Behring International, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Behring International, Inc. and Union No. 478, In- ternational Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 22-CA-7824 September 26, 1980 DECISION AND ORDER By CHAIRMAN FANNING AND MIEMBERS JENKINS AND PENEI.I.O On June 8, 1979, Administrative Law Judge Robert M. Schwarzbart issued the attached Deci- sion in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief and a docu- ment marked "verified petition supplementing the record below." 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 brief and has decided to affirm the rulings, 2 findings, 3 Respondent's request for oral argument is hereby denied, inasmuch as the record and brief adequately present the issues to be decided 2 Respondent asserts that the Administrative La Judge exhibited bias against Respondent in certain of his rulings and comments during the hearing We have carefully examined the record and find no merit in this contention. Respondent asserts that it should have been allowed to adduce testimo- ny from Board Agent Susan Anderson concerning "her investigation of the initial charge as well as certain affidavits and other material." Re- spondent asserts that the testimony and documents would have contained admissions from various witnesses who testified, obtained when Anderson solicited a withdrawal of the original charges filed against Respondent. At the hearing, the Administrative Law Judge revoked the subpena. We are satisfied that the testimony sought by Respondent fell within the "limited evidentiary privilege which protects the informal investigatorial and trial-preparatory processes of regulatory agencies such as the NLRB," Stephens Produce Co.. Inc. v. VL.R.B., 515 F.2d 1373, 1376 (8th Cir. 1975), and that Respondent has shown no substantial reason to disre- gard this privilege. We note that, upon proper request. Respondent was given access to the prior statements by the General Counsel's witnesses following their testimony on direct examination. We further find that the evidence sought to be adduced is irrelevant to any issue in this proceed- ing. Accordingly, we conclude that the Administrative Law Judge prop- erly revoked the subpena of Board Agent Anderson. 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 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing his findings, with one exception. In fn. 17 of his Decision, the Administrative Law Judge credited testi- mony by employee Michael Jaconski, which was denied by Station Man- ager James Waters, to the effect that a handwritten employee petition was signed by employees and taken to Waters, and that Waters then asked that the petition be typed. We note that Jaconski, whose testimony was generally discredited by the Administrative Law Judge, was the only witness who testified to the signing of a handwritten petition, and that both the General Counsel's witnesses and Respondent's witnesses testified specifically that only the typed petition was signed by employees. We therefore find that only the typed petition was signed before Waters re- ceived it, although this finding does not detract from our finding, in agreement with the Administrative Law Judge, that Respondent instigat- 252 NLRB No. 55 and conclusions4 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 5 In finding that Respondent unlawfully laid off its employees and subcontracted out its work, the Ad- ministrative Law Judge observed that Respondent had not established any reason for taking these ac- tions at the time it did. Thus, he noted that the layoff and subcontracting occurred shortly after unlawful threats and grants of benefits in response to an organizing campaign. Moreover, the employ- ees at the facility in question had been praised re- cently for the quality of their work. The Adminis- trative Law Judge noted that two employees who attempted to forestall the election were retained at higher rates of pay following the subcontracting, while those employees who had not distinguished themselves by their opposition to the organizing effort, as well as those employees who had sup- ported the Union, were laid off. Finally, Respond- ent can point to no contemporaneous event which might have motivated the layoffs at that time. Ac- cordingly, although Respondent has proffered an economic defense, we find that Respondent has failed to substantiate that defense with probative evidence that it would have subcontracted out its operations at the time it did had it not feared the resumption of organizational activity.6 For this reason, we find that Respondent has failed to rebut the General Counsel's prima facie case and, like the Administrative Law Judge, we therefore conclude that Respondent unlawfully laid off its warehouse employees and subcontracted its warehouse work. ed the meeting and the formulation of an employee petition requesting the withdrawal of the petition for an election. 4We take administrative notice of the fact that, following the close of the hearing herein, a change occurred in the leadership of Iran, Respond- ent's primary customer at its Edison facility. In its "verified petition sup- plementing the record below," Respondent alleges that, as a result of this change, it reduced and later closed its operations at the Edison ware- house. We shall leave to the compliance stage of these proceedings the determination of the timing and nature of the impact of Iran's change in leadership on the operations at the facility involved herein, as well as the period during which employees would have worked had it not been for Respondent's unlawful layoff of employees and the subcontracting of its operations. I The Administrative Law Judge found that the instant violations go "to the very heart of the Act" and recommended that Respondent be or- dered to cease and desist from "in any other manner" interfering with, restraining, or coercing employees in the exercise of their protected Sec- tion 7 rights. In our recent Decision in Hickmorr Foods. Inc., 242 NLRB 1357 (1979), we held that such broad injunctive language is warranted only when a respondent has been shown to have a proclivity to violate the Act, or has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for the employees' fundamental statu- tory rights. Inasmuch as the instant violations do not meet this test, we shall narrow the recommended Order and notice to proscribe only "like or related" conduct I For a general discussion of the burden of going forward once a prima facie case of unlawful discrimination has been made out, see Wright Line, a Division of Wright Line, Inc., 251 NLRB No. 150 (1980). 354 BEHRING INTERNATIONAL, INC. 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, Behring International, Inc., Edison, New Jersey, 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 (i): "(i) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of rights guaranteed them under Section 7 of the Act." 2. 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 we were represented by our attorney and presented evidence, it has been found that we have violated the National Labor Relations Act in certain respects. To correct and remedy these violations, we have been directed to take certain actions and to post this notice. WE WILL NOT question you concerning your activities, sympathies, and desires as to Local Union No. 478, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or of the union activities and sympathies of other employees. WE WILL NOT ask you for the names of em- ployees who were active in bringing about the Union's organizational campaign. WE WILL NOT threaten that your work will be subcontracted or the warehouse closed if you support, work for, or vote for the Union. WE WILL NOT threaten to take away job-re- lated benefits if you support or vote for the Union. WE WILL NOT promise or give you pay raises or other economic or job benefits to per- suade you to withdraw your support from the above-named Union, or any other labor orga- nization. WE WILL NOT solicit you to request with- drawal of any petition for representation elec- tion or to withdraw your support from the Union. WE WILL NOT seek to induce you to encour- age our other employees to withdraw their support from the Union. WE WILL NOT deliberately reduce the work available to you in the warehouse by diverting freight, using contract labor or other means, to discourage you from supporting the Union. WE WILL NOT coercively inform you that you are better off without the above-named Union or any other labor organization. WE WILL NOT subject you to discharge or layoff because of your support for the above- named Union or any other labor organization. WE WILL. NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your rights under Section 7 of the National Labor Relations Act, as amended. WE WILL offer Ray Stromberg, Eric Strom- berg, Clara Kitson, Michael Lanza, Eugene Colacino, Anthony Ippolito, Edmund Ringen, and Joseph Sanders immediate and full rein- statement to their former jobs or, if such jobs no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or other rights and privileges previously enjoyed, and WE WILL make each of them whole, with interest, for losses they may have suffered by reason of our discrimination against them. BEHRING INTERNATIONAL, INC. DECISION STATEMENT OF THE CASE ROBERT M. SCHWARZBART, Administrative Law Judge: This case was heard in Newark, New Jersey, on a complaint based upon a charge and first amended charge filed by Local Union No. 478, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union. The complaint, as amended at the hearing, alleges that Behring Internation- al, Inc., herein called the Respondent, violated Section 8(a)(1) of the National Labor Relations Act, as amended, herein called the Act, by coercively interrogating certain of its employees concerning their membership in, activi- ties on behalf of, and sympathies for the Union; by offer- ing, promising, and granting its employees wage in- creases and other employment benefits in order to under- mine their support for the Union; by warning its employ- ees that they would be discharged if they became or re- mained union members; and by coercively informing its employees that they would be better off without a union; and violated Section 8(a)(3) and (1) of the Act by discri- minatorily laying off a total of eight employees on May 6 and June 3, 1977.' and replacing them with employees of i All dates hereinafter are 1977 unless stated to be otherwise 355 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an independent contractor. 