreed to stay, and Spelfogel commenced to question him concerning certain allega- tions of the complaint that Spelfogel beleived referred to Johnston. Johnston proceeded to describe the incident with Maughan and Rozimus and explained that when Maughan failed to get back to him, as he had promised, about the Wood incident, he went to either the Union or the Board and filed a charge. In addition to the Maughan incident, Spelfogel testified that he questioned Johnston about the CEWC because of the fact that the complaint contained allegations regarding that committee. Johnston 128 R. Exh. 13. i29 Spelfogel claimed that he was mterviewmg other employees and management officials regarding the complaints on that day when John- ston requested the interview. 844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD explained that he had asked to have his name removed from the committee because of difficulties he was having with Grace Andry. At some point in the meeting, ac- cording to Spelfogel, Johnston volunteered the informa- tion that it was he who secured the authorization cards and that now a majority of the employees had changed their minds and they no longer wanted the Union. Spel- fogel testified that Johnston told him that employees who had been at the morning meetings had come from the meetings and had started to circulate a petition, and he had decided that if this was what the employees wanted, he would prepare his own petition. According to Spelfogel, Johnston explained that although he initial- ly had been for the Union, he did not now care one way. or the other; he was out only for what he would get.130 Spelfogel claimed that he told Johnston that the Compa- ny was not going to do anything for him based on his views about the Union and that Spelfogel, as an officer of the court, certainly was not going to do anything for him The conversation returned to the CEWC and it was at this point that Johnston mentioned that Andry was "hassling" him, that he was entitled to sick pay for an injury in the parking lot, and that Andry and Schneible had refused to compensate him Spelfogel stated that he told Johnston that he would investigate the matter. At the conclusion of the meeting he asked Johnston to read and sign the statement he had prepared. Johnston read it, said it was true, and signed it. Later that day, Spelfogel advised Schneible that Johnston's injury was a workmens compensation covered situation."' Schneible then told Spelfogel that an amendment to the sick pay plan al- lowed employees to borrow against the sick pay for the first quarter of the year when the illness had occur close to the end of the previous quarter. Schneible agreed that Johnston should be compensated under the plan and Spelfogel advised Johnston, late on January 6, 1982, that he would be compensated.132 0. The January 18, 1982 Meeting of Spelfogel and Johnston On January 18, 1982, Johnston signed a statement for Spelfogel in which he stated, inter alia, that the decision to prepare and circulate the petition was his decision and management was not involved in that decision in any way, nor had management suggested it or helped him in anyway, nor had management offered or promised him anything to circulate the petition." 3 It is unclear from Johnston's testimony how this meeting came about. Spelfogel claimed that, on that day, he was at the plant continuing with preparation for these proceedings. Johnston requested a meeting. During the meeting John- ston advised Spelfogel that he was under pressure both 130 Johnston kept playing with papers he had in his pocket and Spelfo- gel thought that he was seeking a bnbe "3 " Although Johnston's injury might have been worked related it does not appear that he would have been compensated under workmen's compensation. In order to be compensated, Johnston would need to have been absent more than the I-1/2 days he was absent 132 An examination of the new sick leave policy fails to disclose any provision permitting employees to borrow against future sick leave. G.C. Exh 20. '33 G.C. Exh 80 from the Board and Local 445 because he circulated the antiunion petition. He further stated, according to Spel- fogel, that a Board agent had accused him of circulating the petition because of threats by Respondent, but he Johnston had assured the agent that he had acted on his own, and he further told the agent that the employees wanted to withdraw all the unfair labor practice charges. Johnston allegedly told Spelfogel that the agent then re- plied that the desires of the employees was immaterial; they could be subpoened to testify. At this point John- ston, according to Spelfogel, asked his advice, and Spel- fogel told him he had to comply with the subpoena. Johnston again stated that he had secured the signatures on the petition, and it was at this point that Spelfogel asked Johnston whether he would be agreeable to having his statements put into writing, and Johnston agreed to it. P. The Alleged Discriminatory Discharge of Robert Johnston The General Counsel contends that Robert Johnston was discharged because of his organizing efforts on behalf of the Teamsters and because "the Company felt he was not to be trusted in view of a charge pending re- garding Johnston's circulation of the anti-union petition." Respondent argues that Johnston was discharged for vio- lating a well-known plant rule, that required immediate dismissal for possession of drugs on company property. Moreover, the Respondent asserts that at the time of the discharge Respondent considered Johnston to be the leader of the antiunion sentiment in the plant and, there- fore, they would have had no reason to discharge him. Johnston's efforts on behalf of both the Painters and the Teamsters union and Respondent's knowledge of these activities has been outlined above. Johnston had been employed for approximately 18 months at the time of his discharge on February 9, 1982. 134 On the day of the discharge Johnston was in- volved in a car accident with Grace Andry on the Re- spondent's premises. Johnston claimed that the accident was caused by Andry, who had been attempting to pull into a parking space but had been unable to make it, and pulled out as he passed, striking his car on the side. Andry, although still employed, did not testify. John- ston's version appears to be supported by the damage to the cars and by the testimony of Richard Pinkos who, al- though he did not witness the actual impact, did describe part of the incident. Pinkos testified that prior to the impact he observed Andry attempting to back into a parking space. He took notice of her efforts because his car was in the space behind the one in which she was attempting to park her car, and he did not think she would be able to make it. He was at the scene almost im- mediately after the accident and he saw that her car had been moved and was no longer at an angle to the park- ing space. 135 Although there was considerable testimony 134 Although Respondent introduced evidence that Johnston was dis- ciplined on two occasions prior to his discharge, it appears to be its posi- tion that even absent such pnor discipline, he would have been dis- charged for the possession of drugs on the Company's premises. 135 The front fender of Andry's car had been jammed against the wheel and was pried loose by an employee, Michael Cea CAMVAC INTERNATIONAL 845 about the accident it was not the cause of Johnston's dis- charge. It was the events following the accident that led to the discharge. Johnston called the police on his own initiative or at Andry's direction. It appears that either at the time of the impact, or while they awaited the police, Johnston and Andry became involved in a verbal dis- pute, The officer who arrived at the scene, Deputy Sher- iff Ross, was Andry's friend. He testified that when he arrived Andry and Johnston 'were "yelling" at each other. Ross, according to Johnston and Pinkos, refused to take statements from them about the accident. Ross claimed that he secured versions from both participants, but admitted that he did not take a statement from Pinkos, allegedly because Pinkos had not seen the actual impact.'" Later that day Andry filed a complaint with the sheriff's office charging Johnston with criminal har- assment because of the bad language used by Johnston during their argument. 137 Johnston claimed that both used intemperate language during the argument. Andry, as noted, did not testify. Later that day Ross returned to the premises to arrest Johnston concerning the alleged harassment charge. According to Johnston, about 1 p.m. he was called to the office and when he arrived there he observed two or three deputy sheriffs, including Ross, who had a piece of paper that he said was a warrant for Johnston's arrest. When Johnston asked what he was being arrested for, Ross responded that it was for harass- ment. At this point Ross pushed Johnston, according to Johnston, against the wall, handcuffed him with his hands "way up in the back of my back" and proceeded to search him. 138 During the search Ross pulled out a bag from one of Johnston's pockets. 139 At this point Johnston testified that he knew it was a better procedure to remain quiet. Johnston was then taken in handcuffs before a judge who directed that the handcuffs be re- moved. 14° The sheriffs office analyzed the contents of the bag and advised Respondent's representatives on February 8 that the bag contained some marijuana. The following day Johnston was told by Maughan that he was discharged because of his possession of marijuana. Johnston said that it was not marijuana and he did not know how it came to be in his possession. Johnston did not file a grievance about his discharge. Sunday and Johnston testified that the use of drugs by employees was widespread and known to supervisors. According to Sunday, Supervisors Chris Grant, Hank Kreuzer, Felix Spotoro, and Richard Cea were aware of the fact that the use of drugs was widespread and that Cea, in fact, used drugs while on the Respondent's prem- ises. As noted, Spatoro was not called to testify. Grant testified that there was always a suspicion that employees G C. Exh. 110. The accident report, however, contains a statement attributed to Andry and does not contain one attributed to Johnston. 137 The language attributed to Johnston did not involve threats, but rather involved the use of course language. '39 This occurred, apparently, in the lobby of the budding and not in the office 139 Johnston originally stated that Ross pulled out a bag of marijuana. Subsequently, he referred to it simply as a bag i40 Although Ross denied Johnston's version about the search and handcuffing, he admitted the main points. According to Ross, this was the usual police procedure, notwithstanding the trivial nature of the of- fense. were smoking marijuana while on the Respondent's premises, 141 but he recalled only one incident when it was established that an employee, in fact, did use mari- juana while at work. That incident involved an employ- ee, Richard Verbasco, 142 Grant also testified that he sus- pected one employee in his department of using drugs but, after he kept the employee under surveillance, he determined that the individual was using medication. Kreuzer denied knowledge of the use of drugs by em- ployees. Cea admitted that, prior to becoming a supervi- sor some 3 or 4 years before the events involved, he had used marijuana on Respondent's premises, but he did not know if management was aware of this fact. He testified further that when the new disciplinary policy that stated that the possession or use of alcohol or drugs was grounds for immediate dismissal became effective, he ad- vised those employees under his supervision that he in- tended to enforce the policy.143 Davies, Schneible, and Maughan all denied that they were aware of employees possessing or using drugs on Respondent's premises. Maughan testified that Felix Spa- toro was replaced in 1979 basically because Davies was dissatisfied with Spatoro's performance as a plant manag- er. According to Maughan, Spatoro had had discipline problems concerning the use of drugs and alcohol by employees. Maughan testified that he had not observed the use of these substances, but there "were rumors that the use of alcohol and drugs were rife in the plant at the time?, 14 4 Maughan claimed that he advised employees that the use of drugs would not be permitted. The record disclosed four instances involving the pos- session or use of drugs by employees while on Respond- ent's premises. Maughan testified that about 1979 he vis- ited the night shift and found Richard Verbasco, an em- ployee, with marijuana on his work bench. Maughan sus- pended Verbasco for 2 weeks. According to Maughan and Cea, Respondent did not have a policy regarding drugs at that time. 145 In addition, the record reveals that both Douglas Strong and Jewitt Johnston were warned about the use of alcohol.'" Neither employee was dis- charged. It is the Respondent's position that at the time of both incidents the company policy did not require im- mediate discharge for use of alcoholic beverages, not- withstanding Davies' testimony that the written policy of February 1981, which does contain such a disciplinary measure, was in fact always Respondent's policy. Final- ly, the record reveals that an employee, Carl Finstead, was not discharged for smoking in a nonsmoking area in the spring of 1981, although admittedly this was then the discipline for such an infraction, an infraction that was 141 In fact, Grant testified that, due to these suspicions, he discussed the matter with Maughan about 3-1/2 years ago. 142 This incident will be discussed below. 143 It is uncertain which policy Grant was referring to because both the February 1981 and the September 1, 1981 policies contain the same language on this aspect of the disciplinary policy. 144 Apparently at the time Maughan became plant manager 149 As noted, Davies testified that the policy of February 1981, which does state that immediate discharge was the penalty for possession or use of alcohol or drugs, was always the company policy, although it was not reduced to writing until that February. 146 G.C. Exhs. 84, 89. 846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD considered of a serious nature.' 47 Maughan testified that he weighed several factors, including Finstead's status as a new employee, the fact that he was not working in his normal work area, and determined that a 2-week suspen- sion in those circumstances was a sufficient penalty. Discussion A. The Alleged Unlawful Intetference, Domination, and Assistance—CEWC The initial question to be determined is whether CEWC is, in fact, a labor organization within the mean- ing of the Act. Section 2(5) of the Act defines a labor organization as follows: The term "labor organization" means any organi- zation of any kind, or any agency or employee rep- resentation committee or plan, in which employees participate and which exists for the purpose of, in whole or in part, of dealing with employers con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. The document prepared by Respondent's vice presi- dent an comptroller, Sctmeibte, and presented to the em- ployees at the January 19, 1981 meeting states that, CEWC was formed to provide a method by which ern- ployees could deal with management concerning terms an conditions of employment."'" An examination of the CEWC minutes establishes that employees did meet with management representatives, did discuss with them mat- ters relating to terms an conditions of employment, and reached decisions concerning many of those issues. The Supreme Court, in NLRB g Cabot Carbon Co., 360 U.S. 203, 211 (1959), found that employee committees that exist, at least in part, to deal with employers concerning grievances or conditions of work are labor organizations within the meaning of the Act. This description aptly de- scribes CEWC's relation with Respondent. Accordingly, I find that CEWC was, at all times relevant, a labor or- ganization within the meaning of the Act.'" The General Counsel, during the hearing, stated that the manner in which CEWC was formed was not being alleged as an unfair labor practice, apparently because the formation was outside the 10(b) period. 