Gilbert International, Inc.

National Labor Relations Board - Board DecisionsSep 25, 1974

213 N.L.R.B. 538 (N.L.R.B. 1974)

538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gilbert International , Inc. and Local Union # 1516, International Brotherhood of Electrical Workers, AFL-CIO, CLC. Cases 26-CA-4934 and 26- RC-4653 September 25, 1974 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS JENKINS, KENNEDY, AND PENELLO On May 24, 1974, Administrative Law Judge Anne F. Schlezinger issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief. 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, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Gilbert International, Inc., Jonesboro, Arkansas, its officers, agents, succes- sors, and assigns, shall take the action set forth in said recommended Order. IT IS FURTHER ORDERED that the election conducted on November 21, 1973, in Case 26-RC-4653, be set aside, and that said case be remanded to the Regional Director for Region 26 to conduct a new election at such time as he deems the circumstances permit the free choice of a bargaining representative. DIRECTION OF SECOND ELECTION A second election by secret ballot shall be conduct- ed among the employees in the unit found appropri- ate, at such time as the Regional Director deems appropriate. The Regional Director for Region 26 shall direct and supervise the election, subject to the National Labor Relations Board Rules and Regula- tions, Series 8, as amended. Eligible to vote are those in the unit who were employed during the payroll period immediately preceding the date of issuance of the Notice of Second Election, including employees who did not work during that period because they were ill, on vacation, or temporarily laid off. Also eligible are employees engaged in an economic strike which commenced less than 12 months before the election date and who retained their status as such during the eligibility period and their replacements. Those in the military services of the United States may vote if they appear in person at the polls. Ineligi- ble to vote are employees who have quit or been dis- charged for cause since the designated payroll period and employees engaged in a strike who have been discharged for cause since the commencement there- of, and who have not been rehired or reinstated before the election date, and employees engaged in an eco- nomic strike which commenced more than 12 months before the election date and who have been perma- nently replaced.' Those eligible shall vote whether or not they desire to be represented for collective-bar- gaining purposes by Local Union # 1516, Interna- tional Brotherhood of Electrical Workers, AFL-CIO, CLC. i In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236 (1966), N L.R B v Wyman-Gordon Co, 394 U S 759 (1969) Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by Gilbert International , Inc, with the Regional Director for Region 26 within 7 days, after the date of issuance of the Notice of Second Election by the Regional Director. The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed DECISION STATEMENT OF THE CASE ANNE F. SCHLEZINGER , Administrative Law Judge: Upon a charge and an amended charge filed respectively on No- vember 27, 1973, and January 17, 1974, by Local Union # 1516, International Brotherhood of Electrical Workers, AFL-CIO, CLC, referred to herein as the Charging Party or the Union , the General Counsel , by the Regional Direc- tor for Region 26 , issued a complaint on January 18, 1974. The complaint alleges that Gilbert International , Inc., re- ferred to herein as the Respondent , interrogated employees concerning their union activities , threatened employees with loss of employment and of job benefits if they selected the Union as their collective -bargaining representative, dis- charged an employee because of his union or concerted activities , and thereby engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act . In its answer, duly filed , the Respondent admits certain factual allega- tions of the complaint but denies that it has engaged in the alleged unfair labor practices. GILBERT INTERNATIONAL, INC. Based on a petition filed on October 18, 1973, in Case 26-RC-4653, and pursuant to a Stipulation for Certification Upon Consent Election, an election was held on November 21, 1973, at the Respondent's plant. The Union, which failed to receive a majority of the valid ballots cast, filed objections to the election on the same day it filed its charge. In a report on objections issued on January 18, 1974, the Regional Director found that certain issues raised by the objections could best be resolved on the basis of record testimony at a hearing before an Administrative Law Judge, and recommended that Case 26-RC-4653 be consolidated with Case 26-CA-4934, in which a complaint was issued that day. On February 6, 1974, the Board issued an Order directing such a hearing, and on February 11 the Regional Director issued an order consolidating cases, providing that Case 26-CA-4934 and Case 26-RC-4653 were to be consol- idated for the purposes of hearing, ruling, and decision by an Administrative Law Judge; that thereafter Case 26- RC-4653 was to be transferred to and continued before the Board; and that the provisions of Sections 102.46 and 102.69(e) of the Board's Rules and Regulations were to govern the filing of exceptions. Pursuant to notice, a hearing in the consolidated proceed- ing was held before me at Jonesboro, Arkansas, on Febru- ary 26, 1974. