Gordonsville Industries, Inc.

GORDONSVILLE INDUSTRIES. INC Gordonsville Industries, Inc. and Amalgamated Clothing and Textile Workers Union, AFL- CIO, CLC. Cases 5-CA-9050, 5-CA-9308, and 5-RC- 10242 September 30, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MI MBI RS JENKINS AND PENEI.O On November 8, 1979, Administrative Law Judge Bernard Ries issued the attached Decision in this proceeding. Thereafter, General Counsel, the Charging Party, and Respondent filed exceptions and supporting briefs, and Respondent filed reply briefs to the General Counsel and the Charging Party's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings,' find- ings, 2 and conclusions of the Administrative Law Judge and to adopt his recommended Order," as modified herein. I Respondent has filed a number of procedural and evidentiary excep- tions to the rulings of the Administrative Law Judge made during the hearing, particularly to the quashing of its subpena served on counsel for the General Counsel The record shows that on July 28. 1978, Respond- ent served its subpena during the initial course of the hearing, whereupon the Administrative Law Judge quashed the subpena substantially in its entirety. Respondent sought to obtain statements, affidavits, and other documents from the General Counsel's investigatory files. On September 5, 1978, Respondent filed a motion for enforcement of its subpena with the General Counsel in Washington, D.C. which was denied on Septem- ber 20. 1978. On August 2 1978. Respondent also filed a motion. in ac- cordance with Sec 102.118 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, requesting that counsel for the General Counsel be allowed to voluntarily turn over to Respondent cer- tain items. The General Counsel denied this request on August 10, 1978. Respondent's exceptions contain the same arguments made before the Administrative Law Judge and the General Counsel. We find no merit to these exceptions X.L.R.B. v Vapro Blast Manufacturng Company, 287 F.2d 402, 405-408 (7th Cir. 1961); Woodlawn Hospital v. N.L.R.B. 596 F.2d 1330 (7th Cir 1979). a Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd. 188 F2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing his findings. 3 The Charging Party has excepted to certain aspects of the remedy and Order recommended by the Administrative Law Judge, and seeks certain remedies in addition to those that we have adopted. We are in agreement with the Administrative Law Judge that Respondent has com- mitted serious unfair labor practices: however as Respondent does not have a history of violations of employee rights, we shall not grant any additional remedies Nevertheless. in view of the serious unfair labor practices committed by Respondent, the Administrative Law Judge. in his recommended Order, included a broad order provision as remedy In our opinion, the egregious misconduct engaged in herein by Respondent clearly "demonstrates] a general disregard for [its] employees' fundamen- tal statutory rights" HclAnor t od. Inc. 242 NlRB 1357, (1979). Ac- 252 NLRB No. 54 1. The General Counsel and the Charging Party have excepted to the Administrative Law Judge's dismissal of the allegation that Respondent violated Section 8(a)(l) of the Act by conducting a survey of its employees that constituted coercive interro- gation because it generated responses from employ- ees regarding their union sentiments. In support of this allegation, the General Counsel and the Charg- ing Party relied upon the fact that the survey con- tained several open-ended questions which a sub- stantial number of employees responded to with an- swers that indicated their union proclivities. Fur- ther, the survey required the employees to fill in their department, shift, sex, and length of service. The Administrative Law Judge found that this evi- dence furnished no basis for concluding that Re- spondent engaged in unlawful interrogation be- cause the survey did not explore employee atti- tudes about unionization, and employees were told that the forms would be destroyed after scoring. We find merit to the General Counsel's and the Charging Party's exceptions. In conducting the survey, Respondent informed its employees that the survey was confidential. However, requiring employees to write in their de- partment, age, sex, and length of time employed destroyed whatever anonymity existed, and clearly gave information which could serve to identify em- ployees. 4 The mere stating that a survey is confi- dential does not meet the Board's standards for the valid, nondiscriminatory surveying of employees either during a union organizing campaign and/or after a demand for recognition has been made. 5 While it is true that the survey did not specifically contain a question directly polling employees' union sentiments, it is obvious in this case that the question, "[W]hat would you like to see done to make your company a better place to work?" had that effect, as a number of employees responded with answers which revealed their union senti- ments. This is no less impermissible than if the question had been asked directly, especially since it occurred within the context of other violations of Section 8(a)(1). 6 In addition, Respondent's survey consultant testified that he was informed rather abruptly by some of the employees in the various survey sessions that there was a union organizing campaign being conducted, and they questioned his presence and indicated that they did not believe his assurances regarding confidentiality and the ulti- cordingly. we find. in agreement with the Administrative Law Judge, that a broad order is warranted in this case. Wonder MLarket. Inc . 246 NLRB No. 56 (1979) ' Strukne (Construction Co., Inc.. 165 NLRB 1062 (1967) ' Dunn Brothers. Incorporated. t/a Fisher Stove Works, 235 NLRB 1032, 1(42 (1978) 563 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mate destruction of the survey. Thus, there is suffi- cient reason to think the employees held contrary beliefs. This indicates that, given the circumstances of this case, and contrary to the Administrative Law Judge, the necessary confidentiality and assur- ances against reprisals were lacking during the ad- ministration of the survey, and that the responses generated by some of the subjective open-ended questions had the effect of infringing upon the em- ployees' Section 7 rights. Therefore, we conclude that the survey constituted an unlawful interroga- tion of employees in violation of Section 8(a)(1) of the Act. 2. The Charging Party excepted to the Adminis- trative Law Judge's dismissal of the allegation that Respondent violated Section 8(a)(l) of the Act by creating the impression of surveillance during an October 22, 1977, conversation between Respond- ent's supervisor, Fernandez, and employee Baugher. Baugher testified that during this conver- sation he was asked "if he] knew how many people in that department were for the Union," to which he (Baugher) replied "no." We are in agree- ment with the Administrative Law Judge that this did not constitute surveillance. However, we do find that this questioning of Baugher constituted il- legal interrogation regarding employees' union ac- tivity, and therefore was violative of Section 8(a)(1) of the Act. 7 3. The Administrative Law Judge found that the Union had not been designated as bargaining repre- sentative by a majority of Respondent's employees on September 26, 1977, the date that the Union made its bargaining demand and also the date when Respondent embarked on its unlawful conduct, but that the Union had a continuing majority beginning on September 27, 1977. He based this finding on his determination that of the 215 authorization cards secured by the Union, 50 of them should not be counted and 14 out of the 50 were invalid desig- nations, including the cards of Carter, Marks, and Lam. Therefore, out of a stipulated unit of 333 eli- gible employees in the bargaining unit existing on September 26, the Union had secured only 165 valid cards and it needed 167. Contrary to the Ad- ministrative Law Judge, and in agreement with the Charging Party, we find, for the reasons set forth below, that the cards signed by Carter, Marks, and Lam are valid designations, and we shall count I Although the complaint alleged that Fernandez' conduct violated the Act by creating the impression of surveillance, we are not precluded from finding a violation under an alternate theory. It is well established that, where, as here, the facts underlying the violation are fully devel- oped at the hearing, an unfair labor practice finding can be based on the issues litigated as well as those specifically alleged in the complaint. C & E Stores, Inc.. C & E Supervalue Division, 221 NLRB 1321 (1976); Phillips Industries, Incorporated, 172 NLRB 2119, n. 2 (1968); Hanes Hosiery, Inc., 219 NLRB 338 (1975). their cards in determining the Union's majority status. Della Carter testified that she signed her card on September 22, 1977, and that she did not read the card, but she knew what the card was for. On re- cross-examination Respondent's counsel brought up the fact that Carter's card stated she worked in "Mill A" when in fact she worked in "Mill E." Carter's explanation was simply that she made a mistake as she was talking as she signed the card. She also testified that she works the A shift, and that there were no other mistakes on her card even though Respondent's counsel pointed out there were what appeared to be erasures on the card. Upon examination by Administrative Law Judge Ries, Carter verified that the signature on the card was hers, and that she started working in Mill E in May 1977. On redirect examination Carter recalled that she had worked in Mill A during the July plant shutdown. The Administrative Law Judge, while crediting Carter with being an honest wit- ness, nevertheless concluded that her card was in- valid because she wrote Mill A instead of Mill E on her card, and she could not account for the era- sures. Carter's card was entirely filled out in her own handwriting, and she verified that the signa- ture and date were hers. It is our opinion, absent some contradictory evidence that her card bore a forged signature or that there was a misrepresenta- tion made as to the purpose of the card, 8 the fact that she could not explain why she wrote in Mill A instead of Mill E and the erasures are not of such significance as to invalidate her card.9 Therefore her card will be counted toward the Union's ma- jority. The Administrative Law Judge found Nancy Marks' card invalid because she gave "some very convoluted testimony as to when she signed it and the Regional date stamp on the back was that of May 1978." Marks testified that she read the card; that the signature on the card was hers; and, in re- sponse to the Administrative Law Judge's question- ing, that she wrote in the date of September 26, 1977. She also identified her brother-in-law as the person who gave her the card, but she could not remember to whom she returned the card. On voir dire, after some initial confusion, it was finally de- termined that Marks did not have a copy of her card at the time she filled out the General Coun- sel's card questionnaire,' 0 and therefore the an- swers she gave on the questionnaire were a result 8 Keystone Pretzel Bakery, Inc., 242 NLRB 492, 494 (1979). M McEwen Manufacturing Company and Washington Industries. Inr., 172 NLRB 990, 992 (1968). o1 An unsworn questionnaire executed many months after the initial card signing. 564 CGORDONSVILLE INDUSTRIES, INC of her inability to remember specifics as to the date she signed the card and who gave the card to her. A review of Marks' testimony convinces us that her testimony, even though characterized as con- voluted by the Administrative Law Judge, should not impugn the authenticity of her card as there was no showing by Respondent that the signature of Marks was induced by misrepresentation or co- ercion or other fraudulent methods. " Further, the evidence shows that the Union submitted its first batch of cards to the Regional Office on September 29, 1977, and its second batch of cards were re- ceived in the Regional Office on May 17, 1978. Marks' card was included in the second batch. The record does not affirmatively establish the exact time that any card come into the possession of the union representatives, nor is it affirmatively shown that any card was not recieved by a union repre- sentative on the date which appears thereon. Fur- ther, our scrutiny of Marks' card convinces us that all of the entries were made by her. Therefore, we conclude that her card was timely as it satisfies all of the other necessary criteria, and we shall count it toward the Union's majority. '2 James Lam testified that he was aware of the Union's organizing drive and the distribution of the Union's blue cards. He stated that he was working on a machine when Ernest Williams came up to him and asked him "would he sign a union card, a little blue card, to let the union come for a vote, so they could have an election." Lam readily agreed and signed the card. Lam also testified that "he did not read the whole card because he was working and Williams said he had to hurry up because the foreman was coming, that it may have got him [Williams] in hot water." Further, Lam stated that he had previously belonged to the Carpenters local and had signed and carried a membership card which was punched each month when he paid his dues. In finding this card invalid, the Administrative Law Judge held in effect that because Lam dis- avowed having read the card and no other purpose was communicated to him other than "to let the union come for a vote" the solicitation constituted a representation that the only purpose of the card was to get an election. We disagree. The evidence is clear that Lam read parts of his card as he filled it out. Thus, the solicitor's com- ments could not have diminished Lam's belief that ' NVL.R.B. v. Gisel Packing Co., Inc., 395 U.S 575, 584 (1969); Jeffrey Manufacturing Division. Dreser Indusriws, Inc., 248 NLRB 33 (1980). 12 This is consistent with the Administrative Law Judge's timeliness finding regarding employee Dickerson's card, Cato Show Printing C(o, Inc.., 219 NLRB 739, 756 (1975) (Combes and Cory) J P Steven &S Co, Inc. Gultitan Division. 179 NLRB 254, 271 (1969) (Floyd and Loa'er) Fabrcoators. Incorporated. 168 NLRB 140 (1967) he was authorizing the Union to represent him. Lam has extensive prior knowledge and experience as a member of the Carpenters Union. Therefore, the totality of the circumstances convinces us that Lam's card constituted a valid designation. 13 Ac- cordingly, we shall count Lam's card toward the Union's majority. In view of our findings above, we conclude that the Union represented a majority of Respondent's employees on September 26, 1977, and thereaf- ter.' 4 We will therefore find that Respondent vio- lated Section 8(a)(5) by refusing to recognize the Union on and after September 26, 1977.'5 AMENDED CONCUSIONS 01F LAW 1. Substitute the following for Conclusion of Law 4: "4. By, in September. October, November, and December, 1977 and June 1978, coercively interro- gating employees regarding their union sympathies through means at a survey; conducting a survey and in other ways expressly and impliedly promis- ing to rectify employee grievances and to grant benefits; coercively interrogating employees re- garding their and other employees union senti- ments; threatening employees with loss of benefits, loss of jobs, blacklisting, plant closure, and a refus- al to bargain in the event of a union election victo- ry; restricting and harassing employees; interfering with Board processes by attempting to influence the testimony of employees in Board proceedings; granting wage increases; and announcing the exist- ence of a profit-sharing plan, Respondent violated Section 8(a)(1) of the Act." 2. Substitute the following for Conclusion of Law 6: "6. By refusing, on and after September 26, 1977, to recognize and bargain with the Union as the ex- clusive collective-bargaining representative of the employees in the unit described above, Respondent violated Section 8(a)(5) and (1) of the Act." ":l CGssel Packing Co.. Inc.. supra: Levi Straus d C. 172 NLRB 732 (19(8): Medley Distilling Company, Inc., 187 NLRB 84. 85, fn. 8 (1970) Our finding here is consistent with the Administrative Law Judge's crediting of employee Cromer's prior knowledge and experience as a union member, and does not represent any extension of Cumberland Shoe Corporation, 144 NLRB 1268 (1963), enfd. 351 F.2d 917 (6th Cir 1965) See also Tiplon Electric Company and Professional Furniture Company, 242 NLRR 202 (1979) enfd 104 LRRM 2073, 88 LC 1I2005 (8th Cir 1980). ' As of that date, the Union had obtained 168 cards in a unit of 333 employe)es; and, as of October 3, 1977. 204 cards in a unit of 326 in Trading Port, Inc., 219 NLRB 298 (1975); The Kroger Company, 228 NL.RB 149 (1977) Member Jenkins, while concurring in the result reached herein, continues to adhere to his position as stated in Idak Cn- valesclnt C'entrer of Fall River, Inc. d/b/a Crawford House. 238 NLRB 410 (1978) and therefoire would order Respondent to bargain with the Union effective September 26. 1977, the date Respondent commenced its unfair labohr practices 565 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Gordonsville Industries, Inc., Gordonsville, Virgin- ia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph l(c): "(c) Coercively interrogating employees regard- ing their union sympathies by means of a survey; interrogating employees regarding their and other employees' union sentiments; threatening employ- ees for assisting or supporting the Union, or any other labor organization, with loss of benefits, loss of jobs, blacklisting, plant closure, or a refusal to bargain; promising expressly or impliedly to rectify employee grievances or to grant benefits to em- ployees to induce them to refuse to support the Union, or any other labor organization; restricting or harassing employees; granting wage increases; announcing the existence of a profit-sharing plan; and interfering with Board processes by attempting to influence the testimony of witnesses in Board proceedings." 2. Substitute the following for paragraph 2(b): "(b) Recognize and, upon request, bargain col- lectively with the Union, as the exclusive repre- sentative of the employees in the appropriate unit set forth above, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WIl.l NOT refuse to recognize and bar- gain collectively in good faith, upon request, with Amalgamated Clothing and Textile Workers Union, AFL-CIO, CLC, as the ex- clusive bargaining representative of all em- ployees in the appropriate unit set forth below, with respect to rates of pay, wages, hours, and other terms and conditions of employment. WE WILL NOT discharge or otherwise dis- criminate against employees to discourage their membership in , or activities on behalf of, Amalgamated Clothing and Textile Workers Union, AFL-CIO, CLC, or any other labor organization. WE WILL NOT coercively interrogate em- ployees regarding their or other employees' union sentiments by means of a survey or any other method; threaten employees for assisting or supporting the Union, or any other labor organization, with loss of benefits, loss of jobs, blacklisting, plant closure, or a refusal to bar- gain; promise expressly or impliedly to rectify employee grievances or to grant benefits to employees to induce them to refuse to support the Union, or any other labor organization; re- strict or harass employees; grant wage in- creases; or announce the existence of a profit- sharing plan. WE WILL NOT interfere with Board process- es by attempting to influence the testimony of witnesses in Board proceedings. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of the rights guaranteed them in Section 7 of the Act. WE WILL recognize and, upon request, bar- gain collectively with the Union, as the exclu- sive bargaining representative of the employ- ees in the appropriate unit set forth below, with respect to rates of pay, 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 production and maintenance employees employed by us at our Gordonsville, Virgin- ia, location, but excluding office clerical em- ployees, guards, professional employees, and supervisors as defined in the Act. 566 GORDONSVILLE INDUSTRIES. INC. WE W11. offer Stephen Bolding immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges, and WE WILl compensate him, with interest, for any loss of pay he may have suffered because we terminated him. GORDONSVII.I.E INDUSTRIES, INC. DECISION BERNARD RIES, Administrative Law Judge: This pro- ceeding was heard in Charlottesville, Virginia, on 24 days in July, August, September, October, and Novem- ber, 1978. At the request of the parties, briefs were not filed until April 1979. Consolidated in this proceeding are two unfair labor practice complaints and certain unresolved questions aris- ing out of an election held among Respondent's employ- ees in 1977. The complaint in Case 5-CA-9308 is identi- cal in all respects to the complaint in Case 5-CA-9050 except that the former alleges, in addition to allegations of 8(a)(l) and (3) violations, a violation of Section 8(a)(5) and a request for the issuance of a remedial bargaining order. The record does not clarify why this procedure was adopted; in any event, the two complaint cases and the representation case are now consolidated for deci- sional purposes. The pleadings establish that assertion of jurisdiction over Respondent is appropriate here and that the Charg- ing Party is a "labor organization" within the meaning of the statute. On the basis of the entire record, the briefs, and my recollection of the demeanor of the witnesses, I make the following findings of fact, conclusions of law, and recommendations.' I. BACKGROUND EVENTS The Union formally commenced its campaign at Re- spondent's fabric manufacturing factory in Gordonsville, Virginia, on September 18, 1977, when organizer Harold Bock met with 15 employees who were to become the first wave of authorization card solicitors. Card-signing proceeded quickly; virtually all of the 215 cards submit- ted in this case bear September dates. On September 23, the Union asked Respondent, in writing, for recognition; the request was rejected by letter of September 27. On September 29, the Union filed a petition for an election with Region 5 of the Board. The parties agreed to a Stipulation for Certification Upon Consent Election, and an election was held on December 6. The tally of ballots showed that of 345 ballots cast, 144 were cast for the Union, 143 against the Union, and 58 were challenged. II. THE ALLEGED VIOLATIONS OF SECTION 8(a)(1) The complaint, as amended at the hearing, alleges that Respondent's agents, on various occasions in September, October, November, and December, 1977, and again in June 1978, committed violations of Section 8(a)(l), which broadly makes it unlawful for an employer "to in- terfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7." A. The September Survev Some 8 days after the union campaign began, Re- spondent conducted a survey of the work-related opin- ions and attitudes of all its employees. The complaint al- leges a violation of Section 8(a)(1) by "the conduct of a consultant . . . in conducting a survey of employees and in soliciting employee grievances in order to persuade them not to support the Union." At the hearing, to elaborate on the thrust of the allegation, counsel for the General Counsel said, "I'm suggesting both that the survey itself and the means ui!ized would be solicitation of grievances in violation of the Act and that it would be a means that the Company would use to learn the union sentiments of its employees in an impermissible manner in violation of 8(a)(1)." Gary Miller, Respondent's acting plant manager at the time, testified that the survey conducted on September 26 and 27 was instigated by reports of low employee morale, and that he did not know of the existence of the Union effort until shortly after the survey began on Sep- tember 26, when the union's recognition request was re- ceived. The lack of veracity of that testimony was ex- posed by the evidence given by one former official of Respondent and two present managers. Francis Gehring, until January 1978 the executive vice president of Respondent's parent corporation, Liberty Fabrics of New York, testified that while he and Michael Gottlieb, the president of Liberty, were in Europe in September 1977, he received a call from Gary Miller ad- vising of the union campaign. Miller was told to contact Respondent's local counsel for advice. As a result of that advice, Miller retained a Bristol, Tennessee, personnel consulting firm called "SESCO." I found Gehring to be a most credible witness, and I do not believe that his tes- timony was influenced by the fact that Respondent had discharged him and, later, his son. In addition, Gehring's testimony was supported by that given by Production Control Manager Oliver McKeown, and his assistant, Raymond C. Deane, Jr., that they were quite aware of the extensive Union solicitation before the survey began. It is, indeed, absurd to suggest that this hasty project was undertaken, pursuant to a trans-Atlantic telephone call, because of some vague concern about employee "morale." Miller's testimony that the "first day he learned of the union campaign" was when he received the demand letter is effectively refuted by the fact that, on that very day, the production control managers spoke to their clericals against the Union, as discussed infra,' with McKeown and Deane telling Nancy McDaniel, as they both conceded, that "[wle thought that we knew how she felt." McKeown testified that, prior to Septem- ber 26, there "had been rumors of union activity" in t Certain errors in he transcript have been noted and corrected 567 DECISIONS OF NATIONAL .ABOR RELATIONS BOARD which the name of Nancy McDaniel, as well as "quite a few" other employees, was mentioned.2 On September 26 and 27, two employees of SESCO, Tom Forshee and Gary Blankenbecler, conducted a survey of employee attitudes at the plant. They used a standard printed survey form which asked general ques- tions pertaining to employee views about benefits and working conditions; all but 4 of the 64 questions were to be answered by checking "yes" or "no" boxes. Plant em- ployees were brought into conference rooms by supervi- sors, in groups ranging in size from about 5 to 35. The employees were told only that the purpose of the survey was to "get opinions," were asked to be frank, and were advised that the survey was confidential.3 There is no place on the form for an employee's name; it asks, how- ever, that the employee identify his or her sex, depart- ment, shift, and length of service. The survey results were computer tabulated by SESCO, with the responses of the 326 employees being divided into 28 survey groups according to work loca- tions and, sometimes, shift. A typical breakdown might show, for example, that of 24 employees in a particular group, 12 responded favorably to the question "Do the people in your community think this is a good company in which to work," 9 responded unfavorably, and 3 did not respond. For purposes of overall evaluation, the 64 questions were also amalgamated into 12 general topics (e.g., "Immediate supervisors," "Pay," "Communica- tion"), and the group responses determined. On October 6, Plant Manager Miller sent letters to the participating employees, thanking them for filling out the surveys, stating that he wished to discuss the survey re- sults in departmental meetings the following week, and expressing his "hope that these meetings will contribute to our common goal of making Gordonsville Industries the best possible place to work." Over a 3-to 4-day period the next week, Miller conducted meetings about the survey with groups of 10-15 employees. Employee Stephen Bolding testified that at one such meeting, Miller said that the Company had "flunked" the test and had not realized the extent of the problems within the plant. When an employee asked about a promised wage increase, Miller "said they were working on it" and also said that they would work on these problems now that "they were aware of them." 4 The survey results were also used for another purpose. Gehring testified that he met with Forshee and Blanken- becler on October 4 to discuss their findings; the discus- sion centered on the conclusion that "particular supervi- 2 Tom Forshee who conducted the subsequent survey, conceded that when Miller first spoke to him (according to Forshee, in the week pre- ceding September 26), Miller mentioned being disturbed by employee talk that "a union would be beneficial." The form itself states that he success of the company depends upon the attitude of the employees, and "this is the reason why your company wants to know what you think and how you feel about your 'job.' Your personal opinions and suggestions on how to make this a better and more pleasant place to work will be helpful to us in making our recommenda- lions to your company." The form stresses that it is "confidential" and that "YOU ARE NOr ASKED TO SIGN YOUR NAME," and it notes that the forms are taken to the offices of the consulting company immediately and, after being scored, are destroyed. I The General Counsel expressly stated at the hearing that this state- ment was not alleged separately to violate the Act. sors were identified as sources of problems to be investi- gated." Subsequently, Gehring said, further investigation confirmed the suspicion that David May, manager of the elastic mill, "was responsible for a substantial negative rating," and he was "moved out" to the West Coast. Bill Silette, manager of the warping plant, was "perceived by SESCO to be a more people oriented person" and was appointed to May's position. Jim Spencer, superintendent of lace knitting, "got a very poor rating" and was also transferred. The evidence shows that Respondent had never previ- ously conducted a survey of employee attitudes toward their working conditions, nor had it established any sys- tematic procedure for receiving and analyzing employee complaints. The language of the Board in Reliance Electric Compa- ny, Madison Plant Mechanical Drives Division, 191 NLRB 44, 46 (1971), is made to order for the present case: Where, as here, an employer, who has not previous- ly had a practice of soliciting employee grievances or complaints, adopts such a course when unions engage in organizational campaigns seeking to rep- resent employees, we think there is a compelling in- ference that he is implicitly promising to correct those inequities he discovers as a result of his in- quiries and likewise urging on his employees that the combined program of inquiry and correction will make union representation unnecessary. Given my conviction that the survey was, in the General Counsel's words, "a specific, calculated response to the employee-union organizational campaign," there can be little doubt that the purpose of this extraordinary and un- precedented action was to convey to employees that the days of benign neglect were over. "[T]he more imminent a representational election, the greater the presumption that management's expression of concern for employee welfare has an impermissible motive." N.L.R.B. v. Rich's of Plymouth, Inc., 578 F.2d 880, 883 (st Cir. 1978). There can also be little doubt that the thought intend- ed was the thought communicated; employees whose opinions about their employment had never been elicited suddenly found, 8 days after the union cards began to appear, that their observations were prized. Their likely belief that this was Respondent's way of promising a fresh start could only have been confirmed thereafter by Miller's October 6 letter to each of them (at a time when, Respondent is willing to admit, it was fully, for- mally, and officially on notice of the union campaign), expressing his hope that the quickly scheduled depart- ment meetings about the survey results "will contribute to our common goal of making Gordonsville Industries the best possible place to work." The subsequent transfer of three supervisors is in accordance with the attitudes expressed by the employees in the survey certainly added dramatic confirmation for the affected employees, and those aware of the circumstances, that the intent of 568 GORDONSVILLE INDUSTRIES, INC. the survey had indeed been not only to elicit, but to repair, grievances. ' I conclude that the purpose and effect of the survey was to impliedly promise employees that, in the future, Respondent intended to bend every effort to rectify their grievances, and I further conclude that the underlying motive for the survey was to erode employee support for the Union. Section 8(a)(1) prohibits such behavior. I do not believe, however, that the survey constituted coercive "interrogation" as well. The survey form did not explore employee attitudes about unionization; it in- quired only into employee evaluation of working condi- tions. Obviously, disclosure that an employee did not like the company scarcely demonstrated that he favored the Union. The employees were told that the forms would be destroyed after scoring, and there is no reason to think they held a contrary belief. I shall therefore recom- mend dismissal of the allegation insofar as the argument is advanced that the survey constituted unlawful intru- sion into union sentiments. 