2 With respect to certain of these allegations, the General Counsel, contrary to the Respondent, contends that Robert Lesniakowski and Mi- chael Jaconski, warehouse employees, acted as agents on behalf of the Respondent within the meaning of Section 2(11) of the Act. The Respondent, in its answer, denied the commission of any unfair labor practices. Counsel for the General Counsel and the Respondent have filed briefs which have been carefully considered. Upon the entire record, including my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Texas corporation, is engaged in the business of providing warehousing and related serv- ices at its place of business in Edison, New Jersey, its only facility involved in this proceeding. In the course and conduct of the Respondent's business operations during the 12 months preceding issuance of the com- plaint herein, a representative period, the Respondent caused to be purchased, transferred, and delivered to its Edison warehouse goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported to said warehouse in interstate commerce directly from States of the United States other than the State of New Jersey. In accordance with the foregoing conceded facts, I find that the Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE l.ABOR ORGANIZATION INVOLVED The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. Ill. THE AL.I.EGED UNFAIR LABOR PRACTICES A. Background The Respondent operates a warehouse in Edison, New Jersey,3 where with its New York, New YorK, office it serves as the purchasing, storage, and freight-forwarding arm of the air force of a foreign government which, during the times relevant herein, obtained much of its material in the United States. Equipment procured by the customer government, often with the assistance and sup- port services of the Respondent, would be received and stored at the Edison warehouse prior to transshipment to the purchasing country. This operation was under the general supervision of George Murphy, the Respondent's vice president and director of military programs. Murphy, who reported to the Respondent's president, Alan Newhouse, was responsible for both the New York 2 The Employees laid off on May 6 were Ray Stromberg, Clara Kitson, and Michael Lanza. The employees laid off on June 3 were Eugene Colacind, Anthony Ippolito, Edmund Ringen, Eric Stromberg, and Joseph Sanders. 3 Nationally, the Respondent also operates about eight other ware- houses. City and Edison facilities and had established the Edison warehouse in November 1975. In 1977, during the events considered herein, James Waters was the Edison station manager in immediate charge of that warehouse's oper- ation, and Thomas (Wier) Wiercizewski was the ware- house supervisor and Waters' assistant. The parties are in agreement that all of the above-named individuals are su- pervisors within the meaning of Section 2(11) of the Act. With the assistance of employee Eric Stromberg, who had made initial contact in February, the Union began its organizing campaign among the Respondent's warehouse employees, conducting its first meeting on March 13 at a restaurant near the Edison warehouse. This was attended by Union Business Representative John Senick and about 9 of the Respondent's 14 warehouse employees. Among those who attended that meeting and signed union au- thorization cards were Lesniakowski and Jaconski, both who were both employed by the Respondent as rank- and-file warehousemen. On March 22, the Union filed the petition in Case 22- RC-7093 for a representation election among the Re- spondent's warehouse employees and, pursuant to an Agreement for Consent Election approved on April 7, an election was conducted on April 25. Although the Union was not successful in the election and here questions cer- tain of the Respondent's preelection conduct, no objec- tions to the election were filed. 4 B. Alleged Acts of Interference, Restraint, and Coercion 1. The employee meeting of March 31 Evelyn Barbato 5 testified that, on March 31 at ap- proximately 9 a.m., she and all the other warehouse em- ployees were called by Lesniakowski and Jaconski to an immediate meeting in the conference room. No supervi- sors were present. When assembled, Lesniakowski told the employees that he and Jaconski had spoken with Waters, and that Waters had stated that he was going to either subcon- tract the work or close down the warehouse if the Union were voted in. In the discussion that followed, various employees asked if Lesniakowski was certain of this and all wanted to know why he and Jaconski had gone to the office themselves without having asked anyone else. Barbato recalled that Lesniakowski left the conference room on several occasions during the meeting, returning each time. On one occasion after leaving, he returned and announced that, if the employees wrote and signed a petition against the Union, then Station Manager Waters would not do anything to them; there would be no retri- bution. They could keep their jobs if the petition could stop the Union. Barbato, in longhand, then wrote a docu- ment rejecting the forthcoming election, which was dic- tated to her by someone present. Jaconski took the page 4 he agreed-upon unit included all warehouse employees employed by the Respondent at its Raritan Center, Edison, New Jersey, facility, but excluding all office clerical employees, professional employees, manageri- al employees, and guards and supervisiors as defined in the Act. S Barbato was employed by the Respondent in various warehouse posi- tions from October 1975 to May 4, 1977. when she was terminated for reasons unrelated to this proceeding. 356 BEHRING INTERNATIONAL, INC. from her, left the room, and returned with the following typed version of Barbato's draft:6 3-31-77 To: Jim Waters, Station Manager From: Whse. Subject: N.J. [sic] Labor Board We, the Whse. of Behring International agree to withdraw our union petition from the N.J. [sic] Labor Board. Before signing the petition, however, the employees agreed that they did not want Lesniakowski and Ja- conski to take the paper by themselves to Waters' office but that someone else should go with them. It generally was agreed that Barbato should accompany the two men to Waters' office when they took him their petition. The employees then signed the typed page in alphabetical order and broke for lunch at or about noon. Lesniakowski and Jaconski, who ate together, had agreed to meet Barbato in the conference room after lunch and go together to Waters' office. However, when Barbato returned at or about 1 p.m., she found that Les- niakowski and Jaconski had already gone to Waters' office without her. She went to the office area in search of them and encountered Warehouse Supervisor Wier in the reception room. Wier told Barbato that Lesniakowski and Jaconski were in Waters' office. The door to that office was closed. When Barbato replied that she was supposed to be in Waters' office with Lesniakowski and Jaconski, Wier told her that they were not to be dis- turbed. Barbato persisted that she was supposed to be in Waters' office with them and Wier repeated that Waters said that he did not want to be disturbed. Barbato re- turned to the conference room where the other employ- ees had reassembled after their lunch break to await the return of Lesniakowski and Jaconski. Jaconski and Lesniakowski, on reentering the confer- ence room, replied to Barbato's question as to why they had not waited for her by stating that Waters would not have spoken in front of her. The employees then began to draw up a list of items they wanted from the Re- spondent, including overtime pay after an 8-hour work- day, 7 a grievance committee, equal pay to all employees for equal work, and no repercussions because of the em- ployees' previous support for the Union. These proposals were written by Ray Stromberg. 8 According to Barbato, Lesniakowski took the employ- ees' proposals out of the room and later returned stating that Waters had said that he was not certain as to what could be done with regard to a grievance committee but would give the employees an answer to that matter later. Waters could not himself decide whether the other items could be granted but would have to seek approval from 6 The record reveals that the document had been typed on the Re- spondent's stationery by an expeditor. Jaconski testified that he had had Barbato's draft typed at Waters' insistence. I At that time, overtime premium pay was available only after an em- ployee had worked for 40 hours in a given week, although he may have worked more than 8 hours on a given day. I Employees Eric and Ray Stromberg are brothers. the Respondent's main office in Houston, Texas. The meeting then broke up at approximately 3:30 p.m. Barbato's account of the March 31 meeting was sub- stantially corroborated by employees Eric Stromberg, Edmund Ringen, Eugene Colacino, and Anthony Ippo- lito, all of whom recalled that Lesniakowski and Ja- conski had called the meeting, at which Lesniakowski had announced that he and Jaconski, concerned about their jobs, had been talking to Waters, who had informed them that there was a good chance that if the employees voted for the Union the Respondent would close the warehouse or subcontract the work. If the employees would sign a paper to end the union election, there was a good possibility that the two men could talk Waters out of attempting to close the warehouse or subcontract the work. Ippolito, however, recalled that the employees had attempted unsucessfully to condition their signing the request to withdraw the representation election peti- tion on Waters' agreement in writing to the employees' list of demands from the Company. Lesniakowski, how- ever, had reported to the group that Waters would agree to the list of employee proposals in writing, as, the situa- tion being what it was, Waters did not want his name to appear on anything written.9 Ippolito and Eric Stromberg recalled that, before the meeting ended on March 31, the employees elected a three-member grievance committee, which included the two Strombergs and Sanders. In addition, Stromberg and Jaconski recalled that Waters personally came to the March 31 meeting shortly before it ended. Stromberg re- lated that Waters encouraged the employees to elect a grievance committee, which was done, and also dis- cussed various grievances with the committee and the other employees, including the matter of equal pay for equal work, agreeing that all should be paid on an equal basis for the same warehouse work.10 