150 He con- tends, however, that the manner in which it was formed can be considered in determining whether Respondent, in the 10(b) period, dominated and assisted CEWC. Re- spondent argues that the formation and establishment of CEWC predated the 10(b) period and allegations relating to its formation and establishment must be dismissed."' 147 Fmstead had been discovered smoking in the coating room, by Maughan, this was considered to be an inflammable area. In fact, Fin- stead's actions had been the subject of discussion at a CEWC meeting. 148 G.C. Exh. 4. 149 Comet Corp., 261 NLRB 1414 (1982), Steiner-Liff Textile Products Co. 259 NLRB 1064 (1982); U.S. Railway Equipment Co., 172 NLRB 708, 720 (1968). 15° Sec 10(b) of the Act, in pertinent part, states: "No complaint shall issue based on any unfair labor practice occurring more than six months prior to the filing of the charge with the Board. . . ." '51 The exact date CEWC was formed is unclear, but it appears to have been on or before January 19, 1981 The first charge was filed on July 29, 1981. Moreover, Respondent argues that the administrative law judge is precluded from relying on these background factors to "establish a practice of domination and assist- ance extending within the statutory period." The initial issue, therefore, is whether Respondent in fact formed CEWC and, if it did, what weight, if any, can be given to this fact in considering Respondent's ac- tions in the 10(b) period. The testimony and documentary evidence adduced in this record amply supports the conclusion that CEWC was created by Michael Davies, Respondent's president, Both Schneible and Davies testified that the comcept for CEWC originated with Davies, albeit Davies claimed that it was employee dissatisfaction with management's lack of communication that led him to conclude that such a committee was needed. It was also Davies who, in the memorandum of December 22, 1980, informed the employees that CEWC would consist of employee and management representatives, that employee representa- tives would be elected by the members of a department, that there would be one representative per department, and that employee representatives would be paid over- time if the meetings were held when employees were not scheduled to work. These directives were repeated to employees at the first CEWC meeting on January 19, 1981. There is no evidence of any involvement by em- ployees in any of these initial determinations. In these circumstances, it its evident that CEWC was created by Respondent and that its basic structure was determined by Respondent's representative.152 The second issue, what, if any, consideration can be given to this fact in considering Respondent's actions in the 10(b) period, is clear from Board law. The Board, in a recent decision, restated the basic principle as follows, "It is well settled that the Board can and will consider events transpiring more than 6 months before the filing of a charge to shed light on the true character of matters occurring within the limitations period, even though under Section 10(b) such conduct itself cannot constitute an unfair labor practice." 5 3 The Respondent, however, argues that these prior events cannot establish a practice of domination and as- sistance extending into the 10(b) period. In making this argument Respondent relies on several cases. Such reli- ance, however, is misplaced. In the cases cited, the in- volvement by other respondents during the 10(b) period in the affairs of the unions or committees they had formed was either nonexistent or minor. The Board and the courts refused therefore, to find doniination based on the events that occurred in the 10(b) period merely be- cause of the earlier actions by respondents. Thus, in Con- solidated Flavor Corp., 238 NLRB 326, 327-328 (1978), although the Board found that there may have been in- volvement by management in the Union's formation many years earlier, the only events occuring in the 10(b) 152 The record is unclear about the exact time the Painters com- menced their organizational drive. The fact, however, that CEWC may or may not have been formed by Respondent in response to a union orga- nizing drive does not alter whether Respondent's conduct amounted to domination. St. Vincent's Hospital, 244 NLRB 84, 93 (1979). '53 Homemaker Shops, 261 NLRB 441 (1982). CAMVAC INTERNATIONAL 847 r period were attributable to a lead person, who the Gen- eral Counsel had failed to establish was, in fact, a man- agement representative. Further, the Board failed to find that the Company had rendered unlawful assistance in the 10(b) period when it made company premises avail- able to employees for union matters on two occasions, both of which meetings took place during the employee's break period. The Board, in making its determination, relied on the limited number of times that the Company had made the premises available to employees and the fact that the meetings occurred on the employees' own time. 1 5 4 In Mt. Clemens Metal Products, 126 NLRB 1297, 1298 (1960), the Board overruled the trial examiner's finding concerning domination because they were of the view- point that his finding was based on giving independent and controlling weight to the role attributed to Respond- ent in the formation of the committee in the pre-10(b) period. The Board in that case found, however, that the only conduct occurring in the 10(b) period related to the presence of a supervisor on the committee's negotiating team and this, the Board concluded, was insufficient to warrant a finding of domination. The Board, however, did find that such conduct constituted interference in the administration of the committee. In NLRB v. Brown, 310 F.2d 539 (9th Cir. 1962), also cited by Respondent, the court determined that the only event occurring in the 10(b) period related to the partici- pation in the affairs of the committee by some individuals who had, at best, "some minor part-time supervisory functions." The court refused to use earlier events to find that this type of conduct mounted to domination, al- though the Board had found such conduct constituted domination. In addition to its argument that prior events cannot "create a practice of domination" in the 10(b) period, Respondent also argues that its conduct in the 10(b) period did not constitute domination and cites several cases in support of that argument. In Spiegel Trucking Co., 225 NLRB 178, 179 (1976), the Board concluded that the General Counsel had failed to prove by a pre- ponderance of the evidence that the Company had domi- nated the committee. In arriving at that conclusion, how- ever, the Board stated that the record had failed to dis- close the exact relationship between the company and the committee following the initial establishment of the committee. It noted that there was no evidence regard- ing the nature of the committee meetings, whether they were held on company premises, whether employees were compensated for time and attendance at the meet- ings, whether supervisory personnel participated in the meetings, and if they did, what role they played. It is im- plicit in the Board's articulation of these points that they would have found domination if the employer had been involved in these matters, as the Respondent was in the instant case. In Higgins Industries, 150 NLRB 106, 119 (1964), the allegation of domination was also dismissed It should be noted that the Board, in failing to find a violation based on domination or assistance, also considered the fact that employ- ea; had prepared contract proposals outside the presence of management representatives and had bargained at arms length with the Company. These facts are not present in this case. It should be noted, however, that in that case the record disclosed that the employee association had been incor- porated under the laws of the State of Michigan, had its own officers, colected dues, paid its own expenses, and held its membership meetings in a public hall; and its representatives were not paid for time spent at meetings. These facts are poles apart from those existing in the present case. In Double A Product Co., 134 NRLB 222 (1961), a finding of domination was not made because the evidence disclosed that there was a valid union with officers, bylaws, dues collection, and meetings held sepa- rate and apart from management. This is not true regard- ing CEWC. The record in the instant case reveals that Respond- ent's conduct in the 10(b) period was far from minor an constituted domination. There is no evidence that CEWC, at any time, was incorporated under the laws of any State, had a constitution, bylaws, elected officers, or collected dues. Further, the record reveals that during the 10(b) period committee meetings were held on Re- spondent's premises; employees were paid for their at- tendance at meetings; the Respondent's personnel direc- tor recorded the minutes and provided copies to all em- ployees without cost; Respondent's president and other top officers fully participated in all discussions during the meetings; a respondent representative drafted the propos- als relating to disciplinary, sick leave, and safety policies; Respondent's personnel director conducted the surveys on which decisions were made whether policies should be changed; 155 the CEWC minutes reveal that sugges- tions or grievances raised by employees at meetings were referred to management representatives for action; objec- tions by employees representatives that matters should be considered first by the committee members were ig- nored; matters raised by employee representatives were discussed directly with employees by management repre- sentatives; changes in the number of employee represent- atives had to be discussed with management; there were no meetings of CEWC employee representatives outside the presence of management, employee proposals for terms and conditions of employment were not arrived at independently of management officials; and meetings were utilized to discuss matters unrelated to employment conditions. In a recent case the Board, in concluding that there had been unlawful assistance and domination, noted the absence of a charter, bylaws, rules, regular officers, dues, the payments to committee representatives for at- tendance at meetings, lack of control over internal union affairs, lack of arm's-length collective bargaining, and lack of grievance handling by the committee. 156 In that case, contrary to the instant one, there was evidence of at least some meetings attended by employee representa- tives apart from their participation at committee meet- ings during which they discussed or prepared proposals to present to management. 157 In Homemaker, the Board 155 There was no evidence that employee representatives conducted their own surveys. 156 Homemaker Shops, supra at 442-443. 151 Respondent's assertion that employee representatives could discuss matters with the employees in their department or correct the minutes of the meetings does not rise to the level of independent meetings normally held by independent umon representatives prior to negotiations. 848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD made the following statement, "Where, as here, the total- ity of evidence shows that the labor organization exists essentially at the will of the employer, we are compelled to find that the employer has engaged in both unlawful assistance and domination."158 In Comet Corp., the administrative law judge found that an employer had unlawfully assisted and dominated the shop committee. That finding was adopted by the Board. The judge, in concluding that the employer had dominated the committee, relied not only on the fact that a plant manager had sponsored and urged employees to form a shop committee, but on additional factors also present in the instant case during the 10(b) period. Thus, he found that management representatives attended and participated in the meetings of the committee, permitted meetings to be held on company property and time, paid employees for attendance at meetings, provided clerical assistance, typed minutes, and posted those minutes on company boards.159 In Classic Industries, 254 NLRB 1149, 1156 (1981), where there was also a finding of domination, consider- ation was given by the administrative law judge to the fact that the company's vice president not only devised the committee, but participated in its meetings. In addi- tion, he noted that the committee did not have a consti- tution, bylaws, or assets. In St. Vincent's Hospital a finding of domination was made on several facts, including the presence of the hos- pital administrator and personnel director on the commit- tee, their participation in and deliberation of matters brought before the committee (including matters relating to terms and conditions of employment), the providing of facilities for meetings by management, the payments made to employees for attendance at meetings, the prep- aration and making of copies of committee minutes by management, and the retention by them of such min- utes). so In Reed Rolled Thread Die Co., 179 NLRB 56, 63 (1969), there was a finding of domination, notwithstand- ing the fact that the plant committee had been created some 20 years before the events giving rise to the unfair labor practice charge. There, the Board, adopting the fmdings of the administrative law judge, found domina- tion based on, among other things, the fact that the gen- eral manager and personnel director were part of the committee, participated in the meetings, reported the events to the employees, chaired the meetings, and per- formed secretarial functions at the meetings. In Adhesive Products Corp., 117 NLRB 265, 267 (1957), domination was defmed as follows: The Board has found domination in cases where the employer not only furnished the original impe- tus for the organization but there were present such additional factors as (a) the employer also pre- scribed the nature, structure, and functions of the organization; (b) the organization never developed any real form at all, such as a constitution or 128 Supra at 442. 122 Comet Corp., supra at 40, 41. 