6 B. Alleged Unlawful Interrogation on September 26 As amended at the hearing, the complaint alleges that on September 26, Supervisor Oliver McKeown violated the Act by "interrogating employees concerning union activities and implying that benefits would be withheld because of the union activity and the solicitation of grievances." Nancy McDaniel, a clerical employee who worked with four other clericals in the offices occupied by Pro- duction Control Manager McKeown and his assistant manager, Raymond Deane, actively solicited union cards and distributed handbills.7 On September 26, during the employee survey discussed supra, McDaniel opted not to fill out the form given her and, contrary to the desire of the surveyor, took the blank form with her when she left the room. That same afternoon, McKeawn and Deane called for of their office clerical employee who worked with 4 other clericals into McKeown's office, two individually and the other two together. When McDaniel's individual turn came, McKeown told her that they wanted to dis- cuss the Union, and McDaniel said she would prefer to return to her job. Deane said that he thought she knew how he felt about a union "and there is no doubt in our mind as to how you feel." Further discussion by s Although the timing of these personnel actions does not appear in the record, they quite probably occurred prior to January 1978, when Gehr- ing, who testified about the transfers, severed his relationship with Re- spondent 6 Dunn Brothers. Incorporated, /a Fisher Stove Works, 235 NLRB 1032 (1978), cited by the General Counsel, presents different considerations. There, a psychologist personally interviewed employees about their atti- ludes, subsequent to a strike and prior to an election. The relative tend- ency of such direct examination to intimidate identifiable employees is plainly absent in the present case, where employees anonymously filled out forms. And cf Apple Tree Chevrolet. Inc., 237 NLRB 867 (1978), where an employee opinion survey conducted by the same psychologist as in Dunn Brothers was held not to be coercive interrogation because there was no reference to union actisities. I McDaniel is alleged to have been discriminated against by Respond- ent's refusal to reinstate her after her discharge on October 25. The par- ties acknowledged hat, as an office clerical employee, she was outside the appropriate bargaining unit McKeown about the disadvantages of the Union and Re- spondent's past beneficence to McDaniel followed, ac- cording to McDaniel: "[W]e had been one big happy family and any time I wanted to come in and talk, I was able to do that. If a union came in, I would not be able to do that and they did not want a third party. Then he went on to tell me that the plant had been good to me. They had given me a leave of absence they had given no one else. They gave me a special vacation that they gave no one else." Testifying about the interview, McKeown and Deane basically confirmed McDaniel's account, except that McKeown stressed that the special considerations given her were only alluded to in response to her assertion that Respondent had done nothing for the employees. Also, while McKeown could not recall reference to a "third party," Deane remembered "talking about having a third party involved in the relationship .... We expressed to her the danger or the problem there would be when dealing with a third party, that our atmosphere that was in our department was very easy, very lax, open-door policy, first-name basis." In my view, the conversation with McDaniel did not constitute "interrogation," because no questions were asked. I am further inclined to believe the testimony of McKeown that he referred to the special consideration given to McDaniel in the past only in response to her claim that Respondent had done nothing for her.8 I also doubt that McDaniel and the other employees felt co- erced by being called into McKeown's office, since they spent their working life immediately outside that office and were frequently in the managers' offices. The fact that a union is selected does, to some extent, necessarily formalize the relationship between employer and employee, usually substituting a written code of be- havior for prior discretion and making unlawful direct employer-employee negotiations about changes in, or de- viations from, existing practice. There is no prohibition against pointing out that fact. However, McDaniel testi- fied that McKeown said that "[i]f a union came in, I would not be able" to "come in and talk" as she had in the past. While I do not generally find McDaniel's testi- mony reliable, see infra, here I think that Deane's testi- mony confirms her version ("the danger or the problem there would be when dealing with a third party . . . open-door policy, first-name basis"). The Board has re- cently found unlawful, as a threat of loss of benefits, "the message that all direct dealings between the employee and the Respondent would be banned." Sacramento Clinical Laboratory, Inc., 242 NLRB 944 (1979). While I doubt that McKeown intended to violate the Act by this remark, I conclude that he did so. C. The Restriction of Stephen Bolding and James McDaniel The Alleged Promise to Baolding The complaint alleges that Respondent violated the Act when, in the first part of October, Supervisor Yal- I McDaniel testified that the interview lasted for more than 30 min- utes. Her brief testimony at the hearing plainly did not capture its full scope. 569 DECISIONS OF NATIONAL LABOR RELATIONS BOARD chin Ozbey "restrict[ed] employees' movement within the plant because of tl0 ir support of the Union." Stephen Bolding, a maintenance mechanic, was openly and intensely active in the Union's behalf, handbilling on some 20 occasions. Bolding testified that his primary work lay in repairing breakdowns in production equip- ment, and that, absent such work, he concerned himself with the air-conditioning system. As a maintenance mechanic, Bolding "was authorized to go everywhere in the plant." About October 3, Bold- ing's foreman told him that he and fellow mechanic James McDaniel, also a union solicitor, were not to go into the knitting department to perform their routine air- conditioning work-"if we had a job to do in there, he would tell us when to do it." Several days later, Bolding asked Yalchin Ozbey, the plant engineer and a statutory supervisor, the reason for the new procedure. Ozbey re- plied that he had had a complaint from Foreman Carpen- ter that Bolding and McDaniel were keeping employees from their work. Bolding responded that they were doing nothing more than they had in the past, and the "only thing that had changed was the topic of conversa- tion that had gone from hunting and fishing and girl friends to union talk." Ozbey replied that "he had not known if it was true or not but he had to take some kind of action." Bolding testified that he and McDaniel were taken off the air-conditioning work for "approximately a week to 10 days." Ozbey testified that it was brought to his attention that Bolding and McDaniel, while working on the air-condi- tioning, "were talking to knitting production people and taking time." He therefore assigned them to other main- tenance projects. He further said that, during their con- versation about this restriction, Bolding asked Ozbey if he was being removed because he was a "union man." Ozbey said no, but, out of "curiosity," went on to ask, "Are you really taking the time and discussing the union subject and he told me yes." During the period of their removal, no one assumed their routine, 2-hour-a-day job of recording temperature and humidity and changing charts in the knitting area, and apparently an outside contractor performed some work on the air-conditioning system. On occasion in this period, however, the two were sent into the area to perform emergency work on air-conditioning. When the machine relocation projects to which they had been assigned were completed, they were reassigned to their former work on the air-condi- tioning. When they were reassigned, Ozbey told them "don't take your time and discuss with people." I think the General Counsel correctly asserts that the restriction was unlawful. Ozbey's testimony makes it clear that Bolding and McDaniel were temporarily reas- signed because of a complaint that they were discussing the Union with production employees, and not because of any exigent circumstances. Bolding's testimony that conversations with other employees had been common- place in the past is unrefuted. 9 Plainly, Respondent was g The only testimony presented by Respondent on this point was given by Supervisor Edgar Perkins, who thought, but was not sure, that he had reported Bolding and McDaniel for excessive talking. The only way he could distinguish these two employees from all the rest of the increased talking which was occurring in the plant was that "they had more free- most interested in calling a halt not just to discussions, but to discussions about the Union; Ozbey did not settle for a cautionary reprimand, but rather removed Bolding and McDaniel altogether during a period probably thought important to the union campaign, and, indeed, arranged the air-conditioning repair work to coincide with this removal. This rearrangement of work location, aimed at stifling talk about a union in circumstances in which mere idle talk had been tolerated in the past, violates Section 8(a)(l). It is alleged that Ozbey violated the Act by "soliciting employee grievances by telling them they could always come to him if they needed more money or had a prob- lem, in order to dissuade them from supporting the Union." In the course of a meeting by Bolding with Ozbey and Supervisor Brown about a work-related matter on Octo- ber 21, requested by Bolding, Ozbey raised the question of what unions could do for employees, and there was some discussion of the lack of competency of the opera- tors and of a union in general. During the discussion, Bolding testified, Ozbey said that he had "an open door policy and that any time we had a problem, we could come to him and talk about it. If we did not think we were being paid enough, we could come and talk to him about it and see about getting more money. His door was always open." The meeting closed with Ozbey stating that "no matter what my feelings or views were about the Union, that I was assured a job there at Gordonsville Industries and I did not have anything to worry about." In testifiying as to the October 21 conversation, Ozbey said the "subject turned to union" and he said that he wished to express his "personal opinion as a private citi- zen, not as a plant engineer." He gave Bolding his gener- al view of unions, here and abroad. Ozbey further testi- fied that he told Bolding that he had an "open door" policy, the same as he had told his employees, including Bolding, in periodic meetings during his 3 years as a manager: "Everybody is free to come and discuss with me all their personal problems, business problems, any problems." The General Counsel adduced no evidence to rebut Ozbey's testimony that he had periodically told his em- ployees of his "open door" policy and their right to dis- cuss "any problems" with him. That being so, I do not view this restatement of that policy as an "implied prom- ise to remedy grievances." It was, rather, a reiteration of an old promise. I do not regard that as violative. D. The Allegations Relating to Frank Baugher The complaint alleges that Respondent violated the Act by the conduct of Harry Fernandez, on October 22, "in threatening employees with discharge because of their activities on behalf of the Union," "in threatening employees with more onerous working conditions be- cause of their activities on behalf of the Union," and "in creating the impression of surveillance of employees' dom to go around in all the areas of the knitting department than the other employees.'" "it) (hey was uncertain whether he or Bolding broached the subject. 570 GORDONSVILLE INDUSTRIES. INC. union activities;" and, in October and November, "in in- terrogating employees concerning their activities on behalf of and in support of the Union." Employee Frank Baugher testified that he was active in behalf of the Union, handing out leaflets along the road to the plant, wearing union shirts and buttons, and soliciting employees to attend meetings. He said that during the first week of October, while conversing, for the first time, "about the union" with Harry Fernandez (concededly a statutory supervisor and, more specifical- ly, Baugher's supervisor), Baugher told Fernandez that he "had gone to the union meeting the night before and he asked me who all was there." Baugher mentioned a few names and Fernandez "asked what we talked about and I said we talked about the union." Baugher could not recall who first raised the subject of the Union in this conversation. Baugher further testified that on October 22, while talking to Fernanadez in the dye office, Fernandez "told me that all of the union leaders, the ones seen out on the road handing out pamphlets, would be gotten rid of. He said there was going to be a list of prounion and antiun- ion and the undecided. And he said that the prounion would be scratched off like this [making an 'X' gesture with his finger]." Fernandez further said it "would be very close to-what the Company decided who was for the union and who was against. He said it would be very close because he had gone through that before." Fernan- dez also stated that Baugher "would be coming up with a lot of mistakes, he said mistakes that nobody would be- lieve. He said you'll be driving down the road and on your way to work and say to yourself, damn it, I've got to go through all this bullshit again." Fernandez went on to say that "if they told me to get rid of you, I'd have to do it because my job would be in danger if I didn't .... He said that he would be willing to bet that within three months or ninety days I would be gone." Fernan- dez also asked Baugher "if [he] knew how many people in that department were for the Union." When Baugher replied in the negative, Fernandez said, "there's one," eventually identifying the sole union supporter as Baugher himself. Fernandez denied ever asking Baugher about union meetings. He also denied any reference to getting rid of union leaders, but he did recall snippets of conversation which might have accounted for some of Baugher's testi- mony. For example, he once described to Baugher an election held at a previous employer of Fernandez, in which the company had kept a list of prounion and an- tiunion employees, "to give management an idea of how this election would go." He also remembered another talk in which he told Baugher of an earlier employment in which he disliked the supervisor so intensely that he dreaded the prospect of going to work; on cross-exami- nation, however, Fernandez said this was "possibly" ut- tered in the context of a discussion about the Union. He asserted that "every day [Baugher] would have a ques- tion for me" about the Union and other matters, and they spoke "many times" on the subject of the Union. Fernandez was an emphatic, almost theatrical witness on direct examination, but his cogency lost force on cross. I thought Baugher a very honest witness and I do not believe that Baugher constructed the vivid October 22 conversation out of whole cloth or distorted it in any significant way. Accordingly, I credit the testimony of Baugher. I do not find that the conversation during the first week of October constituted unlawful interrogation. Since Baugher could not recall who raised the subject of the union meeting, it may well have been Baugher. If it was Baugher, he was obviously ready and willing to dis- cuss the subject with Fernandez. Since Baugher would have plainly invited them, questions by Fernandez, in re- sponse to Baugher's possible introduction of the subject, were only natural and could hardly have been consid- ered by Baugher a menacing employer interest in union activities. In the October 22 conversation, however, Fernandez violated Section 8(a)(l) by threatening that the union leaders "would be gotten rid of," that Baugher would find himself "coming up with a lot of mistakes." and that in 3 months, Baugher "would be gone." Contrary to the complaint, I do not find in Fernandez' remarks any im- pression of surveillance of Baugher's activities. Baugher had made his position on the Union publicly known and had previously discussed his union activity with Fernan- dez; when Fernandez identified Baugher as the only de- partmental union supporter, that association of Baugher and the Union could hardly have been thought by Baugher to have been derived from "surveillance." The General Counsel amended the complaint at the hearing to allege that Respondent had violated Section 8(a)( ) "by implying that personal property of employees had been damaged by the Union." Baugher testified that in a conversation "about the union" with Charles Arruda, superintendent of dyeing, on the day before the December 6 election, Arruda said that "he didn't think that acid had been poured on anyone's car before the Union tried to get in . . . and he said he had a good job, good family, nice home and he didn't want his house burned down and he didn't want to have to leave the state of Virginia." When Baugher said that he did not think the Union was responsible for the damage inflicted, Arruda said "that was the way the union worked." Arruda did not testify. I do not view the remarks made by him to Baugher as unlawful intimidation. Testi- mony subsequently given on Respondent's behalf estab- lishes that vandalism had occurred. Arruda's stated belief that the Union had caused or been responsible for it was simply "the expressing of ... opinion . . . contain[ing] no threat of reprisal or force," which Section 8(c) pro- tects. Employer antiunion campaigns often include gratu- itous references to union violence, and such comments are normally held to be within the limits of fair com- ment. I recommend dismissal of this allegation. E. The Allegations of Unlawful Conduct Addressed to Betty Figgins The complaint alleges several instances of threats, and one promise of benefit, directed by Foreman Woody Carpenter toward employee Bettty Figgins. Figgins, who distributed union literature inside and outside the plant, testified that on October 26, her fore- 571 DE-CISIONS OF NATIONAL LABOR RELATIONS BOARD man, Woody Carpenter, told her that two employees had been discharged on the preceding day; when Figgins sought their identity, Carpenter said she would find out. As he started to walk away, Carpenter turned and "said if this union is voted in, the plant would shut down." Around November 3, Carpenter, after asking Figgins if she had received a company letter about strikes, told her that if the employees struck, they would receive sparse strike benefits and Respondent would "just hire some- body'else and give them our jobs." When Figgins denied the Company's right to do so, Carpenter said "something about economic or noneconomic strikers and whatever it takes, that they could do that, just hire a person perma- nently and give them our jobs and they don't have to take us back." He further noted that the Union "wasn't any good, that the only good union was the Steelwork- ers or a railroad union or the kind that A & P and Safeway have."" On November 4, Carpenter "started talking to me about people losing their jobs. And he said that whether the union came in or not, it was a lot of people going to be fired. And I said you can't fire anybody without a reason and he said that wouldn't be hard to find." On November 16, Carpenter came to Figgins' work station and "told me that he was going to talk some sense into my husband. And he said if both of us was going to be for the Union, why didn't we just keep quiet and go ahead and vote, that way it would be better for Bill." When Figgins asked if her husband's job was in jeopardy, Carpenter replied, "You'll find out." Carpenter continued by saying that another employee's wife had been "fired because she had talked to somebody about trying to get a union in there." 12 When Figgins said the employees had no benefits, Carpenter stated that "they was working on some, that they were working on a retirement plan." Figgins asked when the employees would receive the benefit, noting that it would not likely be given on the scheduled election date. Carpenter re- plied, "[N]o, but we can give it to you the day before that." Carpenter went on to say that "when the union came in, the company wasn't going to give us anything so what was we going to do, go on strike." "[A] few weeks before" the December 6 election, Car- penter told Figgins that if the Union won, the employees would have to strike because "the company wouldn't give us anything else." He went on to threaten that Re- spondent "could just shut down and move away or an- other country [sic] and leave us here with nothing and nobody else would hire us because they would know we had something to do with the Union." At some time prior to the hearing, Betty Figgins was promoted to lead person position. I I At the hearing, the General Counsel took the position that this matter related only to par. 6(d) of the complaint, which alleges violations by telling employees that "even if the Union won the election, the Em- ployer could refuse to offer anything during contract negotiations and employees would be forced to strike." 12 The General Counsel's brief asserts that the words "al Doubleday" should follow the word "fired " My notes do not indicate that this omis- sion occurred and I therefore deny the motion to amend the transcript The circumstances indicate, however, that Carpenter was not speaking of a discharge by Respondent. Woody Carpenter, a poor witness, generally could not "remember" any such conversations with Figgins, be- cause he could not recall "that far back," and there was "conversation going on everywhere." He stated, howev- er, that "[i]t's a possibility" he may have expressed an opinion that the plant would close, in response to ques- tions posed by employees, and that he "could have" dis- cussed other matters alleged by Figgins. On the basis of the convincing demeanor of Figgins and her detailed tes- timony, weighed against the unimpressive testimony and half-admissions made by Carpenter, I credit Figgins. The remarks uttered by Carpenter on October 26 and "a few weeks" before the election, to the effect that Re- spondent would or could shut down, violated Section 8(a)(1). The reported conversation of November 3, as ex- pressly limited by the General Counsel's representation at the hearing of the pertinent allegation, does not sup- port that allegation. Carpenter's November 4 threat that "a lot of people [were] going to be fired" was violative, as was the suggestion on November 16 that Figgins' hus- band might lose his job. In that same conversation, Car- penter further gave voice to unlawful remarks by stating that "when the Union came in, the company wasn't going to give us anything," and that Respondent was "working on a retirement plan" for the employees. The statements, a "few weeks" before the election, that the employees "would go out on strike because the company wouldn't give us anything else," and that the Company "could just shut down and move away," were equally violative. I do not construe the comment made in the final reported conversation to be a separate act of threat- ening to blacklist; "nobody else would hire us because they would know we had something to do with the Union" is a prediction based on probable local attitude, not a threat to cause that attitude. F. Conduct Relating to William Figgins William Figgins was an active solicitor and handbiller for the Union. The complaint makes allegations of un- lawful conduct with respect to him. On or about October 17, while Figgins and employee Dickerson were working on a machine, Foreman Woody Carpenter approached and told Figgins that he "ought to get out of the union and not get involved any more than what I already had." In the course of conversation, Car- penter said "there was about fifteen people including [Figgins] who would be fired," and further stated that, because of "a little black book" management was keep- ing about the employees, they would not "be able to find a job anywhere in Orange County." Figgins replied that he was not worried because he could move away; Car- penter responded, "[Y]ou're going to have to go a long ways because you won't get a job around here any- where. He said none of them will." Carpenter went on to speak of Figgins "los[ing] my house and everything." Carpenter completely denied that any such conversa- tion occurred. I have discredited Carpenter above, and here, as well. I prefer the testimony of William Figgins, a plainly reliable witness. The threat of discharge leveled at Figgins and others violated the Act. Further, and unlike the case of Betty 572 GORDONSVILLE INDUSTRIES, INC Figgins, Carpenter's statement that Respondent was maintaining "a little black book" on the employees, which would prevent them from obtaining other jobs, clearly constituted an unlawful threat of blacklisting. The complaint alleges that prior to the election, Super- visor Edgar Perkins engaged in unlawful harassment of Figgins, "by his conspicuous observation of [Figgins'] work performance," in violation of Section 8(a)(l); and that around November 15, Perkins told Figgins that Re- spondent would offer the employees nothing during con- tract negotiations and would force a strike. Figgins testified that the tedious nature of his work as a mechanic in the knitting department had necessitated, during his prior 2 years of service as a mechanic, occa- sional informal breaks in the routine, in which he would have coffee, go to the restroom, or chat with other em- ployees. These work interruptions were tolerated by Su- pervisor Perkins "up to about three or four weeks before the election," when Perkins began "to follow me and tell me to get back to work. If I was talking to somebody, he would get on me." On "several" occasions when Figgins was in the bathroom, Perkins would look in the door and, if Figgins was speaking to someone, would tell him to return to the machine he was repairing. After the election, however, Perkins' acceptance of such behavior "gradually . . . went back to normal." During this period, Perkins would hand out antiunion literature to the mechanics, and would always insist that Figgins read his copy then and there, although he would not impose the same requirement on the other mechan- ics. On one occasion, about November 16, when Figgins responded to a piece of literature by asserting that the Union would be beneficial to the employees, Perkins said that if it was up to Executive Vice President Gehring, "We wouldn't get anything anyhow." On or about November 18, while Figgins was engaged in conversation with two other employees about work matters, Perkins called him over and told him to "quit harassing people." When Figgins asked whom he had been harassing, Perkins said, "I'll ell you that when I follow you." Figgins conceded that he had been "personal friends" with Perkins for the past few years, that he and Perkins spoke of the union movement many times, and that on these occasions he expressed his own opinion. Perkins testified that after September, "people seemed to want to talk more than they did work," that part of his job involved "watching" employee working habits, and that he did not watch Figgins more than any other employee. He said that he stopped employees from con- gregating in the restroom before, during, and after the preelection period. He testified that his procedure in handing out company literature varied; sometimes he 'would wait while an employee read the paper to see if there were any questions, sometimes he would leave and then return. Perkins denied attributing any mindset to Gehring. As to the incident in which he allegedly told Figgins to stop "harassing" people, Perkins said that he had received a "statement," perhaps from Phillip Skipper, a foreman, that Figgins had been "out of his work area and was har- assing people, trying to persuade them one way or the other out of his work area." Although unsure what the goal of the "persuasion" was, "it could have been" about the Union. He called Figgins aside, told him of the com- plaint, and asked him to stay in his work area. Perkins conceded that the antiunion handouts he made to his setup mechanics, approaching a level of every other day as the election drew near, consumed an average of 20-30 minutes, in total, of their worktime on each occasion. Figgins was an impressive witness; Perkins was not. Based on Figgins' testimony that his social intercourse with other employees, previously accepted, did not in- crease during the preelection period, and his testimony that Perkins nonetheless began to chide him for conduct tolerated prior thereto, one must infer that the harass- ment was occasioned by Figgins' known support of the Union. :' Perkins' professed concern for a drop in pro- duction in the winter of 1977 (to an extent unknown to him) is somewhat belied by the time deliberately con- sumed in handing out antiunion literature to the mechan- ics every other day prior to the election. Riding herd on an employee in this manner because of his union sympa- thies violates the Act. I think the reference to Frank Gehring-that "if it was up to Frank Gehring, we wouldn't get anything anyhow"-presents a more difficult issue. The General Counsel argues that this is a "flat-out renunciation of any and all bargaining." A stark declaration of the futility of bargaining would be, I agree, violative, but the statement attributed to Perkins seems, as Respondent argues, am- biguous. Gehring was thought of by Figgins as the "plant manager;" 4 in that view, he was not likely to make final decisions about contract offers. A normal reading of the remark ("if it was up to Frank Gehring") suggests not only that it might not be up to the "plant manger," but also, as Respondent contends, that other re- sponsible members of management might have contrary views. The attendant uncertainties lead me to believe that no violation should be found here. G. Statements Made to Thomas Dillon At the hearing, the complaint was amended to allege that Respondent violated the Act on or about November 23, 1977, by "telling employees that conditions would improve if they rejected the Union." Employee Thomas Dillon testified that he was among a group of employees addressed on the day before Thanksgiving by President Michael Gottlieb, Executive Vice President Gehring, and Personnel Director Jim Lcudon. They announced that they were there "to feel out any problems that we had," stated that they were not there to make promises, and then asked for questions. After the meeting ended, Dillon and two other employ- ees continued to talk to Gehring, rehashing grievances brought up at the meeting, and eventually Gehring's "voice got kind of low and he said listen, give us another chance, that's all we need. We can straighten these I:' This occurred long after the period during which Figgins solicited cards, which he concededly did on the production flor on a number of occasions in September '' As discussed. infra, confusion abounded during this period about the authority vested in the various managers 573 DECISIONS OF NATIONAL LABOR RELATIONS BOARD things out on our own and you people can do this just as well in six months as you can now." Also as amended at the hearing, the complaint charges that Respondent violated Section 8(a)(l) on or about No- vember 29 "by disparaging the Union and by promising employees better working conditions in order to dissuade them from supporting the Union." Dillon testified that on November 29, President Gott- lieb came to Dillon to give him an answer to a question raised by Dillon at the November 23 meeting. After dis- cussing Dillon's complaint, Dillon said he "had been catching a lot of flak and crap from these jobs and after the Union got in, I didn't think I would have to any- more." Gottlieb answered heatedly that "the only thing the Union would do was f- us and take our money." Gottlieb then "calmed down and apologized for the remark and said that he shouldn't have made the remark and that he was getting excited and off the subject." The discussion resumed and subsequently the following oc- curred: He said that if the Union came in there would be trouble and then he said do you want a promise. He said I can't make you a promise and he said but hell, I'm going to do it anyway. He said we can get things straight ourselves, just give us the opportuni- ty. We don't need anything else to do it. Gehring did not testify about the November 23 meet- ing with Dillon. He did say, with respect to a series of meetings held with plant employees in November, that management officials did not make any promises at the meetings themselves (Dillon agreed) because they had been advised that "we couldn't promise or threaten." While Gehring, who testified on behalf of the General Counsel, also said he did not meet "individually" with employees until December 5, as hereafter discussed, the Dillon encounter was the aftermath of a group meeting, and two other employees were present. Gottlieb admitted that, on November 29, he "blew up" at Dillon's rosy vision of the Union's promise. He attrib- uted this to irritation stemming from threatening phone calls recently received by him and his wife (which, I find, likely occurred). He said that he told Dillon that, procedurally, the presence of a union would cause "trou- ble" because of the necessity of going through a shop committee to get things accomplished, and that he used the word "promise" innocuously, only in the sense of "predict" ("I can promise you that relative to getting these changes done that you'd like to get done, you're going to have as much trouble with a union here as without a union here.") t 5 Dillon was an excellent witness. His testimony that Gehring asked for 6 months in order to "straighten these things out on our own" appears to be a promise of bene- fits for repudiating the Union, prohibited by Section 8(a)(l). While Respondent argues that the usage "can straighten" rather than "will straighten" implies that no "promise" was made, the request that Dillon "give us an- I ' Respondent moves to insert in Gottlieb's testimony the statement that Dillon "as trying to bail me." Neither my notes nor my recollec- lion support such an amendment of the transcript. other chance" plainly implies that Respondent was vowing to right the grievances which had brought the Union movement to the fore. Fayette Cotton Mill, 245 NLRB No. 64 (1979), raises a serious question as to whether disparagement of a union can be a separate violation. In any event, Gottlieb's im- mediate and effusive apology for his angry remark on November 29 removed any sting the outburst may have carried. I would not find an independent violation on these facts, particularly since the breach would be bor- derline at best, carrying little or no connotation that the auditor was in jeopardy. I was impressed by Dillon, and I think it unlikely that Dillon concocted the claim that Gottlieb told him, on November 29, " can't make you a promise . . . but hell, I'm going to do it anyway .... [W]e can get things straight ourselves, just give us the opportunity." This ex- press promise to improve working conditions in ex- change for a vote against the Union is, of course, viola- tive. H. The Alleged Conferral of a Profit-Sharing Plan The complaint, as amended, charges that Respondent violated the Act by "conferring" a profit-sharing plan upon the employees on December 5. On the day before the election, several of Respond- ent's highest-ranking representatives, including President Gottlicb and Executive Vice President Gehring, met in- dividually with employees and handed them statements informing them of amounts which had assertedly accrued to their accounts in a profit-sharing plan. It is clear from the record that the employees had never previously been notified of the existence of the plan, much less its de- tails. t 6 Because there will be frequent reference to him hereaf- ter, I shall discuss at this juncture the role of Tom For- shee at the plant after September 26, as well as the rela- tive authority of the various plant officials. Tom Forshee was one of the employees of SESCO who, as earlier stated, was detailed by that firm to help conduct the employee survey made at Gordonsville on September 26-27. He continued thereafter to maintain a connection with Respondent, to assist in guiding Re- spondent through the shoals of the union campaign, and, although Forshee was only at the plant periodically, he assumed considerable authority over personnel matters. While the evidence is confusing, it appears that in around mid-October, Gary Miller, who had been acting as plant manager for a while, lost personnel responsibil- ities and was more-or-less confined to overseeing the production aspect. The record shows, however, that, even into November, many employees and some supervi- sors continued to regard Miller as the plant manager, and he occasionally so acted. Executive Vice President Gehr- ing assumed the role of acting plant manager, but he maintained little or no authority over personnel and em- l6 Foreman Woody Carpenter testified that when employees would question him about the existence of a "retirement" plan, he "could have said" that "everyone in the plant had the same retirement plan, we was told. Nobody knew anything about it I didn't know anything about it. It hadn't been finalized yetr" 574 GORDONSVII LE INDUSTRIES, INC ployee relations matters, which were controlled by For- shee, who "reported directly" to Gottlieb. Gottlieb testi- fied that, beginning in October, he took a more active in- terest in the plant and spent an average of 3 days a week in Virginia. Forshee and Gottlieb testified that the election-eve no- tification to employees was provoked by union propa- ganda that no retirement plan existed, a piece of misin- formation which they thought required rebuttal. The al- legedly provocative union leaflet, distributed on Decem- ber 2 or 3, depicted a graveyard, with accompanying text describing a pension plan then in effect at Liberty Fabrics "according to the pension formula on file with the Department of Labor by our company." The mes- sage of the leaflet was that an employee who had started work in 1960 and was employed for 3() years would re- ceive a very small pension, as compared to the more generous entitlement of the president and executive vice president of Liberty, and that an employee who com- menced work after 1972 would receive no pension at all. The plan to which the Union was referring was appar- ently a fixed contribution pension plan which had been in effect for several years and which, as discussed below, was "frozen" in 1976 because Respondent felt that con- tinuing with a fixed contribution plan could cause it to "go broke." 