The employees were paid for the time spent at the March 31 meeting, their signed request for withdrawal of the election petition was retained by Waters, and the March 31 meeting conducted by and among employees without supervisors, which consumed the time of the entire warehouse staff for virtually the whole workday, was unprecedented at the Edison warehouse.'' Lesniakowski testified that immediately before telling the employees to go to the meeting on March 31 he and Jaconski had asked Waters for the use of the conference 9 These employees signed the election petition withdrawal request al- though Waters did not grant all their demands because, after some discus- sion, it was concluded that they still would be better off signing and hoping for the best. i' Jaconski's recollection of the March 31 meeting of which he clearly was a cosponsor and principal participant was so unconvincingly poor and his testimony so evasive that absent independent corroboration he is not credited where his testimony conflicts with that of other witnesses. As the other witnesses to the March 31 meeting did not testify that Waters had come to the conference room toward its end and as Strom- berg, the only other witness to agree with Jaconski on this point also showed a poor general recollection of events, I find from the weight of the evidence that Waters did not appear at the March 31 meeting, but that a grievance committee was elected which thereafter was recognized by management, and which processed grievances in the time period before the election. II That night, Eric Stromberg reported the meeting to Senick, the union representative, who told him not to worry. 357 DECISIONS OF NATIONAL LABOR RELATIONS BOARD room to discuss with the employees what was happening in the warehouse, the union problem, and other matters. Waters had told them to use the conference room if it was all right with Warehouse Supervisor Wier, who thereafter assented to the meeting after being assured that Waters had not objected. Lesniakowski related that he and Jaconski then gath- ered all the warehouse employees into the conference room where he did most of the talking. Lesniakowski told the group that the way everything was goingl 2 it was very possible that the Company would subcontract the work. It was also possible that it would close up. Lesniakowski stated that the Respondent could do either one of the two and the employees would all be out of work and collecting unemployment. Accordingly, Les- niakowski stated his belief that, if the employees drew up a petition to withdraw the union election while they still had jobs, everything would continue and the employees would have work. If they did not do this and the Union came in, nobody knew what was going to happen. Ac- cordingly, Lesniakowski stated that the union matter was an important thing to resolve and the employees should settle down, go back to work, and keep their jobs. 3 Lesniakowski conceded that while the conference was in session he left the room several times for various rea- sons, but asserted that he went to Waters' office only after the petition was signed to take it to him. In this, he was accompanied by Jaconski and Barbato. However, when they arrived in the office area, Waters' assistant, Joyce Hesse, informed them that Waters was out to lunch. Accordingly, Lesniakowski left the petition on Waters' desk and they all returned to the conference room. While still in the conference room, someone re- ported that Waters had returned from lunch and was in his office. It was then that Lesniakowski, accompanied by Jaconski, returned to the office. On being reassured by Waters that he was too busy to see them, Lesniakowski picked up the petition, which was still on Waters' desk, and stated that everyone in the warehouse had drawn up a petition to withdraw from the Union. Waters replied that he could not answer any questions but would give the petition to someone to ex- amine. Lesniakowski, too, recalled that of overtime, paid medical benefits, a grievance procedure, and equal pay 12 At the time of the meeting, business volume was low in the ware- house. "a Lesniakowski denied that he had used Waters' name as the source of his concern and proposed antiunion document, but stified as to two rea- sons for telling the employees on March 31 that if an election were held the Respondent would subcontract their work. The first was his knowl- edge that at the time in question freight which otherwise would have been delivered to the Respondent's Edison warehouse was being diverted to the nearby warehouse of Summit Associates, whose employees were handling it, and, second, because of an incident about 3 days before the March 31 meeting. At that time, while seated two stools down from Warehouse Foreman Christopher Houlihan at a bar, Lesniakowski over- heard Houlihan tell an acquaintance that the freight was being diverted to the Summit building and that it looked as though "they" were going to subcontract out the work if the Union came in. Contrary to the Re- spondent's argument, I find that, although this incident occurred in a public place, Lesniakowski was sufficiently near to Houlihan for the latter to have been aware of his presence when he spoke, and, in view of Houlihan's other conduct found below, it is concluded that Houlihan in- tended that Lesniakowski hear his remark. for equal work were discussed at the March 31 meet- ing. 4 Lesniakowski and Jaconski both denied that they had acted as agents for the Respondent in conducting the meeting and that they had interrogated any employees concerning their union sympathies or activities.' 5 Waters testified that he had told Jaconski and Lesnia- kowski that they could use the conference room for the employees' meeting when they had requested its use so that the employees might discuss the union matter among themselves. He told them that it was their conference room as well as everyone else's but refused to talk to them about the Union. By his estimate, about 15 minutes after this conversation, Waters left for lunch.t6 When Waters returned to the office, he found the peti- tion signed by the employees on his desk. Although the petition had been typed on the Respondent's stationery, Waters testified that this was the only copy of the peti- tion that he had seen and did not know how it had come to be typed. 7 Waters conceded that he never checked on how long the meeting had lasted either personally or by asking his supervisors. His only conversation that day with Ja- conski and Lesniakowski was when he gave them per- mission to use the conference room. In evaluating the evidence herein, I do not find Waters to be a credible witness. In spite of his clear involvement in authorizing the March 31 meeting and the general tes- timony of his dealings with Lesniakowski and Jaconski while it was in progress, he testified that he had no knowledge of the meeting's substance and duration, al- though it occupied his entire work crew for nearly a full day. As the weight of evidence, as will be discussed below, established Waters as a participant in much of the activity found unlawful herein, his testimony is not deemed reliable. 2. The preelection diversion of freight from the Respondent's warehouse The General Counsel contends that in April, during the weeks preceding the election, the Respondent rerout- ed freight destined for the Edison warehouse to a facility I block away, owned and operated by another company, Summit Associates, and that this had been done to fur- ther drive home the message of the March 31 meeting 14 Lesniakowski testified that, approximately 3 days after giving Waters the petition on March 31, he encountered Waters in the ware- house and asked if Waters thought that the petition was the right way. Waters told Lesniakowski that he had a right to do whatever he wanted. t' As noted, both Lesniakowski and Jaconski earlier had signed au- thorization cards at the union meeting of March 13. '° Waters denied Jaconski's account that, during the lunch period that day, Jaconski and Lesniakowski had encountered him at a nearby restau- rant at which time the two employees had told Waters that the employ- ees had signed the petition. As Jaconski's testimony, noted above, is gen- erally discredited, Waters' denial of this incident is accepted. 7 This denial contradicts Jaconski's testimony that the handwritten pe- tition originally brought to Waters was typed at Waters' insistence. While Jaconski's testimony generally is not credited, his testimony in this regard is accepted as the almost daylong meeting certainly required company approval and as it appears most unlikely that a warehouseman could have required an expeditor to type the document on company stationery with- out supervisory authorization. Accordingly, it is found that the petition was typed at Waters' direction. 358 BEHRING INTERNATIONAL, INC. that work in the warehouse was scarce and that if the employees voted in the Union their jobs would be in jeopardy. The Respondent, in turn, contends the freight was diverted to Summit to reduce the content of the warehouse and thus make room for the application of a sealant to the warehouse floor to end a dust problem. Thomas Wier, who at the time of the events herein was warehouse supervisor,'8 testified that about a week before the April 25 election Waters had told him that the Respondent was going to start subcontracting work to Summit Associates and had instructed Wier to send trucks arriving with freight at the Respondent's receiving dock to the Summit warehouse where it was to be re- ceived and unloaded. Waters told Wier that the Re- spondent wanted the men to see an empty warehouse and to let them think a bit on the union matter. The General Counsel argues that, in the context of Waters' testimony that April was part of a slow period at the Edison warehouse and that studies were then being made to determine how labor costs could be reduced, the Respondent's manner of preparing for the floor sea- lant application was singular. Although Waters testified that the Respondent did not receive a cost breakdown for the respective storage and labor services furnished by Summit during this period, but, rather, received an all- inclusive bill, Respondent's Exhibit I , which evidences the arrangement for these services, reveals that Summit billed the Respondent at a stated rate for the space in minimum units of 1,440 square feet and also for separate labor costs of $9.10 per hour, which rates were substan- tially higher than that paid by the Respondent to its own warehouse employees. The Respondent's determination to use Summit labor almost exclusively to handle the di- verted incoming freight during this period and to use its supervisors to move in-house inventory from the floor area to be sealed to other parts of the warehouse pro- ceeded in the face of Waters' statement that the Re- spondent's employees did not at that time have enough work. The sealant was applied on April 16 and sometime after that but before the election the Respondent stopped diverting freight to Summit. Waters in turn testified that it had been necessary to divert this freight in order to reduce the quantity of ma- terial in the warehouse and to enable inventory already in the warehouse to be moved out of the way so that the warehouse floor could be chemically sealed in response to a dust problem. Although it only took I day to apply the sealant, which dried in 48 hours, 3 additional weeks had been needed in advance in order to make the neces- sary preparations. These included emptying and cleaning the warehouse so that the sealant would take and moving freight out of the way as required. Waters relat- ed that he first had authorized the contractor to do the sealing work in February but the start was delayed by uncertainty as to how much of the warehouse floor was to be sealed. Whatever was done in preparation for the floor sealing, including the diversion of freight and the is Wier, called as a witness by the General Counsel, was employed by the Respondent from November 1975 until severed on about October 7. 