160 St. Vincent's Hospital, 244 NLRB at 93 bylaws, dues or a treasury, never held any meetings, and had no assets other than a contract bestowed by the employer; (c) representative of management actually took part in the meetings or activities of the committee or attempted to influence its policies. That statement describes CEWC as it existed during the 10(b) period. Accordingly, I find that Respondent domi- nated CEWC and rendered it unlawful assistance and support during the 10(b) period in violation of Section 8(a)(2) of the Act.'61 B. The Surveillance Terrano's testimony concerning Andry's request that he attend a meeting at a local pub because she wanted to talk to employees about signing cards for the Union and the inquiry by Maughan whether Andry had anything to report was not disputed. Nevertheless, I do not find that this testimony is sufficient to warrant an inference of either interrogation or surveillance. Terrano did not know what occurred at the meeting because he did not attend. Further, while it is possible that Maughan's in- quiry might have related to the Union, it is possible that it could have referred to many other matters. C. The Suspension and Discharge of Gerald Sunday The General Counsel contends that the reason for Gerald Sunday's suspension on June 16, 1981, and subse- quent discharge on July 10, 1981, depends on the resolu- tion of credibility issues and does not involve a question of law. Respondent argues that it was incumbent on the General Counsel to establish knowlege by Respondent of Sunday's union activities, and once that was established the General Counsel, in accordance with the holding in Wright Line, 162 had to make a prima facie showing that the protected conduct was a motivating factor in the Re- spondent's decision to suspend and discharge Sunday. It is Respondent's position that the General Counsel failed to prove either aspect. Sunday was suspended on June 16, 1981. At that time the organizational efforts on behalf of Local 445 had not commenced. It is the General Counsel's position, howev- er that Respondent suspended Sunday because of his ear- lier activities for the Painters. Sunday testified that in either January or February 1981 he discussed with Rich- ard Cea and Felix Spatoro, both supervisors, his activi- ties on behalf of the Painters. Cea denied that Sunday told him that he was organizing on behalf of the Paint- ers. Spatoro did not testify.'" Assuming, for the sake of 161 Because of the above finding of domination and unlawful assist- ance, I find unpersuasive those cases cited by Respondent for the propo- sition that the aid rendered to CEWC was de minims. This is particular- ly true considering that even in cases cited by Respondent for its argu- ment that the Board did not find domination, the Board did find unlawful aid and assistance This was true even in the situation in which only one supervisor was on the employee's committee. In the instant case, as noted, the entire hierarchy of the Respondent was part of the CEWC. 162 Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F 2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). 162 Sunday testified that Spatoro told him that Respondent was aware of the "union activists," but he did not testify that Spatoro named specif- ic individuals. CAMVAC INTERNATIONAL 849 the argument that I credit Sunday's testimony concern- ing his conversation with Cea and Spatoro and that such conversations were reported to other management offi- cials, it means that Respondent had knowledge of Sun- day's activities on behalf of the Painters as early as Janu- ary or February 1981. Notwithstanding this knowledge, there is no allegation of discriminatory action by Re- spondent against Sunday until about 4 months later, when Sunday was suspended. Respondent suspended Sunday in June 1981 because he failed to work on Friday, June 12, 1981, and failed to report the fact that he would be absent on that day. There is no dispute that Sunday did not work on that day and did not report his absence. His supervisor, Hank ICreuzer, testified that he was scheduled to work that day although Sunday con- tends that he was not scheduled to work and, therefore, he did not report. My observation of the two witnesses convinces me that Kreuzer was the more truthful wit- ness, although as noted by the General Counsel, his recollection about the calendar notations was contradic- tory. Even if I credited Sunday's testimony regarding that issue, however, this would not be dispositive of the matter. The record establishes that Kreuzer advised Maughan that Sunday was absent on that Friday and had not called in to report his absence. It was Maughan, not Kreuzer, who made the decision to suspend Sunday. Maughan acted on the report given to him by Kreuzer. It is not unusual for management to accept a supervisor's version concerning a particularly, incident involving an employee. This is particularly true when the employee had been disciplined previously for similar conduct, as Sunday had been in December 1981. In these circum- stances, I do not find that Sunday was suspended for any activities he may have engaged in on behalf of the Paint- ers.164 As noted, it is the position of the General Counsel that Sunday was discharged because of his involvement in ac- tivities on behalf of Local 445. The threshhold question, obviously, is what activities did Sunday engage in on behalf of Local 445. Sunday claimed that he solicited au- thorization cards for Local 445, discussed with Felix Spatoro his activities for Local 445, and made a com- ment about a union "hanging over" management's head at a CEWC meeting on July 2, 1981. Sunday's lack of veracity is amply demonstrated by his assertion that he solicited cards for Local 445. Only one of the employees he allegedly solicited supports his con- tention, and that employee claimed that he was solicited by Sunday after Sunday's discharge. Furthermore, Sun- day's affidavits failed to contain any reference to such solicitation. It is difficult to believe that Sunday could have failed to tell the Board agent about this extremely important piece of information if it had, infact, occurred. The weight of the evidence establishes that Sunday did 64 Although Sunday alleged that he discussed his activities on behalf of the Painter with Cea and Spatoro and Respondent gamed knowledge through these sources, it should be noted that Robert Johnston was the observer for the Painters at the election. There can be no doubt, there- fore, that Respondent was aware of Johnston's activities on behalf of the Painters, but there is no allegation of discriminatory conduct by Re- spondent agamst him due to that activity. not solicit employees to sign authorization cards for Local 445 prior to his discharge. Sunday claimed that between June 22, and July 1, 1981, he discussed with the missing supervisor, Felix Spatoro, his involvement with the Union. Regarding the fact that this record establishes that Sunday did not solic- it authorization cards for Local 445, as he alleged, and the further fact that he did not mention any other activi- ty that he engaged in prior to July 2, 1981, one wonders what the "alleged involvement" he discussed with Spa- tom was. Assuming that he did discuss his alleged union activities with Spatoro, however, it is unlikely that Spa- taro would have disclosed this information to manage- ment for two reasons; Spatoro was Sunday's friend, and he was about to be discharged by Respondent. In these circumstances, it is difficult to believe that Spatoro would have disclosed Sunday's activities to Respondent. Thus, it appears that the only thread connecting Sunday with Local 445 was the statement he made at the CEWC meeting on July 2, 1981. According to Sunday, at that meeting he asked why the committee members were wasting time on trivia when the Union was hanging over their heads. Sunday claimed it was an "attention getting" statement. Davies, Schneible, and Maughan denied that Sunday said anything about the Union. The employee witnesses called by both the General Counsel and Re- spondent testified that Sunday did mention the Union, al- though it does not appear from their testimony that it was an "attention getting" statement. 165 I credit that Sunday did mention the Union. Notwithstanding this statement about the Union, Sunday, immediately after the July 2 meeting, asked for and had a meeting with Davies and Schneible during which he requested that he be considered for a promotion. Sunday testified that management agreed to consider him as he requested. At this point, accepting Sunday's own testimony, even in the light of his statement at the July 2, 1981 CEWC meeting, management was ready to consider him for pro- motion. On Thursday, July 9, 1981, Sunday, who admit- tedly was scheduled to work, did not report for work. Sunday claimed he called in, spoke to an employee, Dean McCue, and made him promise "up and down" to relay to a supervisor that he had called in to report his absence and further told McCue to tell Chris Grant, a supervisor, about his absence. The following day, Sunday claimed he spoke to McCue, who told him he had relayed Sunday's message and that Grant had told McCue that he had written a note for Maughan. McCue and Grant deny these assertions. Although Sunday claims that he was concerned that management be made aware of the fact that he called in, he offered no explana- tion about why he failed throughout that day to check again to ascertain whether management had received his call. The only person Sunday claims he spoke to was an- other employee, McCue. I do not credit Sunday's asser- tion that he called to report his absence on Thursday, July 9, 1981. The General Counsel claims, however, that the issue is not whether Sunday called or did not call; the issue is whether that was the reason he was dis- ' 66 The witnesses were vague about Sunday's statements. 850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD charged. The General Counsel asserts that it could not be the reason for the discharge because the Respondent never inquired whether he had, in fact, called. There is no evidence in this record that any management repre- sentative checked to see if Sunday had called to report his absence. His absence, however, was not explained. The undisputed fact is that Sunday was not at work on July 9, 1981, and there is no evidence that anyone told a management representative that he had called to report his absence. The individuals to whom Sunday claims he reported his absence deny that he did so. Sunday failed to produce one witness to support his claim that he had reported his absence. Although it is true Davies claimed he checked with Grant concerning Sunday's absence, and Grant denies that anyone checked this, does not change the fact that Sunday was absent and that no one in management was made aware of the reason for his ab- sence. 166 The General Counsel also points to the dis- crepancy between Davies and Maughan whether Sunday did or did not claim that he called. It is true that Davies and Maughan contradict each other about whether Sunday said he did or did not call. I do not consider, however, that this discrepancy is sufficient to outweigh the fact that Sunday did not report to work and did not tell anyone in management why he had failed to do so. It is undisputed that there was a company policy that re- quired employees to report their absence. The General Counsel also argues that Sunday was treated in a disparate fashion because he was not advised, as were other employees, that future absences or a failure to call in would result in discharge. Although it is true that Sunday was not told that future absences or a failure to call in would result in discharge, he was warned, in writing, in December 1980 that future absences and a failure to call in could result in disciplinary procedures. The possibility of discharge, particularly for the same type of offense, cannot be considered outside the realm of disciplinary procedures. Accordingly, I do not find that Sunday was treated in a disparate manner It appears to be the General Counsel's position that the reason advanced for the discharge was a pretext and the standards set forth in Wright Line, therefore, are not applicable. Respondent contends that the rationale of Wright Line is applicable and the criteria set forth in that case have not been met. There is no dispute that Sunday was, in fact, absent on July 9, 1981. As described above, it is evident that he did not report that absence, a clear violation of company policy. Accordingly, I do not find that the reason ad- vanced was a pretext, but rather conclude that this case is governed by the principles announced it Wright Line. In that case the Board established a test to determine whether a discharge was discriminatory in situations where there were two reasons existing at the time of a discharge, one relating to union activities and one unre- lated to union considerations. The Board stated: 1" It is admitted that Davies was angry with Sunday. Sunday admit- ted that another employee told him, when he did come to work, that Davies was angry with him about not calling. Whether Davies was angry also because Sunday had missed a scheduled meeting, as he claims, is not material Sunday was not discharged because he missed a meeting. First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. Once this is es- tablished, the burden will shift to the employer to demonstrate that the same action would have taken place in the absence of the protected conduct.'" It is true that Sunday was discharged after Local 445's demand for recognition. At that point the only evidence of union animus was the conduct relating to CEWC and the announcements at the July 2, 1981 CEWC meeting about profit sharing. As noted, Sunday's alleged union activities were at best trivial. However, accepting that the Respondent became aware of his activity on July 2, 1981, when he made a comment about the Union, the General Counsel has established, at most, a very weak prima facie case. It is also found, however, that Re- spondent had met its burden; it demonstrated that the employee would have been discharged even in the ab- sence of protected conduct. Sunday was aware of the company policy about calling in to report an absence. In fact, he testified that was the reason why he was so con- cerned that McCue relay the message. He knew that a failure to report was grounds for disciplinary proceed- ings because he had been warned about this before July 1981. He also was aware that he had received a warning for lateness in May 1981, and had been suspended only about 2 weeks before, also for being absent and not call- ing to report the absence. In these circumstances, I find that even if I considered that the General Counsel had established a prima facie case, I would also find that Re- spondent has demonstrated that it would have dis- charged Sunday even absent his union activities. 