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-exaimine witnesses, and to introduce relevant evi- dence. The parties at the hearing waived closing argument. Subsequent to the hearing, the General Counsel and the Respondent filed briefs on or about April 1, 1974, which have been fully considered. Upon the entire record in this proceeding, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent, a corporation doing business in the State of Arkansas, with an office and place of business located in Jonesboro, Arkansas, is engaged in the manufac- ture of electric insect control devices. During the 12-month period preceding the issuance of the complaint, the Respon- dent, in the course and conduct of its business operations, purchased and received at its Jonesboro, Arkansas, loca- tion, products valued at more than $50,000 directly from points located outside the State of Arkansas. The complaint alleges, the Respondent in its answer admits, and I find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED I find , as the complaint alleges and the Respondent's answer admits , that Local Union # 1516, International Brotherhood of Electrical Workers, AFL-CIO, CLC, is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Interference, Restraint, and Coercion 539 The Respondent has been engaged in the manufacture and sale of electric insect control devices about 7 years, and employs about 14 employees. Gilbert, the president and general manager of the Respondent, is in charge of manage- ment and labor relations policies. Hale, who has been em- ployed by the Respondent about 5 years, in turn as a machine operator, a foreman, and a shop foreman, in Sep- tember 1972 became the production supervisor or shop su- perintendent. Hale testified, and it is undisputed, that he first learned of union activity among the Respondent's em- ployees when almost all of them began wearing union but- tons in the plant. Gilbert testified, and it likewise is undisputed, that he first learned of union organization among his employees when he received the petition for an election. The record indicates that in both instances this occurred on or about October 19, 1973. Gilbert testified that the first thing he did when he learned of the union activity was to call the employees together and give them a very short speech in which "I told them that I was disappointed and disillusioned, I was mad, and that I would fight the union intervention in our relationship with all that I could." Gilbert also had printed and distributed to the employees a leaflet that contained three "compan- sons ." Under the first heading, "Let's Compare the Past," Gilbert listed as what the Respondent did for each employ- ee: 1. It gave you a good job when you needed one. 2. Provided you steady employment with reliable week-to-week paychecks. 3. Provided you with fine employee benefits. It contrasted this with the statement that what the Union had done was "A great big zero-That's right-NOTHING!" This comparison was concluded with a warning "THINK- WHAT WOULD YOU DO WITHOUT YOUR JOB!" Under the second heading, "Let's Compare Again the Present," the leaflet made reference to the Respondent giv- ing employees 8 paid holidays and I week's paid vacation, job security, an employee savings plan to which the Respon- dent contributed, "these good benefits and good wages and without having to pay a nickel in dues and worrying about strikes," free cold drinks and coffee every day, the "right to talk over your problems with the President and General Manager person-to-person anytime," a "hospital plan un- surpassed" for which the Respondent "pays over 60% of the cost for you and your entire family," and concluded the list with "AND THERE 'S MANY MORE" This was contrasted with what the Union was doing for them, described as "Another Big Zero-That's right-STILL NOTHING." This comparison was concluded with the warning to "THINK AGAIN! The Union is noted for making TROUBLE. It can cause you and your family to SUFFER." Under the third heading, "O.K. Comparison No. 3 The Future," the following appears over Gilbert' s signature: 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I, Donald E. Gilbert President of Gilbert International, Inc., do hereby guarantee that if you do not have a union in our plant you will not lose your job on account of a strike. I, Donald E. Gilbert, President of Gilbert Internation- al, also guarantee that anyone voting no union in the election will not lose his job or any of our company benefits. This was contrasted with what the Union would do as fol- lows: Mr. Gilbert has signed a guarantee that you will not lose your job on account of a strike if there is no union here . Now ask the organizers if they will sign the state- ment below: If a union wins an election, it will normally choose a bargaining agent for all the employees. There will be no contract in effect and there will be no other changes. The union begins meetings and talks with management of the Company for a contract to cover the Company's future dealings with you. If the union makes wage and working condition demands that the Company cannot afford and the Company refuses to sign such a con- tract, then the union calls for a strike and the employ- ees who answer the walk out lose their pay. Each man who walks the picket line or refuses to come in to work is subject to being permanently replaced. Normally the company loses business and everybody loses when a strike is called, except the union organizers with their expense accounts. I hereby guarantee