7 Accordingly, in November 1976, Re- spondent adopted a retirement plan based on profit-shar- ing. The Union apparently had not known of this devel- opment in preparing the "graveyard" leaflet. In order to respond to the graveyard leaflet, Gottlieb et alia, personally distributed to all the employees form statements, appropriately filled in, reading as follows: Dear On December 31, 1976, the company made a contri- bution to your individual retirement account in the amount of--- . Contributions by the company to your account in future years will be based on the profitability of the company. The next contribution to your account will be made at the end of this year. 8 In construing Section 8(a)(l), the Supreme Court has stated, in N.L.R.B. v. Exchange Parts Co., 375 U.S. 405, 409 (1964): We have no doubt that [Section 8(a)(1)] prohibits not only intrusive threats and promises but also con- duct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against union- ization and is reasonably calculated to have that effect .... The danger inherent in well-timed in- " It appears to me that the General Counsel's generally excellent brief errs here in asserting that "only managerial employees" had participated in the pension plan. I read Gehring's testimony, on which the General Counsel relies. assiating just the opposite. Gehring said that prior to the enactment of ERISA in 1974, he plan had applied only to managers, but it was thereafter amended Io cover rank-and-file employees The union leaflet plainly indicates that at least some employees were covered b the plan, according to the documents evidently obtained by the Union from the Department of Labor. i8 Betty Figgins testified that the amount entered on the form given her was 142.57. creases in benefits is the suggestion of a fist inside the velvet glove. Employees are not likely to miss the inference that the source of the benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged. It hardly needs saying that the announcement of a new benefit as substantial as a profit-sharing plan on the liter- al eve of an election s invites close and serious scrutiny as to whether the announcement was made "with the ex- press purpose of impinging upon [employee] freedom of choice." The Board has consistently held that the grant- ing of increases prior to an election raises a "presumption of impropriety which can be rebutted only by an affirma- tive showing that the benefit was governed by factors other than the impending election." Idaho Candy Conpa- lly, 218 NLRB 352, 355 (1975): Schwab Foods. Inc.. d/b/a Scott.s IG. Foodliner, 223 NLRB 394. 406 (1976); see V\ L.R.B. v. Stvletek. Division of Pandel-Bradford, Inc., 520 F.2d 275, 280 (st Cir. 1975). The cases hold, in short, that the showing of "express purpose" required by the Supreme Court is so inherent in the grant of preelec- tion benefits that it is fair to infer an improper motivation behind such a grant absent a satisfactory explanation for its sudden bestowal. One avenue of employer exoneration in the past has been a demonstration that the suspect benefit had been conceived and implemented prior to the union's arrival, and that the preelection announcement simply made knowln to employees a predetermined and existing bene- fit, legitimately processed and unveiled in accordance with the dictates of business constraints, not union con- siderations. Field Container Corporation, 178 NLRB 536 (1969); Domino of California, Inc., 205 NLRB 1083 (1973); ,Mr. Fine, Inc., 212 NLRB 399, 402 (1974). To qualify for this exception, however, employers must es- tablish that the benefits were "pre-determined" in the sense that "they were already existing or that the em- ployers had made a binding commitment to put the bene- fits into effect regardless of the outcome of the election." N'.L.R.B. v. Arrow Elastic Corporation, 573 F.2d 702, 705 (Ist Cir. 1978). Thus, in Arrow, the employer was found to have vio- lated the Act by announcing to employees that a pension plan was to be added to the existing profit-sharing pro- gram. The fact that Respondent had undertaken develop- ment of such a program long prior to the union effort and had even informally announced to employees, before the campaign, that there "would be" a pension plan, was held to be no defense, since the plan had not been for- mally approved by the Arrow board of directors until after the election: "until the plan was signed, Arrow was free to abandon its program at any time or to alter the provisions of it." Ibid. It may be argued, on this reason- ing, that the gravamen of the offense was less the an- nouncement or grant of a benefit than a misrepresenta- tion that such a benefit had been granted. The effect on " The announcement actually extended into election da), since Re- ,pondenlt began;l passing out the statements on the morning of December 5 and did nilt complete the task until 2 30 a m on December 575 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the election of such a misrepresentation would, of course, be as substantial as the announcement of a true and fixed benefit. That the genesis of the announced benefit may be faultless, however, does not necessarily end the inquiry. "Predetermination alone is not determinative, the timing of the announcement must also be considered." Arrow Elastic Corporation, supra, 573 F.2d at 706; "Wage in- creases and associated benefits may well be warranted for business reasons; still the Board is under no duty to permit them to be husbanded until right before an elec- tion and sprung on the employees in a manner calculated to influence the employees' choice." N.L.R.B. v. Styletek, supra, 520 F.2d at 280. Respondent argues (1) that the profit-sharing plan was predetermined, fixed, and free of union-related taint; and (2) that the announcement of the plan was a legitimate response to the graveyard leaflet. In my view, the an- nouncement was improper under the cited authorities, for the reasons given below. Discussion is complicated by both a serious paucity of evidence clarifying the origin, development, and imple- mentation of the plan, and by Respondent's troubling tes- timony concerning these matters. There are only three documents in evidence bearing upon the plan at all: two are copies of Respondent's annual reports for 1976 and 1977; the third, introduced by the General Counsel, is a letter sent by Gottlieb to all employees after the election which contains a few assertions about the status of the profit-sharing plan at that time. The 1976 annual report briefly states that Respondent has a "non-contributory pension plan for its eligible em- ployees who meet the minimum service and age require- ments" and that, in 1976, Respondent amended the pen- sion plan and "adopted a non-contributory profit sharing plan for the same employees." The report further states, "The Company may amend, modify or terminate either or both of the plans, in whole or in part, at any time." President Gottlieb testified that in 1976 Respondent "approved and passed the profit-sharing plan and agreed that the pension plan could not go on into the future be- cause it had been mutilated during the bad years of '71 and "72." Oddly, the 1976 report, dated February 1977, makes no reference to this termination of the pension plan. The report for 1977, dated March 1978, does. It states, in part: The Company's Non-Contributory Profit-Sharing Plan covers all employees meeting the eligibility re- quirements. The Company may amend, modify or terminate the Plan, in whole or in part, at any time. Contributions to the Plan are discretionary and based on current and accumulated profits but may not be less than 5% of pre-tax book income, as de- fined in the Plan. The policy of the Company is to fund contributions so determined. Because of the es- tablishment of the Profit-Sharing Plan, the Compa- ny's Non-Contributory Pension Plan, which cov- ered the same employees, has been frozen, effective December 1, 1976, by discontinuing the accrual of future benefits to participants after such date. The remaining relevant document in this record is a letter, signed by Gottlieb, mailed to all employees some- time after February 1978. It informed them that Re- spondent's board of directors had approved "on Novem- ber 19, 1976 the introduction of a profit sharing plan starting with the year 1976;" that "[t]he plan was submit- ted to the Internal Revenue Service on December 30, 1977;" that "[o]n February 27, 1978, the Internal Reve- nue Service acknowledged receipt of our plan;" that "[w]e are now waiting for a qualified letter of determina- tion from the Internal Revenue Service;" and that when the letter of determination was received, a formal sum- mary of the plan's provisions would be forwarded to the employees. In the interim, and in anticipation of receipt of the letter of determination, Respondent enclosed with each letter "individual profit-sharing plan certificates" showing the amount of contributions made to the ac- count of each employee in 1976 and 1977, and indicating the "cumulative account balance . . . at December 31, 1977, and how much of that amount is vested, i.e. your money." The record is singularly devoid of the sort of basic documentation one might have expected regarding the creation and development of this plan. Despite a refer- ence at the hearing to my assumption that such evidence would be presented (and a rejoinder by counsel for Re- spondent that it "certainly could" be), there are no min- utes showing the action taken by the board of directors on November 19, 1976, respecting "the introduction of a profit sharing plan," no evidence of the "contribution to your individual retirement account" made on December 31, 1976, no copy of a plan or trust agreement, none of the materials which surely would have been generated by adoption of such a program. The claim in the Decem- ber 5 letters, and Gottlieb's testimony, that moneys had been actually "contributed" on December 31, 1976, is hard to accept in view of Gottlieb's confusing testimony about Respondent's calculations of amounts due employ- ees under the plan "formula." Thus, on a single page of the transcript, he said that "the information regarding the amount of money in each employee's account became available" only "[v]ery close to the election," but then immediately said that "the calculation [was] completed" in "June, no, May." Neither date, however, would have permitted the asserted "contribution to your individual retirement account in the amount of $- on December 31, 1976. Under the teaching of Arrow and other cases, an em- ployer may not assert that his employees enjoy a benefit unless the benefit is in esse. I am inclined to think that as of December 5, 1977, there was some sort of profit-shar- ing plan in some stage of development, based on the statement in the 1976 annual report that "[d]uring 1976, the Company . . . adopted a non-contributory profit sharing plan," Respondent has not demonstrated, howev- er, that the "adoption" constituted a legal commitment in any sense; in the words of the Arrow court, "until the plan was signed, Arrow was free to abandon its program at any time or alter the provisions of it." It is a fair infer- ence, in fact, that the plan was still in evolution on De- cember 5, 1977, considering that, as Gottlieb's post- 576 GORDONSVILLE INDUSTRIES. INC. election letter to the employees states, the plan was not even submitted to the Internal Revenue Service until De- cember 30, 1977. The record is silent as to the lengthy delay between "adoption" of the plan on November 19, 1976, and its submission to IRS more than a year later. Moreover, as the General Counsel points out, the Board has held by implication that announcement of a benefit plan which requires IRS approval constitutes be- stowal of a nonexisting benefit when that approval has not, in fact, been received. Thus, in Domino of California. Inc., supra, 205 NLRB 1083, the Board noted, in finding lawful the announcement of a profit-sharing plan made after the employer had received notification of IRS ap- proval, "It was clear at that time that employee rights under the plan had vested and were no longer defeasible upon the contingency that the plan did not qualify for tax-exempt status." Accord: Field Container Corporation. supra: Mr. Fine, Inc., supra. Announcement to employees of a benefit whose vitality depends upon subsequent gov- ernment action, without any intimation of that necessary prerequisite, plainly misrepresents the character of the "benefit." 2 0 Gottlieb testified that "[o]ur taste would have been to have given them the whole plan and explained every- thing at one time." However, because counsel advised in September or October that announcing the plan "would have been a benefit and an unfair labor practice," it was decided that there would be no announcement. But when the Union circulated the graveyard leaflet "which pic- tured me as some kind of ogre trampling on the people," counsel approved telling the employees of the amount of money in their accounts--"just give them that one fact." The argument that Respondent was simply responding to the graveyard leaflet does not entirely ring true. The issue of a retirement program had surfaced several times earlier in the campaign. It may be, particularly in view of the magnitude of the undertaking involved in inform- 20 The December 5 statements handed to the employees were mislead- ing in other ways, so far as the record shows. As previously noted, Gott- lieb's testimony makes it appear highly improbable that, as the form stated, [o]n December 31, 1976, the company made a contribution to your individual retirement account in the amount of $-----." The final sentence of the statement, "The next contribution to your account will be made at the end of this year," connotes a finality to both the plan and the process which the status of the plan and the 1977 annual report refute Thus, the plan had not yet received approval from IRS: absent such ap- proval, the employees would never enjoy the benefits of the plan, no matter how many contributions were made to their accounts. The em- ployees were not told that, as the annual report states, "The Company may amend, modify or terminate the Plan. in whole or in part, at any time." The annual report states, "Contributions to the Plan are discretionary and based on current and accumulated profits but may not be less than 5% of pre-tax book income. as defined in the Plan." The reference to "discretionary" is puzzling, but the second clause suggests that the entire sentence means, as Gottlieb testified, that contribution of "5% of pre-tax book income, as defined in the Plan" is mandatory and any amount above 5% is discretionary. However, the sentence immediately following raises a doubt: "The policy of the Company is to fund contributions so deter- mined." One is moved to ask why, if contributions "may not be less than 5% of pre-tax book income,'" the Company fell free to declare a mere "policy" of funding contributions to the plan. As the Court noted in Arrow. supra, "The particulars of a pension plan . . must be understood and studied to determine its value . The May 2 speech by Kingsbury did not give any more detailed information about it It was an unspecified promise of benefits to which the company had not yet made a formal. legal commitment '" 573 F2d at 706 ing some 350 employees about the plan, that the decision to so inform them was made and being implemented prior to the graveyard leaflet, and that the latter was a mere fortuity. 2 On the whole, however, I am inclined to believe that there probably would have been no refer- ence to the profit-sharing plan absent the graveyard leaf- let, particularly because Gehring's testimony so indicates. Nonetheless, by responding to the leaflet as it did, it is clear that Respondent engaged in "conduct immediately favorable to employees which is undertaken with the ex- press purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect." ,.L.R.B. v. Exchange Parts Co., supra, 375 U.S. at 409. Graveyard leaflet or no, Respond- ent chose to notify employees, at the 11th hour before the election, to their undoubted surprise, that they were the beneficiaries of an employer largesse previously un- known to them. It must be supposed that to an ordinary employee the apparition of the company president handing him a state- ment, on the night before the election, containing the news that "the company" had deposited funds in an ac- count for him the previous year and would do so again in the future, must have seemed nothing less than Olym- pian. This dramatic demonstration of "the company's" ultimate control over benefits was "reasonably calculat- ed" to vividly remind employees of that control. Re- spondent had, as Gottlieb testified, deliberately chosen in past months to refrain from mentioning this unsettled benefit, and for good reason-the plan not having been approved by IRS, an announcement that an uncondition- al benefit had accrued would indeed have been an unfair labor practice. To make that announcement on Decem- ber 5, when the benefits were no more concrete than in October, was not the less unlawful simply because the Union had made a telling point in its propaganda. This case is somewhat unusual in that here, unlike the run of other cases, it is conceded that the announcement of the plan was intended to influence the voters. "It is obvious that the closer a wage benefit comes to the day of the election, the harder it will be for the union to answer, and the greater the danger that the benefit will be manipulated to sway the election." N.L.R.B. v. Style- tek, supra, 520 F.2d at 281. Those "dangers" were obvi- ous in this situation; Respondent brushed them aside and forged ahead, trumpeting as a fixed benefit a profit-shar- ing plan which was infected with uncertainty. The effect of that conduct on the election could hardly have been misconstrued by Respondent. 22 2i The testimony indicates that the graveyard leaflet was circulated around December 2 or 3; the statements handed out on December 5 are dated "December 3." 22 Application of the test described by the Administrative Law Judge in Arrow Elastic Corporation, 230 NLRB 110. 113 (1977), would leave no doubt that the timing was impermissible: "It remains the further burden of the employer to show that its announcement was reasonably timed as a sequential step in. and a byproduct of, a chronology of conception, re- finement, preparation and adoption so as to lead one reasonably to con- clude that the announcement would have been forthcoming at the time made even if there were no union campaign " This test may not he in- variable. Compare Domino of Californiao. Inc.. supra, 205 NLRB at 1083. fn 3, where the Board validated the announcement of a benefit despite Coninued 577 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I. The Wage Increase of January 1, 1978 The complaint alleges that Respondent violated Sec- tion 8(a)(1) by granting its hourly employees a 35-cent- per-hour wage increase effective January 1, 1978. The in- crease was announced to the employees on December 20, 1977, 2 weeks after the election. The asserted pur- pose was, in the words of the complaint, "to encourage [the employees] not to support the Union." The tally of ballots in the December 6 election left the question of representation unresolved. The count of votes showed a horserace: 144 for the Union and 143 against, with 58 challenged ballots. In addition, both Re- spondent and the Union, by December 13, had filed ob- jections to the election. The Board, with court approval, has held that a pre- sumption of unlawful interference attaches even to the grant of postelection benefits when the possibility exists that a rerun election may be held. Gruber's Super Market, Inc., 201 NLRB 612 (1973), enfd. 501 F.2d 697, 702-703 (7th Cir. 1974); Ralph Printing & Lithographing Co., 158 NLRB 1353, 1354, fn. 3 (1966); Triangle Plastics, Inc., 166 NLRB 768, 774-775 (1967). It is therefore the Board's position that, in the present circumstances, an employer must shoulder the burden of demonstrating that the deci- sion to grant a wage increase so soon after a hotly con- tested and unresolved election was a legitimate business decision, uninfluenced by the pendency of the represen- tation question. This standard, often difficult to apply, is aided by the Board's doctrine that the employer may es- tablish the legitimacy of his motivation by showing that he would have granted the benefit even if the union had not been on the scene; if he fails in that effort, the infer- ence must be that the decision was affected by the pres- ence of the union and by a desire to influence the vote in the potential second election. The Great Atlantic & Pacif- ic Tea Co., 166 NLRB 27, 29, fn. 1 (1967). Contradictory testimony explaining Respondent's deci- sion to grant the increase was given by Forshee and Gottlieb. Prior to discussing that testimony, some back- ground is necessary. The record evidence on Respondent's past pay prac- tices is not extensive. In a stipulation relating to those practices during the period from January 1, 1975, until November 1978, the parties agree that the only "general across the board wage increases" made between January 1975 and December 1977 were in July 1975 and July 1976, each consisting of 25 cents per hour. The testimo- ny of Forshee also shows that Respondent had a prac- tice, both before July 1977 and thereafter, of reviewing the performance of employees every 90 days and award- ing acceptable employees "automatic" increases of 25 cents per hour, within, however, the existing pay scales. This latter procedure was not as bountiful as it sounds. Respondent maintained a wage structure of nine labor the fact that its timing was not "completely unrelated to the presence of the Union." There could be circumstances in which an employer might have a new benefit firmly in place prior to an election and might an- nounce it earlier than he otherwise would have done for the purpose of apprising the employees of his generosity; it would seem that he would be privileged to do so, although an unexplained delay until just prior to the election might well call the announcement into question as the kind of "husbanding" designed to impinge upon employee choice grades, into which more than 100 job classifications were slotted. The General Counsel's Exhibit 283 shows that the climb from the bottom to the top of each grade was not a long ascent. Thus, the differential between the minimum and maximum pay for a grade 3 worker was 33 cents; for a grade 7 employee, 31 cents. Accordingly, when a new grade 3 worker received a 25-cent raise after his first 90-day review (which the evidence showed to be "automatic" in amount), he would be entitled, at best, to 8 cents as a result of the next review, and none thereafter; the only way he could improve his individual lot from that point on, absent a general wage increase would be to receive a promotion to a classification in labor grade 4. The resultant bunching, at the top of the grades, of new and old employees, and other considerations, led Respondent in July 1977 to abandon its (at least) 2-year- old practice of granting a 25-cent July general wage in- crease and to institute a new system devised by then- Plant Manager Miller. The system consisted of immedi- ate provision of a longevity pay factor of 1 cent per hour per year worked, for employees with 5 or more years of tenure; an increase of 4 percent of the top of the scale in each labor grade; and a procedure for reviewing each employee at 90 days and 180 days after his entry into a labor grade, and every 6 months thereafter. Unlike past practice, however, according to a memorandum written by Miller, "the automatic 25 / hour increases" would no longer apply in these periodic reviews, and employees would receive anywhere from "0 to 25t" as a result of such reviews, depending on their performance. Forshee testified that the longevity pay increment was put into effect in July and continued thereafter. He fur- ther said that the 4-percent top-of-scale adjustment was "an additional increase" which "did not in any way in- terrupt the ninety day program that was already in effect." The 4-percent increase was implemented within 2 months: "Some time in September, all increases and performance evaluations had been completed and the pa- perwork processed and the appropriate increase from zero to four percent had been processed for all employ- ees some time in September." In a "particular area of the plant, everyone got four percent. In another area, some got none, others got put on probation and so on." For- shee said that the Miller plan continued to apply after July except that the discretionary 0-25-cent within-grade raise coupled with a 6-month review was never institut- ed: "[T]here was never a change from what had existed in the past .... [F]or the most part, the automatic 25¢ an hour increase continued because there was no com- puter change made." 2 3 I do not find persuasive management's effort to justify the 35-cent December increase; the explanation of the decisionmaking process raises serious problems at every turn. The discussions about an increase were assertedly pro- voked by management awareness of an imminent in- crease in the Federal minimum wage to $2.65 on January 2:I Although Forshee ultimately so testified, earlier testimony of his seems contradictory 578 GORDONSVIII.E INDUSTRIES. INC. 1, 1978. 2 4 Forshee testified that Respondent had "tradi- tionally maintained" an entry level "in excess of the minimum wage," the differential prior to the January 1978 change being $2.50 as against the $2.30 minimum, and it seemed appropriate to continue that relationship by raising the entry level by the 35-cent increase in the minimum wage. He noted that Gottlieb "emphatically communicated" to him that he did not wish to acquire the image of an employer who only paid minimum wages. Gottlieb's testimony added a new element in this re- spect. He said that it was necessary to maintain at least the 20-cent margin over the minimum wage because Re- spondent was having difficulty "get[ting] good people at 20c above it .... We surely got good people but we didn't get enough." Forshee had not testified that there had been any problems about attracting new employees at the $2.50 rate, and Miller's June 13 memorandum set- ting out his proposed wage system was diametrically contradictory to Gottlieb on this point: I can find no supporting facts that indicate our hiring rate is excessively low. There is the possibil- ity that we may attract more people, more easily with a higher starting rate, but in general we do not have long standing openings at entry level. We have usually had a ready supply of available entry level applicants and more recent efforts at a changed image and techniques in the personnel area has [sic] further improved the availability of entry level applicants. Thus, insofar as Gottlieb testified, unlike Forshee, and contrary to Miller's memorandum (the continued validity of which between June and December is not impeached by anything more probative than Gottlieb's testimony), that there had been problems in attracting worthwhile employees at even the 20-cent differential, the testimony raises a suspicion about the legitimacy of this component of the decision, particularly in the absence of any effort by Respondent, prior to the advent of the Union, to meet this perceived problem by increasing the entry level rate at an earlier time. Just how "traditional" it was for Respondent to main- tain an entry level as high as 20 cents above the mini- mum wage is debatable. Respondent made no proffer of evidence to establish its history in that regard. I have at- tempted to deduce the pattern, if any, from the stipula- tion, but depending upon its proper construction, the stipulation may be in error or incomplete. 2 5 It would, at 24 The parties have stipulated that the minimum wage increased as fol- lows: on January 1, 1975, from $2.00 o 2 10; on January 1. 