168 I note that in East Texas Motor Freight, 262 NLRB 868 (1982), the Board, in finding that the discharge was not for discriminatory reasons, considered the history of problems that the employer had with the employee, the warning notices issued to the employee, and the violation of a company policy for failure to report an absence. These facts are present here. Accordingly, I find that Sunday's suspension and discharge were not for discrimi- natory reasons. D. The Grant of Benefits It is undisputed that Respondent announced its intene- tion to grant, or granted, five additional benefits to its employees within a 2-month period following Local 445's demand for recognition. As noted, the General Counsel contends that this conduct by Respondent was motivated by antiunion considerations. In support of his position he relies on the timing, the lack of precedent for such action, the unusual manner in which the benefits were announced, and the relation between the announce- ment and Respondent's promulgation of antiunion litera- ture. He concedes that there had been some discussions about sick leave and disciplinary policies and the profit- sharing plan, but he claims that no decision had been 167 Wright Line, 251 NLRB at 1089 168 Jim's Big M, 264 NLRB 1124 (1982); Coil-ACC, 262 NLRB 76 (1982) CAMVAC INTERNATIONAL 851 made regarding any of thes issues. It is the contention or the Respondent that these benefits had been conceived and decided on prior to the Local 445's demand for rec- ognition, and under well-settled Board law, Respondent was permitted to announce and grant the benefits be- cause the changes were the result of promises made to employees prior to the Union's campaign. Respondent also argues that the withholding of benefits in these cir- cumstances would itself be a violation. Additionally, Re- spondent claims that it relied on the advice of counsel in determining its course of action, and this fact establishes its lack of antiunion animus, citing J 1 Newberry Co. v. NLRB, 645 F.2d 148 (2d Cir. 1981). In that case the em- ployer's conduct also involved the withholding of bene- fits on the advice of counsel. The court, however, deter- mined that this reliance was but one factor to be consid- ered in determing whether the respondent had violated the Act, and the court stated that it was necessary to scrutinize all factors to determine what motivated the re- spondent's action. An examination of all the circum- stances in this case warrants the conclusion that respond- ent, in announcing and granting the benefits, was moti- vated by antiunion considerations. Initially, it is noted that Respondent had granted bene- fits to its employees prior to the arrival of Local 445 on the scene. The record, however, does not establish that prior to the events involved Respondent had made such major changes all at one time and that top corporate offi- cers had met individually with employees to announce changes in working conditions. It is unusual for a corpo- ration to act in such a manner. Davies, in effect, admit- ted that the procedure was unusual and a departure from his prior practice, but he attempted to explain the con- duct by claiming that the wage structure "affected each employee in a different respect" and therefore these "one-on-one" meetings were necessary. This testimony, of course, does not explain why the employees had to be apprized on an individual basis about a disciplinary policy that was not to become effective until September 1981 and as sick leave policy that was not to become ef- fective until January 1982. I do not credit that it was concern about employees' understanding of the new wage structure that led Respondent to announce an in- crease in benefits in such a manner. Nor does this record support Respondent's contention that it had decided to grant these various benefits prior to June 24, 1981. The minutes of the CEWC meetings es- tablish that at the February 20, 1981 meeting, there was a comment about a "fair pay scale," in March the CEWC members were still "looking into" the pay scale issue, at the May 29, 1981 meeting there was a general discussion about the salary structure, but no decision was reached, and the minutes note that there would be fur- ther discussions on the issue at the July 2, 1981 meeting. It is obvious from these minutes that there had been no decision made on the salary structure issue as late as May 29, 1981, and at that point the matter was still under discussion. In light of this documentary evidence, prepared by a management representative, testimony by Davies that most of the major details of the plan had been decided by May 1981 cannot be credited. Even if that testimony could be credited, however, Respondent has failed to explain why the wage structure changes were not announced before July 2, 1981. Although there is not a shred of written proof that this major change in the wage structure received approval by the parent cor- poration, Davies testified that he received advice about a particular classification from the parent corporation by June 14, 1981. This necessary piece of advice had been the reason why the change in the wage structure had not been announced in May 1981, according to Davies."9 Davies, however, failed to explain why, after receiving the advice on June 14, 1981, he did not announce the change between June 14 and 26, 1981, the day the tele- gram came from the Union. Schneible testified that there had been no final deter- mination made regarding the disciplinary policies or sick leave policies prior to July 2, 1982. The CEWC minutes establish that was the situation. It is clear from these minutes that both policies had been discussed and insofar as the disciplinary policy was concerned, although a new policy had been proposed in February 1981, this pro- posed policy did not satisfy the employee members of CEWC, particularly concerning the length of time a warning notice would be retained in an employee's file. As late as July 2, 1981, an employee, Michael Wood, proposed a change in the disciplinary policy regarding this issue. It was at this point, after the demand for rec- ognition, that management without further consultation with employee member of CEWC, announced on July 20, 1981, that the suggested change would become oper- ative in September 1981. Similarly, the CEWC minutes reveal that there had been discussion about a sick leave policy, but no agree- ment had been reached and at the July 2, 1981 meeting, Sunday stated that there was dissatisfaction with respect to the sick leave policy. Again, after the telegram and without further discussion with the CEWC members, management corrected the sick leave policy in accord- ance with Sunday's criticism. It should be noted that Sunday had been voicing the same criticism since March 1981 without management changing the sick leaving policy. There is no dispute that the issue of profit-shar- ing/pension plans had been discussed at several CEWC meetings and that there had been communications about the matter with James Northrup prior to June 24, 1981. On June 8, 1981, Northrup forwarded material to Davies regarding general statistical information, "assuming such a plan were instituted at Camvac for 1982." Northrup's letter makes it clear that as of that date no decision had been made regarding the plan. Northrup, in that letter, requested a meeting to discuss the plan. It does not appear that such a meeting occurred. There is no written evidence regarding Respondent seeking approval or re- ceiving approval from Bowater N.A. for the plan. Rather, Davies claimed that he received verbal approval for the plan on June 15, 1981, at a meeting with two rep- 169 It is interesting to note that Davies testified that he sought advice from the parent corporation about a particular classification, but appar- ently he did not seek or receive approval for the wage structure change, although he testified that matters relating to the budget required prior ap- proval from the parent corporation. 852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD resentatives from the parent company. It is unlikely that a plan of this type could be approved by two officers without consultation with the board of directors. In fact, Northrup testified that such approval by the board of di- rectors was required but this record fails to disclose any evidence of such approval. Davies also admitted that there should be written evidence of this approval. Thus, he testified, "it's the sort of thing which must be written down." No documents, however, were introduced. Re- spondent's failure to produce the document containing the written approval warrants the conclusion that the document, if produced, would not support Respondent's position that the decision to institute a profit-sharing plan was made before the demand for recognition.'" There is also no evidence in this record that Respondent sought or received approval for such a plan from the Internal Revenue Service (IRS). It is interesting to note that this plan, which had not been approved either by the board of directors or the IRS, was announced to employees on July 2, 1981, 2 weeks after the demand and 6 months before it was to become effective. If Respondent was eager to relay the "good news" to employees it certainly had the opportunity to do so either on June 15, 1981, when it allegedly received the verbal approval, or during the several days that followed before June 24, 1981. It did not do so because there had been no decision made to have such a plan before June 24, 1981. The Respondent does not allege that the decision to grant certain health club benefits predated the demand for recognition. In fact, according to Schneible, when he requested Davies to institute this type of benefit in early 1981, Davies rejected the idea, notwithstanding that the Company was in good financial condition. 17 ' In August or September 1981, two employees provided information about health clubs that resulted in Respondent offering to reimburse employees, to the extent of $50, for mem- bership in a health club. The two employees who alleg- edly provided this information were not called to testify and no explanation was advanced by Respondent for its failure to do so. It is not contended that Respondent had previously provided this type of benefit. Respondent has cited several cases in support of its po- sition. In Stumpf Motor Co., 208 NLRB 431 (1974), the company had advised employees that it would grant a wage increase if it received approval from a customer to increase its warranty rate. The customer approved the warranty increase, and the company advised the union of this fact and also advised the union that it planned to give the wage increase, as promised, unless the union ob- jected. The union raised no objection to the grant of the wage increase. Nevertheless, the employer withheld the increase and attributed its failure to grant the increase to the presence of the union. The Board found this conduct violated Section 8(a)(1) of the Act. There are two obvi- ous factual differences between this case and the Stumpf case. Here, Respondent had not announced that it would grant any benefits to employees prior to receipt of the telegram. There were discussion concerning the various 170 NLRB V. Laredo Coca Cola Bottling Co, 613 F.2d 1338 (1980). 171 The CEWC minutes established that the Company was in good fi- nancial condition in April 1981 policies in progress, with employees suggesting changes that the Respondent refused to agree to until after Local 445's telegram was received. Moreover, there were no discussions with Local 445 about the plan to grant bene- fits and no opportunity provided to the Union to raise objections. In Gates Rubber Co., 182 NLRB 95 (1970), the employer had a longstanding policy of granting to nonunion employees the same wage increases it granted to union employees. When an organization/campaign began among the nonunion employees, the employer withheld from those employees the wage increase it had granted to the union employees. The Board found a vio- lation stating, "The employer's legal duty is to proceed as he would have done had the Union not been on the scene." In the instant case if the Respondent had contin- ued to proceed as it had before the appearance of Local 445 it would have continued to discuss the various bene- fits with the CEWC members, without making the changes sought by the employees. The wage structure, disciplinary policy, sick leave policy, and pension plan had been discussed for months without resolution, but suddenly, with the arrival of the Union the "stumbling blocks" were removed and the benefits were announced. May Department Stores Co., 174 NLRB 770 (1969), case again presented a situation which an employer had a longstanding policy of granting wage increases at specif- ic times during the year. The employer, however, at about the time of the election granted benefits to all but the employees scheduled to vote. The Board found that the employer had violated the Act because of its failure to grant its normal wage increase. In the instant case, there had not been a prior practice of reviewing salary structures during the year. If the Respondent had sus- pended its admitted practice of granting wage increases in October, the situation would be more akin to the cases cited by Respondent. In Domino of California, 205 NLRB 1083 (1973), a profit-sharing plan covering only supervisory personnel was dated and executed by a trust- ee bank months before the advent of the union. The plan was submitted to the IRS for approval a few weeks after the union demanded recognition. The plan was not ap- proved by the IRS because it covered only supervisory personnel. The plan then was amended to include all em- ployees who had been employed for a specific period of time. The Board found that the announcement of the plan to the employees prior to the election did not vio- late the Act. The Board reasoned that the plan, which was conceived months before the organizational cam- paign began and amended because of the IRS, was not announced because of antiunion considerations. In this case, although it is true that there had been discussions about profit-sharing and pension plans, and Northrup had forwarded some general information about various plans to Davies, there is no documentary evidence that ap- proval for such a plan had been given by the parent cor- poration prior to June 24, 1981, or after that time, but prior to July 2, 1981. Insofar as this record is concerned, there is no evidence about when a profit-sharing plan was submitted to the IRS for its approval. In Olympic Villas, 241 NLRB 358 (1979), the employer had conduct- ed a survey prior to the union campaign and at that time CAMVAC INTERNATIONAL 853 told employees that they would be receiving wage in- creases when the survey was concluded. The Board did not fmd a violation, although waged increases were granted after the union campaign began, because the Board found that the employer had announced its deter- mination to grant the increase prior to the commence- ment of the union campaign. The employer, in Fireside Rouse of Centralia, 233 NLRB 139 (1977), acquired a part interest in the company, and at that time it advised employees that wages would be reviewed when com- plete control of the company had been secured. The em- ployer also stated, at the time of acquisition, that a fur- ther evaluation of wages would be conducted in Decem- ber. In conformity with this promise the employer, when it secured complete control, granted a wage increase in August, before the union started its campaign. In Octo- ber and November the union commenced organizing the employees, and in December the employer granted a second wage increase. The Board did not fmd the grant- ing of this wage increase to be a violation because the increase stemmed from the past promises made by the employer. It should be noted that the Board, in conclud- ing that the employer's actions were not motivated by antiunion considerations, found that this employer had had good labor relations with the same union at its other facilities. Neither of these factors is present in the instant case. In Automated Products, 242 NLRB 424 (1979), a wage increase was granted after the appearance of the union; however, the record disclosed that theboard of directors had approved the granting of the pay increase prior to the arrival of the union. Further, in that case there was no evidence that the employee was aware of the union activity. Finally, in American Sunroof Corp., 248 NLRB 748 (1980), the Board did not find a violation when an employer made an announcement about a pen- sion plan 2 days prior to an elettion. In concluding that there was no violation, the Board found that the employ- er had structured the possibility of such a plan over a period of 2 years, including examining pension plans of other employers. It further noted that the plan was not limited to the employees the union sought to represent, but included employees at other of the employer's facili- ties. Finally, the record disclosed that it was the require- ments imposed by ERISA that motivated the employer to announce the plan to the employees, notwithstanding the upcoming election. In the instant case, Respondent has failed to establish any justification for its announce- ment of a profit plan that was not to become effective for 6 months. The instant case does not involve the situations de- scribed above in which decisions had been made to grant benefits prior to the organizing efforts of the Union, and where the only thing that occurred after the advent of the Union was the announcement of those previously made decisions. To the contrary, as the CEWC minutes demonstrate, no decisions had been made. The employ- ees had been seeking a wage structure policy from at least November or December 1980. In fact, according to Davies, it was the dissatisfaction over this problem that led to the formation of CEWC. Despite this fact, for over 6 or 7 months no wage structure plan had been for- mulated or adopted until after the union telegram was re- ceived. The same situation existed regarding the sick leave policy, the disciplinary policy, and the profit-shar- ing plan. Accordingly, I do not find that Respondent an- - nounced and granted benefits because of any decision that predated the receipt of the union telegram. A pre- sumption exists that the announcement or grant of a ben- efit during a union's organizing campaign is unlawful. It is Respondent's obligation to overcome that presump- tion. 172 The Respondent has offered no explanation for its conduct other than that stated above, which explana- tion, I have found, is not supported by the record. In these circumstances, I find that Respondent has failed to overcome the presumption that its conduct was unlawful. In Fisher-Haynes the Board also stated the following, "Thus, it is apparent to us that Respondent's actions, coming so quickly after it learned of the employees' in- terest in union representation, was calculated to quell dis- satisfaction emerging from grievances over wages which had prompted the employees to seek union representa- tion in the first place." 