that if the union represents you no employee in the plant will lose his job because of a strike. Below a blank signature line appeared the italicized state- ment: If any union representative, or anyone for the union, signs this guarantee-ask him How the union is going to make the company do anything if it doesn 't intend to pull a strike. Gilbert prepared another document setting forth at length his opposition to the union organization of his em- ployees. He read this document to the assembled employees as a speech on a date he could not recall but thought was November 5 or 7. He also had copies, dated November 8, addressed and mailed to each employee. In this document, Gilbert described his "disgust" at being informed by the Board of the union activity among his employees, and his "hurt" feelings "over the potential loss of the personal and close relationship that I have had with you"; pointed out the employment benefits his employees had been granted; com- pared working conditions at his plant with those at other plants, including a local unionized plant where there was a good deal of subcontracting, and referred to the pressures put on him to subcontract work; pointed to his efforts to maintain continuous operations although his business was "seasonal," and asked what his employees would advise him to do if, in winter, with "no sales but a tremendous invento- ry," he was faced with a union contract he could not meet or demands he "could not afford to recognize in the best interests of the Company"; pointed out that the most impor- tant thing he could do was go out seeking business contracts to provide them all with security rather than stay at the plant "worrying about a union trouble"; set forth his "guar- antee . . . that I am going to be the toughest, bargaining manager that any union has ever come in contact with in this area," his "guarantee that I will permanently replace any man who goes on an economic strike," and his explana- tion that "I know where unions are involved that there are strikes." On page 7 of this eight-page document, Gilbert states the following: Some of you may wonder if you have already signed a card for one reason or another and now want to cancel the effects of the card, can you do so? The answer is "Yes". You have just as much right not to join or sign a union card as you do to join or sign a union card. If you have changed your mind, you can ask for your card back and cancel it whenever you want to. If you make such a request and the union tells you it no longer has your card, but they sent it to the National Office, which is the standard reply, you can still cancel the effect of the card by simply writing the union with a copy to the National Labor Board and copy to the General Man- ager of your Company which tells them that you no longer wish to authorize the union to be your collective bargaining agent. Your right to make such a request is guaranteed by Federal and State Law. Shortly before the conclusion of this speech and document, Gilbert stated: "I want to tell you how I feel about the union trying to force its way into our plant. I am 100% opposed to any attempt by any union to break up such a good relationship that exists at Gilbert International. We can continue to have people working together here for everybody's best interest or we can have union trouble. That decision will be up to you, but I want everyone to know and to make it perfectly clear that we will fight union trouble- makers with every ounce of energy we have, with our last dollar, and to the last zap on the last bug killer leaving this plant." Shortly after Gilbert delivered this speech and sent a copy of it to each employee, several copies of employee letters withdrawing from the Union were turned over to Gilbert, and a number of employees discontinued wearing union buttons at work. The General Counsel contends that Gilbert's statements, oral and written, clearly conveyed to the employees the threat that their employment and job benefits were in jeop- ardy in the event of a union victory; that these statements therefore constituted threats violative of Section 8(a)(1) of the Act; and that the suggestion that employees who wished to withdraw from the Union should request in writing that the Union return or cancel their cards, with copies of their letters to be furnished to the Board and "to the General GILBERT INTERNATIONAL, INC. 541 Manager of your Company which tells them that you no longer wish to authorize the union to be your collective bargaining agent," constituted interrogation concerning the employees' union membership and activities violative of Section 8(a)(1) of the Act. The Respondent maintains that Gilbert's comments re- garding the effect of unionization, in speeches and docu- ments, were only statements of fact or economic predictions based on the usual results of unionization, and were there- fore protected by the free speech proviso of the Act. It also asserts that Gilbert's request that employees furnish the Respondent with copies of their withdrawal letters did not constitute unlawful interrogation on the grounds that Gil- bert included this request because a substantial number of employees had voluntarily stated that they wished to with- draw their union cards; that, as stated in the Respondent's brief, "Mr. Gilbert's only purpose in requesting that a copy of any cancellation letter sent to the union be furnished the NLRB and the Company was to lay the basis for challeng- ing the 30 percent showing-of-interest for