1976, o S2 30 on January I, 1978, to 2.65, on January , 1979, to 2 90 25 We know that as of December 31, 1977, the entry level was 2.50 and the minimum wage 2.30. We have not been told how the entry level was modified to meet prior increases in the minimum wage The stipula- tion states that aside from the 25-cent increases in July 1975 and July 1976, and two increases in 1978. there were "no other general across the board increases given to hourly paid employees . . during the period January 1, 1975 to date." If the quoted material applied literally to the entry level, it would mean, working backward from the 2.50 wage being paid in December 1977, that it as not until July 1975 that the entry level was raised from 2.00 to 2.25 but at that time, a 1S210 minimum wage had already been in effect for 6 months I therefore assume that the least, have been useful for Respondent to have dem- onstrated the "history" of which Forshee spoke. The General Counsel argues that Respondent did not need to increase the entry level to $2.85 because, as Mill- er's memorandum indicated, it had a ready supply of ap- plicants at $2.50. The General Counsel recognizes, of course, that a raise to $2.65 was mandatory, but suggests that more was unnecessary, especially since the 90-day review, with the automatic 25-cent increase, would very shortly have achieved for new employees a rate of $2.90. There is something to be said for this argument, but I think it ignores the fact that Respondent had chosen a different tack prior to the union campaign, having set an entry rate of 20 cents over the minimum wage. Respond- ent having made that judgment in a neutral period, I would hesitate to quarrel with a similar judgment made after the organizing began. My problem with this subpart of the issue is, as indicated, that Gottlieb testified that the entry level increase was necessitated by a hiring problem to which Forshee did not advert 26 and which Miller's memorandum refuted. Forshee and Gottlieb testified that, once having con- cluded that the entry level should be raised from $2.50 to $2.85, it was further thought necessary to increase all employees by 35 cents in order to avoid a serious "com- pression" effect on the higher grades which would result from narrowing the differences between the pay ranges. 2 The magnitude of the decision to pay everyone an extra 35 cents was considerable. Paying 350 employ- ees 35 cents more per hour amounts, on the basis of a 40- hour week and a 50-week year, to $245,000 per year. I find this "compression-avoidance" contention consid- erably improbable. The so-called "compression" basically existed even before January 1978, when a trainee, hired at $2.50, became a $2.75 wage-earner by virtue of his "automatic" 25-cent raise after only 3 months. The record does not show the average amount of hiring at Respondent's plant, but it would seem that allowing a relatively small tail to wag a quarter-million-dollar dog was extravagant stuff indeed. Furthermore, although this problem had necessarily arisen in the past, with other minimum wage increases, there is no evidence that any "compression" concern in- duced a similar reaction at those times. As indicated above, the record makes it appear most likely that the entry level was separately adjusted on past occasions of minimum wage increase. When that federal standard was increased, for example, from $2.10 to $2.30 on January 1, 1976, a concern about the compression effect would have resulted in a general wage increase of at least 20 cents, or some other figure. But the stipulation recites only a 25- cent increase in July 1975 and another in July of the next year; no across-the-board raise occurred in January 1976. This fact leads to a conclusion that, in the past, telescoping of the wage scale as a result of minimum some other provision was made in the past for raising the entry level to conform to federal requirements. `6 Indeed, Forshee said that Goltlieb's "concern" with respect to the entry level wage was wilh his image in the community and elsewhere 21 It may be deduced from G.C. Exh. 283 that. as of December 1977. the entry employee earned $2.50 and the highest paid hourly employee in the plant earned S4.89 579 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wage increases was never considered a problem of such proportions as to justify a general raise.28 Forshee advanced still another reason for the decision to make the 35-cent increase. Forshee testified that he examined Respondent's wage records together with cost- of-living data and found that Respondent's wages had lagged behind prices. After studying the figures, he cal- culated that "with the 35 per hour, it would almost be exactly even with the cost of living for that period." The June 13, 1977, Miller memorandum took a different view of Respondent's past wage experience, noting that while the average rate of inflation for the preceding 8 years had been 6.4 percent, "[flor the past few years, we have maintained an annual [wage] increase that approximated 7%." Foreshee testified, however, that his study led him to believe that the 4-percent discretionary raise imple- mented in September "was not an accurate reflection of the rate at which the cost of living had been increasing," and that the 35-cent figure was required to keep pace with inflation. Forshee did not furnish at hearing the figures on which he based his calculations. Given the impact of the Miller plan instituted in July, however, it would seem that the 35-cent January increase was extraordinarily generous by Respondent's prior standards. The two prior increases, in July 1975 and July 1976, had been 25 cents per hour. With the implementation of the Miller plan in July 1977, there were two quick payoffs. First, because of the longevity increment, all employees with 5 years or more of seniority began to earn at least 5 cents more an hour; depending on tenure, employees were increased, e.g., 5 or 10 or 14 or 16 cents per hour, in accordance with their total years of employ- ment. 2 9 Second, the discretionary 4-percent increase completed by September also yielded a considerable raise for many employees.30 Although there is no clear documentary evidence on the subject, Forshee made it plain enough that, by September, many employees had received a full 4-percent raise, and others somewhere between 0 and 4 percent. Thus, as of September, a hypothetical grade 5 employ- ee 3 ' with 10 years employment would have received a 10-cent-per-hour longevity increase plus, if he was given the full benefit of the 4-percent raise, another 15-cent raise,32 for a total of 25 cents per hour. Some employees 28 The General counsel points out that granting a flat increase to em- ployees earning varying amounts has a compression effect of its own, since lower rated employees thereby are awarded higher percentage in- creases. Miller's memorandum explaining the new pay system instituted in July 1977 pointed out that it was designed to "reduce the problems associated with flat rate additions across the top of scales; we should use a percentage at top of scale for the increases." 29 Gottlieb testified that the facility had opened in 1960 or 1961. Re- cords in evidence show a considerable number of rank-and-file employees whose employment began in the 1960's. 30 While only the top of the grades were raised by 4 percent, it is rea- sonable to infer, from Miller's memorandum, from the narrowness of the range in each pay grade and from the preexisting 90-day review proce- dure with its "automatic" 25-cent raises, that most of the employees were at the top of their grades in December 1977. 31 Miller's memorandum states that "the bulk of employees and pro- ductive skills ([fall] in mid-range labor grades of 4 and 5. 32 G.C. Exh. 283 shows the top of labor grade 5, after the January 1, 1978, increase, as $4.15. Deducting the 35-cent increase yields $3.80. In received less, of course, but others received even more. It may be reasonably inferred that, by September, a sub- stantial segment of the work force had received increases almost equaling, and exceeding the 25-cent increase given in the past 2 years. For Respondent, in December, to add to those recent increases still another 35 cents to cover the cost of living displays a remarkably heightened sensitivity to employee needs.33 Forshee and Gottlieb advanced one more considera- tion in their decision-the anticipated location in the area of a company named Klockner Penta-Plast. The two spoke of the firm having hired away a few of Respond- ent's skilled employees; neither witness could name the employees. There was testimonial concern expressed that the plant would outbid Respondent for new employees, but Gottlieb had no information about the wage rates which the firm (which had not yet opened as of the end of the hearing in November 1978) was intending to pay. There was no reason for Respondent to believe that the arbitrary 35-cent raise would be effective to stop any leakage of old employees or loss of applicants, once the plastic company opened, and I question that businessmen give money to employees on the basis of such an insub- stantial speculation. In response to the question, "To your knowledge, did the employees have any expectation of a wage increase in the fall of '77?" Forshee said, "Not to my knowl- edge." It would seem most likely that the two recent paycheck increases in July and September for many of the employees made the December announcement of a 35-cent increase, almost half again as much as they had received in either 1975 or 1976, a remarkable surprise. Coming on the heels of the unresolved election, this almost unseemly display of generosity must have been a potent reminder to the employees of the source from which all good things flow. While it may be contended that postelection benefits should be scrutinized with more care than p;eelection grants, it should be noted that the final result of the December 6 election was any- body's guess. The Union was ahead by one vote, with 58 challenges to be resolved. Not only the Union, but Re- spondent as well, had filed objections to the election which, regardless of the final tally after resolution of the ballots, might have required a second election. The fore- going considerations leave little question in my mind that the carefully contrived Miller plan would have been al- lowed to work out its course and the employees would never have received the 35-cent raise in January had the Union not showed up in September. I find, therefore, a violation as alleged. J. The June 28, 1978, Letter to Employees The complaint, as amended during the hearing, charges violative conduct on or about June 28, 1978, "by order to arrive at a $3.80 figure by adding 4 percent, the pre-4-percent figure would have been $3.65. a Forshee testified that, at meetings with employees in November, ex- pressions of dissatisfaction with the new Miller system had been vented. That may have been so. It is nonetheless inescapably true that Forshee and Gottlieb were aware that many employees had received a substantial benefit from the introduction of that pay plan. 580 GORDONSVILLE INDUSTRIES, INC. sending to all employees a letter implying that their sign- ing of authorization cards was for an election only." On the date alleged, one day prior to a 25-cent wage increase announced on June 29, as discussed hereinafter, and 3-1/2 weeks before this hearing began, President Gottlieb sent letters to all employees to "advise you of the status of the Union charges against your company." The letter first recites some of the charges of improper conduct by Respondent: "By giving you a wage increase of 35¢ an hour last January; By talking to you about the Union; By terminating Nancy McDaniel and Steve Bold- ing; and by making a survey of your needs and desires." The letter then protests the Company's innocence of mis- conduct and goes on to state that "the Union demands because of these issues that we be required to bargain with them even though you may have voted NO UNION." The letter continues: We think that if you signed the Union Authoriza- tion Card you were only asking for an election, with the right to vote YES or NO UNION. I am sure you did not expect a Union without an election to determine your choice. The Union or the Labor Board may require that you attend a hearing in order to question you re- garding the above issues. You may even be subpoe- naed to appear at the hearing. If this happens we know you will respond honestly and responsibly. We will keep you advised of further events as they occur in this situation. Gottlieb testified that he and Forshee felt that "we should communicate something to the employees about what the hearings were all about and what was going to be done and what the charges were basically." Either Forshee or Respondent's labor counsel drafted the letter. Gottlieb said that the reference to the understanding of employees as to the significance of the cards was based on statements made to him by employees during the campaign; he was evasive and uncertain on this matter under further examination, and finally conceded that the idea for the letter came from Forshee. Respondent's brief states, "The purpose of the letter, taken on its face, is three-fold: (1) to bring the employees up to date on N.L.R.B. proceedings, and to advise them of the issues; (2) to indicate that they might be required to testify; and (3) to request that they testify 'honestly and responsibly."' Counsel neglects to note a fourth pur- pose, plainly the central one: to notify the would-be wit- nesses that "We think that if you signed the Union Au- thorization Card you were only asking for an election, with the right to vote YES or NO UNION. I am sure that you did not expect a Union without an election to determine your choice." In N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 601-610 (1969), the Supreme Court approved the Board doctrine that authorization cards would be considered valid indicators of union support for purposes of issuing a bargaining order unless the authorizing language of the card was "deliberately canceled" by a solicitor who rep- resented to a card-signer that the purpose of the card was solely for an election. The June 28 letter does not expressly carry the employees that far; it speaks of their intent, and not specifically of representations made to them. But it comes pretty close to the Gissel exception; it would take an employee of no great wit to translate Gottlieb's expression of confidence that the card-signer "did not expect a Union without an election" into testi- mony that he was led into that expectation by the solici- tor. Purpose (1) given by Respondent, above, was a mar- ginally plausible reason for sending a letter to the em- ployees about the upcoming proceeding, although it is thin; since nothing immediately hinged on the hearing, such as the deferral of a wage increase, there was cer- tainly no pressing reason to send any kind of informa- tional letter. But there appears to have been absolutely no legitimate purpose served by the explication of what Respondent believed the employees were thinking in signing the cards. I can conceive of only an illicit purpose-to plant a seed in the minds of employee-witnesses as to the charac- ter of the testimony which they were expected to give under Respondent's watchful eye at the hearing. The em- ployee is entreated to testify not only "honestly," but also "responsibly." The last is an interesting choice of words, coming as it does in the context of references to subjects meaningful to an employee's livelihood: a recent wage increase termination; and employee "needs and de- sires." It is also of interest that on the very next day, June 29, Gottlieb sent yet another letter to the hourly employees announcing another general wage increase of 25 cents per hour. The General Counsel points out that Respondent did not explain at the hearing the coinciden- tal timing of the two letters, and persuasively argues that "the implication that the two letters were intended to be linked together is supported by the fact that the 1978 wage increase was not to become effective until after the summer shutdown, rather than at the time of the June 29 wage increase announcement." In Gissel Packing, 395 U.S. at 608, the Court observed that "employees are more likely than not, many months after a card drive and in response to questions by compa- ny counsel, to give testimony damaging to the union, particularly where company officials have previously threatened reprisals for union activity in violation of [Section] 8(a)(1)." 1 think that Respondent intended by the June 28 letter to quicken that probability, relying for coercive effect on its prior unfair practices; the contextu- al suggestion of the letter itself; the clear import, most likely apparent to employees, of the reason for the letter in the first place; and the backup impact of the June 29 wage announcement. This deliberate attempt to influence employee testimony was violative of Section 8(a)(1), a conclusion mandated by the Board's recent decision on similar facts in J. P. Stevens & Co., Inc., 244 NLRB 407, 408 (1979). K. The Wage Increase Announcement of June 29, 1978 During the hearing, the complaint was amended to allege that Respondent violated the Act on or about June 29, 1978, "by granting all hourly employees a 25-cent per 581 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hour wage increase in order to encourage them not to support the Union." As stated above, by letter dated June 29, Gottlieb an- nounced a general increase of 25 cents per hour for all hourly employees, to take effect at the end of the vaca- tion shutdown. Forshee testified to several reasons for this increase. First. he said that the 4-percent increase in September 1977 "had not been successful" and management be- lieved that reversion to the "historical sequence of giving 25¢ each July" was in order. This belief was enforced, as July approached, by an awareness that the employees ex- pected to return to the system of receiving a July in- crease. Finally, Respondent realized that the minimum wage would again increase by 25¢ in January 1979. Asked why the early anticipation of the 1979 minimum wage rise, Forshee said, "Well, the main consideration was that we did not know at that point in time what the reaction to the 35¢ an hour increase would have." Gott- lieb gave testimony similar to Forshee's, but added other factors- "we were still not getting people" and "we have to keep the people even with inflation." Forshee's reliance on the fact that the September 1977 4-percent increase "had not been successful" erases histo- ry; the intervening 35-cent increase in December was supposed to have cured Miller's September folly. Gott- lieb's continued concern with "not getting people" is out of step with Forshee's failure to mention any such cir- cumstance. The increase announced in June 1978, togeth- er with the earlier increase effective in January 1978, to- gether with the longevity pay of July 1977, together with the amounts awarded under the 4- percent discre- tionary increase in September 1977, might have given the hypothetical grade 5 employee of 10 years' tenure a raise, within a -year period, of about 85 cents an hour, as compared with his prior annual increases of a total of 50 cents from July 1975 to July 1976. 1 do not believe that this unprecedented magnanimity would have found expression in the absence of the Union. Moreover, the timing of the announcement, so pointedly proximate to the June 28 effort to influence testimony at the hearing, can only be thought to have had an independent purpose of achieving that objective. I conclude that the grant of the wage increase on June 29, 1978, violated the Act. 1I. ihll AI ..LGI) 8(a)(3) VIOI.ATIONS A. The Refusal To Reinstate Nancy McDaniel On October 25, 1977, employee Nancy McDaniel was discharged for refusing to perform a certain duty. The complaint does not allege that the discharge was viola- tive of Section 8(a)(3). It does claim, however, that Re- spondent's refusal to reemploy McDaniel the following day, and thereafter, was unlawfully motivated. As earlier stated, McDaniel was a known supporter of the Union. On October 19, while handbilling at the gate, McDaniel spotted a former employee named Hawley, who appeared to be drunk. Later that evening, she called Foreman Delmar Thomas and "discussed Mr. Hawley," to what end the record does not show. On the morning of October 25, Gary Miller called McDaniel into his office and, with Thomas and Pat McKeown present, told her he "wanted me to restrict my union organizing on the outside and he would do what he could to control it on the inside." He then went on to accuse her of calling Thomas and questioning "the conduct and ability of a su- pervisor." McDaniel was told to return to her desk, and she did so.34 McKeown, in whose offices McDaniel worked, short- 15y thereafter told McDaniel to take charge of the switch- board from 10 o'clock to noon. She and other clericals had been trained to substitute for the switchboard opera- tor, but she had never previously been ordered to per- form the work for as much as 2 hours. She pointed out to McKeown that she was busy with her normal work, and a heated argument ensued, with McKeown telling her twice to "go on the board or go home." Finally, McDaniel said, "[I]f you are firing me, put it in writing," and McKeown walked away. One-half hour later, about 10:30, McKeown called in McDaniel and, telling her she had had time to consider the matter, again gave her an ultimatum to work the switchboard or go home. She insisted that "with the shipments I have got to do, I can't go on the board." McKeown said, "Nancy, why do you have to be so damn hardheaded." McKeown then phoned Miller, and McKeown, McDaniel, and Assistant production Control Manager Deane trooped into Miller's office, where McKeown told her that he had punched her timecard and that she was to leave the plant. McDaniel protested the tampering with her timecard. Miller then assured her that her card had not been punched and said he wanted her to return to her desk, sit down, and not "do any work because you will not be paid for it." McDaniel im- plied that she would continue to work. She returned to her desk and resumed her work. About 11 a.m., McKeown called her into his office and gave her a letter with her timecard attached, saying, "Nancy, this is the letter that you asked for." The letter read: Dear Nancy: You have failed to accept a legitimate work as- signment and have asked to be discharged rather than perform a job for which you are qualified and which you have done in the past. We are complying with your request and you are hereby discharged. If in the future you decide that you can comply with legitimate work requests, such as working on the switchboard, let us know and we will consider converting the discharge into a sus- pension. ':4 The complaint alleges, as a separate violation of Sec. 8(a)(l), that Miller iolated the Act on October 25 by "telling employees that hey should restric their union activities outside the plani" Respondent moves to correct the transcript at p. 1244. line 7, so that "restrict my organizing on the outside" would read "to the outside." My notes show that the transcript is accurate, and the motion is therefore denied. McDaniel's testimony about this incident is uncontradicted and I credit it lihe ban n her "union organizing on the oultside" was palpably unlawful. and I o find 582 GORDONSVILLE INDUSTRIES. INC. After reading the letter, McDaniel said that she could not accept it, but that if McKeown would "change it, I will accept it." Her objection to the letter was its claim that she had "asked" to be discharged. She returned to her desk and again started working. Soon thereafter, she took a short break and tried, unsuccessfully, to call the union office. She then returned to her desk and worked until lunchtime. During lunch, she called a union orga- nizer, who told her to accept the letter and leave the plant. She went to McKeown, got the letter, and depart- ed. McDaniel denied that she was asked to leave the plant between her original receipt of the letter and her eventual departure. As a result of McDaniel's refusal to work on the switchboard, employee Linda Cannon, who presumably also had other duties, was required to spend an addition- al 2 hours at the job, in addition to the 2 hours she had spent on the board from 8 to 10 a.m. The following morning, McDaniel went to the plant and asked to see McKeown. She was eventually ushered into the personnel office, where McKeown, Miller, and Deane were present. McDaniel handed McKeown the following letter: Dear Pat: RE: Your letter dated October 25, 1977. I would like to state that I did not ask to be dis- charged. Now and in the future I will comply with legiti- mate work requests, such as working the switch- board. However, I do not feel that I am qualified to run the switchboard for the length of time request- ed which are busy hours. If you feel I am qualified I will to the best of my ability operate the switch- board. She stated that she wished to return to work. Miller said, "Nancy, you do understand we want you to come back to work and do your work and to relieve the switchboard when necessary." After some discussion about the first paragraph of her letter, according to McDaniel, Miller repeated that "[w]e want you to come back to work." He told her, however, that he would call her at home the next day. She said that she would be out on personal business on that day, October 27, and Miller then said she would be called on Friday. In fact, howev- er, McKeown called on Thursday evening and said that Respondent had decided not to take her back, also in- forming her that she would receive a letter of explana- tion. By certified mail, McDaniel received the following message from McKeown: Dear Nancy: This is to advise that after review of the entire inci- dent of Tuesday, October 25, it will be impossible to continue v'our employment with Gordonsville In- dustries. Your actions after being advised of your discharge preclude the possibility of converting your discharge into a suspension. McKeown presented the primary testimony for Re- spondent on the events giving rise to the decision to leave McDaniel unemployed. He said that when he pre- sented the discharge letter to her at 11 a.m. on October 25. she became "rather loud," saying that the letter was not properly phrased and she would not sign or accept it. McKeown said she was told that she did not have to sign it, that she was terminated, and she should leave. In- stead, she said she was returning to her desk to work. McKeown called after her, saying she should leave the plant. When McDaniel sat down at her desk and started "shuffling papers," McKeown consulted Miller and asked that she be removed. Miller said that he would see if he could get a warrant. Assistant Manager Deane, a convincing witness, testi- fied that during the lunch period on October 25, McKeown told him that McDaniel had refused the letter and "had refused to leave the plant, and that a warrant had been issued to have her removed from the premises. He further testified that when McDaniel sought rein- statement the next day, he and McKeown told Miller that they thought she should not be allowed to return, since her refusal to leave had created a disruptive "at- mosphere . . . even to the point where law enforcement officers had to be summoned to have her removed." Miller "felt a little bit both ways, but he really hadn't de- cided." Tom Forshee testified that he was in Louisville when he was informed of McDaniel's refusal to perform switchboard work. He thought that she should be dis- charged, but, recognizing the "legal overtones," recom- mended that Miller contact Respondent's labor counsel. The record shows that the October 25 letter was pre- pared by counsel. When Forshee, who thereafter came to the plant, was informed about McDaniel's request for reinstatement, he discussed the matter with McKeown and Miller. McKeown took the position that McDaniel should not be reinstated; Miller was unsure, one reason being his concern about "a potential unfair labor practice charge." Forshee supported McKeown because of McDaniel's "very obvious insubordination and disruptive influence within the office area and secondly a refusal to leave the premises after being advised of the termina- tion." He conveyed this opinion by telephone to Presi- dent Gottlieb, who concurred. The issue presented is a narrow one: did Respondent, after lawfully discharging McDaniel on October 25, vio- late the Act by taking her union affiliation into account in considering whether to accept her application for rein- statement? The General Counsel makes an unusual argument. He concedes that Respondent "had absolute justification for unconditionally terminating" McDaniel as of the time she received the discharge letter at II a.m. on October 25. But, the General Counsel argues, because of her known union activity and the legal implications of a dis- charge, Respondent "extended a qualified letter to her," which stated that it would "consider" converting the dis- charge into a suspension should she declare that she would comply with future legitimate work assignments; according to the General Counsel, "the question of her X583 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eventual reinstatement was from this point indelibly cast in terms of her union membership and activity." Thereaf- ter, when Forshee made the ultimate decision against re- instatement, it was freighted with union animus. In other words, at the time of discharge, McDaniel's association with the Union worked in her behalf; at the time of the refusal to reinstate her, 3 days later, it worked against her. The claim that discipline invoked against union sup- porters in the course of a campaign was discriminatory can often be difficult to resolve, especially where the em- ployee's union support was notorious. The problem is that management is dealing with a known time bomb. Sometimes it will choose deliberately to detonate it, re- gardless of the legal consequences; sometimes it will ap- proach with great caution; in either case, the employer's cognition of the potential unfair labor practice charge, as well as the benefits to be reaped by successfully punish- ing a union activist, introduce obscuring artificial con- straints and considerations into the decision. The prob- lem is complicated here by the presence of Forshee, hired to manage the antiunion campaign. Every decision made by him was made with an eye to the legal conse- quences and, therefore, to the union activity of Respond- ent's employees; this, however, could be good or bad for the employee. It appears to me that the letter of discharge, holding out hope of reinstatement, was prompted by caution, and the General Counsel agrees. As his brief states, Respond- ent "had every right to fire her, unconditionally, on Oc- tober 25." The decision to tell McDaniel that it would "consider" converting the discharge into a suspension upon her promise that she would comply with future work assignments was a limb upon which Respondent did not have to climb, and I think that if McDaniel had accepted the discharge letter quietly and made the re- quired promise unconditionally the following day, a deci- sion by Forshee to refuse to reinstate her might well have been viewed as an overzealous exercise of his ap- pointed function to run an effective antiunion campaign. But McDaniel chose not to follow such a course of action. The General Counsel's threshold position is that McDaniel engaged in no conduct at or after the time when she was first handed the discharge letter which would have made her claim to reinstatement more ten- uous. But Respondent argues that after receiving the 11 a.m. discharge letter, McDaniel made herself even more persona non grata, both by refusing to accept that letter and refusing to leave the office as instructed by McKeown, and that such behavior justifiably obliterated any consideration for reinstatement held out by the letter. Here we have a testimonial conflict, which I re- solve in Respondent's favor. McDaniel testified that McKeown did not tell her to leave the premises after she refused to accept the letter. McKeown, however, said that he twice told her to leave the office after her refusal, and that she instead defied his order by returning to work. She sat at her desk and, in McKeown's word, began "shuffling" papers. McKeown then asked Miller to have her removed, and Miller said he would try to get a warrant. If Respondent did attempt to have McDaniel removed by the police, that would obviously tend to support the testimony that McDaniel had refused to leave the prem- ises. Perhaps because it was a detail lost in a sea of de- tails, Respondent did not call Miller to testify that he had summoned the police, but Renee Atkins, a coworker of McDaniel's who appeared for Respondent, testified that she saw "officers of the law" on the premises on October 25. Furthermore, McDaniel, asked if she knew anything about a warrant being sworn out to remove her from the plant, said, "I do now. I did not know at the time, no. I never knew until the 28th day of November." The record does not show what brought the warrant to her attention on November 28, but it was obviously in a context which could not be said to be related to the unfair labor practice case, since the charge relating to McDaniel was not filed until December 5. I am inclined to believe that the police were indeed called, as a result of McDaniel's refusal to leave after being handed the discharge letter. That McKeown would have told her to leave would hardly be a surpris- ing course for him to take; McDaniel testified that twice on October 25 before she was fired, McKeown had told her to "work or go home;" he would very likely have told her to "go home" after discharging her.3 5 This post 11 a.m. insubordination, coupled with McDaniel's demand for a modification of the wording of the discharge letter, and on the heels of the work assign- ment refusal which legitimately led to that letter, would be patent and unassailable justification for an employer to reach a negative result in deliberating its offer to "consider" converting the discharge into a lesser penalty. It is true that Respondent equivocated for a while, even after the second act of insubordination. The reason is plain enough: Miller's concern about an unfair labor practice charge being filed. But I believe that the testi- mony of McKeown and Deane that they thought McDaniel's entire course of conduct should preclude the proffered consideration, and Forshee's decision to accept that advice, rests on reasoning much too substantial for the Board to disregard. 