173 This is equally true in the in- stant case. Here Respondent, within weeks after it gained knowledge about the Union, either granted, or an- nounced its intention to grant, the very benefits the em- ployees had sought unsuccessfully for months. In Knogo Corp., 262 NLRB 1346 (1982), the Board found that the employer had violated the Act when it granted benefits at a time when it was aware of the union. In that case the Board, in concluding that there was a violation, noted the lack of documentary evidence provided by re- spondent to support its reasons for the grant of benefits. This is equally true in this case. Accordingly, I find that Respondent, in promising and granting benefits regarding the wage structure, sick leave and disciplinary policies, and profit-sharing and health benefits has interferred with the Section 7 rights of its employees.174 E. The Attitude Survey Respondent witnesses testified that the idea of con- ducting an attitude survey began in March 1981, months before Local 445's demand for recognition and, there- fore, it was unrelated to that demand. This record fails to support that assertion. Although these witnesses testified about several conversations with the labor consultant, who was to conduct the survey prior to June 1981, the consultant was not called by Respondent as a witness. It must be assumed that the consultant, who sought busi- ness from Respondent, would have testified, if requested. There was no explanation offered regarding the failure to have the consultant testify. An inference is warranted that the consultant, if called, would not support the testi- mony of Respondent's witnesses. 175 Further, Respond- ent failed to produce any written communication regard- ing this business transaction. It is unlikely that the parties entered into such an agreement without any written communication concerning what the consultant was en- gaged to do or what price was being paid for the serv- 172 Fisher-Hayes Corp., 262 NLRB 1274 (1982). 173 Supra 174 Washington Beef Products, 264 NLRB 1163 (1982); Restaurant Hor- ikawa, 260 NLRB 197 (1982). 175 NLRB v. Laredo Coca Cola Bottling Co, supra. 854 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ices he would perform. Moreover, it is significant that throughout the months between March and June 1981, the matter was not discussed or even mentioned to the CEWC employee representatives at the CEWC meet- ings. Although every possible topic was discussed, this plan to conduct a survey was not mentioned. Because CEWC was created by Respondent as a vehicle corn- munciation with the employees, one must assume that Respondent would have communicated its plan to con- duct an employee survey if there had been such a plan. As the CEWC minutes establish, however, the first time that Davies told the employees that a labor relation con- sultant had been retained was at the July 2, 1981 meet- ing. According to the minutes, Davies told the employ- ees that a labor consultant had been retained, "to advise management on how to solve their problems" and to conduct a survey. Regarding the fact that the CEWC minutes of April 1981 state that the Company had record sales due to the fine work of the employees, it is difficult to understand what labor problem the Respondent had other than the demand for recognition. The Respondent's explanation for the delay in con- ducting the survey is also suspect. Respondent claimed that survey was not conducted for two reasons, the need to complete supervisory training and the unavailability of the labor consultant. Respondent failed, however, to in- troduce evidence of any actual supervisory training con- ducted between March and August 1981, or, for that matter, at any time.'" Further, according to Maughan, the labor consultant met with him in March 1981 in an effort to secure new business. It is not the normal way for a business man to operate, to seek business and then to fail to perform the required work for several months. The Respondent's utilization of the survey to ascertain employee complaints after the Union's demand must also be considered in conjunction with its promise to make what changes were found necessary as a result of the survey. That there was such a promise is supported not only by the memorandum that announced that a survey would be conducted, but by Schneible's testimony that at a meeting announcing the results of the survey, manage- ment promised to make changes based on the employee criticisms contained in the survey. In Leland Stanford Jr. University, 240 NLRB 1138 (1979), cited by Respondent, the Board found that the employer had not violated the Act by conducting a survey to ascertain employee grievances. The Board also found that the administrative law judge properly had concluded that the survey was conceived for legitimate business reasons and "was not designed in response or opposition to the Union's organizing efforts." The judge stated that the question to be resolved was whether there was an ojbect to undermine the union, and that needed to be decided in all the circumstances of the case. The circumstances in that case established that the director of personnel, newly hired, had determined, prior to being hired, that he would conduct such a survey because he had found it to be an effective management tool. Re- 116 Although Respondent called supervisors to testify, not one supervi- sor testified about a program of training being conducted spondent, in the instant case, has failed to prove any business justification for its actions. In Dexter Foods, 209 NLRB -369, 375 (1974), also cited, an employer's use of a questionnaire seeking employee response about working conditions was not found to vio- late the Act. The administrative law judge's statement, adopted by the Board was, "there is no indication in this record that the Respondent made any promises of bene- fits to induce abandonment of the Union, certainly not at the time the question was asked or at any time before that date." In this case, as noted, there is clear evidence of a promise of benefits. Finally, in ITT Telecommunications, 183 NLRB 1129 (1970), the Board did not find that an employer violated the Act when it issued a questionnaire seeking employee complaints. It is significant, however, that in that case there was no finding that the employer had made either an express or implied promise of benefits in order to interfere with, restrain, or coerce employees in their or- ganizational efforts. Respondent also cited California Pellet Mill Co., 219 NLRB 435, 437 (1975), for the proposition that when an employer has a longstanding policy of soliciting employ- ee grievances, the substitution of one method of doing this for another does not violate the Act. There is no evidence in this record that this respondent had a policy of soliciting grievances from employees. Furthermore, in California Pellet the Board found that the survey had not been alleged as a violation and that employees had not been promised benefits. In the instant case, based on the testimony of the wit- nesses; the lack of a credited business reason for the survey; and the promise of benefits to correct criticism disclosed by the survey and other promises of benefits, I find that Respondent was motivated by antiunion consid- erations in conducting the survey to solicit employee grievances and in promising benefits and, therefore, has violated Section 8(a)(1) of the Act.'" E. Maughan's Interrogation of Johnston Bc■th Maughan and Johnston testified that, during their meeting in October 1981, the subject matter of the Union was mentioned, and in this meeting Maughan became aware of Johnston'sainion membership. Maughan claims that Johnston volunteered the information and Johnston claimed that Maughan interrogated him not only about his membership, but also about whether he had distribut- ed authorization cards to other employees and whether he had distributed union literature in the plant. I find that Maughan interrogated Johnston. My finding is based on my observation of the witnesses. In addition, I note that employees generally do not volunteer information concerning their union membership, particularly when they are aware that management actively opposes union- ization. At the time of this meeting, Johnston was aware of Respondent's "negative" reaction to the Union, not only because he was aware of the benefits granted and the promise of further benefits in order to undermine the 177 General Electric Co., 255 NLRB 673, 684 (1981); Tom Wood Ponti- ac, 179 NLRB 581 (1969) CAMVAC INTERNATIONAL 855 Union, but because of Respondent's stated opposition to the Union as contained in its memorandum of September 23, 1981. I do not credit Maughan's testimony that John- ston stated that he was volunteering this information be- cause he had lost interest in the project because the em- ployees had stated that they no longer wanted the Union. There is no evidence in this record that the em- ployees had lost interest in the Union by October 1981 or had expressed such dissatisfaction to Johnston. It should also. be noted that at the time this meeting was held Maughan knew that Johnston was circulating papers in the plant, Maughan testified that Andry had told him that Johnston had caused a disturbance in his efforts to secure the return of some papers. It is not un- reasonable to infer that Maughan believed that the papers related to the Union, given the circumstances in the plant, at the time. Accordingly, I find that Maughan did interrogate Johnston about his union membership, his solicitation of other employees to be members, and his circulation of union literature, in violation of Section 8(a)(1) of the Act. 178 I do not consider this conduct to be de minimis because of Respondent's overall pattern of conduct. Finally, contrary to the contention of the General Counsel, I do not find that Maughan told Johnston that he could not circulate union literature on company prop- erty. The record discloses only that Maughan interrogat- ed Johnston about whether he had distributed union lit- erature on company premises, which Johnston denied. G. The Threat of Plant Closure Gary Sinclair and Robert Johnston contend that Rich- ard Cea, a supervisor, stated that Respondent would close the plant if the employees continued their support for the Union. Cea denied that he made such a statement. Respondent argues that the contradictions between the testimony of Sinclair and Johnston regarding the meeting proves that the meeting did not take place and, there- fore, the statement was not made. An examination of the testimony of both individuals does disclose differences concerning certain matters. There is no major difference, however, in their testimony concerning the crucial state- ment. Moreover, their testimony regarding this statement is supported by the testimony of Richard Cea's brother Michael Cea. Although Michael Cea attempted to mini- mize the statement and claimed that the statement was caused by an inquiry made by him to his brother, he did testify that, in the presence of Sinclair, Johnston, and others, his brother made one of the following statements: he "just mentioned that a company was shut down due to a union and he didn't think it was going to happen at Camvac but anything was possible." He also testified that his brother said, "that there was a plant that was trying to go union and Bowater didn't particularly care for it and he had heard that they had shut it down." In his affidavit submitted to the Board, Michael Cea testi- fied that, in response to an inquiry about a Bowater N.A. plant being shut down because of a union, his brother 178 Brookwood Furniture, 258 NLRB 208 (1981); Metropolitan Life In- surance Co., 256 NLRB 626, 632-633 (1981); United Os! Mfg. Co., 254 NLRB 1320 (1981). said that a plant was closed in England and the Union was responsible, and although anything was possible, it was not likely to happen. There can be no question, con- sidering Michael Cea's testimony and his affidavit, that Richard Cea, a supervisor, was relaying to employees the information that their efforts to join a Union could adversely affect them. Assuming that I credited that Cea coupled these comments with statements that he did not believe that it was likely to happen at Camvac, I would not find that these additional statements were sufficient to negate the impact made on employees by the threats of plant closure. The employees could reasonably assume, from Richard Cea's statements, that the loss of jobs could be the result of their efforts to organize. This assumption is not unwarranted, if one considers it in the context of Respondent's memorandum of October 7, 1981. In that memorandum Respondent stated that it would continue its plan of expansion provided that market conditions at Brewster did not make it noncom- petitive.' 79 The Respondent failed to produce evidence of any existing market condition that would have made it noncompetitive and that caused Respondent to post such a memorandum. The only new factor was the union ef- forts to organize the employees. Cea's statements reflect the contents of the memorandum, i.e., the Respondent might cancel planned expansion. Cea, however, went a step further, he tied the possibility of the changed plans to the Union. The threat of plant closure has been con- sidered a serious matter. As stated in a recent case, "The Board has long recognized that certain conduct, such as threats of plant closing and loss of employment, is among the most serious and flagrant form of interference with Section 7 rights." 180 Accordingly, I find that Cea's state- ment constituted a threat of plant closure, or at least a threat to abandon planned expansion, and as such consti- tuted a violation of Section 8(a)(1) of the Act. H. The January 6, 1982 Meeting with Employees It is the contention of the General Counsel that Re- spondent held this meeting "to create the election the Labor Board was denying them and to induce employees to petition the Board and the Union for the return of their cards." 181 In addition, the General Counsel claims that Davies and Spelfogel committed 8(a)(1) violations during the meeting by making, in substance, the follow- ing statements: the Union was not interested in the wel- fare of the employees, but sought only the "institutional items" that would benefit the Union; the Union, by filing charges when benefits were granted by the Respondent, was attempting to deny employees these benefits, which the Company wanted to give to them, without, at the same time, advising the employees that they would not lose benefits already granted because charges were filed; the Company was hampered in giving benefits because of the presence of the Union; the Company would continue to operate as it always had notwithstanding the fact that Respondent was aware at the time that a statement was "9 R. Exh, 20. 