support of the election petition"; and that in fact such a challenge was made to the Regional Director by letter dated November 8, 1973, which the Regional Director, by letter of November 9, found without merit. Concluding Findings It is apparent, from the above illustrative comments con- tained in Gilbert's oral and printed communications to the employees, that the Respondent was seeking to instill in its employees a sense of fear that unionization would bring on strikes, trouble, loss of jobs, and a reduction in existing benefits. In the first leaflet, after comparingjob benefits that had been or would be provided by the Respondent in the past, present, and future, with the "zero" contribution by the Union, Gilbert exhorted employees to think about what they would do without their jobs, warned them that the Union was noted for making trouble and could cause the employees and their families to suffer, questioned how the Union could make the Respondent "do anything" without a strike, pointed out that unionization would break up the good employer-employee relationship in effect at the plant, and guaranteed that "anyone voting no union in the elec- tion will not lose his job or any of our company benefits." Gilbert followed this up with the lengthy speech to the employees, with a copy sent to each employee, in which he expressed his determination to fight the "union troublemak- ers" even to "the last zap on the last bug killer leaving this plant," reiterated his views as to the inevitability of strikes in the event of a union victory and his "guarantee" that he would "permanently replace any man who goes on an eco- nomic strike," and made reference to the pressures on him to subcontract out work as was done in unionized plants in the area, and to the fact he could not go out to obtain customer contracts for more work when he had to be at the plant "worrying about a union trouble." Gilbert thus re- peatedly suggested that unionization would inevitably result in strikes, curtailment of work, and loss of employment and of job benefits. The effectiveness of Gilbert' s statements as to his views about the effects of unionization is indicated by the fact that many employees who signed union cards and wore union buttons withdrew their cards and removed their buttons after Gilbert expressed these views. The Board holds that the fact that an employer who predicted adverse effects of union organization "attributed such consequences to the Union, rather than to its own acts, does not make the Respondent' s acts lawful, since it is clear that the dire consequences the Respondent describes could only be brought to fruition by the employees themselves in accepting the Union as their representative. The Board has consistently held that where an employer engaged in con- duct, as described in the above-quoted excerpts of Respondent's letters , which was not an attempt to influence the employees by reason, but was an appeal to fear, such conduct was intended to interfere with, restrain, and coerce employees in the exercise of their rights guaranteed by Sec- tion 7, and was, accordingly, violative of Section 8(a)(1) of the Act [citations omitted]."1 The Board holds also that an employer violates Section 8 (a)(1) of the Act "by threatening employees with trouble or harm as a consequence of signing union authorization cards."' The courts likewise have held, with regard to an employer's contention that certain state- ments "were merely predictions of the possible economic consequences of unionization," that "The cumulation of such remarks, relatively innocuous in themselves, may create an atmosphere in which employee free choice is ren- dered impossible [citations omitted]."3 A recent court of appeals decision ° held that an employer' s argument that certain statements were "legitimate economic predictions" and as such protected by Section 8(c) of the Act "overlooks the severe burden which has been placed upon employers seeking to justify such statements by NLRB v. Gissel Pack- ing Co., 395 U.S. 575," and quoted from the Supreme Court opinion in that case as follows: [A]n employer may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably proba- ble consequences beyond his control... . I find, on the entire record, that Gilbert 's statements, summarized above, which were made by the president of the Respondent to all the unit employees, were not an appeal to reason or statements of objective fact, but were threats that unionization would result in loss of employment and of job benefits. I find further that these threats were intended by the Respondent to discourage membership in and activi- ties on behalf of the Union, and that the Respondent, by such conduct, interfered with, restrained, and coerced em- ployees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act .6 I find further that, at the time Gilbert told the employees 1 General Automation Manufacturing, Incorporated, 167 NLRB 502 (1967). Z Kellwood Co, 175 NLRB 559 (1969). 7 N L R B v Kaiser Agricultural Chemicals, 473 F.2d 374 (C A. 5, 1973) 4 Ztm 's Foodliner, Inc v. N LR.B., 495 F.2d 1131 (C.A. 7, 1974) 3 See Scott-Gross Company, Inc, 197 NLRB 420 (1972), enfd . 