3 6 5 McKeown's version is also confirmed by the testimony of Renee Atkins. She testified that she heard McDaniel say to McKeGwn, after re- ceiving the letter, [Y]ou can't make me leave . I refuse to leave." She also, as stated, subsequently saw "officers of the law on the premises." I found Atkins to be a credible witness despite her characterization of McKeown's voice as "very low" during the argument with McDaniel contrary to his own testimony that he was "loud;" Atkins conceded that the "details aren't too clear." She may indeed only have been comparing the voices of the two; she referred to McDaniel's tone of voice as being "so loud." Atkins was no longer employed by Respondent at the time of hearing (she had worked there for less than a year) and had no apparent reason for fabricating testimony The testimony of Sally Perkins, a "very close friend" and coworker of McDaniel's, was not that helpful to the General Counsel She apparently was not in a position to hear the II a.m. termination interview, since she testified that after McDaniel left McKeown's office, McDaniel felt it nec- essary to report the content of the exchange to Perkins: "S]he says you won't believe what I just got and I said what. She said I just got a letter saying that I asked to be fired." 36 1 note that even McDaniel's October 26 application for reinstate- ment was somewhat grudging and not calculated to win Respondent's heart: "However, I do not feel that I am qualified to run the switchboard for the length of time requested which are busy hours." 584 GORDONSVILLE INDUSTRIES, INC. In my view, had McDaniel behaved with some realis- tic sense of her jeopardy after being handed the dis- charge letter at 11 a.m.. she might have obviated a per- manent loss of employment. 37 But she continued to engage in the very pattern of behavior which caused her downfall in the first place, and I cannot say that Re- spondent's decision that her "actions after being advised of [her] discharge preclude the possibility of converting [her] discharge into a suspension" would have been dif- ferent if another, nonunion, employee had been involved; indeed, it appears that the delay in reaching that decision was occasioned only by the fear of consequences stem- ming from McDaniel's support for the Union. I recom- mend that the allegation as to McDaniel's failure to obtain reinstatement be dismissed. B. The Discharge of Stephen Bolding The complaint alleges that Stephen Bolding was discri- minatorily discharged on November 8, 1977. Bolding was hired as a mechanic in June 1976. Person- nel records in evidence show that his immediate supervi- sor thought highly of him and his potential. Bolding, as previously noted, was a noted and active union adherent. On October 21, he wrote a letter to Gary Miller defend- ing the Union against an allegation made by Miller in an earlier distribution to employees, and clearly identified himself as a union supporter, a fact already made appar- ent by his frequent handbilling. While entering the plant on the morning of November 8, Bolding saw some antiunion material posted at two lo- cations, and he removed several posters from the wall. James McDaniel informed him that employee Ed Shel- ton was putting up the posters throughout the plant. Bolding then ran into Foreman Brown and employee Shelton, and asked the latter whether he was responsible for the posters. When Shelton said he was, Bolding, as he testified, "took him by the shoulders and shook him a little bit and asked him to quit putting them up and in- formed him that as fast as he put them up, James and I would take them down." He stated that he was "almost laughing" as he did this, and the others responded in like vein.3 8 Intending to proceed to work at another building, Bolding was signing out on an employee register at about 8:30 a.m. when he noticed maintenance employee Russell Wingfield nearby. According to Bolding, he "grabbed [Wingfield] by the shoulders and asked him who was putting up the antiunion literature and before he could answer, I said I know who it is. It is Ed Shel- ton. And he confirmed it." Bolding says that he then dis- cussed with Wingfield whether he was eligible to vote in the election, and that there was some further conversa- tion about one of Bolding's duties which Wingfield had assumed during Bolding's vacation. Bolding testified that 3' There is nothing about McDaniel's record which suggests that Re- spondent was parting with an employee whose performance was highly prized. An employee review dated July 18, 1977, gave her a score of 61 out of 100 points, with McKeown commenting, "Attitude & attendance both below standard, but knows job and does correctly." a3 Respondent's brief states that Shelton "weighs approximately 300 pounds." While this is dehors the record evidence, it would suggest that Bolding was in a whimsical mood, at least at the time he encountered Shelton when he grabbed Wingfield, he gave him three or four fast but gentle shakes, and his courtroom reconstruction of the physical action was mild-mannered and friendly.3 9 He further stated that employees customarily teased Wingfield, and that their relationship was "very cordial." Bolding then went about his work. Around 12:15, he was called to Miller's office. In the presence of plant en- gineer Ozbey, Miller, referring to a piece of paper, asked Bolding if it was true that he had assaulted and threat- ened Wingfield. When Bolding denied any such conduct, Miller said he had a witness, but refused to disclose the name of the witness and also refused Bolding's request to see Mr. Wingfield." Miller asked Bolding to resign. When Bolding said he would not, Miller discharged him. Bolding asked for a letter of discharge. While Bolding was collecting his personal belongings, Foreman Brown handed him a letter from Miller which briefly stated that he was being discharged and that "[t]he reasons for this termination have been reviewed with you." Wanting something more explicit, Bolding re- turned to Miller's office. Miller told him that the reasons for termination had been discussed and that he should "leave the property." As he left, Foreman Brown offered to give him a good reference. Later that day, Bolding saw employee Kenneth Deca- tur. Bolding asked if Decatur, the only other employee who worked in the area in which he had encountered Wingfield, knew who the company witness was. Decatur said "it was him," but "he had told Gary Miller nothing that could have hurt me in any way and that he was sorry." Russell Wingfield gave a markedly different account of the events of November 8. He said that Bolding, look- ing "kind of red in the face" came up to him, grabbed him by his shirt collar, and asked him if he had torn down any signs, to which Wingfield replied, "No, I don't tear any down and I don't put any up." That, ac- cording to Wingfield, was the end of the conversation. He said he was not frightened by the physical gesture. About 30 minutes later, said Wingfield, Bolding ap- proached him again and said, "Somebody will get hurt and I mean hurt." Wingfield contacted his superior, Garland Marks, who told him to write a note to Miller and to Ozbey. A copy of the Ozbey note in evidence reads: I was next to Boiler door as you go to office, and Stephen Bolding grab me in the collar, said did you put that sign up. 40 I said I do not put signs up, and I do not take any down. When he came back he told me that somebody was going to get hurt, and I mean hurt. Wingfield testified that he carried the note to Miller, who read it simply asked "Is that what happened?" and received an affirmative reply. Wingfield then returned to his post. He confirmed that he had previously enjoyed a 39 Bolding is a tall man in his 20's; Wingfield is a smaller man, in his 60's 40 At the hearing. Wingfield stated that he was in error here: what he meant as "did you tear that sign down." 585 DECISIONS OF NATIONAL LABOR RELATIONS BOARD good relationship with Bolding, and ultimately agreed that other employees had on occasion physically teased him, although in earlier testimony he had denied that he had ever been touched by employees in the course of horseplay. 4 1 Garland Marks, foreman of maintenance and security, testified that Wingfield had told him that Bolding "grabbed him in the collar and shook him" and subse- quently threatened that if Wingfield "pulled down an- other sign something was going to happen to him bad." Wingfield was "almost crying and shaking, and he was upset, real upset." Marks left, after telling Wingfield to report the incident to Ozbey. Marks met Ozbey in the hall, related the story, and then went to Miller's office to repeat it. Tom Forshee was in Miller's office at the time. Marks at some point asked Decatur what had happened; Decatur said he "had seen [Bolding] grab him, he said I didn't know what was going on," but he "thought they was playing or something of the sort." Kenneth Decatur testified for the General Counsel that he was present on November 8 in the area with Bolding and Wingfield; he remembered Bolding saying something about taking a sign down; he recalled Bolding being "close to" Wingfield's "shoulder," but did not recall any contact in the "shirt collar area;" he seemed sure that Bolding had raised only one arm; and he thought of the incident as "horseplay." About 30 or 45 minutes later, when Decatur saw Wingfield in the secu- rity office, Wingfield was "mad" and said that if Bolding "threatened him again and grabbed him in the collar, he was going to hurt him." Ozbey then called Decatur to a front office to ask what had happened and he said he considered "it was horseplay." Wingfield was present-he "was hot, Russell was mad." When asked by Ozbey if he saw Bolding "threaten Russell or hurt him and grab him," Decatur said he had not. An hour or so later, Decatur was called to Miller's office and was asked about the incident. De- catur "told him as close as I can remember the same thing as I told Mr. Ozbey." He also wrote out for Miller the following statement: I saw Steven & Russell doing what I thought was playing. Steven reached for Russell somewhere near collar or upen [sic] chest. I didn't see contact, and passed it off for a joke. The area was noisy, Decatur was involved in running boiler samples and he heard little or nothing of what was said during the encounter between Bolding and Wing- field. Two statements composed by Bolding on November 8, the day of discharge subsequently given to the Union, are at some variance with his testimony at the hearing. While Bolding testified that he had asked Wingfield who had put up the antiunion posters and then had supplied the answer himself before Wingfield could respond, one of the statements instead says that Bolding had asked 4 His explanation of the discrepancy-that he had thought the earlier questioning related to other horseplay "while this [November 8 incident] was going on"-is, in context, a distortion of the unmistakable general thrust of the prior questions Wingfield if he had been responsible, to which Wing- field, "said, 'No!' that Ed Shelton had put it up." Al- though Bolding testified that thereafter he had calmly raised with Wingfield the subjects of Wingfield's eligibil- ity to vote in the election and whether Wingfield had been compensated for recently performing one of Bold- ing's duties, the statement does not refer to the latter topic of conversation. Bolding's November 8 account of the discharge inter- view has Miller saying, "You know we've had a car get acid on it and sugar put into a gas tank while it was in the parking lot," but Bolding did not mention this remark in his testimony. Of more potential significance is the fact that the November 8 statement did not mention that Bolding asked for, and was denied, an opportunity to talk to Wingfield. But moderating these variances is some evidence that Bolding's inconsistencies may not in- dicate fabrication. Although Bolding's November 8 state- ment refers to Miller saying to Bolding "I have a wit- ness," it omits stating that Bolding asked for, and was re- fused, the name of the witness. Nonetheless, at the hear- ing Ozbey supported Bolding's testimony that this in fact occurred. Tom Forshee testified that the decision to fire Bolding was his. He was in Miller's office when Marks, "very upset," reported the Wingfield incident. He heard the same story from Ozbey. He asked Miller what the past practice had been in dealing with such behavior, and was told that similar miscreants had been terminated. He saw the signed statements of Wingfield and Decatur. He de- cided that Bolding should be discharged because: [I]t had got to the point where enough was enough. It was just an increasing type of activity of this nature that had reached a proportion where it shouldn't have been tolerated further. The foregoing reference is to a series of events subse- quent to the union demand, and partially documented in the record, in which there had been considerable appar- ent vandalism, theft, and sabotage involving company machinery and property, including throwing of acid, etc.; the vandalism of a half-dozen employee auto- mobiles; and the mistreatment of two employees, one of whom had requested that she be reassigned from a shift because of "the harassment that she was receiving from pro-union supporters." Forshee did not meet with Wingfield, Bolding, or De- catur before deciding to fire Bolding. He testified that the decision was made before Miller met with Bolding, and the "purpose of the meeting between Miller and Bolding [was] to advise him of his termination." He also said that the information given to Marks and Ozbey by Decatur appeared to be inconsistent with the written statement made by Decatur, but he weighed this in the light of the fact that Decatur had "made the comment to Mr. Miller I don't want to get anyone in trouble. I don't want to get anyone fired." The evidence against Respondent on this count in- cludes no smoking pistol; nonetheless, I am convinced that had it not been for Bolding's union activities, and, as 586 GORDONSVILLE INDUSTRIES, INC. well, the union activity in general, Bolding would very probably not have been discharged. Bolding's case, like McDaniel's, is complicated by the constraining factor that the discipline was being adminis- tered to a known union supporter and is aggravated by the fact that the decision was made by outsider Forshee, without any recommendations even being made, accord- ing to their testimony, by Miller, Ozbey, and Marks. Al- though Forshee said that his duties included reviewing all proposed discipline and discharges to assure consist- ency and propriety, he could recall no instances other than the Bolding and McDaniel terminations where he made "the actual decision." Thus, the question of wheth- er Bolding should be fired was bucked up to Forshee, a stranger to plant disciplinary practices and to the persons involved, and introduced an element of remoteness not normally present in the plant disciplinary process. Forshee openly conceded that it had been "communi- cated [to him] relatively early that Bolding was in- volved" in the campaign. The question presented is whether Bolding's involvement, or the campaign itself, resulted in denial to Bolding of the kind of consideration that nonunion employees, in a nonunion setting, might have received. I think the answer is in the affirmative. Viewed objectively, there was rather plainly a rush to judgment in the decision to terminate Bolding. Docu- ments presented from Respondent's files relating to disci- pline indicate that supervisors making discharge and dis- cipline decisions in the past normally had interviewed the participants in alleged misconduct. 42 It seems virtual- ly certain that, in a less controversial setting, Bolding would have received similar treatment. The fact is that not one member of management asked Bolding for his version of the November 8 events. The very first time Bolding was confronted was some 4 hours after his en- counter with Wingfield, when Miller met with him only, as Forshee put it, "to advise him of his termination." The disciplinary files in evidence reflect a more delib- erate approach to other instances of alleged misconduct, showing that Respondent's supervisors normally consid- ered all factors, including the record and the potential of the charged employee. It seems clear that, in ordinary circumstances, Bolding would have received more equi- table treatment and consideration than that afforded him on November 8. Bolding is an unusually pleasant, clean- cut, and intelligent young man. His employee evaluations were excellent. Plant engineer Ozbey called him a "very ambitious person." Foreman Marks said that he was sur- prised . . . so bad" by Wingfield's report because Bold- ing was the "[n]icest mannered man you want to see. I didn't ever have a problem with him until "this problem right here," Obviously a valuable employee, Bolding nonetheless received extremely short shrift in the "inves- tigation" of his alleged offense not even being afforded the opportunity of presenting to management his version of the issue, in obvious departure from Respondent's cus- tomary procedure. The desire not to investigate is particularly noticeable because of the circumstances of the case. The note writ- ten by Wingfield to Miller, describing the events, was 42 See GC Exhs. 272. 273, 274. and Resp Exh 20 stark and shorn of detail, but, according to Wingfield, when Miller called him in for an interview, all that Miller asked, referring to the note, was "Is that what happened?" Had Miller exhibited more interest in the in- cident, he could have learned from Wingfield that, as the latter testified at the hearing, he had not been frightened by the physical touching (if that had been all, "I would not have said anything"), he did not view the statement about someone getting "hurt" as being directed at him, and he had gotten along "fine" with Bolding prior to this incident.43 Furthermore, Forshee's haste to render an adverse judgment against Bolding led him to disregard a piece of evidence which, under ordinary circumstances, would most likely have provoked more inquiry. As set out, For- shee, who made the decision, did not personally inter- view Wingfield, Decatur, or Bolding. His knowledge of the events was, he testified, based on the second-hand ac- counts given him by Marks and Ozbey, neither of whom had interviewed Bolding, and on the statements written by Wingfield and Decatur. But Decatur's statement raised a red flag: it said that Decatur thought Wingfield and Bolding were "playing," and Decatur had "passed it off for a joke." At the hearing, Forshee stated that this stance was inconsistent with what Decatur had told Marks and Ozbey, and that he had attributed this change of position to Decatur's statement to Miller that he did not "want to get anyone in trouble." Asked at the hearing whether he had made such a remark, Decatur said, "I don't know if I made that state- ment or not .... I don't remember making that state- ment to Mr. Miller." But Decatur also testified that he told Miller, and Miller was not called upon to deny it, that he thought the contact had just been "horseplay." There is, furthermore, a serious question whether For- shee could have relied on an allegedly different version by Decatur which was purportedly relayed to Forshee by Marks; although Marks gave inconsistent testimony about whether he spoke to Decatur before or after he gave a report of the incident to Miller and Forshee, at one point he testified clearly that he did not interview Decatur until he had returned from reporting to the two managers. 44 Moreover, Marks' testimony as to what De- 43 Resolution of the allegation presented does not require a decision as to precisely what occurred between Bolding and Wingfield As discussed above. Wingfield testified that Bolding grabbed him by the collar and later returned to speak of someone getting "hurt." Bolding testified, on the other hand, that he grabbed Wingfield in a jocular manner and did not say anything to him subsequently. While Bolding was an extremely impressive individual, there is no basis in the record for believing that Wingfield would have fabricated or exaggerated his version, although I do note that Wingfield, on the payroll since January 1961, had been a foreman at one time. I have no doubt that Wingfield was truly provoked by Bolding; Decatur, the General Counsel's witness, said that Wingfield was "hot" and "mad" while the matter was being reported to manage- ment. Nonetheless. Wingfield's genuine ire may well have been a mis- guided overreaction to some clumsy, innocent approaches made by Bold- ing I reject out of hand that a man like Bolding offered or intended to offer a serious threat or harm to the older, smaller. Wingfield, a man who apparently served as a butt of employee practical joking 4 As stated in the testimony: Q So you didn't talk to Decatur until after you came hack from talking to Mr Miller" A No. 587 DECISIONS OF NATIONAL LABOR RELATIONS BOARD catur did tell him is consistent with Decatur's version. Marks said that Decatur told him that he "thought they were playing." Ozbey, the other conduit from Decatur on which For- shee purportedly relied, testified that when he inter- viewed Decatur, the latter "really impressed me that it was serious situation with Russell" Wingfield and Steve Bolding "at the time." Decatur testified, however, that he had told Ozbey that it seemed like "horseplay" to him. It would appear to me that Decatur was giving the more likely account since, at Ozbey's instance, he promptly wrote up the memorandum set out above, stat- ing that he thought it was "playing" and "a joke."4 5 I cannot conceive that Decatur would have told Ozbey that it seemed a "serious" encounter to him and then, di- rected by Ozbey to memorialize his statement, so com- pletely have reversed himself. Furthermore, Ozbey could not recall giving a report to Forshee about the Bolding incident on November 8. Thus, to the extent that Forshee attempted to brush aside the discomfiting Decatur memorandum by relying on purportedly contrary versions given by Decatur to Marks and Ozbey and relayed to Forshee, the effort meets considerable obstacles. In any event, the very ex- istence of such a memorandum, in a situation in which nuance and detail so obviously could be of significance, naturally called out for further inquiry, but none was made. It is striking to read Forshee's testimony that, when Marks first told him and Miller of the incident, he directed Marks to return to the participants "and devel- op as much information as he could relative to the inci- dent," and then to realize that no one even spoke to Bolding or sought to more definitively clarify Decatur's evidence. It is difficult, on these facts, to avoid the infer- ence that Forshee was donning blinders, hoping that he could substantiate a case against Bolding rather than afford him the kind of consideration which had obtained in the plant prior thereto. "A failure to investigate the in- cidents upon which the employer relies as grounds for discharge may reflect an employer's discriminatory moti- vation." W. W. Grainger, Inc. v. N.L.R.B., 582 F.2d 1118, 1121 (7th Cir. 1978), citing N.L.R.B. v. Gerald G. Gogin d/b/a Gogin Trucking, 575 F.2d 596, 602 (7th Cir.). Not only do the disciplinary files in evidence bespeak a brand of procedural fairness not applied to Bolding, but they also suggest that the conduct of which Bolding was found guilty would not usually, taking all circum- stances into account, have resulted in permanent termina- tion. Bolding was thought to have grabbed another em- ployee by the collar and later uttered an unspecified threat against "somebody." The records admitted at hearing disclose no precisely parallel situation. While it seems clear that Respondent has consistently cracked down on "fighting," a "grab" is not necessarily a fight; as Marks, the foreman of maintenence and security, testi- fied, he does not bother to file reports "lots of times, you 45 Although Wingfield believed that it was Marks who told him to write out a statement for Miller. Marks said he had not given such an instruction. I believe that it was Ozbey who told both Wingfield and De- catur to prepare the statements, as Ozbey indicated at the hearing. take a couple of men out there throwing an arm or a shoulder or just grabbing each other, petty stuff." The pattern of discipline revealed by the evidence dis- plays a general flexibility over the years even as to em- ployees who had participated in a fight. Thus, in March 1970, employee Bell was fired for fighting, with the pro- viso that Respondent "would consider for reemployment at some future date;" Bell was rehired in July, the super- visor noting that he "had a long talk with this man and he is ready to come back to work and do a good job for us." Bolding was given no second chance. In 1972, em- ployee Riner, in a prolonged incident which moved from room to room, "grabbed David May at the collar of his shirt," "pushed D. May against the table," and "struck D. May in the mouth." Riner was offered a job on the night shift "because of his long service instead of firing him." While other employees have been flatly terminated for fighting either the incident has been egregious or ref- erence has been made to aggravating circumstances ("her lateness and absenteeism is a problem," "has been a trou- blemaker in the past;" employee "appeared to be drunk on the job"). Against this background, it is difficult to believe that an obviously useful and respected employee like Bolding would have been terminated permanently in other circumstances in which Respondent in good faith believed him guilty of the charges made by Wingfield. The injudicious haste with which Bolding was expelled suggests an ulterior motive. That even Forshee thought that the assertions made by Wingfield might not ordinarily be enough is indicated by his testimony that discharge was dictated because: [I]t had got to the point where enough was enough. It was just an increasing type of activity of this nature that had reached a proportion where it shouldn't have been tolerated further. Forshee referred here to the evidence of harassment and vandalism by unknown persons whom he assumed to be supporters of the Union. His statement says to me that Bolding was terminated not so much for abstractly im- proper employee behavior as for conduct that represent- ed the "type of activity" which Forshee had thus far been helpless to retaliate against. The implication is that Forshee needed a target for reprisal and that if the con- tretemps between Bolding and Wingfield had concerned some private matter, Bolding would have received a dif- ferent sort of consideration. In my view, a discharge de- cision so grounded, without more, would be violative, since it would inject into the deliberation about the liabil- ity and punishment of a union supporter the suspected sins of other union supporters. Aside from that theory of the case, however, which the General Counsel does not advance, I am persuaded that the evidence reasonably supports the inference that Respondent was so anxious to find Bolding guilty of the conduct charged against him that, contrary to its routine practice, it strained to avoid any possibility of exculpat- ing him or reducing his punishment. I can only conclude that it did so because of what appeared to be a fortunate opportunity to eliminate a front-line union adherent. I further believe that had Respondent not perceived Bold- 588 GORDONSVILLE INDUSTRIES, INC. ing as an enemy, rather than a valued employee, he likely would be employed by Respondent today. This is "discrimination . . . to . . . discourage membership" in a union, as proscribed by Section 8(a)(3). IV. 'tHE AlL.E(iF.D 8(a)(5) VIOI.ATION The complaint alleges that by its refusal to honor the Union's September 23 demand for recognition, Respond- ent violated Section 8(a)(5), and that, because Respond- ent's commission of unfair labor practices rendered un- likely the possibility of holding a fair election, the appro- priate remedy for those unfair labor practices is an order which requires Respondent to bargain with the Union. .L.R.B. v. Gissel Packing Co., supra, 395 U.S. at 610- 613, authorizes the entry of such an order in appropriate circumstances. A. The Composition of the Unit: the Challenged Ballots Prerequisite to issuance of a bargaining order is a find- ing that the Union represented a majority of employees in an appropriate bargaining unit "at one point," Gissel, supra, 395 U.S. at 614. 4 6 The answer agrees with the complaint that an appropriate unit consists of: All production and maintenance employees em- ployed by Respondent at its Gordonsville, Virginia, location, but excluding office clerical employees, guards, professional employees, and supervisors as defined in the Act. Whether, as the complaint also asserts, the Union has, since September 23, 1977, by virtue of authorization cards secured by the Union from employees, been desig- nated by a majority of employees in that unit as their collective-bargaining representative, is seriously disputed by Respondent. The first dimension to be determined is the size of the appropriate bargaining unit at relevant times. The Gener- al Counsel considers September 26 as the first "critical date," characterizing it is the day on which Respondent refused to agree to recognize the Union. The letter refus- ing recognition was dated September 27; nonetheless, it would appear, from Trading Port, Inc., 219 NLRB 298, 301 (1975), that a bargaining obligation could begin as of September when the Union had made its demand and when Respondent, by its employee survey, "embarked on a clear course of unlawful conduct." See First Lake- wood Associates, Limited Partnership, et al., 231 NLRB 463, 464, 475 (1977). It is further appropriate to consider the Union's demand and Respondent's refusal as "con- tinuing," thus permitting consideration of those authori- zation cards signed on and after September 26 (with, of course, adjustment for changes in the composition of the unit), Schwab Foods, Inc., d/b/a Scotts IGA Foodliner, 223 NLRB 394, 413. Because of limitations of the evidence presented, the General Counsel, "for ease of proof," would terminate the continuance of the demand on Oc- tober 16. 4' The Board has so construed Gisrel and the Act. United Dairy Farm- ers Cooperaiv Asociation, 242 NLRB 1026 (1979) The parties have stipulated to several lists of employ- ees who were concededly in the appropriate unit from September 19 to October 16, totaling 315 on September 2647 and declining to 305 by October 16. The only other potentially includable employees for this period are 18 employees who were on the payroll in the relevant period and thereafter, who voted in the December 6 election, but whose eligibility as members of the bargain- ing unit is controverted. As indicated light-years earlier in this Decision, the Regional Director consolidated for hearing with these complaint cases certain issues arising out of the election, including the resolution of challenges to votes cast in the December election by 25 persons. One of those votes was cast by Stephen Bolding; since I have concluded that he was unlawfully discharged, his ballot should be opened and counted. Atlantic Foundry and Patter Corpo- ration, 192 NLRB 745, 749 (1971). At the hearing, the parties agreed that six of the challenges, including that made to the ballot cast by Nancy McDaniel, should be sustained. That leaves for determination the eligibility of 18 voters. Since all 18 were on the payroll in September and October, their status also affects the size of the bar- gaining unit at that time. Accordingly, in order to re- solve the threshold question of the size of the unit, it seems logical to discuss the challenged ballots at this point. The General Counsel's brief takes the inviting course of disposing of all 18 challenges in a sentence: "For the purposes of argument, the General Counsel contends that all those employees whose community of interests was litigated in the Charging Party's challenge case are ineli- gible." Of course, the status of these 18 individuals, as explained above, is material not only to "the Charging Party's challenge case," but also to the 8(a)(5) case. Re- spondent's brief is almost as succinct on these issues, con- tending that 15 of the challenges should be overruled, but conceding that I challenge, to the ballot of Patricia Hess, is valid. Although Respondent's brief fails to state a position on the ballots of Marilyn Dowdy and Regina Meeks, I will assume that it supports opening and count- ing them. The Charging Party, which filed the challenges to 17 of the 18 remaining ballots, 4 8 has addressed the issues at some length on brief. The considerable amount of testi- mony taken on the subject of unit placement will, regret- tably, require substantial summarization. I. Ray Carpenter, Jr. Ray Carpenter, Jr., has been employed by Respondent since 1961, in later years as an expert mechanic. As a result of the mutual interest by Respondent and the local school system in such a project, a vocational education program for industrial knitting was established, by agree- ment between the system and Respondent, for the school year beginning late August 1977, and Carpenter was as- 4 The total 298 as shown on G.C Exh 287 plus 17 (including William Carter, see note at bottom of GC Eh. 288) as derived from G C Exh 288 '4 The other challenge was filed by he Board's agent because the em- plo.ee's name was not on the eligibility list 589 DECISIONS OF NATIONAL LABlOR RELATIONS BOARD signed to teach the course. He signed a standard teaching contract with the system in the amount of $10,287 for a 10-month period and, around the same time reached agreement with Respondent for continued partial em- ployment with it at the rate of $3,713 annually. Carpenter and Respondent reached an understanding that during the school year, he is required to spend at least 10 hours per month working for Respondent, and to work full-time for Respondent during the school summer vacation. Carpenter testified that during the winter of 1977-78, he spent his monthly time at Re- spondent's facility primarily in consulting about items re- lating to his school work, but also in troubleshooting ma- chinery problems. During the summer of 1978, he was, as agreed, at the plant for 40 hours a week on what ap- pears to have been a freelancing basis which allowed his skills to be used to their best advantage. His seniority, in- surance entitlements, and other employment benefits were maintained throughout, and he has continued to appear on Respondent's payroll. Carpenter's ties to the bargaining unit are, I believe, sufficiently strong to warrant his inclusion. During the winter, he consistently spends at least 10 hours a month at the plant; during the summer months, he is present at the plant for 40 hours a week. Despite his somewhat un- usual status, I would conclude that Carpenter, a veteran employee, has maintained a continuing and ongoing rela- tionship with the bargaining unit and has a sufficient community of interests and identification with the other production employees to share in deciding whether or not they should be represented by a union. He is at least, as Respondent argues, "a regular seasonal employee with an expectation of continued employment." See Trans World Airlines, Inc., 211 NLRB 733, 734-735 (1974).4 " I do not find any substantial basis for excluding Car- penter on the alternatively proffered ground that he "has the authority to effectively recommend the hiring of pro- duction employees." His testimony indicates that Re- spondent has agreed to give a trial job to any of Carpen- ter's students who apply for work and, at best, he has volunteered advice to Respondent about the kind of work for which a student would be best suited. I would, therefore, consider Carpenter to be a unit em- ployee both in September and December 1977. His ballot should be opened and counted. 