180 Land Printing, 264 NLRB 369 (1982). 181 Davies testified that he thought an election could be held despite the request for bargaining order. 856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD made that there was an outstanding complaint in which a bargaining order was being sought; there would be no union representation for years because of lengthy Board and court proceedings; and, finally, that a copy of the petition should be given to the Respondent On the other hand, Respondent maintains that it merely responded to questions concerning employee rights by stating that em- ployers had the rights to revoke authorization cards and by giving examples of how this happened at other loca- tions, without specifying which method had been suc- cessful. This, Respondent argues, was permissible con- duct. Respondent denied that any promise of benefits was made by either Davies or Spelfogel during the meet- ing. In considering whether the speech violated the Act, it must be examined in the light of the Respondent's over- all conduct when faced with the concept of union repre- sentation for its employees. This Respondent did not re- spond to the Union's demand for recognition and it claims it failed to do so because it was of the belief that it had a year during which it was free to ignore the Union. It cannot be denied, however, that Respondent was aware that the existence of the Union meant that the employees were dissatisfied and that, although the Union could not file a petition at that time, it could do so in approximately 7 months. Respondent prepared to meet that eventuality by engaging in the following conduct. It continued its domination and assistance to the Union it had created, it immediately notified the employees that the changes in the working conditions that they had been seeking for months would be granted, its plant manager interrogated the chief union organizer, it threatened plant closure, it promised to improve working conditions in re- sponse to criticisms contained in a survey it had conduct- ed, it advised employees at a general meeting in October 1981 of the benefits they had received and demonstrated these benefits by a slide presentation, and it suggested to employees that they might want to secure the return of their authorization cards when they considered all the facts. Notwithstanding the vigorous campaign, the em- ployees did not take the bait hence the meeting on Janu- ary 6, 1982. That meeting was orchestrated to produce the result that Respondent had not been able to accom- plish up to that point, employee revocation of their au- thorization cards.182 It was crucial to obtain this objective without appear- ing to do so. It was this problem that gave the meeting the "split-personality" feeling that the employees re- ferred to in their testimony. As Patrick Prinz stated, "Okay, they weren't talking direct." At another point in his testimony Prinz described the speech as "very run around." Another employee, John Terrano, described the meeting as one in which, "It's kind of like saying things but not saying them." The message, however, was not lost on the employees. Every employee who testified stated that it was either the Respondent's president or at- torney who first raised the issue of card revocation. '82 The General Counsel contends the revocation of cards was crucial because Respondent's counsel knew that courts had refused to grant a bargaining order as a remedy, notwithstanding the Employer's violation of the Act, in situations in which employees sought to revoke their au- thorization cards. Davies and Spelfogel concede this, but claim that they discussed the issue because of several employee inquiries on the matter prior to the meeting. 183 These inquiries, according to Maughan, were made in September 1981 by Charles Telesca and in December 1981 by Telesca and Bill Somoskey. Telesca recalled that he spoke to Andry about the matter on one occasion sometime in the winter. He did not testify regarding a second conversa- tion with Maughan in December 1981. Although, Somos- key testified that he wanted his card returned he did not testify that he made this statement to a management rep- resentative. Thus, it does not appear that there was such an outpouring of employee inquiries at any time, particu- larly around January 1982, that required that a general meeting be held to once again discuss the issue. The Re- spondent, in September 1981, had suggested to employ- ees that they seek the return of their authorization cards and had posted the Board's address and telephone number on a company bulletin board so that the employ- ees who wanted their authorization cards returned had the necessary information. The employees in over 4 months had not availed themselves of this lawful assist- ance. The employees had to be prodded, and Respondent representatives held the meeting to do the prodding. Both Davies and Spelfogel testified that once again they discussed all the benefits Respondent had given to employees. They admit, however, that they also told the employees that when they did give benefits, the Union filed charges. They did not tell the employees that the filing of the charges would not affect the benefits already granted. The impression that they meant to convey, and did convey, was that the Union was preventing the Company from granting benefits by filing unfair labor practice charges. In NLRB v. Kaiser Aluminum & Chemi- cal Colp., 473 F.2d 374, 381 (5th Cir. 1973), the court stated, "The question is not only what the employer in- tended to imply, but what the employees could reason- ably have inferred." The employees' testimony makes clear what they inferred. Paul Scarcello testified that after the meeting the employees expressed their concern about losing benefits. Other employees also interpreted the statements to mean that that Union would cause em- ployees to lose benefits. Patrick Prinz testified that Davies said that as long as there was trouble with the Union the benefits would not be able to come in. John Terrano testified that Spelfogel said something to the effect that if the Union was not around, the Company could give benefits. Johnston testified, "the Company would give us more benefits, but they can't because every time they do, the Union files a new charge." In these statements, I find that Respondent meant to convey, and did convey, to employees that the Union would cause them to lose benefits. This conduct places the responsibility for loss of benefits on the Union and is violative of Section 8(a)(1) of the Act. Respondent, having conveyed that it was the Union that was interfering with the Company's desire to grant benefits, then created a climate of distrust about the 182 Although Respondent, in its brief, stated that Spelfogel responded to employee questions about their rights, the record reveals that the issue of card revocation was first raised by Respondent CAMVAC INTERNATIONAL 857 , - Union. Davies testified that both he and Spelfogel told the employees that the items the Union sought in collec- tive-bargaining agreements related to union security, dues checkoff, initiation fees, and if possible, their own pension plan. They did not include in the the items they listed wages, vacations, or sick leave. They did, howev- er, proceed to relate various stories about misuse of pen- sion funds by the union officials and about their connec- tion with organized crime. The employees recalled that these statements were made about the Union. Johnston testified that the statements contributed to the employ- ees' decision to revoke their authorization cards. Accord- ing to Johnston, the employees expressed concern that if they continued with the Union they "would end up in the river." It is clear that Respondent intended to convey to the employees that the Union would seek nothing for them but would in all likelihood misuse their pension moneys. This was a clear effort to denigrate the Union and as such, in all the existing circumstances, con- stituted a violation of Section 8(a)(1) of the Act.184 Although Respondent's representatives testified that they explained the rationale of Gisseli85 to the employ- ees, they also admit that they told the employees that the Respondent would continue to operate the business as it had always been operated, with or without the Union. This statement was repeated several times and the obvi- ous message conveyed to the employees was that, re- gardless of whether the Union became the bargaining representative, the Respondent would continue to make all the decisions, in effect telling employees that it was futile to join a Union. This constitutes a violation of the Act.' 86 The Respondent, having implied that it was the Union who was, or would be, responsible for loss of benefits, denigrated the Union, announced that it would continue to operate as it always had, and painted a picture of lengthy litigation, now proceeded to the real reason for the meeting. I do not credit Respondent's assertion that it was the employees who requested information about how to revoke their authorization cards. As the employ- ees noted, it was the Respondent's representatives who, although protesting that they could not get involved, proceeded to tell the employees what to do and how to do it. It was the Respondent's representations who ex- plained how revocation had been accomplished at other locations; it was Respondent who held the general meet- ing, to discuss card revocation, on worktime and compa- ny property; it was Respondent who permitted employ- ees to "sit around" during worktime and to have coffee after the general meeting to permit further discussion about the petition; it was Respondent's representative who ushered other management representatives out of the room so that employees, during worktime, could have the opportunity to draft a petition, and it was Re- spondent's representatives who paid for mailing the peti- tion to the Board. This is not the type of conduct that merely informs employees of their rights. 184 Raley's, Inc., 256 NLRB 946, 955 (1981). 188 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). 186 Electric Hose & Rubber Co. 262 NLRB 186 (1982). The cases relied on by Respondent in support of its position that an employer may inform an employee of his right to revoke his card do not involve the type of con- duct present in the instant case. In Payless Drug Store, 210 NLRB 134 (1974), the Board adopted the administrative law judge's decision, dismissing the complaint in its entirety because he found that the employer had not violated the Act in any manner, including providing employees with forms to revoke their authorization cards. In Payless it was uncon- troverted that it was employees who asked about card revocation and the judge, although he found the employ- er's conduct "troublesome," did not find a violation rely- ing on the fact that it was the employees who raised the subject matter. Similarly, in Jimmy-Richard Co., 210 NLRB 802 (1974), the Board did not find a violation re- garding the issue of card revocation. There, the judge found, however, that it was the employees who initiated the requests to withdraw their cards. As noted above, in the instant case there is scant evidence of employees in- quiring about card revocation other than the statements by management representatives. Telesca, the only em- ployee who testified that he had inquired about card rev- ocation, did not recall when he made the inquiry. The facts in Aircraft Hydro-Forming, 221 NLRB 581 (1975), establish that the employer, by letter, advised the em- ployees that they could send a registered letter asking for the return of their cards. There, the administrative law judge distinguished between the situation in which em- ployées had initiated the subject matter and those in which the employers had initiated the subject matter. The judge stated, "When the idea of revocation was ini- tiated by the employees, the fact that the employer gives information to employees as to and actually assists in the mechanics of revocation is not violative of the Act if the employee has the opportunity to continue or halt the revocation process without interference or knowledge of the employer. However, giving assistance when the idea originates with the Employer is a violation of the Act."187 In Poly Ultra Plastics, 231 NLRB 787 (1977), the presi- dent of the company, at the request of the employees, helped employees draft a letter revoking their authoriza- tion cards. It was undisputed that it was the employees' idea to seek the return of their cards and that the prepa- ration of the document took place at an employee's home. The administrative law judge specifically noted that the president had not permitted the petition to be circulated during working hours. In addition, judge stated the following, "Respondent did not Initiate, spon- sor or assist in the circulation of the petition. Its conduct was limited to aiding employees in the expression of their predetermined [emphasis added] objectives through a document that could be utilized to accomplish this pur- pose." 188 Obviously this is not the situation in the instant case. Here Respondent, after having induced employees to revoke their cards, permitted the employees to discuss the matter, with its blessing, on company time and prop- 187 Aircraft Hydro-Forming, supra at 583. 188 Poly Ultra Plastics, supra at 70. 858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD erty. It is highly unlikely that this Respondent would have permitted such conduct under any other circum- stance. In Lebanon Apparel Corp., 243 NLRB 1024 (1979), the Board adopted the administrative law judge's finding that the employerS had not violated the Act when it issued a letter explaining to employees the methods by which they could revoke their authorization cards. In finding that there was no violation, the judge relied on the fact that employees had sought such information, and the further fact that there was no evidence that the em- ployer initiated or sponsored the activity. It is significant to note that the judge also stated the following, "There is no credible evidence the Employer exerted any type of compulsion." The Board, in Tartan Marine Co., 247 NLRB 646, 655 (1980), adopted the administrative law judge's finding that the employer had not violated the Act. The judge based his finding on the fact that it was the employees who requested the information and the employer had suPplied only the addresses of the union and the Board's Regional Office. It should be noted, however, that in that case the judge did state that although it was not un- lawful to tell the employees that they have the right to revoke their cards, he also stated that "in so doing the employer treads a thin line between legality and illegal- ity." In the instant case, I find the Respondent, by its conduct, has overstepped that line. Marriott Corp., 258 NLRB 755, 768 (1981), involved a violation of Section 8(a)(5) based on a bad-faith bargain- ing charge. Included among the elements considered by the administrative law judge in arriving at the conclusion that there was a violation, however, was employer in- volvement in a decertification petition. The facts in that case, in some respects, are similar to those in the instant case. There, the judge noted that although none of the solicitations concerning the petition occurred on working time, he found "a far more important indicator of em- ployer sponsorship was its organization of the meetings that immediately preceded the circulation of the peti- tions." Certainly, Respondent in this case organized the January 6, 1981 meeting; there is no evidence that em- ployees requested such a meeting. Nor was the admims- trative law judge in Marriott impressed with respondent's claim that the meetings were held because, "some em- ployees