477 F 2d 64 (CA 6, 1973) 6 See N L R B v. Groendyke Transport, Inc, 493 F 2d 1404 (C.A. 5, 1974); Greenwood Mills, 210 NLRB No 15 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they could ask the Union in writing to return their cards, and requested that they send copies of these letters to the Respondent, practically all of the approximately 14 eligible employees had signed cards. Compliance with Gilbert's re- quest would have provided the Respondent not only with information as to which employees withdrew cards, but also an indication of which employees retained their union mem- bership. I find, in all the relevant circumstances, that the Respondent, by such request, brought "pressures to bear upon employees to divulge a choice which they had a pro- tected right to keep to themselves." 7 I find therefore that the Respondent unlawfully interrogated employees about their union membership and activities, and thereby further inter- fered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act. B. The Termination of Shields' Employment 1. Shields' union activity Shields was hired by the Respondent in June 1972, and was terminated on November 14, 1973. Organization of the Union began in about October 1973. Shields signed a union card on October 14. He also wore a union button at work. His testimony was contradictory as to dates generally, in- cluding the date when he began wearing the button. He testified that he thought it was on October 24, the day of Gilbert's first speech, and at another point that it was on the day the election notice was posted, which was about No- vember 14, the day he was discharged. His pretrial affidavit stated that everyone in the shop wore the buttons on or about November 7 when the election notice was posted. This date was crossed out on the affidavit and October 24 written in its place. The record indicates that employees began wearing the buttons to work on the day the Respon- dent received the petition for an election, about October 19, 1973. Shields testified that he signed up about eight other em- ployees in the Union, but that he believed no supervisor saw him do so, or knew that he had done so, and that his only other union activity was wearing the union button. He ad- mitted that virtually all the eligible employees signed union cards and wore union buttons at work during the period in question, and that "at least two" other employees got union cards signed and were not terminated as far as he knew. He also testified that employees began removing their union buttons after Gilbert's first speech, although the record indi- cates they began wearing them at a later date. He testified further that he believed he was the only one wearing a button the last few days he was employed, but then admit- ted there could have been others wearing them at that time. 2. Shields' employment history Shields worked on the Respondent's final assembly about 8 months, then in shipping and receiving. At the time of his discharge, he was working at the packing table, and was the only packer. His rate of pay had increased from $2.14 to 7 F W Woolworth Company, 173 NLRB 1146, 1150 (1968) $2.70 an hour. Shields, who worked under different supervi- sors on his various jobs, testified at one point that he worked on the packing table job under the direct supervision of Larson, the quality control man, but at another point that he worked on this job under the direct supervision of Hale. In the summer of 1973, when Shields was working on the shipping and receiving dock, he sometimes went into the purchasing agent's office on the dock to do paperwork or to telephone truckers about pickups. The purchasing agent complained one day to Hale about this use of her office, and Hale then discussed it with Shields. Hale testified that Shields argued that he was doing paperwork there and that the office should be his, while Shields denied that he said this. In any event, Hale admitted that, when he told Shields that the purchasing agent had to have the office, Shields said it was all right and he would go back out and do his job; that Shields did so; and that this incident was never men- tioned to Shields again. Shields testified that one day in late October 1973, he delivered some products for the Respondent; that as a result he did not punch out until 20 minutes after his shift ended at 4 o'clock; and that he raised a question about his next paycheck as it did not include 20 minutes of overtime pay. On cross-examination by the Respondent, however, Shields admitted, as his pretrial affidavit stated, that the overtime may have been only 13 minutes, and that Hale explained to him that the Respondent paid overtime only on a quarter- hour basis. He denied that he had known of this practice. He also denied that, as Hale testified, he accused the Re- spondent of "cheating" him, and that he told Hale he would get that overtime pay one way or another. His pretrial affi- davit states, however, that he told Hale he was going to get paid for all work after 40 hours. Hale testified that, at about this same time in late Octo- ber, a supervisor pointed out to him one day that Shields was not doing his work but was staring at Hale, that Hale then observed for himself that this was so, that he spoke to Shields about it, and that Shields answered that he was doing his work. On this same day, Hale testified, he was on a break when Shields, walking in the opposite direction, jostled him. He did not say anything to Shields about this and, in fact, admittedly did not think anything about it until, in considering weeks later whether to discharge Shields, he decided Shields had "brushed into" him "on purpose." 