1977. rearrangement of in-house material, had been done at the contractor's instructions. Waters explained that his decision to use Summit labor was not unusual as in the past the Respondent, had done business with Summit Associates, as the situation re- quired. From the time the Respondent had assumed the foreign air force account in November 1975, when the Edison warehouse opened, through April 1976, a busy interlude, the Respondent had augmented its own work force by using three to six employees provided by Summit. In that interval Summit employees worked at the Respondent's warehouse with the Respondent's own employees sorting freight and driving tow trucks. In the slower periods which followed, the Respondent disontin- ued the use of outside labor as unnecessary, and did not again resort to Summit until March 1977 in connection with the Respondent's floor sealing operation.' In March and April no freight was transferred from the Re- spondent's warehouse to Summit, but incoming ship- ments were diverted to the Summit warehouse and stored there until shipped to the customer country. 3. The alleged unlawful pay raises and other improvements in job benefits The General Counsel contends that in the preelection period the Respondent promised and granted various un- lawful pay increases to discourage employee support for the Union. Specifically, the General Counsel argues that the Re- spondent, in the preelection period, reclassified and granted accompanying pay increases to Michael Ja- conski, Clara Kitson, and Michael Lanza. In late March these three employees, without evaluation, were reclassi- fied by the Respondent from the designation of receiving clerk to warehouseman. 20 All three employees testified that, while working as receiving clerks in parcel post, their jobs had been to consolidate and segregate freight by priority and to containerize the goods. Their duties remained the same after their reclassifications, which in- volved only the change of title to warehousemen and the increased compensation. 21 The explanation given to the employees by Waters for their reclassification at that time was that the receiving clerk classification was being eliminated. Waters testified that under the Respondent's pay policy as it was in the first half of 1977 employees re- ceived salary and performance evaluations 90 days after employment, and thereafter received evaluations and warranted pay increases, consecutively, 6 months after the anniversary date of their employment, I year after the anniversary date, and every 6 months thereafter. Under this evaluation system, employees could receive 19 Waters' testimony that the Respondent began to use Summit in Feb- ruary and March in connection with the floor sealing procedure is con- tradicted by the Respondent's arrangement for Summit's services, which is dated March 28 and by its terms contemplates that Summit's services would be rendered in the future. 20 Kitson and Lanza were reclassified effective March 26 and Jaconski on March 28. 2' In being reclassified to warehousemen, Kitson received a monthly increment of $207 while Jaconski and Lanza each received 238.80 a month 359 DECISIONS OF NATIONAL LABOR RELATIONS BOARD either no raises for bad performance or could receive in- creases of 4, 6, or 8 percent, respectively, depending upon how highly they were rated, until they reached the highest pay rate available for their job classifications. Accordingly, employees Eric Stromberg and Sanders both were evaluated by the Respondent in January and, respectively, were found to merit pay increases of 4 per- cent. However, they were informed at the time that, as they had reached the top of the pay scale for their re- spective jobs, they would receive no increments. Howev- er, both Sanders and Stromberg later received pay in- creases effective April 27, made retroactive to their Jan- uary evaluation dates. The April 27 increases, part of a general across-the-board raise for all employees, was given without use of the Respondent's evaluation proce- dures. 22 In addition to granting the foregoing preelection raises to Lanza, Kitson, and Jaconski, the General Counsel contends that the Respondent also unlawfully promised a general across-the-board wage increase before the elec- tion, which was paid shortly after the election was con- ducted. Employee Ippolito testified that, in the period between the filing of the petition in the representation case and the conduct of the April 25 election, Waters, at a meet- ing of employees, promised to provide such an across- the-board increase. On that occasion, Waters told the employees that he was trying to fight for equal pay for equal work in the warehouse and that $300 per week per employee was a justifiable wage. Although Ippolito agreed that the concept of equal pay for equal work had been discussed before the petition was filed and again after the election, this was the first instance where the specific figure of $300 had been mentioned. The Respondent's payroll records reveal that a general across-the-board pay increase was given to all warehouse employees effective April 27, bringing their pay rate to the uniform scale of $300 per week or $1,300 per month. At the same time, the three parcel post employees who worked in the small package area, Ringen, Barbato, and William Tiedemann, were raised to approximately $280 per week or $1,217.88 per month. 23 Waters testified that I or 2 days after the April 25 rep- resentation election he conducted a meeting in the con- ference room with the entire warehouse staff. Waters asked the employees if they had any complaints and sug- gested that the employees should submit any ideas for improved conditions in the warehouse to him and he would see what he could do. Waters emphasized that he could not guarantee anything. A few days later Waters received a handwritten list itemizing the employees' pro- 22 1 find no merit to the General Counsel's contention that employees Anthony Ippolito, Edmund Ringen, and William Tiedemann, all of whom received pay increases on April 9, had received them unlawfully because they were given in the preelection period. Rather, the payroll evidence shows that they each had received their previous increments on October 9 and at like intervals before then. It is therefore concluded that their raises of April 9 were consistent with the Respondent's longstanding policy of affording pay raises at 6-month intervals as warranted by its calculations. 23 The reason for paying less money to the employees in the small package area was that their work was lighter and less demanding. These positions were usually filled by older male and by female employees posals. Included in this list were employee requests for equal pay for equal work, paid hospitalization insurance, a grievance committee, and other unrecalled items. On the day Waters received the list he read it to the Respondent's vice president, Murphy, who, in turn, re- ported its contents to the Respondent's president, Ne- whouse. Within 4 or 5 days of receiving the list from the employees, Murphy informed Waters that certain of the items on the list had been agreed to by the Respondent and some were unacceptable. Among the items approved by the Respondent was a provision for overtime pay at time and a half after 8 hours per day rather than after 40 hours per week, the grievance committee, and equal pay for equal work at the above-referred rates for warehouse and parcel post employees. According to Waters, the raises were to become effective 2 to 3 weeks after the election and were not to be retroactive. 24 The Respondent denies that any of the pay raises and reclassifications were granted as a result of or to counter the Union's organizational campaign, and argues that the across-the-board increase and other benefits did not become effective until after the election, to which no ob- jections had been filed. 25 As indicated in the General Counsel's brief, the Re- spondent produced no evidence of a general across-the- board pay increase for employees at any location other than the Edison warehouse. 4. The alleged threatened loss of job benefits Employee Edmund Ringen testified that in March or early April, after the filing of the representation case pe- tition, he and other warehouse employees were sum- moned to a meeting called by the Respondent's vice president, Murphy. Ringen recalled that Murphy told the employees that he had been to the National Labor Rela- tions Board, that a date for an election had been agreed upon, and that he would like everyone to vote. If the vote resulted in a tie, the Company would win, and that was what he hoped for.2 6 Employee Anthony Ippolito related that Murphy on that occasion had announced that he had just returned from the road and was looking for more contracts for the Respondent as the Company just could not depend on the one (foreign air force) con- tract that it had. Murphy said that that there was a 24 The Respondent did not agree to the employee proposal for paid hospitalization insurance. 