asked how they could rid themselves of the Union." He found, as I do, that the alleged basis for the meeting was the scant and ambiguous testimony by the employer's representatives. Also, as in the instant case, there was evidence that the employees, prior to the meetings, had been advised by the employer of the Board's address and phone number, but had not availed themselves of the information. The judge found that re- spondent then proceeded "to aggressively and affirma- tively sell decertification," and further found that by these meetings the respondent had "planted the seed." This is the exact phrase used by the employees in the in- stant case in describing Respondent's conduct. In 7-Eleven Food Store, 257 NLRB 108, 117 (1981), where there was a finding of a violation, the employer had prepared a petition "to stop the Union from coming in" and had left it where employees could see it. Subse- quently, that petition was replaced by an employee peti- tion seeking withdrawal from the union. Nevertheless, the judge, in finding a violation, concluded that it was significant as to timing that respondent's employees pre- pared their own petition to withdraw from the union after the employer spoke to employees about such a withdrawal. In Sunflower Novelty Bags, 225 NLRB 1331, 1336 (1976), the Board adopted the administrative law judge's finding that the employer had designated an employee to act as its agent in circulating a petition and, thereby, had interfered with the Section 7 rights of its employees. The judge, however, found that the employer also had set the stage for the revocation action by its conduct, apart from designating an employee to act as its agent. Thus, the judge stated, "It is clear that after the Company discri- minatorily discharged two union leaders, coercively in- terrogated employees and threatened plant closure, the employees were acting under fear of losing their jobs when they asked how to retract their union cards. It was in this context that the Company suggested the signing of a petition." The illegal conduct engaged in by this Re- spondent prior to the January 6, 1982 meeting has been outlined above, and all occurred before Respondent in- troduced the subject of card revocation at the meeting. As noted above, I have found certain statements made during the speech to constitute separate violations of the Act, although the complaint did not specifically allege these statements as violations. The Respondent's entire course of conduct at the meeting, however, was alleged as an inducement and encouragement of employees to abandon their support for the Unioin, and this issue was fully litigated. In these circumstances, a violation based on the statements may be found.189 Even if I had not found that certain statements made on January 6, 1982, however, constituted separate viola- tions, I would find that Respondent called the meeting on January 6, 1982, to induce and encourage its employ- ees to sign the petition disavowing their support of the Union in violation of Section 8(a)(1) of the Act.19° I. The January 6, 1982 Meeting, Evan Spelfogel- Robert Johnston The parties to this meeting agree that they discussed both the petition to disavow Local 445 and Schneible's denial in December 1981 of Johnston's request for pay- ment of sick leave. The record establishes that it was Johnston who circulated the petition and that he therea- fater received the sick leave payment that previously had been demed. The General Counsel contends that Spelfo- gel induced and encouraged Johnston to circulate the pe- tition and was responsible for securing the sick leave payment as compensation for Johnston's agreement to circulate the petition. In support of this contention the General Counsel points to several statements mady by Spelfogel which, he claims, demonstrates Spelfogel's lack of credibility. Spelfogel's statement that he, an experi- enced labor attorney, did not have discussions with his 189 RAI Research Corp., 257 NLRB 918 fn. 4(1981) 190 Holly Manor Nursing Home, 235 NLRB 426 (1978). CAMVAC INTERNATIONAL 859 clients about which employees they thought were in- volved in the union efforts is unworthy of belief, accord- ing to the General Counsel. The General Counsel claims that Spelfogel's testimony that Johnston was only one of the many employees that he planned to see on that day is not supported by the record. Finally, it is the position of the General Counsel that there had been no prior compa- ny policy violated when Schneible denied payment to Johnston for sick leave in December 1981 and, therefore, the money eventually paid to Johnston was not money owed to him. The implication in these arguments by the General Counsel is that Spelfogel knew who the main organizer 'was, and he arranged to meet with Johnston on January 6, 1982, to urge Johnston to circulate a peti- tion that Spelfogel knew would block the enforcement of a bargaining order by the courts. Although I am of the opinion that Spelfogel failed to exercise the type of caution necessary, given the situa- tion, I am not prepared to find that Spelfogel made the statements that Johnston attributed to him In this con- nection it should be noted that Johnston testified that it was he, not Spelfogel, who sought the meeting. In addi- tion, Johnston also testified that before he met with Spel- fogel, he had determined he would "jump on the band- wagon" and had decided to circulate a petition. He ad- mitted that it was he who began the discussion about au- thorization cards by telling Spelfogel that, on that day, employees had asked about the return of their cards and about a petition. According to Johnston, Spelfogel said it would "look" better if he, Johnston, circulated the peti- tion, and he would give him the opportunity to do so, but Respondent's representative could not be present. Spelfogel I estified that when Johnston mentioned the pe- tition, his comment was that neither he, as an officer of the court, nor management representatives could be in- volved. My observation of Johnston leads me to con- clude that he interpreted Spelfogel's statements as an en- dorsement of what he was about to do. While Johnston's interpretation cannot be considered unreasonable, how- ever, I do not find, that Spelfogel actually made the statements that Johnston attributed to him I come to this conclusion basically because I find that it was unneces- sary for Spelfogel to make such clearly violative state- ments. It is evident that Johnston had decided to circu- late the petition, and he made that fact known to Spelfo- gel at the outset of their meeting. It is unlikely that Spel- fogel, realizing this, would have jeopardized his position by making such blatant statements to an employee who was a stranger and who he knew had been active on behalf of the Union. The second issue raised by the General Counsel relates to sick leave moneys paid to Johnston after the petition was circulated. I do not agree with Respondent's asser- tion that Schneible or Andry violated a company policy when they refused to pay Johnston sick pay in Decem- ber 1981. Although it is true that Respondent previously had advanced moneys for sick leave to employees to qualified for sick leave under the workmen's compensa- tion plan, Johnston did not qualify for such advanced payment. Johnston was not eligible under workmen's compensation for payment because he was absent only 1- 1/2 days rather than the requisite 7 days. Thus, he would not be able to reimburse the Company from moneys he was to receive from the Government because he was not scheduled to receive any moneys. Nor does the record support the claim that the new sick leave policy allowed an employee to borrow sick leave days. An examination of that policy fails to show any such provision."' It is clear, therefore, that Johnston was paid moneys not owed to him It must be presumed that when Spelfogel relayed Johnston's grievance about his failure to receive sick leave pay to Respondent's representatives, he also advised them that Johnston was prepared to circulate the petition. Based on this record, I conclude that it was this fact that motivated Respondent to pay sick leave moneys to Johnston. Accordingly, I find that Respondent, by paying Johnston moneys not due to him because he cir- culated the petition disavowing support for the Union, violated Section 8(a)(1) of the Act.192 J. The Discharge of Robert Johnston Because of Johnston's role as an observer at the Paint- ers election, it would not be unreasonable to assume that Respondent, commencing on June 24, 1981, considered him as a possible organizer on behalf of Local 445. There is no evidence, however, of Respondent's actual knowledge about these activities until October 1981, after Johnston's conversation with Maughan. Respondent admits that it had knowledge in October 1981 about Johnston's union activities, but it claims that by the time of the discharge it had every reason to believe that John- ston was antiunion. In fact, Respondent contends that the credible evidence establishes that Johnston "successful [sic] may [sic] every effort to conceal his Union sympa- thies from management officials." Accordingly, Respond- ent argues that the General Counsel has failed to estab- lish the threshold burden; he failed to prove that at the time of the discharge Respondent was aware that John- ston was still prounion. Respondent relies on Johnston's statement, in his meet- ing with Spelfogel, of his intention to circulate the peti- tion and his comments that he tried to convince manage- ment of his antiunion attitude to support its position that at the time of the discharge, Respondent believed that Johnston was the leader of the antiunion movement. It is highly unlikely that Respondent, represented by an expe- rienced labor counsel, actually trusted those expressions of antiunion sentiments. This is true when one considers that Respondent's counsel testified that he believed that Johnston was seeking a bribe when he expressed these antiunion sentiments. That Respondent's counsel did not trust Johnston and was concerned about the events that had occurred between the two on January 6, 1982, be- comes obvious when one considers what happened after that day. On January 15, 1982, the charge in Case 2- CA—l8524 was filed. That charge alleged that Respond- ent violated the Act about January 6, 1982, in connection with meetings held while Respondent's attorney was present, during which efforts were made to induce em- ployees to sign a petition seeking the return of their au- i91 G C Exh. 20. 192 Leisure Time Tours, 258 NLRB 986 (1981) 860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD thorization cards. There were three general meetings and one individual meeting held on January 6, 1982, wherein the subject matter of a petition was discussed. Spelfogel was party to the individual meeting held with Johnston. On January 18, 1982, Spelfogel requested Johnston to sign an affidavit stating that Respondent had not been in- volved in the preparation or distribution of the petition. Respondent did not produce similar statements from other employees. That fact is significant because it dem- onstrates that Respondent's counsel did not trust John- ston; he believed that it was Johnston who was giving information to the Board. It also establishes that Re- spondent still believed that Johnston was prounion. Ac- cordingly, I am convinced that on January 15, 1982, Re- spondent was aware that Johnston, contrary to any state- ments he made, was still prounion and was assisting the Board in its investigation of the charges. As noted above, this record is replete with examples of Respondent's an- tiunion attitude. In these circumstances, I find that within the criteria set forth in Wright Line a prima facie case has been established. Respondent, however, argues that even if a prima facie case is established, a violation cannot be found because Johnston would have been dis- charged, notwithstanding these activities, for his viola- tion of a company rule. I do not credit that Johnston would have been discharged absent his activities on behalf of Local 445 or his participation in the Board's in- vestigation. The circumstances surrounding the events leading to Johnston's discharge are suspicious, to say the least. The Respondent's prime witness to the event, which allegedly led to the discharge, was not called to testify)." Her failure to testify was not explained. Al- though she gave her version of the events to a "friendly" police officer, she did not file criminal charges at that time. The criminal charges were not filed until several hours later. Why did Andry not file the charges at the time the intemperate language was used when, one as- sumes, she was most upset. The record fails to disclose any reason for the lapse of several hours before she de- cided to file the charge. Who or what convinced Andry to file charges also was not explained. The deputy sheriff claimed he followed usual police procedures in handcuff- ing Johnston and, subjecting him to a physical search. When questioned by the judge about this type of proce- dure in face of the trivial charges, and when there was no evidence of any resistance, the deputy sheriff repeated that he had followed usual police procedures) ." It was during this serach that marijuana was found in John- ston's possession. Davies and Maughan testified that this possession alone was the reason for the discharge. Based on my observation of the witnesses, the evidence provid- ed by them, their failure to call necessary witnesses, and the reasonable inferences to be drawn from such a fail- ure, I do not credit their testimony. 195 Moreover, the 193 Adverse Inferences may be drawn from a party's failure to produce a witness. Laredo Coca Cola Bottling Co., supra. "4 Subsequently, he testified that he knew Johnston had a criminal record The record discloses that Johnston did have such a record. 196 Gossen Go, 254 NLRB 339, 345 (1981); Northridge Knitting Mills, 223 NLRB 230 (1976). record dislcoses that Respondent's discharge policy for an infraction of a company rule was not absloute. Carl Feinstead, an employee, was not discharged, notwith- standing that his violation of a company rule had endan- gered the lives of other employees. Maughan testified that he relaxed the policy because Finstead was a new employee. It is probable that Respondent would also have relaxed the disciplinary policy regarding Johnston's minor infraction, particularly when one considers that Johnston was a more senior employee whose infraction normally would not have been disclosed and who had not endangered lives. The reason Respondent was not as lenient to its more senior employee for a minor violation was due, I find, to his union activities and his participa- tion in the Board investigation. Accordingly, I find that Respondent has violated Section 8(a)(3) 196 and (4) of the Act.197 K. The Authorization Cards The record discloses that there were 61 employees in an appropriate unit at the times relevant to the issues in- vovled in this case. The General 'Counsel introduced 43 signed authorization cards. The record reveals that 40 of those cards were dated on or before June 24, 1981. Three authorization cards were dated July 16, 1981. The Respondent did not contend that the cards were forger-, ies. The cards on their face are single-purpose cards and clearly and unambiguously authorize Local 445 to repre- sent the employees as their collective-bargaining repre- sentative. In Gissel the Supreme Court made the following state- ment: Employees should be bound by the clear language of what they sign unless that language is deliberate- ly and clearly concealed by a union adherent with words calculated to direct the singer to disregard and forget the language above his signature.198 It is clear from that language that the presumption is in favor of the validity of the card. Respondent contends, notwithstanding the fact that 40 authorization cards were dated on or prior to June 24, 1981, that, "at the time there was no showing that it pos- sessed signed authorization cards from majority of Cam- vac's bargaining unit employees." 