3. Shields' absenteeism Shields was the only packer employed by the Respondent but others were able to do this work when Shields was absent. He admitted this was a frequent occurrence. Hale testified that Shields' attendance record began to be poor in the spring of 1973 when Shields was having car trouble and marital problems; that he spoke to Shields "quite a few times" about this, but was lenient and understanding when Shields was absent without obtaining leave or calling in as Shields generally gave an acceptable excuse on his return to work; that, while Shields' only explanation for a time was "personal business," Hale accepted this as adequate be- cause he understood it had reference to Shields' family problems; and that no warnings were issued to an employee GILBERT INTERNATIONAL, INC. 543 for absence if he gave a good reason for the absence on his return. On November 5, Shields was absent without giving notice or calling the plant . When he came to work on November 6, Hale asked where he had been the previous day. Hale testified that Shields said only that he had business to take care of, and refused to explain when Hale asked the nature of this business ; that , when he asked why Shields did not call in, Shields replied that he did not think it important enough ; and that he then said he was giving Shields his first warning. Shields testified that he did not show up at work on November 5 because of personal business , that he did not recall that Hale asked next day what this business was, but he admitted that Hale did ask if he could not let Hale know on the day of an absence the reason for it . Shields denied that he answered he did not do so because it was not important enough , and that Hale said , if he had no better excuse than personal business , Hale had to give him a warn- ing. Shields worked on November 6, but was out again on November 7, with no notice and no call . He testified that he was ill all day ; that , while not completely recovered, he was well enough to come to work the next day; that Hale asked why he had been absent , and he said he was ill; that Hale then asked if he had seen a doctor , and he said he had not; and that Hale asked why he had not called , and he said he had been in bed all day and had no telephone . Shields was at this time living alone as his wife and child had left him. Hale testified , and Shields denied , that Hale saw Shields that day driving his truck on the highway; that Shields admitted to Hale he went out, and said he did not call while he was out because he did not have a dime; that Hale said he was giving Shields another warning ; and that Shields replied that he did not care , and it would probably not be long before he got a third warning. During the deer hunting season in 1972, a number of employees were permitted to take time off to go hunting, and the remaining employees did maintenance work. The first 2 days of the 1973 deer hunting season were Monday and Tuesday , November 12 and 13. Hale prepared a peti- tion indicating which employees wanted to go hunting on one or both of these days , and had it circulated on the preceding Thursday or Friday. Shields ' name appears on the list with the notation in his handwriting "does not want off" for both Monday and Tuesday . He testified that never- theless a cousin he visited on Sunday persuaded him to go hunting on Monday. Hale testified that enough employees had indicated on the petition their intention to come in on Monday to enable him to schedule production work. The items produced that day had to be piled up , however , as Shields , the only packer, did not come in, and there was no one on the reduced crew who could do the packing . Shields was the only employee who indicated he would come in that day who failed to do so. When Shields came to work on Tuesday , Hale asked where he had been the previous day. Shields said he had been in the woods hunting . According to Hale , he reminded Shields of the petition Shields signed indicating he wanted to work , and said he had needed Shields; Shields said he knew that, but he had been talked into going hunting by his cousin ; when asked why he did not call , Shields answered that he left at 4 a .m., and there was no telephone at his cousin's home or in the woods ; Hale said he was giving Shields a third warning , and Shields responded that Hale was apparently discharging him; Hale said he was not, but needed time to decide what to do ; and, when Shields repeat- ed that he thought Hale was discharging him, and asked Hale why not get his check , Hale again said he needed time to decide , so Shields should clock out and he would let Shields know when to come back . Shields testified that, when Hale told him to go home , he asked if he was dis- charged ; that Hale told him to come back the next day and Hale would let him know then ; and that he said that, if Hale was discharging him, he would like his check before going home . He denied that other comments to which Hale testi- fied were made. 4. Shields' discharge Hale testified that he gave this matter a good deal of thought after Shields left and decided , without discussing it with Gilbert or any other company representative , to dis- charge Shields . He notified the bookkeeper, and had her make up Shields ' check . On the next day, which was payday, Shields came in about noon to get his check . A secretary notified Hale of this , and Hale brought Shields' check to the office. Hale testified that , before he told Shields he was terminated, Shields looked at the check and stated that the Respondent had cheated him again . Shields admitted rais- ing a question about his check but denied accusing anyone of cheating him. Hale had the bookkeeper explain to