25 Waters' testimony with regard to the timing of the across-the-board pay increase, as noted, is contradicted by the Respondent's payroll re- cords, which show that the raise became effective on April 27, the date that Waters testified that he first suggested to the employees that they submit their proposals for improved job benefits. Also. while it is true that no objections to the election were ultimately filed, as noted, such ob- jections still could have been timely filed after April 27 when the raises were given. Had objections been filed the raises thus given would have been unlawful. See Belcor. Inc.. d/b/a Modesto Conwvalescent Hospital, 235 NLRB 1059, 1063 (1978). 26 Murphy testified that he met with the warehouse staff on about April 8 at which time he announced that agreement had been reached for a Board-conducted election on April 25. The employees were encour- aged to vote as this decision affecting their future should not be reached by default. Murphy stated that he was precluded from trying to influence the employees in any way. and further stated. "What will be will be and the Company ill go on from there.' 360 BEHRING INTERNATIONAL, INC. chance they might get some new contracts and, if the employees did not organize things looked good. 27 Ringen also testified that in April, before the election, he and the other warehouse employees attended a meet- ing called by Station Manager Waters and his assistant, Joyce Hesse. On that occasion Waters asked the employ- ees what their problem was. When there was no answer, Waters said that if the employees did vote for a union he probably would handle the negotiations and there was a good chance, that they would lose their stock option plan, profit-sharing plan, and pension benefits. Ringen in- terjected that as the employees had vested rights how could they lose these benefits? Waters did not reply. Employee Michael Lanza averred that at a preelection meeting of all warehouse employees Waters described the Respondent's stock plan, telling the employees that if they were employed for 2 years they would receive stock in the Company. After a while, the employees would start to own the Company. Waters told the em- ployees that the Respondent's branch in New York had a union but did not have the stock plan. 28 Before the election, Waters also met with the ware- house staff, divided into separate groups, to discuss em- ployee grievances. Ringen testified that he and members of his group, when they met with Waters, told him of their desire for overtime pay after 8 hours of work each day and of their wish for more pay. Waters stated his agreement with the employees but told them that they were dealing with a southern-based outfit. He said that he would see what he could do when he went to the Re- spondent's Houston headquarters. 2 9 Waters, in turn, testified that before the election he conducted two meetings with the warehouse staff. The first was in the beginning of April at which time he merely read verbatim a prepared statement to the staff, saying nothing more than what was contained therein. The statement announced the coming election, the date and time, and advised the employees of their right to participate therein, and reassured them that no effort would be made by management to harass or intimidate anyone involved in the election procedure. The General Counsel does not contend that the verbatim statement as- sertedly read to the employees contained unlawful lan- guage. Waters described a second meeting of all warehouse personnel conducted later in April when he told the em- ployees of the profit-sharing and stock option plans, the 27 Ippolito was also present at a meeting of all employees before the election in which the Respondent's president. New house., praised the work of the Edison warehouse employees, described the customer air force's satisfaction with their performance, and called them the best warehouse employees in the Respondent's organization. .z At the time in question fringe benefits provided for its employees by the Respondent, in addition to paid vacations. holidays, and Christmas bonuses, included the following companywide benefits hospitalization and major medical insurance, the Respondent's stock program whereby the Respondent made stock purchases for eligible employees, and a profit-sharing program While, as noted, these last programs were com- panywide, not all of the employees had sufficient service to be eligible. a9 Ringen's testimony on this point is., in substance if not in time, cor- roborated by that of Jaconski. who related that, when Waters came to the conference room at the conclusion of the March 31 meeting, he promised the employees that he would check with the main Houston office on the matter of obtaining equal pay for them. existing hospitalization, sickpay, and other benefits. On that occasion, employees asked questions as to the availa- ble fringe benefits. Waters denied having threatened em- ployees with the loss of existing benefits if they voted for the Union. 5. The alleged unlawful interrogations Warehouseman Sanders testified that on April 22, just 3 days before the election, he stopped for a drink at a nearby bar and restaurant where he joined Supervisor Houlihan and Lesniakowski at a table. After several min- utes of general discussion, Lesniakowski asked Sanders what he thought about the Union and how he was going to vote. Sanders replied that he would vote "no," as he did not believe the Union was going to win. Lesnia- kowski then asked how Sanders thought everyone else was going to vote. Sanders answered to the best of his knowledge. About 35 minutes later, Lesniakowski departed, leav- ing Sanders and Houlihan alone at the table. Sanders tes- tified, still without contradiction, that Houlihan asked what was the matter with those people. When Sanders asked if he meant the people at Behring, Houlihan re- plied "Yes." Houlihan declared that he did not under- stand why those people could possibly want the Union, repeating this statement. Houlihan noted that the Re- spondent was a good company to work for with profit- sharing and stock ownership plans. Employees were not pushed by the supervisors to work harder and if anyone asked for time off they received it. Sanders replied that he guessed that the employees felt that they needed the time off because they did not receive overtime pay after 8 hours' work and had to work overtime on Saturdays and Sundays when the warehouse was busy. Sanders de- clared that people were completely fed up with the con- ditions there. Houlihan then asked Sanders how he felt the other employees were going to vote and how Sand- ers would vote, the same questions earlier put to him by Lesniakowski. Again, Sanders stated that he was going to vote "no," and gave his estimate of how the various other employees were going to vote. Houlihan then asked who had started the Union. Sanders replied that Eric Stromberg had started the Union along with his brother, Ray, the two having contacted the union dele- gate. As a sequel to the above incident, Eric Stromberg tes- tified that after work on June 3, the day he was laid off, he went out for the evening with Houlihan and a number of the Respondent's employees. Later, after dinner and a number of drinks, he was left alone with Houlihan at a bar. In the course of their conversation, Houlihan told Stromberg that it was all Stromberg's fault that everyone was getting laid off and the whole union thing. Strom- berg said that it was not, that the Union was not his idea alone, but that actually it was Houlihan's fault. Houlihan had hired three men into the warehouse at pay rates higher than several incumbent warehouse employees were receiving at the time. Stromberg told Houlihan that he had been approached by Lesniakowski and Jaconski about bringing in the Union, which was what had started the ball rolling. Houlihan, however, persisted that the 361 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union was Stromberg's fault. As Houlihan was becoming increasingly belligerent, Stromberg left. 6. The alleged unlawful layoffs and postelection contracting On May 6 the Respondent laid off Ray Stromberg, Clara Kitson, and Michael Lanza and on June 3 laid off Eugene Calacino, Anthony Ippolito, Edmund Ringen, Eric Stromberg, and Joseph Sanders, all warehouse em- ployees, while concurrently contracting for labor serv- ices to be provided by ESP, Inc., an outside firm.3 0 The record also reveals that Lesniakowski and Jaconski, the sponsors of the March 31 employees' meeting, were not laid off but were assigned to work under a new supervi- sor in quality control. The record reveals that in their new quality control assignment their duties remained what they had been as warehousemen except that they also were responsible for training new warehouse person- nel provided and employed by ESP, Inc.3' Former Warehouse Supervisor Wier testified that about 2 weeks after the election he and the other super- visors attended a meeting called by Waters, who told them that as of Friday of that week all the men would be laid off, and beginning with the following week the Respondent was going to use an outside agency to do all the warehouse work. Wier asked when he should inform the employees. Waters replied that Wier should tell the employees on Friday, when they were paid at the end of the week, and to give them a week's notice at that time. Waters explained that the layoffs were being effectuated because it was estimated that the Company could save $50,000 a year by going to an outside agency in that it would not have to pay employee benefits, pensions, and other related expenditures. Waters also stated that the Respondent did not want the threat of the Union hang- ing over its head because in all probability the employees would go union in another year from that time when a new election could be held. Waters told the group that the Respondent's president, Newhouse, would probably close the Edison terminal if the men did go union. The Company wanted to remain nonunion. Both Murphy and Waters described a series of studies they, respectively, had made in May on the comparative costs of subcontracting the warehouse labor upon which the estimated savings were based.32 30 ESP, Inc., had been established by two men not connected with Summit Associates, one of whom earlier had worked for the Respondent on an efficiency report. "3 Ringen testified that after the election and subsequent to the start of the layoffs Jaconski, passing by, had told Ringen and another employee that he was on his