2. Alton Thomas Alton Thomas, who was a "mechanic supervisor" until 1973, was assigned then as an "R & D Mechanic" 5 to the research and development area, at an increase in pay. He works there now under Jim Spencer, who is "in charge of it," and with two mechanics named Carpenter and Peregoy (the latter still learning the trade). Thomas' testimony shows that he engages in physical labor, setting up new patterns and working out problems in old ones. While he probably gives instructions to Car- 49 I do not doubt that if the arrangement with the school system should come to an end. Carpenter would return to full-time employment with Respondent 0 C.P. Exh. 14 penter and Peregoy (his "helpers"), his testimony estab- lishes that Spencer makes the crucial decisions.5 ' Other testimony as to the special status of Thomas- that he is salaried and does not punch the timeclock,5 2 that he receives an hour for lunch, that he sporadically answers inquiries or receives instruction from his former supervisor in New York when Spencer is absent-does not suffice to establish that he is a statutory, supervisor. ': While the record shows, as Charging Party points out, a substantial disparity between the wages earned by Thomas and Peregoy in 1977 ($15,300 and $7,700),54 there is simply no basis in the other evidence more di- rectly relating to supervisory authority for a conclusion that Thomas possesses such authority. Davison-Paxon, a Division of R. H. Macy and Company, Inc., 180 NLRB 470, 471, fi. 4 (1969). Similarly, his special status as an expert experimental worker, and the privileges accorded him, are not so striking as to require a conclusion that his community of interests with other employees is negli- gible. Accordingly, I would conclude that Thomas should be counted within the bargaining unit for 8(a)(5) purposes, and that his ballot should be opened and counted. 3. Ellen Atkins, Annette Rogers, Patricia Hess, and Wanda Fotusky The unit description agreed upon prior to the election, and echoed in the complaint, specifically excludes "office clerical employees." The disputed placement issues left to be resolved primarily involve Charging Party's con- tention that the employees should be considered "office clericals" and Respondent's competing claim that they are "plant clericals." Historically, the Board has taken the position that while "office clericals" should normally be excluded from production units, Swifi & Company, 119 NLRB 1556, 1558 (1958), workers who perform clerical duties in close association with the production process are in- cluded in production units, usually under the rubric of "plant clericals." Goodman Mfg. Co., 58 NLRB 531, 533 (1944). The Court of Appeals for the Ninth Circuit re- cently opined, "The line between plant and office cleri- cal is faint; sometimes it disappears." Pacific Southwest Airlines v. N.L.R.B., 587 F.2d 1032, 1041 (9th Cir. 1978). It might be added, after a review of some of the cases, that the determination is occasionally as much visceral as cerebal, with the guiding criterion, of necessity, being no more specific than that set out by the Board in The F. & M. Schaefer Brewing Co., 198 NLRB 323, 326 (1972): "Clerical employees may be included in a unit of produc- 5' The fact that Carpenter considers himself "in charge" of Carpenter and Peregoy on the rare occasions that Spencer is not in the plant is of little consequence. 52 The fact that employees are salaried is not necessarily a material dis- tinction between them and hourly paid production employees. Libbey Glass Division. Owvens-lllinois. Inc., 211 NLRB 939, 940-941 (1974). : The testimony discloses that Thomas and Peregoy have only four common hours of working time Thomas works from 6 am to 4 p m., Peregoy from 12 p.m. to 10 p m 14 Thomas, in 1977. was 42 years old and had worked for Respondent since 1963; Peregoy was 21 years old and had orked for Respondent since 1976 590 GORDONSVILL E INDUSTRIES, INC. tion and maintenance employees where they enjoy inter- ests and working conditions similar to those of produc- tion and maintenance employees.5' Respondent's facilities consist of three plants (Mills A, E, and W); the largest plant, and the one in which all the remaining disputed employees save one are located, is Mill A. Within the four walls of Mill A are located pro- duction and maintenance employees and clerical emplo- ees, all on ground level with the exception of certain em- ployees officed in a mezzanine-like structure deep within the mill, as hereafter, discussed. The general offices of the plant are located next to the front entrance of Mill A. although the record says little about them. We do know that the production control of- fices, in which Nancy McDaniel used to work with four other clericals, are situated there: we also know that those five employees have been stipulated by the parties to be "office clericals." There is also an "IBM computer room" in Mill A. Gary Miller referred to people "in- volved in accounting, general administrative functions, data processing and those people involved in general management." Bolding testified that some 8-10 secretari- al workers are located in the front offices. The employ- ees who remain in dispute work in offices and rooms scattered throughout what can be thought of as the pro- duction areas of the plants. It is a recurring theme of the Charging Party's brief that because the production control clericals are agreed to be office clericals; because there is some occasional contact and similarity in working conditions between these employees and the remaining disputed employees; and because some of the contested employees exercise secretarial or filing skills, the latter should more appro- priately be grouped with the excluded production con- trol employees than with the bargaining unit employees. Boeing Vertol Company, 233 NLRB 866 (1977), cited in support, found certain employees to be office, not plant, clericals, but only on a showing that they "share[d] a strong community of interests" with other employees stipulated to be office clericals. Speaking generally, no such "strong" relationship between the production con- trol employees and those hereafter discussed has been demonstrated here. Certain ingredients predominate in Board decisions finding employees to be plant, rather than office, cleri- cals, despite the existence of factors which might point the other way. The indispensable and conclusive element is that the asserted plant clericals "perform functions closely allied to the production process or to the daily operations of the production facilities at which they work." Fisher Controls Company, 192 NLRB 514 (1971). Normally, plant clericals spend all or most of their working time in the plant production area. Normally, they are involved in the production process itself: for ex- ample, an employee who works in the production area requisitioning parts needed by production employees is a plant clerical; an employee who fills out forms in the billing department located in the administrative offices is .S Compare Pacific Sourhwe*t i.4rlne, upra at 1040 "in reviewing the Board's determination, e focus the issue more preciselt by simply asking: Do these employees share a ufficient community of interest .ilh production w orkers to justif a ingle unit?" an office clerical. See Raytee Company, 228 NLRB 646, 647 (1977). The fact that clerical employees exercise sec- retarial skills and are classified as "secretaries," "stenog- raphers," or "clerk-typists." is no obstacle to finding them to be plant clericals, given other factors which tie them to the production process and other production employees. Swift & Company .supra, 119 NLRB at 1567; We'perlrhauser Company, 173 NLRB 1170, 1171, fn. 8 (1968). For other cases which have general application to one or more of the employees hereafter discussed, see iking of Minneapolis, Divisionr of The Telex Corporation, 171 NLRB 1155, 1160 (1968): John S. Barnes Corporation, 180 NLRB 911, 931 (1970); United States Postal Serice, 200 NLRB 1143, 1146-47 (1972): United Telephone Com- paniy of Ohio, 205 NLRB 664, 665 (1973); AIL, a Division of Cutler-Hammer, Inc.. 214 NLRB 203, 204, 208 (1974); The Baptist Memorial ttospital, 225 NLRB 1165, 1167 68 (1976); C & T Manufacturing Company, 233 NLRB 1430, 1439 (1977). The contested employees described hereafter received the same fringe benefits and were on the same pay schedule as the production employees; as far as the record shows, the only distinctive working condition for some of them as opposed to the production employees, invol ed their lunch periods and rest breaks, as noted below. Ellen Atkins, Patricia Hess, Annette Rogers, and Wanda Fotusky worked in a closed second-floor struc- ture built over the dyer's office in the dyehouse area, lo- cated near the back wall of Mill A and a few hundred feet from the front offices. The superintendent of dyeing and finishing, Charles Arruda, was located in the same area, as were other "management people." The office was open from 6 a.m. to 10 p.m., to coincide with two shifts, and the four employees worked different shifts. They punched the timeclock. Atkins spent 2 days a week typing and filing for Arruda, and the other 3 days in making batch cards, filing folders, and doing whatever typing was required by Arruda or other management officials. It would appear that, generally speaking, the primary function of the four employees was making up batch cards, which contained the formula for the dye to be put in a given order. Once batch cards were made up, they would be taken downstairs to the dye office or dropped in a chute into that office. A December 12, 1977, memorandum from Arruda to the personnel office requesting a reclassification of Atkins from Clerical A to Secretary Junior, states that she "is currently doing the duties of a secretary," noting that she "takes frequent shorthand, does typing, sorts through my mail, handles confidential information and takes care of my personnel files." The latter references were, Atkins testified, to her duties of typing for Arruda memorandums dealing with employee disciplinary prob- lems, once or twice every 2 weeks. Although Atkins would leave her office three or four times a day to go to the front offices, to the quality con- trol area, or elsewhere in the plant, she went onto the dyehouse floor only "maybe once or twice a week" for 5 minutes per visit, perhaps to talk to an employee about a 591 DECISIONS OF NATIONAL LABOR RELATIONS BOARD batch card. Apparently, in making these visits, she spoke primarily to the batching foreman. She was in occasional telephonic communication with other areas, normally speaking to a management representative. Unlike the production employees, Atkins was allowed a full hour for lunch, and, also distinctively, was permitted to take her two 10-minute breaks when she wished.5 6 Patricia Hess spent her time making up batch cards for the dyers and doing some filing. She left the upstairs office only to go to the downstairs office of the dyers to do filing and, once a day, to go to the front office to pick up mail. She took a 20-minute dinner break in the dyehouse office when convenient, 57 and had one un- scheduled 10-minute rest break. Hess, who had begun work for Respondent only in June 1977, testified that she did not "know any of the people on the floor." On November 3, 1977, Hess presented Arruda with a letter stating that she would be "leaving as of November 18 to assume position of a new job." She began to work for her new employer on November 18, but, having "volunteered to stay until the new girl was trained," Hess also continued to work 3 hours a day for Respond- ent; after Wanda Fotusky had completed the training of the replacement, Hess finally terminated, around mid-De- cember. Wanda Fotusky testified that she is the "senior cleri- cal" in the dyehouse office, under the supervision of Arruda. In the office she calculates dye formulas accord- ing to the weight of the lot involved, files formula cards, answers the phone, assigns numbers to new colors, and processes rejections. She leaves the office perhaps twice a day to obtain samples, and four or five times a day to give messages to employees. She takes a 20-minute lunch and two 10-minute breaks. The Charging Party attempted, inter alia, to demon- strate that Fotusky is a statutory supervisor, and, in doing so, introduced some documents signed by her. Fo- tusky's name appears on employee evaluations which state that they are "to be completed by foreman on any change of rate." The forms contain a paragraph of sub- jective and conclusionary comments about the employee, as well as a numerical rating of the employee on each of 10 attributes. Fotusky's name is signed under the heading "Approvals" and next to the blank marked "Foreman;" subsequent signatures include that of Arruda and the plant manager. Fotusky testified that she fills out these forms because Arruda asks her to; she works a split shift and therefore knows the rated employees better than he does. She also stated that she does not fill these out rou- tinely, but only when Arruda hands her a form. Fotusky's signature also appears, in a box marked "Su- pervisor/Foreman," on a leave of absence request filed by an employee in August 1977. She explained that Arruda asks her "to train girls or go over things with them," and "this was the only place there was to sign." She also noted that Arruda had her sign the form "be- 56 According to Miller, nonclerical, nonmaintenance. and nonsupervi- sory employees receive either 20 or 30 minutes for lunch and do not leave the plant. Nancy McDaniel testified that the maintenance shop me- chanics receive "a half an hour or hour, whichever they want to take" 57 Hess was on a 2-10 p m. shift. cause I would be taking over more or less all of her duties while she was off." Fotusky also signed some records of phoned-in absen- tee reports in a space denoted "Supervisor's Signature," but other testimony by Wanda Lamb makes it appear, as Fotusky testified, that any employee who takes such a call would employ a similar procedure. The record is relatively silent as to Annette Rogers. Atkins testified that Rogers prepared "submits"-patches of dyed material-and took them to the quality control area, made up batch cards, filed, and answered the tele- phone. It seems clear that Atkins, Fotusky, Hess, and Rogers fall within the mainstream of the Board's plant clerical classification. They work in a production area and, al- though they do not seem to have substantial contact with other production employees, they contribute directly and meaningfully to the production process by making up the batch cards. Atkins testified that their location in the production area was "important" because of the frequent immediacy of the need for the batch cards, in which minutes could make a difference. They are under the su- pervision of Arruda, who also supervises unit employees. Atkins is more of an office clerical than the others, but not enough, I think, to warrant treating her differently. The Charging Party contends that she is a confidential employee because she occasionally typed memoranda about "disciplinary problems of employees" and did some filing in employee personnel files; the evidence on this point, however, is too unspecific to permit a finding that Atkins "assist[ed] in a confidential capacity to per- sons who formulate, determine, and effectuate manage- ment policies in the field of labor relations," The B. F. Goodrich Company, 115 NLRB 722, 724 (1956). There no showing that the memoranda or the materials filed were intended to be confidential or, indeed, that superintend- ent Arruda exercised any of the enumerated functions. 58 The Board has held, for instance, that the mere typing of material relating to grievances is insufficient to render an employee confidential. Weyerhaeuser Company, 173 NLRB 1170, 1173 (1968); ITT Grinnell Corporation, 212 NLRB 734 (1974). It has recently stated that an employ- ee's "access to confidential information, some of it relat- ing to labor relations, or her having typed the above-de- scribed [evaluations of employees, etc.] documents," did not a confidential employee make. Los Angeles New Hos- pital, 244 NLRB 960 (1979). Furthermore, unless the duties of an employee are concerned with labor relations at a level higher than departmental, a fact not established here, the Board will not consider the employee to be a confidential. Swift & Company, supra, 119 NLRB at 1567. Nor do I agree with the argument that Fotusky was a supervisor of the other three clericals. Her hours, for one thing, did not correspond to theirs. I glean from the record that she was an experienced employee (13 years as of 1978) who gave routine guidance and set routine priorities for the younger employees. The evidence most 5" I do not believe that Arruda's conclusionary description of Atkins' duties in his December 1977 memorandum attempting to secure a promo- tion for Atkins adequately establishes that she was a confidential employ- ee within the Board's definition 592 GORDONSVILLE INDUSTRIES, INC. suggestive of supervisory authority within the meaning of Section 2(11) were the evaluations on employee rate changes signed by Fotusky at Arruda's occasional re- quest, but I think the fact that she only made them out when asked indicates that Arruda looked to her familiar- ity with the employees for assistance rather than as a recognition of her status. Hess, as Respondent concedes, was not entitled to vote in the election. On the foregoing findings, however, she should be counted as a unit member in September and October. The other three employees were members of the unit then, and, as well, their ballots cast in December should be opened and counted. 4. Carol Bennett Carol Bennett is the only lab technician in the dye- house area on the second floor, located near the office in which the dye house clericals work. At the relevant times, the only other employee in the lab was Ben Bruner, the lab supervisor, who trained Ben- nett to perform her duties of mixing dyes and sample dyeing new colors. Her job takes her to the production area "every day" to cut samples and get chemicals and dyes, located in different storage areas. Bennett's time in the laboratory amounts to about 80 percent, and other "people" come in occasionally. She gets 20 minutes for lunch, which she takes when convenient and which she usually spends in the dyehouse office with "the clerical girls," and she takes her breaks (which may range up to 2 hours, depending on her work) in the lab. During the relevant period, she spent an hour or two per week oper- ating the mill switchboard. Bennett punches out for lunch only if she leaves the plant; if she does not do so, a matter of discretion, she is paid overtime, unlike regular production employees. Certain characteristics of her work routine ally Ben- nett with the office clericals and others do not. Howev- er, because of the manual nature of her work and the fact that she spends the equivalent of I full day per week on the production floor in various areas of the plant, I find it difficult to consider her an "office clerical." I con- clude that she should be placed in the bargaining unit and that her ballot should be opened and counted. 5. Beverly Robertson, Patricia Knowles, and Linda Perkins Robertson, Knowles, and Perkins perform clerical work in the quality control area. The department is an isolated area in the rear of the plant, surrounded by walls which also enclose the adjacent testing department. The immediate supervisor of the 3 employees is Dennis Tomlinson. 59 Robertson spends "at least 90 per- cent" of her time in the office area, primarily engaged in typing letters, reports, and memoranda, including em- ployee "disciplinary reports," for Tomlinson and for sal- aried personnel located in the nearby research and devel- opment trailer; answering the phone; and filling out pro- 59 While Robertson testified that Tomlinson "doesn't supervise any other areas" but her own. Sherry Hall, a testroom employee discussed infra, testified that Tomlinson is "oser the test room area" but not "over any other area" that she knows of duction reports. Her time away from the office is, in part, spent in collecting mail from the front office in the morning, and distributing it to her own area, to the people in the trailer, and to personnel in the sample de- partment; the latter takes "just a couple minutes." She also occasionally (some weeks, every day) walks to the greige lace warehouse area to see whether certain goods have arrived and, in doing so, may speak to the ware- house supervisor or an employee, for periods ranging from a few seconds to 15-20 minutes. She also does busi- ness with the front office. Robertson, Perkins, and Knowles are in communica- tion with the challenged employees in the adjacent test- ing room (Smith, Dowdy, Hall, and Durrer), who are in the area of the former employees "all the time," looking for folders and such; Robertson also goes into the testing room on various missions, and orders supplies for that room. During the relevant periods, Robertson worked on the switchboard on a prearranged basis. Robertson, Knowles, and Perkins are allowed 60 min- utes for lunch; when they choose not to leave the plant, they eat in their office rather than the canteen used by production employees. They have 2 scheduled 10-minute breaks. Knowles is in charge of the "finishing desk," checking against standards the finish on orders. While she occa- sionally leaves her desk to help look for lost goods or to go to the front office to deliver copies, she stays in the quality control office "at least 90 percent, if not more" of her time. When goods have been tested, Knowles, using folders received from the testing room, "writes up an evaluation sheet and . . . put[s] certain results and all the information about the dye order that New York needs to know." With this evaluation, she dispatches a sample of goods to New York for comment. Knowles also does filing. Perkins is in charge of the "color desk," comparing shades of color to standards. She "does a lot of her work over the phone," speaking with other people in the plant or in New York. If a color is off, Perkins writes a rejec- tion slip which goes to data systems. Perkins also attends meetings with managerial personnel about rejected fab- rics and occasionally goes to the dye house to place orders in a basket or to locate a missing standard. Per- kins sends cards to New York and to customers, and also files. Although their duties vary somewhat, as a whole it seems to me that these three employees should be con- sidered essentially production clericals. They work in the production area and are in contact with employees found here to be production employees. Their primary func- tions clearly contribute directly to the production proc- ess. I would include them in the unit and also count their ballots. Risdon Manufacturing Company, Inc., 195 NLRB 579, 581 (1972). 6. Sherry Hall, Virginia Durrer, Frances Smith, and Marilyn Dowdy Four more employees work in the quality control area, in the testing room adjacent to the office in which Rob- ertson, Knowles, and Perkins are located. Hall, Durrer, 593 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Smith, and Dowdy perform testing of various kinds of fabrics, such as measuring width, counting stitches, wash testing, hand stretching, "I-P 4" testing (cutting two loops, sewing them together and stretching them on a machine), and drop testing (which also involves cutting a loop in fabric and testing it on a machine). Materials for testing are received in the testing room through a small window. Two of the employees who work from 8 a.m. to 5 p.m. receive an hour for lunch; the other two, whose hours are 6 a.m. to 2 p.m., have a 20-minute lunch. Hall testified that the four of them probably do not leave the testing room on business more than once a month. Mobil Chemical Company, 70 LRRM 1187, a decision by a Regional Director, tends to support the Charging Party's contention that these testers should not be includ- ed in the bargaining unit; there, however, the quality control technicians resembled laboratory technicians whom the parties had agreed to exclude from the unit. Here, the testers have little contact with, and little simi- larity to, the office clerical employees. They perform simple, easily learned manual functions. They could not readily be deemed "office clericals." So far as I can see, there is materially little difference between these quality control employees and those included in the production and maintenance unit in Ambrosia Chocolate Division of W. R. Grace & Company, 202 NLRB 788 (1973). In view of their many similarities to production workers, I would consider it appropriate to include them in the unit and to count their ballots. 7. Wanda Lamb, Brenda Still, and Regina Meeks Wanda Lamb and Brenda Still work in a small group of offices off the knitting production floor together with three "supervisors" Spencer, the knitting superintendent, Hawkins, his assistant, and Skipper, engaged in quality control. Lamb, classified as a "Clerical Senior" until around November, when she became a "Secretary Junior," is occupied with typing and filing reports and memorandums for the manager (including employee dis- ciplinary reports), with preparing defect reports, and with stamping production tickets with a rubber stamp. The latter function takes Lamb onto the production floor for 30-60 minutes a day, during which time she places labels and the production tickets on machines. Lamb goes to the front offices to "make copies, distribute mail, take something to the personnel department," and will occasionally go to the quality control department to make copies and take samples to be tested. For a total of about 3 weeks during two periods a year, she and Still work on the production floor, inventorying the contents of the machines by themselves. Lamb also fills out absence forms each day, having been given the name of the absentee and the assigned reason for absence by the three knitting shift foremen. Further, she does undefined "work" for the three fore- men and the beaming supervisor: "anything [they] would need. She and Still work from 8 until 5, and take 30 min- utes for lunch; Lamb usually leaves the plant to have lunch, Still does not. Neither takes breaks away from their desks, and apparently have no scheduled breaks. Lamb and Still substituted at the switchboard during the material times. Lamb knows the production employees on the knitting floor by name and talks to them during the day. According to Lamb, Still (either a "Clerical B" or a "Clerical Senior") does "some" typing, including person- nel memos, but her primary function seems to be making up production summaries and, like Lamb, stamping pro- duction tickets. Still may also place orders by phone for items with Mill W, although the record is unclear as to when Still assumed that function. Lamb testified that Regina Meeks (perhaps a "Clerical Senior") performs "generally the same work" at nearby Mill E as Lamb performs at Mill A; Lamb has helped Meeks with her work periodically. For reasons previously given, it seems to me that the three employees, who are located in the production area, who work with production employees, and some of whose work functions are directly integrated into the production process, are plant clericals within the intend- ment of prior cases, I would consider them to be unit employees in September and would count their Decem- ber ballots. 8. Alice Hensley Far back in Mill A, near the yarn storage area, Alice Hensley (a "Clerical Senior"), and the yarn purchaser, Jimmy Moswer, worked together in the yarn control office.6 0 Hensley did paper work in connection with the requisitioning and receipt of yarn. She also typed orders, reports, and memos for Moswer, sometimes taking short- hand, and she had phone conversations with sellers of yarn. She was required to go into the yarn rooms of Mill A and Mill W, when yarn employees are positioned, to check cases of yarn, looking elsewhere for them if she could not locate them there; this was sporadic, some- times taking 30 minutes a day, sometimes not necessary for a week. Hensley occasionally worked with knitting office employees to ascertain the location of warps, or asked a foreman to do so. She spent 30-60 minutes a day taking reports to the front office and running copies there. On occasion, when a loading employee was absent, she would go to the loading dock to ascertain the contents of a truck, and would ask the knitting foreman to assign an employee to unload. She also, periodically, ran a machine that makes a "stocking," and sometimes took the stocking to the dyehouse lab for testing. Hens- ley takes 1 hour for lunch, which she has at home, and takes no breaks as such. In view of the close relationship of Hensley to other production employees, her frequent contact with them as compared to other kinds of employees, her isolation from such other employees, and her occasional use of a ma- chine, I find it difficult to distinguish her from employee Coia, whose "stock control" functions constituted her a "plant clerical" in Esten Dyeing & Finishing Co., Inc., 219 NLRB 286, 287 (1975), or employee Bryant, whose simi- lar duties resulted in a similar finding in Wilson Wholesale Meat Company, Inc., 209 NLRB 222, 223 (1974). 1 would o" Her office has since been moved, and air-conditioning units put in its original place 594 GORI)ONSVILLE INDUSTRIES. INC therefore include her in the unit in September and count her December ballot. In summary, I would include Bolding and the 18 em- ployees discussed above in the unit for purposes of calcu- lating the size of the unit in September and October, and I would open and count all the ballots cast by them in the December 6 election except the one cast by Hess. B. The MajoritY Slatus of the ULnion The General Counsel and the Charging Party rely upon authorization cards signed by employees to demon- strate that the Union represented a majority of the em- ployees in the bargaining unit "at some point" on or after September 26. While the purpose of the cards is clear on their face, there was considerable litigation, of the usual sort, about their validity.fi The substantive challenge most often made to the va- lidity of the cards concerned representations made to signing employees by solicitors as to the use to which the cards would be put, with Respondent attempting to show that employees were misled into believing that the cards would simply be used to secure an election. With respect to attempts to so discredit cards, the Supreme Court and the Board have sanctioned a stiff test-a card will not be invalidated simply because, for some reason, the employee believed that its only purpose was to obtain an election; unambiguous cards will be vitiated only when an employee has been deceived, by words adequate to the purpose, into thinking that a card is something less than it purports to be. In NL.R.B. v. Gissel Packing Co.. supra, 395 U.S. at 606-607, the Court said: [W]e think it sufficient to point out that employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the lan- guage above his signature. In so holding, the Court brushed aside the assertedly invalidating impact of representations, made "jointly or singly," "(1) that the card would be used to get an elec- tion (2) that [the employee] had the right to vote either way, even though he signed the card (3) that the card would be kept secret and not shown to anybody except to the Board in order to get an election." 