199 In support of its position Respondent makes several arguments. The first is that the significant date is not the date on the face of the authorization card, but the date when the cards were delivered to the Union. In support of this argument that Local 445 did not have majority support at the time it made its demand, Respondent argues that several em- ployees testified that they retained their cards for several days before giving them to Johnston and, therefore, the Union did not have those cards on or before June 24, 1981, when the Union made its demand. The record re- " 6 Bethlehem Steel Corp., 262 NLRB 223 (1982); Cod-ACC , supra at 7, 8; Grane Trucking Co., 261 NLRB 363 (1982); L. D. Brinkman South- east, 261 NLRB 204 (1982). NLRB v. Scrivener, 405 U.S. 117, 124 (1972) 198 Gruel, supra at 606, 607. 199 G.C. Exhs. 50 and 51 CAMVAC INTERNATIONAL 861 veals that Steve Totals and Doug Sarles testified that they had the authorization cards in their possession for several days before they signed them. It is undisputed that Johnston secured the majority of the cards; both Johnston and other employee witnesses testified to that fact. Johnston claimed that he secured most of the signa- tures from other employees on June 22 and 23, 1981, and he gave the cards to the Union's representative on or before June 24, 1981. The bulk of the authorization cards, as noted, bear a June 22 or 23, 1981 date. The cards of Totals and Sarles are dated June 22, 1981. Nei- ther employee testified that the date on the card was in- correct. It is clear that the employees were mistaken as to the length of time they had the cards in their posses- sion. A morass of hazy recollections should not prevail over the date on the face of the card. 2" Assuming, however, that Respondent's contentions were to prevail, the lack of these two authorization cards would be insuf- ficient to change the fact that on the day the Union made its demand it had attained majority status in the production and maintenance unit. Respondent next attacks the authenticity of authoriza- tion cards of Michael Cea, Roger Sequist, William Mitchell, Garry Ferguson, William Somoskey, Michael Gaader, Kenny Lahart, and Michael Wood because it contends that the record establishes that Sunday did not solicit the authorization cards of these employees and, therefore, their cards had not been authenticated. How- ever, while the record does disclose that Sunday did not secure these cards, it also discloses that five of the eight individuals authenticated their own cards. Thus Cea, Ferguson, Sequist, Somoskey, and Mitchell all testified that they signed cards for the Union. Further, it was evi- dent that all could read the clear language of the card.2" Respondent argues that the authorization cards of Pat Palumbo, Tom DiIlion, and Rick Reuther also were not authenticated because Johnston was not the employee who actually solicted them to sign. These employees did testify that it was not Johnston who solicited them. However, they all testified that they signed the authori- zation card for the Union. They, thus, authenticated their own authorization cards. It, therefore, appears that of the 11 cards attached by Respondent on the grounds of au- thenticity, 8 were authenticated by the individual who signed the card. There remains only the cards of Lahart, Gander, and Wood, about which there was no testimony. Assuming arguendo, however, that these cards were not properly authenticated, this would not establish that the Union did not represent an uncoerced majority at the time it made its demand. Respondent also contested the validity of five authori- zation cards on the ground that they were secured by gross misrepresentations by the solicitor regarding the number of employees who had signed cards. The cards attached were those of Charles Telesca, Ricky Verbasco, 2" Amalgamated Clothing Workers of America v. NLRB, 371 F.2d 740, 745 (r) C. Cir. 1966) 2" Although one or two of these witnesses testified that they were told there was going to be a vote, or they thought there was going to be a vote, they did not testify that Johnston told them that the sole purpose of the card was to have an election. Steve Totals, Jim Wilde, and Agnes Bennett. In support of its position Respondent cited NLRB v. Roney Plaza Apartments, 597 F.2d 1046 (5th Cir. 1979), and Medline Industries v. NLRB, 593 F.2d 788 (7th Cir. 1979). An examination of the cited cases discloses that in those cases there was evidence of repeated, aggressive action by union representatives to convince employees to sign the authorization cards, including the statement that all other employees had signed. There is no evidence of this type of conduct in the instant case. Although it is true that Telesca testified that Johnston stated that TeIesca was one of the last to sign, it is unclear whether this statement was made before or after Telesca signed. Telesca also testified that he signed in the presence of other employees after he was told he would receive better benefits. Telesca's testimony failed to disclose any aggressive action by Johnston. Richard Verbasco stated that he was one of the last to sign because Johnston did not "even want to ask him to sign." Steve Totals testified that he asked if other employees had signed, and it was then that Johnston showed him the list of other employ- ees who had signed. Agnes Bennett testified that John- ston said that others had signed and it would be better if they all signed. She testified that she read the card before she signed it. Jim Wilde testified that Johnston told him that other employees were signing the authori- zation cards. It is clear from the testimony of these em- ployees that they did not sign because there was a mis- representation made to them that a majority of employ- ees had signed authorization cards. These employees were not intimidated into signing because of a fear of majority reprisals. The principles set forth in the cases cited by Respondent do not apply given the factual situa- tion in this case. My observation of these witnesses con- vinces me that they were intelligent individuals, fully aware of what they were signing, and they were not co- erced or intimidated by Johnston into signing their au- thorization cards. Finally, Respondent claims that the cards of Doug Sarles and Billy Mitchell should not be considered be- cause the employees were told the cards were "only to get an election." In support of its contention, Respondent cites many cases including a lead case, Cumberland Shoe Corp., 144 NLRB 1268 (1963). The principle set forth in Cumberland is not in dispute. The testimony of the wit- nesses, however, does not establish that they were told that the cards they were signing "was only to get an election." Sales testified that he recalled that something was said about an election; however, he could not recall the conversation. Mitchell testified that when he was asked to sign his card, there was some statement about the fact that there would be a vote, but he knew he wanted the Union. In these circumstances, I do not find that the statements made to these employees indicated that the card was "just to get an election." The Board has stated that an unambiguous card is valid unless the signer is specifically informed that the card will be used solely to secure an election. 202 There is no evidence that this type of statement was made to any employee. 2" Washington Beef Products, 264 NLRB 1163 (1982); Comet Corp., 261 NLRB 1414 (1982); Tartan Marine Co., 247 NLRB 646, 653 (1980. 862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Accordingly, I find that since on or about June 24, 1981, the Union has represented an uncoerced majority of Respondent's employees in a production of mainte- nance unit. L. The Refusal t\o Bargain and the Remedial Bargaining Order As noted above, the Union secured a total of 40 au- thorization cards by June 24, 1981. 203 1 have indicated that of this number only three cards were not properly authenticated. Thus, it appears that the Union had in its possession 37 properly authenticated authorization cards at the time it made its demand for recognition. That number clearly represented an uncoerced majority of Re- spondent's production and maintenance employees. Re- spondent admittedly refused to recognize and bargain with the Union. It, however, conterminously with its re- fusal to recognize and bargain, embarked on a campaign to undermine the Union's majority status. Thus Respond- ent, after receipt of the Union's demand for recognition, engaged in the following conduct: dominated and assist- ed CEWC by management participation in CEWC deci- sions; provided company facilities for CEWC meetings; paid employee representatives for participation in CEWC proceedings; provided clerical and other forms of assist- ance to CEWC; promised and granted various benefits to its employees including a new wage structure policy, a new sick leave policy, a new disciplinary policy, a profit- sharing plan, and moneys for a new health benefit; threatened plant closure; coercively interrogated its em- ployees about their union activities; alleged that the Union was causing employees to lose benefits; denigrated the Union; solicited employee's grievances and implied or expressed that the grievances would be remedied; in- duced and encouraged its employees to sign a petition disavowing the Union; promised benefits to induce its employees to circulate a petition disavowing the Union; and discharged its employees because of their union ac- tivities; and because they assisted in investigations con- ducted by the National Labor Relations Board. The unfair labor practices, which I have found that the Re- spondent has committed, are serious unfair labor prac- tices. The petition, which Respondent induced and en- couraged its employees to sign disavowing their support for the Union, is objective evidence that the Respondent has successfully undermined the Union's majority status and makes clear that it would be impossible to hold a fair election. Thus, I conclude and find that a bargaining order is both necessary and appropriate to remedy the serious unfair labor practices committed by Respond- ent.204 In view of my finding that Respondent was dominating CEWC and rendering it unlawful assistance and support at the time it received the Union's demand for recognition, I find that its obligation to bargain com- menced on that day, June 26, 1981. 2°5 I further find that 200 additional cards were secured by July 16, 1981 204 Washington Beef Products, supra, and cases cited therein, Comet Corp., supra at 88. 205 argument that it could not recognize and bargain with the Union because it had recognized CEWC has no validity, in view of my finding of domination. Cas Walker's Cash Stores, 249 NLRB 316, 326 (1980). Respondent's unilateral changes in terms and conditions of employment, without consultation with the Union after that date, violated Section 8(a)(1) and (5) of the Act.2°6 CONCLUSIONS OF LAW 1. Camvac International, Inc. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 445, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Camvac Employees Works Committee are labor organi- zations within the meaning of Section 2(5) of the Act. 3. By dominating, supporting, assisting, or interfering with the operation and administration of Camvac Em- ployees Works Committee, Respondent has engaged in conduct violative of Section 8(a)(2) and (1) of the Act. 4. By interrogating its employees about their union ac- tivities; by soliciting grievances from employees with the implied or expressed promise that they would be reme- died without a union; by promising, announcing, and granting benefits and improvements in terms and condi- tions of employment to employees in order to discourage their support for the Union; by threatening plant closure; by implying to employees that support for the Union would be futile; by denigrating the Union; by stating that the Union was causing employees to lose benefits; by suggesting and encouraging employees to circulate a pe- tition disavowing support for the Union; and by granting a monetary benefit to an employee because he circulated a petition disavowing support for the Union, Respondent has engaged in conduct that is violative of Section 8(a)(1) of the Act. 5. By discharging its employee, Robert Johnston, be- cause of his activities on behalf of the Union and because he assisted the Board in its investigation of unfair labor practice charges, Respondent has engaged in conduct that is violative of Section 8(a)(3) and (4) of the Act. 6. All regular full-time and all regular part-time pro- duction and maintenance employees of Camvac Interna- tional, Inc. at its brewster, New York facility, but ex- cluding all office clerical employees, professional em- ployees, guards and supervisors as defined in the Act is an appropriate unit for purposes of collective bargaining. 7. Since on or about June 26, 1981, Local 445, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehou- semen and Helpers of America, AFL-CIO has been and is the exclusive collective-bargaining representative of the employees described above in paragraph 6. 8. Since on or about June 26, 1981, and continuing thereafter, Respondent has failed and refused to bargain on request with the Union named above and has estab- lished unilateral changes regarding terms and conditions of employment without consultation with the Union, in violation of Section 8(a)(5) and (1) of the Act. 9. The above are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 206 Highland Plastics, 256 NLRB 146, 165 (1981). CAIVIVAC INTERNATIONAL 863 10. Except as found here, Respondent has not other- wise violated the Act, as alleged in the complaint. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order the Respondent to cease and desist therefrom and to take certain affirmative action necessary to effectuate the poli- cies of the Act. The Respondent, haying wrongfully discharged Robert Johnston on February 10, 1982, and, thereafter, having refused to fully reinstate him, I find it necessary to order Respondent to offer Robert Johnston immediate reinstatement to his former job or, if such job no longer exists, to a substantially equivalent job, without prejudice to his seniority and other rights and privileges and to make him whole for any loss of earnings he may have suffered by reason of unlawful discrimination aginst him The backpay provided here, and any interest due thereon shall be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). Having found that Respondent has dominated and interfered with the administration of Camvac employee works committee, and has contributed support thereto, it will be recommended that Respondent be ordered to cease and desist from such conduct and that it withdraw recognition from, and completely disestablish, the Camvac employee works committee as the representative of Respondent's employees at its Brewater facility for the purposes of dealing with Respondent concerning griev- ances, labor disputes, wages, rates of pay, hours of em- ployment, or other conditions of work. Having found that the Union represented an un- coerced majority of Respondent's production and main- tenance employees at its Brewster facility on June 26, 1981, the day the Respondent received the Union's demand for recognition, it will be recommended that a bargaining order issue effective June 26, 1981. Finally, I recommend that the Employer be required to post the usual notice advising its employees of their rights and the results of this proceeding. [Recommended Order omitted from publication.]