way to the office. When Ringen asked who the Com- pany was laying off, Jaconski answered that Murphy, the Respondent's vice president, had told him that the Company was taking care of him and owed him for what he had done for it. 32 The record reveals that the Respondent's labor costs for its own employees had increased in that as of April 27 all warehouse employees received equalizing increases aligning them at uniform weekly pay levels, and the Respondent, since the election, for the first time was paying its employees time and a half in overtime pay after 8 hours per day. In addi- tion, the Respondent also had recognized the employees' grievance com- mittee and had obligated itself to process grievances. The Respondent's fringe benefit package for its own employees, however, was less costly than it might appear, as before the May 6 layoff only four Edison em- ployees had sufficient service to be eligible to participate in the profit- sharing and stock option plans. Murphy testified that the Respondent had followed a practice of subcontracting its work and that he, in fact, had first recommended subcontracting work in the Edison warehouse to the Respondent's Houston head- quarters office in 1975. Later, in January 1977, because of the financial problems then extant, he requested au- thority to investigate subcontracting the warehouse work in order to reduce costs. He reasoned that subcontracting would give him control of the number of employees to work at a given time so that, based on fluctuating work volume, only those employees actually required would be used. This could provide substantial savings over the need to employ a fixed group as done with the Respond- ent's own employees. Murphy testified that the Respondent's financial situa- tion continued to worsen in that its contract with the customer air force underwent two changes in scope. The first major change occurred in June 1976 when the Re- spondent was required to interface with the customer air force's logistics system, which resulted in increased costs to the Respondent. The second major change occurred when the customer air force acquired a fleet of large air cargo carriers which it began to operate as a wing of its own air force. This reduced the number of charter flights for which the Respondent had been contracting, and thus the Respondent lost a previously earned 5-percent CAB commission on all such flights. In addition, the cus- tomer's newly acquired airlift capacity resulted in a re- duction of ocean bookings costing the Respondent an ad- ditional decline in revenues generated through brokerage fees for these ocean voyages. A final factor increasing the Respondent's costs at that time was the need to install a computer, which was done in May or June, to enable the Respondent to keep cur- rent with the customer air force's requirements. The air force refused to renegotiate its contract to allow the Re- spondent to recover any part of these lost earnings or higher costs. Based upon a financial reversal in December 1976, the above-described factors which served to further reduce the Respondent's earnings, and his economic analysis, Murphy again recommended to Newhouse that the warehouse work be subcontracted and that five ware- house employees be laid off with severance pay and va- cation allowances. On May 6 the first layoffs-of Ray Stromberg, Kitson, and Lanza-were accomplished. These, however, were not part of the subcontracting decision, 33 but were based on Waters' statement to Murphy about 2 weeks earlier that he thought it was possible to reduce his warehouse work force by three. Murphy approved this action and the three employees were laid off. Murphy testified that the June 3 layoffs of Colacino, Ippollito, Ringen, Sanders, and Eric Stromberg occurred pursuant to the decision to subcontract the work, which thereafter was done by employees of ESP, Inc., the con- tractor. The ESP personnel, in turn, thereafter were 3:' The contract with ESP, Inc.. the contractor who finally assumed the warehouse work. was not executed until May 26 and no costs were executed under it until June 6. 362 BEHRING INTERNATIONAL, INC. trained for their work by Lesniakowski and Jaconski, a4 who, as noted, had been assigned to work in quality con- trol after the election under a new supervisor. They were the first assistants to be assigned to that area, which previously had been handled by one man. C. Analysis and Concluding Findings 1. The March 31 employees' meeting The General Counsel, contrary to the Respondent, contends that, in conducting the meeting of the entire warehouse staff on March 31 in the absence of supervi- sors, Lesniakowski and Jaconski acted as agents of the Respondent and that their acts in connection with that meeting were binding on the Respondent. The Respond- ent denies that they acted as agents, indicating their gen- eral rank-and-file status. To determine such agency, it is not necessary to find direct evidence that the activities of Lesniakowski and Jaconski actually were authorized or subsequently rati- fied. Rather, agency may be inferred from the circum- stances. 3 5 Summarizing the credited evidence in this area, Les- niakowski and Jaconski were the first employees allowed to call a meeting of other employees during working hours when no supervisor was present, receiving permis- sion from Waters for the same in order to discuss "the union matter." Although the meeting occupied the great bulk of the workday of all the Edison Warehouse em- ployees, all were paid for the time spent at the meeting and none were questioned or reprimanded with respect to their long absences from their work stations. The an- tiunion petition drafted and signed at that meeting was typed at Waters' insistence on company stationery and delivered to Waters. Later that day Lesniakowski and Jaconski also brought to Waters the employees' list of re- quested improvements and benefits prepared in the con- text of their having signed the request for withdrawal of the election petition. To some employees, these proposals represented a hoped-for exchange for the antiunion peti- tion. The list included requests for overtime after 8 hours of work, paid hospitalization, equal pay for equal work, and establishment of a grievance procedure. The griev- ance committee members were elected on March 31 and were recognized and dealt with by management before the election. Subsequently, Waters pursued the remaining proposals with management and all but paid hospitaliza- tion were eventually granted. In these circumstances, noting particularly that Waters had allowed the unprecedented meeting and had accept- ed the employees' signed request for withdrawal of the union petition and their list of requested job improve- ments which had evolved from the meeting, that he sub- J' Jaconski temporarily quit his job with the Respondent on May 6, against the urging of company officials, because he felt badly about the layoffs and sensed that other employees disliked him presumably because of his involvement in cosponsoring the March 31 employees' meeting. However, after later being asked to return by the Respondent, he went back to work on May 23. a5 See Razco. Inc., d/b/a Hit '. Run Food Storei, 231 NLRB 660, 669 (1977); Dellridge .4ssociates. Inc., db/a Dellridge Nursing Home, 234 NLRB 595, 599 (1978); Birmingham Publishing Company. 118 NLRB 1380, 1381-82 (1957), enfd 262 F.2d 2 (5th Cir 1958) sequently granted most of the employees' requests, and that it is inconceivable that the meeting could have lasted for as long as it did without disciplinary action by the Respondent unless conducted with the direction, as- sistance, and encouragement of management, I find that Lesniakowski and Jaconski acted as the Respondent's agents in conducting the March 31 meeting and that their statements to the warehouse employees and actions on that occasion were binding upon the Respondent. Therefore, it is concluded that the Respondent, through Lesniakowski and Jaconski, violated Section 8(a)(l) of the Act by threatening employees during the March 31 meeting that their work would be subcontracted or the warehouse would be closed if the election was conduct- ed and the Union was voted in.3 6 It also is concluded that the Respondent. through Les- niakowski and Jaconski, violated Section 8(a)(1) of the Act as alleged in the amended complaint by making it clear to employees on March 31 that they would be better off without a union.3 7 2. The preelection diversion of freight In concluding that the Respondent, in the preelection period, was utilizing and building upon a slow period in the warehouse to impress upon its employees the mes- sage of the March 31 meeting that work was slow and if they supported the Union their jobs would be in jeop- ardy, I note former Warehouse Supervisor Wier's testi- mony that in April, before the election, Waters, in direct- ing him to divert incoming freight to the Summit ware- house, had told him that the Respondent wanted the em- ployees to see an empty warehouse and let them think a little bit on the matter. Although Wier, on cross-examination, continued to adhere to this testimony, the Respondent contends that Wier, who was subsequently severed by the Company, was a disgruntled witness whose testimony against the Respondent should not be credited. Wier testifed that in the course of his employment he had received three dis- ciplinary letters from the Respondent relating to his job performance, and that in September he was told by Hesse that she had learned from Waters that Wier would be laid off in I month. In connection with his layoff the Respondent offered to give Wier I month's severance pay and bear the cost of the forthcoming maternity hos- pitalization for Wier's wife if Wier signed a letter of res- ignation. If Wier refused to sign he would receive noth- ing. Although Wier did not sign the resignation letter, he 36 There is no evidence that Lesniakowski or Jaconski interrogated employees as to their union sympathies or desires on March 31. While it could be argued that, in impelling the employees to sign the request for withdrawal of the union petition, the employees were obliged to go on record as to their stand on the Union at that time, this is a separate form of interference with their rights under Sec. 7 of the Act, to be considered below, and to find that this constituted interrogation would strain the customary usage of that term. 37 Although not alleged in the complaint, it is further found that the Respondent. again through Lesniakowski and Jaconski, violated Sec. 