395 U.S. at 584, fn. 5. The second kind of representation would, I think, lend itself to an especially forceful argument that the employee might have been substantially misled; to tell an employee that he had the "right to vote either way, even though he signed the card," strongly implies both that there would be an election and that the em- ployee was making no commitment by signing the card. The fact that the Court considered this sort of statement ineffective to nullify a card thus indicates the weight to be given to the Court's words that the employees '6 The card reads, "I hereby accept membership in the Amalgamated Clothing and Textile Workers Union of my own free will and do hereby designate said Amalgamated Clothing and Textile Union as my repre- sentalive for the purposes of collectlive bargaining in respect to rates of pay, wages, hours of employment or other conditions of employment." "should be bound" by the language of the card unless it is "deliberately and clearly canceled." 62 The Board has continued to apply a standard that statements relating to the likelihood of an election are not incompatible with an underlying belief by the card- signer that he is authorizing a union to represent him. Essex Wire Corporation, 188 NLRB 397, 415 (1971) (em- ployee asked "what it meant if she signed" and was told "it was so that they could vote on the Union later on. this was just to bring it to a vote."); Hedstrom Company u Subsidiary of Brown Group. Inc, 223 NLRB 1409, 1410-11 (1976) (employee told that other employees "wanted to see if they could get the Union up for a vote" and "if there was enough of a percentage. then it would come up for a vote."); Keystone Pretzel Bakery, Inc., 242 NLRB 492 (union agent said cards would be used "for the purpose of bringing a federal election into the plant, and through this process . . . become the bar- gaining agent"). The courts have generally agreed with this approach: "But where the cards are, as here, unam- biguous on their face, the circumstances must show clearly and convincingly that they were secured through coercion or misrepresentation before they may be disre- garded." J. P. Stevens & Company. Inc., Gulistan Division v. L.R.B., 441 F.2d 514, 523 (5th Cir. 1971). It seems probable that an unarticulated factor in such decisions is an appreciation of the solemnity which would likely attend the signing by an average employee of a card which makes him, as this one does, a "member" of a union. 6' Another element to be consid- ered in judging testimony that an employee was misled was alluded to by the Supreme Court in Gissel Packing, 395 U.S. at 608: "We also accept the observation that employees are more likely than not, many months after a card drive and in response to questions by company counsel, to give testimony damaging to the union, par- ticularly where company officials have previously threat- ened reprisals for union activity in violation of Section 8(a)(1)." That employees might be so inclined is especial- ly indicated in this case, prompted as the employees would have been by the June 28 letters from President Gottlieb regarding their prospective testimony. Most of the testimony relating to references to an elec- tion by card solicitors passes the Gissel test. I feel con- strained to point out, however, that the Union, in my opinion, was unwittingly responsible for a good deal of unnecessary litigation and potential deception by origi- nally referring to the possibility of an election. Thus, or- ganizer Harold Bock testified that at the first formal meeting on September 18, he told the assembled employ- ees that the cards were authorizations and that, when a majority was secured, the Union would ask the Compa- ny for recognition; failing the grant of recognition, the 6'I base undertaken the analysis made below with an eye to the Court's caveat that "trial examiners should not neglect their obligation to ensure employee free choice by a too easy mechanical application of the [rule that cards will be counted unless the employee is told that the card will only be used for the purpose of obtaining an election] "395 U.S at 607-608 "' The testimony of Shirley Winkey bears wianess to this: "Everybody was talking about it. You couldn't help it. eerybody was wondering who as going It) sign the card and all " 595 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union intended to petition for an election. On balance, the likelihood for confusion arising from even the men- tion of an election to a group of untrained volunteer so- licitors, who then repeat these references to other em- ployees, is so great as to outweigh the informational value of such an allusion. It is simpler, and sufficient, to advise would-be solicitors that the card is an authoriza- tion card, and to let the matter go at that. Plainly, Bock's attempt to explain the ramifications of the procedures available for securing recognition caused some confusion in his core group, which became amplified further down the line. Aside from the claim that some employees were told that the cards had only an election purpose, Respondent argued other purported defects at the hearing, and refers fleetingly to some again in its brief. It is asserted, summa- rily, that 12 identified cards "may be invalid because of supervisory taint." I agree with the General Counsel and the Charging Party that Respondent has failed to estab- lish that any of the solicitors asserted by Respondent at the hearing to be statutory supervisors actually occupied that status. Four of the alleged supervisors-James John- son, Barry Pritchett, Helen Weakley, and Patricia Suter-attempted to vote in the December 6 election and were challenged by Board agents, since their names did not appear on the eligibility list. The Regional Director's report on objections states, as to these 4, and 35 other, challenges made by the Board agents, "By letter dated December 15, 1977, the Petitioner agreed to sustain the Board Agents' challenges for the purpose of reaching a determinative election here." The report goes on to say that the Employer takes the position that 33 of the chal- lenged voters (including the 4 referred to above) are su- pervisors within the meaning of the Act, and that since "neither the Employer nor the Petitioner contend that the 33 leadmen or foremen enumerated by the Employer are eligible voters, and there is no evidence that sustain- ing the challenges to these ballots would be contrary to the Act," these 33 challenges would be upheld. Such an administrative disposition of the challenged ballots does not have any effect on the question, in this complaint case, of whether the four individuals are su- pervisors whose solicitation of cards may have invalidat- ed those designations. Demonstrating that these employ- ees in fact are supervisory employees was Respondent's burden, and such evidence as there is on the supervisor status of the leadmen is insufficient to the task. The Charging Party's agreement in the representation case to sustain the Board agents' challenges "for the purpose of reaching a determinative election" may well have been reached in the pragmatic belief that a majority of the challenged group voted against the Union; the agree- ment, in any event, did not preclude the General Coun- sel from requiring Respondent to shoulder its normal burden. 64 e4 At any rate, not many employees had some connection with the four alleged supervisors in the matter of card-signing. James Johnson, called by one employee a "supervisor." by others a "foreman," and by another a "leadman," did not testify. There was little testimony about Johnson's duties. Emily Winkey, a supervisor, said that Johnson was a "foreman" in "charge of' the estimated 8-10 people "under him": he "made sure they knew what their duties were and how to perform their duties." As she described his work functions, they seemed the essence of It would be a fearsome and pointless task to analyze each and every one of the 215 cards admitted in evi- dence. I shall discuss below only those which appear to merit discussion. Failure to refer to cards as to which only one witness testified means that I have accepted that witness' testimony after considering any suspicious or unusual circumstances in the testimony of the witness. Failure to refer to cards as to which two witnesses have given conflicting testimony means that even if I were to give credence to the employee proffered for the purpose of proving a misrepresentation, his or her testimony would not, under the principles previously cited, cause invalidation of the card. On some of the cards, dates were entered by other persons. These cards bear a stamp of the Board Regional Office on their reverse sides. Organizer Bock testified that the cards collected as of September 27 were sent to the Board on that date, along with the petition for an election. The Board stamp shows that cards were re- ceived on September 29. The Board holds that such a leadman duties. Employee Carl Chandler testified that "Jimmy Johnson" "gave" him his card, but offered no other testimony about the transac- tion. Lewis Davis also received his card from Johnson, who said only, "Here's a union card if you want it." Carl Washington, whose card I am rejecting for another reason, testified that he received his card from Johnson after asking him for one; Washington did not work on Johnson's shift Clarence Sparks, whose card Johnson did not solicit, saw Johnson at "a couple" of union meetings at which Johnson was silent. The Board has held that where a "minor supervisor" "passed on" some cards, the conduct was insufficient to vitiate the cards. Aero Corporatrion, 149 NLRB 1283, 1286 (1964), Engineers & Fabricators, Inc., 156 NLRB 919, 943 (1966). See also N'L.R.B. v WKRG-TV, Inc.. 470 F.2d 1302, 1315 (5th Cir. 1973), holding that "[so long as nothing in the words, deeds, or at- mosphere of the alleged solicitation contains the seeds of potential repris- al. punishment or intimidation, the involvement of the supervisors does not rise to to the level of supervisory solicitation that we condemned in [a prior case]." Barry Pritchett was involved in the solicitation of 3 cards. Lorraine Cox said that Pritchett, a "leadman," told her that cards were being passed out, and she obtained one from another employee Pritchett solic- ited Michael Bell, a longtime friend; Bell did not know what Pritchett's job was. Aura Anderson got his card from Pritchett, who worked in a different building and who, so far as Anderson knew, just "ran a ma- chine " Patricia Suter was involved in the solicitation of cards from five em- ployees. Suter, who described herself as a "leadperson and a lace inspec- tor," gave the following testimony, and no more, as to the nature of her job: to "guide the people in my department, see that thqwork gets in and the work now gets out, and everybody is doing their job." There are 7 people in her department. Three of the five employees solicited by Suter testified that they did not recall whether they knew that Suter was a leadperson at the time of the solicitation. Suter's description of her duties does not indicate more than that she belonged to that group of "straw bosses, leadmen, set-up men, and other minor supervisory employees" which Congress did not intend to exclude from the Act, N.L.R.B. v. Se- curity Guard Service, Inc., 384 F.2d 143, 147 (5th Cir 1967), quoting from S. Rep. No. 105, 80th Cong., Ist Sess. 4 (1947), nor do I detect that she was viewed by employees as an agent of Respondent whose influence was considered significant. Finally, Helen Weakley, who passed out cards to two employees, de- scribed her job as follows: "I'm a lead warper, I run three machines, I have three people depending on me each day to advise them what to do on the job." She told the two employees to whom she handed cards that "if they liked to, they could sign." As with Suter, there is insufficient in- dication that the employees could reasonably have felt coerced by Weak- ley's approach to them. In sum, the evidence at best shows that the alleged supervisors "direct to some extent the activities of other employees in their department," au- thority found insufficient to constitute as supervisors the "working fore- men" referred to in Davison-Paxon, 180 NLRB 470, 471. fn 4. 596 GORDONSVILLE INDUSTRIES, INC. stamp, without more, establishes that the card was signed prior to the date indicated by the stamp. J. P. Stevens & Co., Inc., Gulistan Division, 179 NLRB 254, 278 (1972). 1 shall, of course, apply that rule in this case. 65 Mary Carter did not date her card (G.C. Exh. 33), which bears a date of September 19, but the Regional Office stamp of September 29 indicates that it was signed before September 29, and, as the General Counsel urges about a number of such cards, I will count it as such. For the same reason, I reach the same conclusion as to the cards executed by Jerry S. Chandler (G.C. Exh. 36), Michael Mitchell (G.C. Exh. 40 ), Dewey Shifflett (G.C. Exh. 41), Sylvia Snow (G.C. Exh. 48), Curtis J. Hunt (G.C. Exh. 65), Wayne B. Bryant (G.C. Exh. 70), David Douglas (G.C. Exh. 78), Harry B. Riner, Sr. (G.C. Exh. 91), Mary Marshall (G.C. Exh. 93), Burlynn Shipley (G.C. Exh. 96), Ronald Sacre (G.C. Exh. 101), William L. Richards (G.C. Exh. 11), Wilson Rollins, Jr. (G.C. Exh. 125), Vanard Hagins (G.C. Exh. 163), Ronnie W. Powell (G.C. Exh. 165), A. G. Perkinson (G.C. Exh. 168), Chester L. Lucas, Sr. (G.C. Exh. 169), Jeffrey H. Estes (G.C. Exh. 183), Wesley Simmons, Jr. (G.C. Exh. 210), Mervil Pritchette (G.C. Exh. 216), and James Greene (G.C. Exh. 259). The "principal argument" against the cards, in Re- spondent's view, is that many of them were authenticat- ed at the hearing by witnesses other than their signator- ies. Since there is no question where the Board stands on the propriety of such authentication, McEwen Manufac- turing Company and Washington Industries, Inc., 172 NLRB 990, 992 (1968); The Stride Rite Corporation, 228 NLRB 224, 234 (1977), and I am bound by the Board's position, I need not further consider the argument. I discuss below a number of cards which appear to warrant specific consideration. Della Carter testified that she signed G.C. Exh. 32 on September 22. The card, which she said she filled out, states that she worked in "Mill A," but she testified that she began working in "Mill E" in May 1977, and that she never worked in Mill A except "during the first and second week in July, during vacation" of an unidentified year. The card is filled with erasures, including an obvi- ous erasure on the signature line, none of which Carter could explain Despite mylmpression that Carter was an honest wit- ness, I am unable to conceive how a Mill E employee could have written on the card that she worked in Mill A. In all the given circumstances, I would not count the card of Della Carter as a conferral of agency authority in September. Michael Mitchell gave testimony authenticating nine cards (G.C. Exhs. 41-49) he had solicited. He testified that all (with the exception of Steven Robinson) the per- sons he solicited left him for a short time, and then, on the same day, returned and handed him signed cards. Despite Respondent's repeated objection to such testimo- ny by a solicitor who has not seen the act of signing, the Board has authorized this kind of authentication. 65 At the hearing, counsel for Respondent. in answer to my question. seemed to agree that the date stamp was probative of when the Regional Office received the card, and that "if not rebutted I would have to rely on it McEwen Manufacturing Company, supra, 172 NLRB at 992. It later developed, in Mitchell's testimony and that given subsequently by his uncle, that in fact his uncle had authorized Mitchell to fill in and sign a card for him. 66 There was, in addition, subsequent testimony by Sylvia Snow that she had gotten Virginia (or Jane or Jean) Morris to read her card (G.C. Exh. 48) to her be- cause Snow is illiterate, and authorized Morris to sign it for her, after which Morris returned the card to Mitch- ell, who had given it to Snow in the first place. Roger Snow, Sylvia's husband, testified that he had no dealings with Mitchell about his card (G.C. Exh. 47): he was home during that week in September, and "my wife called me and told me and I told her to get Jean Morris to sign it." Although the Snows seemed honest witnesses, their testimony does not materially detract from the very strong impression I had that Mitchell was a basically credible witness. Given that Mitchell, a somewhat limit- ed man, was testifying about the collection of cards some 10 months before, in circumstances in which "everybody was all scared and shook up because they thought they were going to get fired over all this," it does not surprise me that he might get the details confused. I think it appropriate to count the cards signed by the Snows. Sylvia, who could not read, testified that she "thought [the card] was for the company," and said that Morris read to her "off the card" that it "was more money and better benefits." Morris was not called to rebut this. Roger, who did not see the card, was told by his wife that "if we wanted more money and better bene- fits, sign it." He further testified, contradicting his wife's testimony that she thought it was "for the company," that she told him "it was a union card or for a union." I seriously doubt that Morris read the card to Sylvia Snow so as to say that the card stated "more money and better benefits." Roger's testimony discloses that his wife told him it was "for a union." I would count both cards, Syl- via's as of some time prior to September 29, and Roger's as of September 20. The card signed by Nancy Marks (G.C. Exh. 51) was accompanied by some very convoluted testimony as to when she signed it. Although Marks said that she signed on September 26, the date shown on the card, her testi- mony in explanation of a contradictory statement given to the General Counsel leads me to conclude that the date is unreliable. Since the date stamp on the back of the card is May 17, 1978, I shall not count it. The card (G.C. Exh. 72) purportedly signed by Shir- ley Berry shows that the date of signing (September 20) was changed and that an erroneous (by two digits) zip code is entered. Furthermore, I reach quite the opposite conclusion from the General Counsel's argument, surely made tongue-in-cheek, that the writing on the card "closely conform" to a handwriting specimen of Berry's. I would reject this card. Doris Berry said that she executed G.C. Exh. 75 on the date shown, September 20, but she also testified, ac- 'Ithis card was ultimately rejected for reasons that nearly beggar de- scriplion. at least in a footnote 597 DECISIONS OF NATIONAL ABOR REI.ATIONS BOARD cording to the transcript, which may be in error, or which she may have intended to clarify by her answer to the next question, that she did not "work there last Sep- tember." The symbol for the month shown on the card appears as a "9" scratched over what looks like a "2." The first name was written over an erasure; Berry testi- fied that this happened because she "misspelled" her name and started over. The card carries a Regional date stamp of September 29. Respondent expressed "no objec- tion" to the card. Despite these curious details, I am inclined to believe Berry's testimony. I think it obvious that she did work for Respondent in September; she said she "never know[s] dates;" and I too have had difficulty with scrib- bling the initial letters of my name on occasion. Berry was an extremely believable young woman. I would count the card. Carlton Dickerson, who cannot read or write, signed a card (G.C. Exh. 94) filled out for him by his brother. The difficulty I have here is timeliness- the card is dated "9-28" and the rear date stamp is May 17, 1978 (it would appear from this and some other cards that after sending in the first batch of cards in support of the elec- tion petition which reached the Regional Office on Sep- tember 29, the Union sent no more cards until May 1978). It does appear, however, that all the entries were made at the same time and by the same pen, and I would indulge a presumption that the date shown is accurate. Cato Show Printing Co., Inc., 219 NLRB 739, 756 (1975) (Cory). Harry B. Riner, Jr., signed General Counsel's Exhibit 98 on September 22. Among other things, Riner testified that union organizer Bock said at a meeting that "the only thing it was to do was to petition the National Labor Relations Board for the vote," although he subse- quently agreed that it was "possible" that Bock also said that the purpose of the cards was to have the Union rep- resent employees. It later developed in Riner's testimony that he had not heard Bock speak until after he signed the card, that the person who solicited his signature had said "it was, more than anything else, to petition the Na- tional Labor Relations Board about whether or not to have a union," and that Riner "skimmed" the card "half way" before signing it. Riner Jr. attended union meet- ings, passed out cards, and distributed leaflets. He became a "supervisor" on January 1. His nervous demea- nor, and the foregoing circumstances, lead me to believe that he misrepresented Bock's speech, although that issue is of no consequence in any event, since Riner did not hear Bock speak until he had signed the card. I consider the card to be valid. Similarly, I think that John R. Col- lins, testifying with respect to General Counsel's Exhibit 104, as discussed infra, mischaracterized Bock as saying that they "have to have an election before we could have a union." I am convinced that Bock would have made no such positive statement, although it certainly appears that Collins thought he had. Gregory G. Cooper testified that he executed General Counsel's Exhibit 112 at the instance of employee Curtis Pritchett on the street outside of his roominghouse. While Cooper did not fill in the date of September 20, he saw Pritchett do so. Cooper's testimony is in serious conflict with material contained in a May 11, 1978, affidavit given by Nancy McDaniel concerning her union activities. In that affida- vit, McDaniel states that, on September 20, she and her husband met in the Tastee Freez parking lot with James Johnson and several other employees Johnson had brought with him. Gregory Cooper was also there; about this, McDaniel had a clear recall. Although she first states that she saw Cooper sign a card that night, she later modifies this recollection: "I don't recall actually seeing Cooper put his signature on his card, but he got a card, we told him to read it, make sure to sign it, not print it, and date it, there were so many people there, I don't recall the exact details but I recall seeing him lean- ing on the hood of a car with a pen in his hand and a card. He gave the card to either me or James, 6 7 and I initialed it before I left the parking lot." General Coun- sel's Exhibit 112 bears the initials "N.M." Although McDaniel was not questioned about this portion of her affidavit, I can hardly ignore it. That there was only one "Gregory Cooper" in Respondent's employ at the time is attested to by General Counsel's Exhibit 287, a stipulated list of employees. I believe that Cooper lied about signing the card at the behest of Pritchett and that, instead, he signed in the Tastee Freez parking lot. This makes his authorization no less valid, however, unless the argument of supervi- sory taint by the presence of James Johnson is accepted. Because, as earlier stated, there has been no substantiated proof of the supervisory status of Johnson, I would not accept the contention. Michael A. Bell testified that Barry Pritchett, alleged by Respondent to be a supervisor, solicited General Counsel's Exhibit 117 on September 19. Bell's testimony that he did not know Pritchett's job title or work func- tion, other than that he "runs a machine" despite their friendship of 15 years and the fact that they see each other once a day, seemed incredible, although Bell was an extremely believable witness. 68 Nonetheless, the ab- sence of any substantive proof of Pritchett's supervisory status moots that issue. The card signed by Dwight Ferrell (G.C. Exh. 124) is dated October 25, and therefore cannot Ye counted, under the General Counsel's self-imposef limitations period expiring October 16. 69 A card signed by Rebecca C. Rogoll, in evidence as General Counsel's Exhibit 170, has been withdrawn by the General Counsel on brief. William Figgins authenticated 23 cards at the hearing, the largest number of any single solicitor. Despite the ef- forts of counsel for Respondent to shake Figgins' credi- bility, I remained persuaded that Figgins was one of the 7' This could be James Johnson, but it is more likely her husband In the affidavit. McDaniel occasionally refers to both ofr them as "James."' '" I note, however, that Peggy Taylor, a good witness, had no idea whether or not her olwn mother was a leadperson: "She's just my mother" This my be some evidence of the malaise purporiedly aflicting the Aork place. 9 Perhaps a happy circumstance for the General Counsel. Ferrell's printed signature on the card appears "Ferrelle:" when asked about the superfluous final "e." Ferrell testified. "I must have been in a hurry when I signed it " 598 GORDONSVILLE INDUSTRIES. INC. exceptionally impressive witnesses at the hearing. Very often, one finds witnesses credible because there is no particular reason for disbelieving them. Occasionally, however, a witness will convey a strong impression that they are being honest; Figgins was one of the latter. Mis- takes about the details of solicitation made by Figgins in a May 1978 affidavit to the Board were the kind anyone might make in describing two dozen acts of similar nature engaged in over a period of a few days some 8 months before the affidavit was given; at the hearing, Figgins noted that, after realizing the mistakes, he him- self had brought them to the attention of the General Counsel prior to the hearing. The errors were of the pe- ripheral sort that a less conscientious person, interested only in consistency, might have ignored. Figgins testified that, as a rule, he solicited signatures by asking other employees if they would like to be repre- sented by the Union, after which he would ask them to read the card. Respondent produced five card-signers whose cards Figgins had authenticated. Beatrice Bibb, saying it was "hard to remember exact words," testified that Figgins told her "[i]f we got enough cards signed, we would have an election and we would have a vote." However, she read the card before she signed it, and she subsequently testified that Figgins "probably" said that "they were trying to get the company to recognize the union."' Vanard Hagins said Figgins "told me that they were trying to get a union in, trying to get as many cards signed as they could so that they could get an elec- tion, and see about getting a union." He also asked Fig- gins, after reading the card, if it meant that "we be- longed to the union because that's what the card said," and Figgins replied that "right now it wasn't, it was to get an election and for charter members and if the union didn't come in, then we wouldn't be involved one way or the other." Maybelle Watson testified that she re- ceived her card from Figgins and Thurmond Dickerson, and that Dickerson had, an hour earlier, said to her, "they wanted to see if they had enough signatures to have a vote." She denied that Figgins asked if she "wanted to be represented by a union." Rebecca Rogoll testified that Figgins asked her if she would be interested in signing a card "to determine if there were enough sig- natures to contact a labor representative," telling her that the card "was not a binding contract." In his initial appearance, Figgins was not asked to detail his conversations with the employees he solicited, although there surely must have been some. Figgins ap- peared in rebuttal only to explain why he had not re- turned Rogoll's card upon request, as she had testified. While it is likely that, in the course of conversation with solicited employees, Figgins might have referred to the possibility of an election, which he did not disclaim at the hearing, it seems most probable that, as he testified, he also told the employees that the purpose of the card was to secure recognition. Thus, Iris Cowherd, called by Respondent to recount what a purported supervisor had told her about signing,7i also testified, on cross-examina- tion, that Figgins told her "the card was to represent the :' I note that ihh srigncd an attendance l ht at the Septemb r 25 unionll meeting 71 I find nothing coercile ilt the testimony of Cov,,herd lon this, core union, to get the union in for better benefits." I am in- clined to accept Figgins' testimony, as corroborated by Cowherd, that he told employees that the cards were de- signed to secure recognition; any references to an elec- tion, such as those described above, would not have viti- ated both the cards and Figgins' affirmative representa- tions under the applicable precedents. William Maxton authenticated General Counsel's Counsel's Exhibit 171 as his card. Two signature and writing samples in evidence disclose significant dissimi- larities between those samples and Maxton's card. While he testified that he signed the card on a machine which was vibrating, I do not believe that explanation can ac- count for the marked differences; I call the reader's at- tention to the word "Knitting," the letters "W" and "m" in the word "William," and the "x" in the word "Maxton." I would not count Maxton's card. The General Counsel, on brief, withdraws reliance on General Counsel's Exhibit 172, signed by Robert Trice, because it was not executed until November 4, subse- quent to the self-imposed cutoff date, and takes a similar position as to General Counsel's Exhibit 178, signed by Frankie Williams some time after October 16. I would not count as material the card (G.C. Exh. 176) executed by Carl Washington. The card bears a date of October 7 Washington did not fill in that date, and while he thought he signed the card "in October," he did not know whether it was early or late in the month. I do not think the proof establishes that Washington signed prior to the October 16 cutoff date. Everett J. Cromer (G.C. Exh. 189) and Ernest Ellis (G.C. Exh. 190) signed cards for James McDaniel in the Tastee Freez parking lot. Ernest's father, George Ellis, described by McDaniel as a "foreman," had come with his son. McDaniel testified that he arranged independent- ly with Cromer to meet there; although McDaniel also said that George Ellis had told him that "he would bring some of his men down to sign cards," the only one he brought was his son Ernest. Since Cromer confirmed that he and McDaniel had agreed to meet at the lot, there could have been no influence on Cromer by the al- leged supervisor George Ellis, whose authority is undis- closed by the record, nor on the younger Ellis, for the latter reason. A clash developed between James McDaniel and Luther Perkins (G.C. Exh. 191) as to whether Perkins signed his card at home or in the machine shop, and whether he signed immediately or waited a few days. Regardless of that issue, there can be no doubt, in view of the fact that Perkins says that he "thought about" signing for a "couple of days," that he fully intended to authorize the Union to represent him. James McDaniel authenticated a card signed by Rich- ard Cooper (G.C. Exh. 197). The card is dated October 3, but McDaniel did not recognize the writing of the date as his, nor did he know who filled in the date. 72 He recalled that he passed out this card after the "other ones [he] testified to" but, asked "how much after," at first said "I don't remember." While he did not "believe" it Ihe riting is clearl flot in Cooper's hand 599 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could have been as much as 2 months, "I don't remem- ber just exactly how long it was. It was possibly a week to two weeks, I don't know." In this context, and since the date stamp on the card is May 1978, 1 am not per- suaded that the card was signed by the cutoff date of October 16, and will not rely on it. After numerous unsuccessful attempts to subpena cer- tain witnesses, the General Counsel offered in evidence seven cards along with copies of W-4 forms executed by six of the employees. 