8(aH1) of the Act by soliciting employees to sign the document request- ing withdrawal of their union petition. See Dellridge .Vursing Home. supra. and Hit 'N Run Food Stores, supra. This conduct is closely related to the matters actually alleged, formed a part of the alleged conduct, and s·ias full) litigated at the hearing 363 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did receive the severance pay and also was paid through October 7 although he actually ceased to work for the Respondent 2 weeks before that date. Still pending at the time of the hearing was Wier's hopes for hospitalization benefits as his child had not yet been born. Although Wier was not pleased at his treatment by the Respondent, I find him to be a credible witness. His testi- mony is consistent with the general fact pattern of this case, which, as will be discussed below, shows a deter- mined effort by the Respondent to defeat the Union by extreme tactics which are detailed in this Decision. While Wier may have lost his position by the time of the hearing, he had received at least I month's severance pay and still hoped to obtain hospital coverage from the Respondent for his wife's maternity period. Accordingly, as Wier's testimony adverse to the Respondent was in- consistent with his interest in receiving the hospitaliza- tion payment, his account of the events is afforded addi- tional credence. However, Wier's testimony as to the significance of the empty warehouse is corroborated by other factors in- dicated above. Although the dust accumulation in the warehouse which led to the floor sealing operation had been a problem for some time, it was decided to deal with it only in a preelection period. The warehouse staff, underutilized at the time, was not assigned to move the in-house inventory from the area to be sealed, but, rather, this work was assigned to the supervisors, who did this work after the regular work hours. Even accept- ing, arguendo, the Respondent's assertion that it was nec- essary in the preelection period to have leased the space from Summit to reduce the freight level in its own ware- house in preparation for the floor sealing, the record re- veals that it would have been less costly for the Re- spondent to merely have leased the space at Summit and used its own employees to handle the diverted freight on Summit's premises. Instead, the Respondent hired both space and labor from Summit while retaining its own employees. That the Respondent was free to have as- signed its own employees to work at the Summit ware- house is clear from the fact that in this period it actually did assign Lesniakowski and two others to that location to work with the Summit crew. The Respondent as part of its antiunion campaign, as particularly evidenced by the remarks of Lesniakowski at the March 31 meeting, specifically called attention to the lack of work in the warehouse and the threat of possible future layoffs as its means of inducing employees to give up the Union. That this was intended is coroborated by Wier. While the floor sealing operation may have abated the dust and solved a real problem for the Respondent, the way the matter was handled served to provide an atmosphere continually supportive of the March 31 threats of layoff or shutdown. Although the use of the freight diversion before the election, at least in part, to make its employees apprehen- sive about supporting the Union was not alleged as a vio- lation in the complaint, the matter was fully litigated at the hearing and is closely related to matters actually al- leged. Accordingly, I find this conduct to be violative of Section 8(a)(l) of the Act. 3. The alleged unlawful promises and granting of wage increases and other benefits The General Counsel, contrary to the Respondent, contends that various pay increases were granted unlaw- fully in the preelection period to discourage union sup- port and activity by Respondent's employees. From the credited evidence, including the Respond- ent's payroll records, it is concluded that on March 26 Michael Lanza and Clara Kitson and on March 28 Mi- chael Jaconski, respectively, were unlawfully reclassified from receiving clerks to the higher paid position of war- ehousemen. In view of the timing of these raises after the start of the Union's organizational drive,3 8 and the Re- spondent's other conduct found unlawful herein, noting also that it is established that the institution of a new classification and wage scale in response to an organiza- tional drive is unlawful, 39 1 find, under the circum- stances herein, that the reclassification of these three em- ployees to higher paying positions is violative of Section 8(a)(1) of the Act. Waters' explanation that the reclassifi- cations had occurred because the receiving clerk job was being eliminated as all warehouse employees were doing the same work illustrates the Respondent's timing as this situation apparently had been true for some time before. Crediting the testimony of employee Ippolito, I con- clude that Waters, at a preelection meeting of all ware- house employees in April, announced that he was trying to fight for equal pay for equal work and that $300 a week was a justifiable wage.40 This raise was actually given but 2 days after the election at a time when objec- tions to the election could still have been timely filed. In my view, Waters' statement to the employees, as described by Ippolito, constituted a promise of a pay in- crease in the stated amount, and apparently was a pree- lection response to the list of employee proposals sent to him by them on March 31 in consideration of their having signed the petition withdrawing their support for the Union. Contrary to Waters' testimony that increased wages and other benefits were not requested until 2 days after the election when the request was processed, the Respondent's own records, as noted, show that the across-the-Board increment became effective 2 days after the election. Accordingly, I find that the Respondent had announced and undertaken to obtain the pay raise well before the election was conducted in violation of Section 8(a)(1) of the Act. The only other job benefit granted by the Respondent in the preelection period was the establishment and rec- ognition of the three-member grievance committee formed at the March 31 meeting and as a result thereof. Although this committee took its inception from the em- ployees' request for such representation, the committee received its validity and standing from the Respondent as part of the consideration for the employee-signed peti- tion requesting withdrawal of the representation election :' Wier's testimony that he informed the Respondent of the start or the Union's campaign upon learning of it from employees in the first week in March is credited. :" rymnaser Corporation, 233 NLRB t19 (1977). 40 At that time, the most highly paid warehouse employees earned a weekly raise oif $289 364 BEHRING INTERNATIONAL, INC. petition. In that sense, the grievance committee was an unlawful job benefit given before the election to encour- age the employees to abandon their support for the Union and to seek redress of their job-related problems and grievances through the alternative thus provided. Accordingly, it is concluded that, in recognizing the grievance committee under the circumstances herein, the Respondent violated Section 8(a)(l) of the Act. 4. The alleged unlawful threat of loss of job benefits In accepting the testimony of employee Edmund Ringen that, at a preelection meeting of all warehouse employees in April, Waters declared that if the employ- ees did vote for the Union he probably would handle ne- gotiations and that there was a good chance that they would then lose their stock option plan, profit-sharing plan, and pension benefits, Waters' denial of the same is not credited as, for reasons set forth above, he is not deemed a reliable witness. The Respondent contends that, even if Waters had made the remarks attributed to him by Ringen in threat- ening the loss of job benefits, such comments were rec- ognized as insubstantial by Ringen himself, as Ringen, in response, had asked, in effect, how could these benefits be lost as the employees had vested rights. However, this argument lacks merit. Ringen's statement was in the nature of a protest which did not reduce the significance of the threat. It did not even describe the relevant situa- tion, as only 4 of the approximately 14 employees who heard Waters that day had vested rights to these benefits. Accordingly, it is concluded that, in threatening the loss of such benefits, the Respondent violated Section 8(a)(1) of the Act. 5. The alleged unlawful interrogation From the uncontradicted testimony of Joseph Sanders, it also is found that about 3 days before the election, at a bar, Warehouse Supervisor Houlihan, in violation of Sec- tion 8(a)(l) of the Act, had asked Sanders, in effect, why the employees wanted a union, how he and each of the other employees would vote in the forthcoming election, and who had started the Union. Two other incidents involving Houlihan, referred to above and not specifically alleged in the complaint, also are worthy of note. First, Lesniakowski testified, also without contradiction, that about 3 days before the March 31 meeting, while but two bar stools away, he overheard Houlihan tell an acquaintance that the work was being diverted to the Summit warehouse and that it looked as though the Company was going to subcontract out the work if the Union came in. Lesniakowski gave this incident as a motivating factor in his decision to seek the March 31 meeting. The second undisputed occur- rence is taken from Eric Stromberg's testimony that on the night of June 3 immediately following his layoff, while Stromberg also was in a bar with Houlihan, the latter told him that the layoffs and the whole union thing were all Stromberg's fault, repeating this with increasing belligerence. Houlihan's conduct relating to Stromberg and Lesniakowski was sufficient to constitute unlawful coercive interference with the rights of the affected em- ployees. However, in view of my other conclusions in this matter, which include extensive violations of Section 8(a)(1) of the Act, no unfair labor practice finding will be made with respect to the incidents relating to Lesnia- kowski and Stromberg as these events were not alleged in the complaint and, if found, would not materially affect the remedy found herein. 6. The alleged unlawful layoffs In agreement with the General Counsel, the economic defense offered in justification of the layoffs on May 6 and June 3, respectively, of eight employees must be considered in the context of the union animus shown by the Respondent. At the March 31 meeting employees were told that if the Union came in or an election were conducted their work would be subcontracted or the warehouse would be closed and thus were persuaded to sign a written request for withdrawal of their representa- tion petition. In the critical period before the election the Respondent also gave and promised to give pay in- creases, recognized an employee grievance committee, and conducted meetings of employees where, at various times, they were told by members of management that if they did not organize business prospects looked good, and if the employees became unionized there was a good chance that they would lose their profit-sharing plan, stock option plan, and pension benefits. To create a sense of anxiety among its employees during the preelection period, the Respondent magnified a slow period in the warehouse by diverting incoming freight to a contrac- tor's premises where it was handled by that employer's crew, and used its own supervisors after hours to move inventory away from the floor area to be sealed, al- though the Respondent's own employees were underuti- lized at the time. As Wier credibly testified, a purpose of the strategem was to let the employees see an empty warehouse and think about the union matter. After the last layoffs occurred, on June 3, Houlihan told Eric Stromberg, the principal employee union activist, that the layoffs and the Union had been Stromberg's fault. 41 While subcontracting had been considered by the Re- spondent for years and some contractor labor had been utilized during the first 6 months of the warehouse's op- eration, no subcontracting was again done until the Union began to organize the Respondent's employees. Although the General Counsel argues with regard to Waters' study that, adjusting for the salaries and fringe benefits of employees Lesniakowski, Jaconski, and Tiede- mann, who was omitted therefrom, the cost to the Re- spondent of operating the warehouse with ESP labor for the 4-week period between the weeks ending June 4 to June 25 was nearly $3,000 more than it had cost to run the operation with its own employees between the 4 weeks ending April 15 and May 6, this would not neces- sarily be a valid projection for future comparative costs. 41 As noted Houlihan also, at various times after the representation petition was filed, deliberately stated in Lesniakowski's hearing that the work was being diverted to Summit and that it looked as though the Re- spondent would subcontract out the work if the Union came in, and un- lawfully interrogated Sanders as to how he and the other employees would vote in he election and who had started the Union 365 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Most of the benefits considered herein, including the across-the-board pay raise and liberalized overtime pay policy, became effective only on or after April 27, and were not factors during most of the earlier 4-week period referred to by the General Counsel. As the Re- spondent, in subcontracting, could reduce or expand the work force according to need with greater flexibility, would be spared the processing of employee grievances and payment of fringe benefits, and could keep fewer re- cords, I am prepared to accept the Respondent's position that subcontracting the warehouse labor ultimately could be financially beneficial. However, noting that the layoffs began on May 6, only about 1-1/2 weeks after the effective date of the across-the-board pay increase of April 27 and soon after other benefits such as the grievance committee and in- creased overtime benefits were granted, and Wier's testi- mony that Waters, in directing the start of the layoffs, had told him and the other supervisors of the Respond- ent's continuing concern that the Union would try for another election in the following year when one could again be conducted, in the context of Newhouse's words of praise for the work of the Edison staff, it is concluded that, although the Respondent eventually could have re- duced its costs by laying off most of its own warehouse employees and by subcontracting their work to ESP, the Respondent was motivated, at least in part, in so doing at that time by a desire to reduce the possibility of another union election in the future.4 2 Accordingly, I find that the employee layoffs on May 6 and June 3, respectively, were in violation of Section 8(a)(3) and (1) of the Act. 43 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW 1. Behring International, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union No. 478, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(3) of the Act by permanently laying off or terminating Ray Strom- 42 The treatment of the laid-off employees contrasts markedly with that afforded Lesniakowski and Jaconski, who were kept on at the new higher pay rate in apparent reward for their services to the Respondent in having conducted the March 31 meeting. In fact, when Jaconski left the Respondent's employ after the first layoffs, he returned only after having been invited back by the Respondent. 4S Also considered in reaching the conclusion herein is the fact that the Respondent, through Houlihan's interrogation of Sanders, had actual knowledge that laid-off employees Eric and Ray Stromberg were princi- pal union activists. berg, Eric Stromberg, Clara Kitson, Michael Lanza, Eugene Colacino, Anthony Ippolito, Edmund Ringen, and Joseph Sanders because of their support for and ac- tivities on behalf of the Union. 4. The Respondent violated Section 8(a)(l) of the Act by all of the foregoing conduct and by coercively inter- rogating an employee concerning his union sentiments, those of other employees, and as to the identity of the employees who instigated the Union; promising and granting employees a pay raise and improved employ- ment benefits to discourage them from supporting the Union; threatening employees that their work would be subcontracted or the warehouse would be closed if an election were conducted and the Union were voted in; threatening employees with loss of benefits if the Union were voted in; soliciting employees to sign a request that the petition for a representation election be withdrawn; coercively telling employees that they would be better off without a union; and deliberately reducing the availa- ble amount of work in the warehouse in the preelection period by diverting freight and using contract labor in order to make employees apprehensive about supporting the Union. 5. The General Counsel has failed to prove by a pre- ponderance of the evidence its contention that on March 31, 1977, the Respondent, through Robert Lesniakowski and Michael Jaconski, its agents, unlawfully interrogated employees. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, it will be recommended that the Respondent be ordered to cease and desist therefrom and that it take certain affirmative action which is neces- sary to effectuate the policies of the Act. In view of the finding that the Respondent unlawfully laid off or terminated Ray Stromberg, Clara Kitson, and Michael Lanza on May 6, 1977, and Eugene Colacino, Anthony Ippolito, Edmund Ringen, Eric Stromberg, and Joseph Sanders on June 3, 1977, and that the Respondent has failed and refused to reinstate them, it will be recom- mended that the Respondent be ordered to offer each of them immediate and full reinstatement to his or her former job or, if it no longer exists, to a substantially equivalent position, without prejudice to their seniority or other rights and privileges, and to make each of them whole for any loss of earnings that they may have suf- fered from the time of their termination to the date of the Respondent's offer of reinstatement, with backpay and interest computed in accordance with the Board's es- tablished standards as set forth in F. W. Woolworth Com- pany4 4 and Florida Steel Corporation. 4 5 As the Respond- ent's conduct found unlawful herein goes "to the very heart of the Act," a broad remedy is warranted. 4 6 Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: " 90 NLRB 289 (1950). 4" 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 4' N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941). 366 BEHRING INTERNATIONAL, INC. ORDER4 7 The Respondent, Behring International, Inc., Edison, New Jersey, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their union activities, sympathies, and desires, those of other employees, and as to the indentities of employees active in bringing about the Union's organizational cam- paign. (b) Threatening employees that if the Union comes in or a representation election is conducted their work will be subcontracted or that the plant will be closed. (c) Threatening employees with loss of benefits if they support the Union. (d) Promising and granting employees a wage increase and other employment benefits to induce employees to abandon their support for the Union. (e) Soliciting employees to request, in writing, with- drawal of the petition for a representation election. (f) Deliberately reducing the work available to its em- ployees in the period before a representation election by diverting freight and using contract labor to discourage employees from supporting the Union. (g) Coercively informing employees that they would be better off without the Union. (h) Discharging or laying off and refusing to reinstate or recall its employees in order to discourage its employ- ees from becoming or remaining union members or oth- erwise supporting the Union. (i) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaran- teed them under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: 47 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 Ray Stromberg, Clara Kitson, Michael Lanza, Eugene Colacino, Anthony Ippolito, Edmund Ringen, Eric Stromberg, and Joseph Sanders immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions of employment, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings, with interest thereon, to be comput- ed according to the formula described above in the sec- tion of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Edison, New Jersey, location copies of the attached notice marked "Appendix." 48 Copies of said notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that those allegations of the complaint found to be without merit are hereby dis- missed. '8 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 367