7 This method of authentication has been approved by the Board, G. P. Putnam's Sons. Inc., et al., 226 NLRB 1256, 1268 (1976). The signature on General Counsel's Exhibit 254 ap- pears to be identical to the signature on the W-4 form executed by Raymond L. Miller. The date shown on the card, September 30, was obviously executed by the same hand. In Cato Show Printing Co., Inc., supra, 219 NLRB at 756, the Board affirmed a holding that, in such cir- cumstances, the card was "presumably signed on the date affixed to the card." I shall therefore count Miller's card as of September 30. Other than the "J" in the first name, the writing on the card marked as General Counsel's Exhibit 255, pur- portedly signed by James P. Franck, is strikingly similar to the specimen, including such characteristics as the slant of the writing and the numerals. Because my expe- rience is that people do alter the style of their signatures on occasion, I shall include Franck's card as of Septem- ber 21. General Counsel's Exhibit 256, dated September 23, bears the name of John Ellsworth. Ellsworth was termi- nated on September 30, and his personnel file could not be located. The General Counsel relies on Rene's, Inc., 202 NLRB 580, 583 (1973), where the Administrative Law Judge counted an unauthenticated card on the fol- lowing reasoning: "Since the card was in the possession of the [Union] and no evidence that either the signature or the date was not authentic was offered, I think a prima facie case of validity has been established . . . ." In the present case, however, since Ellsworth's personnel file was lost and since the General Counsel unsuccessful- ly served three subpenas on Ellsworth, I do not see how Respondent could have established the lack of authentic- ity of Ellsworth's signature without going to a good deal of trouble, such as searching city records, of the kind which the General Counsel did not choose to incur. I reject the card. The card for Kenny Eppard (G.C. Exh. 257) is suffi- ciently different from the W-4 form, both in signature style, numerals, and address (the W-4, dated August 5, 1977, gives the home address as "Quinque, Va."; the card, dated September 20, "Slandersville, Va."), as to lead me to reject it as unreliable. The distinctive signature of Ernest Collins on his W-4 form is replicated on General Counsel's Exhibit 258. 1 will include Collins' card as of the card date of Septem- ber 23. The card for James Greene (G.C. Exh. 259) bears a script signature totally unlike the printed signature on the proffered W-4 form. However, in the body of the 73 Respondent later produced an employes who had signed one of the cards, so the discussion hereafter concerns only the remaining six cards W-4 form, where the employee is instructed to "Type or print your full name," the name James Greene appears, defiantly, in script writing which is identical to the signa- ture on the card. I shall count the card. Since, however, the card date of September 21 was plainly written by an- other person, I shall consider that the card was signed some time before September 29, the date stamp on the reverse side. Several witnesses testified that they did not, or could not, read the cards which they signed. Failure or inabil- ity to read raises interesting questions. While, under Gissel Packing a representation that "the card is to get an election" is not considered to invalidate the card for the reason that the signer is deemed to have understood its broader purposes from having read it, that presumption is necessarily removed when the signer credibly testifies that he did not read it. Where he has not read the card, it may be argued that the statement "the card is to get an election" is fatal, since it would present the only purpose communicated to the nonreading signer. Additional legal distinctions might be drawn between literate nonreaders and illiterate ones (and perhaps between situations in which the solicitor is aware of a literacy problem and those in which he is not). Some cases indicate that where an employee has not read a card, the recitation to him of a single purpose constitutes a misleading representation of the whole of the card's purposes. Thus, in Jas. H. Matthews & Co., 149 NLRB 161, 162 (1964), the Board discounted a card be- cause the employee was "unable to read and he signed his card only because union adherents soliciting him, who did not read the card to him, told him that the pur- pose of the card was to bring about an election." "[S]igned his card only because," it should be noted, im- plies a finding of causality. In Trend Mills, Inc., 154 NLRB 143, 144 (1965), cards were held unreliable where the employees "did not read the cards, and authorized other employees to sign on their behalf after being told merely that the cards would be used to secure an elec- tion in the plant." Here, no causality is suggested; the representation seems to have been sufficient to invalidate. Trend Mills was applied in Yazoo Valley Electric Power Association, 163 NLRB 777, 783 (1967), to the card of an employee who could read "a little," but did not read the card he signed after having been told it "was for to get an election." The Trial Examiner ruled out the card, finding no evidence that the employee knew that it "might also constitute a designation of the Union as his bargaining representative." On the other hand, in Fabri- cators, Incorporated, 168 NLRB 140, 145, the Trial Exam- iner held an employee (Knaus) to his card, despite his testimony that he did not read the card and was told that its purpose was to "receive information on the union"; the Trial Examiner felt that to conclude that an employ- ee did not apprehend the effect of his act would be "either to downgrade his apparent intelligence or to charge him with irresponsibility." The same view was taken by the Trial Examiner in Essex Wire Corporation, 188 NLRB 397, 413-414. Perhaps the soundest approach, in the light of this somewhat conflicting authority, is the broad one of judg- 600 GORDONSVILLE INDUSTRIES, INC. ing the reliability of the cards "in the light of all the cir- cumstances surrounding their signing," Lorraine Urbauer d/b/a Kimmel's Shop Rite, 213 NLRB 440, 447 (1977), to determine whether the purpose of the cards was "ade- quately communicated," Ruby Concrete Company. 213 NLRB 724, 727 (1974). Thus, the Trial Examiner in Cen- tral Soya of Canton, Inc., 180 NLRB 546, 561-562 (1965), pointed out circumstances which made it clear that, de- spite their having failed to read the cards, the employees intended to authorize the union to represent them. That is the approach I shall use in the present case. Ernest A. Lettner, who signed General Counsel's Ex- hibit 29 on September 20, testified that he did not read the card before he signed it. He also said that the person to whom he returned the card said that "the purpose of the card was to see if there were enough people interest- ed in the union to hold meetings"; he then amplified this statement to "[t]o see if there is enough people interested in the union where they could hold meetings and have the election." Lettner did not, however, attribute any such explanation to the individual who gave him the card. Since Lettner signed what he certainly knew to be a "union card" with all that might entail, without any representations by the solicitor, it seems fair to regard such an act as a full-fledged authorization. Lorrox (G.C. Exh. 49) testified that she told another employee to sign a card for her after being asked by leadman Pritchett "how would I like the union to come in . . . maybe for more money and better benefits." She could not "remember whether [she] really" saw the card or not. I think the circumstances indicate that Cox in- tended to "vote" for the Union. Elizabeth Mitchell, who did not read General Coun- sel's Exhibit 53, was told "it was to represent the union. I would be represented by a union and there would be an election held." Since it was communicated to Mitchell that she would be "represented by a union," the subse- quent reference to an election would not seem to vitiate her understanding that she would be so "represented." Harry B. Riner, Sr., signed General Counsel's Exhibit 91, but did not read it. Initially, Riner said that the card was signed "to have somebody represent us in the union," and later "to see if we could get enough mem- bers to have a union to represent us," and still later "to get somebody to epresent us in a "union." While he re- ferred on cross to an election, he soon reverted to "them saying something for somebody to represent us, and the card that I was signing was to see whether or not enough people wanted to get one in." Since Riner Sr. had previously belonged to a union and specifically stopped at the home of another employee to pick up his card, I conclude, given all the circumstances, that the card should be counted. The cards solicited by John R. Collins give rise to dif- ficulties. Thus, Collins, although I think erroneously, tes- tified that organizer Bock said at the September 18 meet- ing that the card was "for the union and also for an elec- tion, you know." While the "purpose was to get a union organized," we "have to have an election before we could have a union." His pretrial affidavit had the union organizers telling the assembled employees on September 18 that the cards "were for the union, and to get the union in. They said they would like to have 51 percent of the people in the plant or a majority sign these cards before we could have an election for the union." It seems evident that Collins' ambivalent state of mind about the purpose of the cards could have caused him, depending on the circumstances, to refer only to an elec- tion objective in making subsequent solicitations. Collins testified that he told David Lamb (GC. Exh. 105) that the purpose of the card was "to get a union in the plant." Lamb, who can read "a little bit" but did not read the card, said Collins told him "[i]t was to get enough cards signed to have an election." A pretrial questionnaire filled out by Lamb, however, indicates that Lamb was told that the card was both for an election and to authorize the Union to represent him, and that he was not told it was only for an election. Lamb further confirmed Collins' testimony that Lamb had told him he thought there should be a "change" at the plant. I would consider the card valid. Collins testified that he told Jackson Lamb (G.C. Exh. 106), who cannot read or write, that the card "was for a union, and I would also like to have 51 percent to sign up to have an election." Lamb replied that "he would like to go along with getting a union in at the plant," and placed his X on the card. Jackson Lamb did not testify. Since he was told that the card "was for a union," I would think it should be counted. Wilson L. Rollins, Jr., signed General Counsel's Ex- hibit 125 at the behest of Mopey Williams, who first asked "would I like to have more money," and then told him that the card "means for a union to come in, maybe to get an election if we get enough signatures, and then you could join it later after it come in." Rollins did not read the card. Since Rollins was told that the card "means for a union to come in," I find that its purpose was sufficiently communicated to him Peggy Taylor testified that she signed General Coun- sel's Exhibit 177. At first, she said that she did not read the card "before [she] signed," but later, asked if she had signed as a favor to the solicitor, testified, "No, not really, I knew what it was, but then I did read the card." The second quoted passage seems to indicate that Taylor read the card immediately after she signed it. Taylor did not recall anyone saying anything to her about the card. Taylor thought that either her mother, Mary Morris, a leadperson, or leadperson Pat Suter gave her the card. Suter testified that she "think[s]" she gave Taylor the card, saying it "was to represent a union to come into the plant and have a vote," and Morris recalled Suter asking "if we would sign a card to have the Union repre- sent a vote." The notion of representation conveyed by Suter would probably be sufficient to validate the card, even in the absence of Taylor's apparently concurrent reading of the card before turning it in. Robert Smallwood testified that James McDaniel gave him General Counsel's Exhibit 188, saying it was "to see if we could have enough votes to get a union in, to see about getting one in." An honest but clearly uncertain witness, Smallwood also said that he did not read the card. Subsequently, he attributed to McDaniel the remark that they "[h]ad to get so many together before O01 DECISIONS OF NATIONAL LABOR RELATIONS BOARD you have the Labor Board to come in to have a vote or something." On rebuttal, McDaniel testified that he told Smallwood, as he told others, that "we were working to get a union in the plant to represent us . . . and we needed enough personnel to have an election to get the Union in to represent us and once we had enough people to get the election, then we would petition the Labor Board for the election. Then, after that, we needed 51 percent of the people to vote." Perhaps the line between this case and the preceding ones is imprecise, but it seems to me that the thrust of McDaniel's own testimony is that he held out a firm commitment of an election as the end result of signing a card. Since Smallwood did not read the card, this would be the only result of which he would be aware. It is un- likely that his signature can be considered a clearcut au- thorization of the Union, and I would reject it. As previously discussed, McDaniel also solicited a card from Everett J. Cromer (G.C. Exh. 189), telling him, according to McDaniel, the same sort of thing he told Smallwood. Cromer testified that he read the card "[t]he best I could with the flashlight, but not very much." 74 Cromer also at first testified that he remem- bered merely signing the card but, confronted with the card, agreed that all of the identifying information aside from the date was filled out by him. Cromer had been a union member 35 years before. I tend to believe that, even reading the card "not very much," he would have been aware of the printed pur- pose of the card; it does not take "very much" reading to accomplish that. 75 James Lam, who signed General Counsel's Exhibit 253, testified that a fellow employee "asked me would I sign a union card, a little blue card, to let the union come for a vote, so they could have an election." He filled in the card completely, but said that he did not read any of it other than the part designed for identifica- tion matter. Lam signed hastily: "The knitting foreman was coming up the aisle so I had to give him the card back." Lam seemed an honest witness, and I am inclined to believe that he did not read the card. Although he had previous- ly belonged to a Carpenter's local, his complete disavow- al of having read the card, and the total absence of evi- dence that any purpose was communicated to him other than the solicitor's request to "let the union come for a vote, so they could have an election," indicates that the card should be rejected, under the holding in Trend Mills, supra. A stipulation in evidence (G.C. Exh. 288, page marked September 30) shows that David Gallihugh terminated on September 29; his card (G.C. Exh. 27) would termi- nate with him on that date. Of the 215 cards in evidence, I have found above that 14 of them should not be counted, 5 for the reason that " The signing occurred at night in a parking lot. - I need not discuss the other cards passed out by McDaniel, since there is no evidence that the remaining employees solicited by him did not read the cards. I note that although McDaniel testified that he "told all of the employeesl pretty much the same thing" as he told Cromer. Luther Perkins (GC. Exh. 191), a witness for Respondent, testified that McDaniel's solicitation consisted only of "just ask[ing] what I thought about the union." they appear to have been executed after October 16. On September 26, 1977, there were 333 eligible employees in the bargaining unit (including the 18 challenged employ- ees here found entitled to vote). Without counting those 22 cards which bear various September dates but which, I have found above, should only be considered as having been signed some time before September 29, the date of the Regional Office stamp, the Union had secured by this time 165 valid cards, just short of a requisite majority of 167. 7fi As of September 27, however, when the unit (includ- ing the 18 challenges) had dropped to 331 as a result of terminations, the Union had obtained 5 more valid cards. It thus broke through to majority status (170 cards in a unit of 331) as of that date. While it is possible that a number of the 22 cards referred to above as not being subject to precise dating before September 29 were in fact signed on dates which would have given the Union a majority prior to September 27, on this analysis the first clear majority status was gained on September 27. By September 30, there were 327 employees in the unit, and there were 199 valid cards, including the 22 previously mentioned and excluding the card of Galli- hugh. Since, in the unit as composed on September 30, the Union required 164 valid cards for majority status, it surpassed that requirement by a margin of 35 cards. By October 3, when the unit consisted of 326 employees, the Union had a total of 201 valid cards, or a 37-card excess over a majority. Thus, the Union, "at some [material] point," Gissel Packing Company, supra, had obtained a clear majority of valid authorizations. It may be that there is a margin of error in my appraisal of the legitimacy of the cards; but even if I am wrong by as many as some 3 dozen cards, which seems unlikely, the Union would still have at- tained majority standing at an appropriate point. C. The Propriety of a Bargaining Order Remedy In the December 6, 1977, election, the tally of ballots indicated that the Union had won by I vote, 144-143. That count did not, of course, include the votes of the 18 employees which, I find, were entitled to be tallied. Since the Union opposes the counting of 17 of these bal- lots, it would not be rampant speculation to suppose that, when they are opened and counted, the Union's tentative victory will turn into defeat. By October 3, according to my calculations, the Union had secured 201 signed indications of majority support, representing about 61 percent of the complement. After the votes are finally counted in the December 6 election, however it may well be that the Union secured no more than 47 percent of the votes in that poll. What would account for the substantial loss of support for the Union? One factor could be a turnover in person- 76 The General Counsel's useful Appendix 11 to his brief contains a number of minor errors, such as placing Susan Carter's card as a Septem- ber 29 designation instead of the correct date of September 21, and indi- cating that Gregory Ellis' card was signed on October 6 rather than Sep- tember 27. I have appended hereto as Appendix A m own edition of that chronological listing of cards, incorporating the foregoing findings and making other minor changes in placement [Appendix A has been omitted from publication.] 602 GORDONSVILILE INDUSTRIES, INC. nel; there is no evidence on that score, but one might suppose that new employees would support the Union in roughly the same ratio as those who departed. Another factor, which Respondent would surely urge, is the per- suasive effect of its preelection campaign. The General Counsel and the Charging Party argue that the decrease in support was likely due to the unfair labor practices committed by Respondent beginning on September 26. They further argue that those violations, as compounded by the June 1978 wage increase, were of sufficient grav- ity to taint any election held after December 1977, and that, instead of ordering a new election now (or, after appeal, perhaps 2 or 3 years from now), it would be ap- propriate to order Respondent to bargain with the Union. In Gissel Packing Company, supra, 395 U.S. at 614-615, the Court approved the practice of issuing such remedial bargaining orders, upon a showing that at one time the union attained majority strength and a determination by the Board that "the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) 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." Whether Respondent past unfair practices are subject to neutralization by traditional re- mediation is a matter of some doubt. I have found above that soon after the inception of the union efforts, Respondent reacted by instituting a survey of employee attitudes which amounted to a promise to rectify grievances and thus erode employee support for the union, and that it thereafter delivered on its promise, not only by moving supervisors around, but also by giving magnanimous wage increases in December 1977 and again in June 1978. Along these same lines, Re- spondent also dramatically emphasized its role as the source of all benefits by declaring to employees, on the eve of the December 6 election, the existence of a profit- sharing plan which was both tenuous and completely un- known to the employees. These unfair labor practices had general application to all employees. Based on precedent, the wage increases alone would be sufficient predicate for a bargaining order, the Board holding that "[i]t is difficult to conceive of conduct more likely to convince employees that, with an important part of what they were seeking in hand, union representation might no longer be needed." Tower Enterprises, Inc., 182 NLRB 382, 387 (1970). Accord: Skaggs Drug Centers, Inc., 197 NLRB 1240 (1972); Hono- lulu Sporting Goods Co,. Ltd., 239 NLRB 1277 (1979). It seems clear that this group of unfair practices would im- press the Board as being beyond the curative powers of customary notice-posting, especially since the unlawful effects of the increases "cannot easily be erased, for the benefit remains in effect," Red Barn System, Inc., 224 NLRB 1586 (1976). As to the two postelection grants of benefits, moreover, one of them given only shortly before this hearing began, the words of the Board in Tipton Electric Company, and Professional Furniturc Com- pany, 242 NLRB 202, 203 (1979), are apposite: Here, the Respondents' postelection grant of bene- fits rewarded employees for rejecting a union which the Respondent had earlier portrayed as a divisive force which would destroy harmonious working reationships. It is a calculated application of the carrot and the stick to condition employee response to any union organizing effort and affords the Re- spondents an unlawfully acquired advantage in regard to a rerun election which cannot be cured by simply ordering them to mend their ways in the future and post a notice. The other unlawful acts earlier found would, I believe, tend to have a lingering coercive impact on the decision by employees whether to opt for the Union: the Septem- ber 26 threat to Nancy McDaniel of withholding direct relationships with employees in the event of a union vic- tory; the restriction of Bolding and McDaniel in Octo- ber; the threats to Baugher on October 22 that union leaders and Baugher would be eliminated; the threat of a plant shutdown, of employees being fired, of her hus- band's job being in jeopardy, of an anticipatory refusal to bargain, and the promise of benefits, made to Betty Fig- gins in October and November; the threat of discharge to himself and others, and the threat of blacklisting, made to William Figgins on October 17, and the unlaw- ful harrassment of Figgins prior to the election; the im- proper promises of benefit made to Dillon in November by Gehring and Gottlieb; and, of course, the wrongful discharge of Bolding, a premier union activist, in No- vember. In the Board's view, coercive statements take on a life of their own, in that they are apt to be repeated to other employees by the ones who hear them. General Stencils, Inc., 195 NLRB 1109, 1110 (1972), and cases cited at fn. 5. More concrete, however, is the fact that, as a result of this proceeding, which presumably will receive consider- able publicity at the plant, it has been and will be brought home, not only to 1977 employees but also to 1979 ones, that Respondent's agents manifested a willing- ness to violate the law in order to keep the Union out. 77 That knowledge would tend both to dampen the enthusi- asm of employees for the Union in the polling booth and to inhibit prudent employees from participating in the important work of preelection proselytizing for the Union. The abrupt disappearance of Bolding, a notable union adherent, from the payroll a month before the election has likely had a seriously sobering effect upon the employees; the potential of his reinstatement to work several years thereafter would not be a very consoling prospect to employees pondering whether to involve themselves in a renewed effort to elect the Union. The circumstances lead me to believe that a bargaining order would be appropriate here. The Union amassed a most respectable showing in the December 1977 election, but it seems fair to attribute, at least in part, the loss of card support, which would have made the difference, to the unfair labor practices committed. The two general 7' I seems proper to hold Respondent accountable for the reputation it will garner among the employees from this legal proceeding as a fre. seeable consequence of its unlawful conduct 603 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wage increases given after the election may well have chilled any chance for the Union to maintain even the support it rallied at the 1977 polling. While the notion of holding a rerun election trips easily off the tongue, it should be recognized that the Union and its adherents committed 2-1/2 months of time and effort to the 1977 election and would now have to undertake a repetition of both those labors and the expense involved. In view of the number of cards collected by the Union in 1977, it is a sound inference that if Respondent had conducted a lawful campaign, the Union might well today be the cer- tified representative of the employees. The combination of a strong showing of employee desire for union representation and the probable enduring effects of the unfair practices indicates that "perhaps the only fair way to effectuate employee rights is to reestab- lish the conditions as they existed before the employer's unlawful campaign." Gissel Packing Company at 612. The remedy is a meaningful, but not harsh, one: "There is, after all, nothing permanent in a bargaining order, and if, after the effects of the employer's acts have worn off, the employees clearly desire to disavow the union, they can do so by filing a representation petition." Id. at 613. D. The Election Issues As stated above, I conclude that the ballots of the 18 employees previously discussed should be opened and counted. The Regional Director has also referred to me for de- termination Petitioner's Objections 3 and 4 to conduct assertedly affecting the December 1977 election. Since I have concluded that Respondent violated the Act by conduct alleged in the objections,7 9 and since conduct violative of the Act is, a fortiori, conduct which inter- feres with the exercise of free choice in an election, Dal- Tex Optical Company, 137 NLRB 1782, 1786-87 (1962), I shall recommend that, assuming the opening of the bal- lots do not determine the election in the Union's favor, the election be set aside. CONCLUSIONS OF LAW I. Respondent, Gordonsville Industries, Inc., is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 17 While it relates to no specific complaint allegation, I have consid- ered as background the preelection literature distributed by Respondent. Some of it is pretty strong stuff, particularly a November 16 letter, at- taching "a list of Virginia firms that have closed their doors .... They are out-of-business for one reason or another. Each firm listed was union- ized, some you know about already such as Virginia ertal Products where 450 jobs were lost, or Clarostat where 180 jobs were lost. There are other firms listed that you should be equally interested in because they had the same union that is trying to get in here. Your decision on how you will vote in this election is extremely important: We encourage you to vote 'NO' and help us defeat this union." The attached list of 40 closed union firms is headlined "The Union Can't Guarantee The Most Important Thing You Have-Your Job." Because a job usually is "the most impor- tant thing" an employee has, particularly in small towns, this kind of reckless and undiscriminating association of unions and defunct businesses can often convey a most serious message to employees. 79 I do not find, however, as claimed in the objections, that Respond- ent wrongfully discharged Nancy McDaniel 2. Amalgamated Clothing and Textile Workers Union, AFL-CIO, CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Stephen Bolding on November 8, 1977, Respondent violated Section 8(a)(3) and (1) of the Act. 4. By, in September, October, November, and Decem- ber, 1977, and June 1978, conducting a survey, and, in other ways, expressly and impliedly promising to rectify employee grievances and to grant benefits; threatening employees with loss of benefits, loss of jobs, blacklisting, plant closure, and a refusal to bargain in the event of a union election victory; restricting and harrassing employ- ees; interfering with Board processes by attempting to in- fluence the testimony of employees in Board proceed- ings; granting wage increases; and announcing the exist- ence of a profit-sharing plan, Respondent violated Sec- tion 8(a)(1) of the Act. 5. The appropriate unit for collective bargaining is: All production and maintenance employees em- ployed by Respondent at its Gordonsville, Virginia, location, but excluding office clerical employees, guards, professional employees, and supervisors as defined in the Act. 6. By refusing on and after September 27, 1977, to rec- ognize and bargain with the Union as the exclusive col- lective-bargaining representative of the employees in the unit described above, Respondent violated Section 8(a)(5) and (1) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 8. Except as set out above, Respondent has not violat- ed the Act in any other respect alleged in the com- plaints. THE REMEDY I shall recommend that Respondent be required to rec- ognize and bargain collectively with the Union. I am aware, of course, of the theoretical chance that counting the unopened ballots may result in certification of the Union as the bargaining representative. The Board has recently held it appropriate to award a bargaining order in situations where it was possible that union election victories would also occur: I cannot distinguish those cases from this one. Pope Maintenance Corporation, 228 NLRB 326, 348 (1977); The Great Atlantic & Pacific Tea Company, 230 NLRB 766, 767-768. Having found that Respondent unlawfully discharged Stephen Bolding on November 8, 1977, 1 shall recom- mend that it be ordered to offer Bolding immediate and full reinstatement, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered from November 8, 1977, to the date of Respondent's offer of reinstatment, with interest, in accordance with F W. Woolworth Com- pany, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).80 " See, generally, Isis Plumbing & Healing Co., 138 NLRB 716 (1962). 604 GORDONSVILLE INDUSTRIES, INC I shall also recommend that Respondent be required to post appropriate notices. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER8' The Gordonsville Industries, Inc., Gordonsville, Vir- ginia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively in good faith, upon request, with Amalgamated Clothing and Textile Workers Union, AFL-CIO, CLC (the Union), as the exclusive bargaining representative of all employees in the appropriate unit set forth in paragraph 5 of the Conclusions of Law herein with respect to rates of pay, hours, and other terms and conditions of employ- ment. (b) Discharging or otherwise discriminating against employees because of any activities on behalf of the Union, or any other labor organization. (c) Threatening employees, for assisting or supporting the Union or any other labor organization, with loss of benefits, loss of jobs, blacklisting, plant closure, or a re- fusal to bargain; promising or granting benefits to em- ployees to induce them to refuse to support the Union or any other labor organization; and interfering with Board processes by attempting to influence the testimony of witnesses. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist any labor or- ganization, to bargain collectively through representa- tives of their own choosing, or to engage in concerted activities for the purposes of collective bargaining or other mutual aid, or to refrain from any and all such ac- tivities. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: ,, In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions. and Order, and all objections thereto shall be deemed waived for all purposes (a) Offer to Stephen Bolding immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to his seniority or other rights and privileges, and make him whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Recognize, effective September 27, 1977, and, upon request, bargain collectively with the Union, as the ex- clusive representative of the employees in the appropri- ate unit set forth above, with respect to rates of pay, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payroll records, time- cards, personnel records and reports, and all other re- cords necessary. or appropriate, to analyze the amount of backpay due. (d) Post at its place of business in Gordonsville, Vir- ginia, copies of the attached notice marked "Appendix B." " Copies of the notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent's authorized representative, shall be posted by it for a period of 60 consecutive days thereaf- ter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 5, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS AI.SO ORI)FRED that those portions of the com- plaints found to be without merit are hereby dismissed. IT IS FURTHER ORDEREI) that the ballots as described in the foregoing Decision be opened and counted, and a revised tally of ballots be issued, and, if necessary, the election conducted in Case 5-RC-10242, on December 6, 1977, be, and it hereby is, set aside. .2 In he event that this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of he National Labor Relations Board" shall read "Posted Pur- suant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 605