Shields that the deduction in question was for insurance. Shields testified that he asked Hale if he was discharged, that Hale said he was, that he asked why, and that Hale said it was because he missed time and did not call in. Shields then asked to see Gilbert , and Hale took him to Gilbert's office. Shields testified : "I explained to Mr . Gilbert that I felt that I had done my job properly and to the best of my ability and done good work for him . I told him that I would like a recommendation, a letter of recommendation, to that effect. He told me that he could give me a letter of recommenda- tion , but it wouldn't be a good one, that he didn't have the time to make it out at that time , that he would send it to me. I told him that I appreciated it and left." He denied that, when Hale made a comment, he told Hale to "shut-up," but admitted he did say he was not talking to Hale, that he said this "in a strong voice," that Gilbert asked that there not be any trouble, and that he said there would not be. 5. The rule as to absenteeism Hale testified that he made the decision to terminate Shields "Because of his absence and attitude and the smart answers I kept getting"; that after previous absences with- out notice Shields , on his return to work, had discussed with him the reason for the absence, but failed or refused to give a satisfactory explanation for his last 3 absences; and that the factors of "attitude and the smart answers" were related to the absentee incidents. Shields did not question Hale's assertion to him that his discharge was for missing work and not calling in . He testi- 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fied that he had been hired by a supervisor no longer in the Respondent's employ and that, "When I hired-in, they in- structed me to call-in or let them know in some way why I was off. They said that I had three days to call-in on an absentee , otherwise after three days my job would be termi- nated. That's the way it was." Shields admitted that Hale once came to his home to check on his 3-day absence fol- lowing a work injury, and told Shields he did so because he did not want Shields to lose his job At another point, how- ever, Shields testified that the supervisor who hired him did not say what would happen if an employee failed three times to follow the rule, and that no one told him this could cause discharge He testified further that no one to his knowledge followed the rule "specifically"; that he knew he had to give notice before, or an excuse after, an absence; that he had been absent frequently but called in only about a third of the time; and that nothing was said to him about this, and he was never warned that he was subject to dis- charge therefor. The Respondent maintains that there was a plant rule regarding absenteeism, and that, while the rule was not in written form, it was known to the employees and was en- forced. Hale testified that the rule, as he announced it to employees when hired, was- "If they missed a day, they needed to call-in. If it was important, they needed to call-in they weren't going to be there. If they missed three days straight without calling-in, then that's an automatic dismiss- al . . . I explained to them that if they missed a day and they didn't call-in or anything, they would get a warning. If that happened three times, then that was a dismissal, they would be terminated." Employee Bond testified, as a witness for the Respon- dent, that Hale told him the rule was, "if we missed one day or three days, four day, or a week, whatever we missed, to call-in every day that we missed. If we didn't call-in, we could get fired over it." And employee Golden testified that another supervisor who hired him "said that if you missed three days in a row, you would be terminated. Or if you missed three days in different periods of time and didn't call-in or have a good excuse, you could be terminated." He testified further, on cross-examination by the General Counsel, that the supervisor "said that if you were absent a day to call-in or make some other arrangements or tell him the day before you're going to take off, or something." Golden admitted he was off 2 weeks to take his wife to another city for an operation, has missed a day "ever once in a while" because of sickness and personal business, and failed to call-in 3 or 4 times, but, on such occasions, ex- plained his absence the following day. Golden also testified that there was no absenteeism rule in the employee rule book, although he admitted there might be as he had not read the entire book, which he received about a month ago, and that he might have been given a pamphlet when hired but did not remember. These witnesses also testified about certain employees who had been discharged for absentee- ism, but it appears that these employees had much shorter tenure and far worse absenteeism records than Shields had. 6. Other grounds for Shields' discharge Although Hale, at the time of the discharge, referred only to Shields' absenteeism and failure to call in, he testified that he also considered, as grounds for discharge, "minor" incidents about which Shields was never disciplined nor warned of discipline-using the purchasing agent 's office, claiming he was entitled to overtime pay, staring at Hale, and jostling Hale. Hale was not critical of Shields' work or conduct generally. He admitted that Shields had received a little more in raises than other employees, that for a time Shields "was a real good hand and everything," that he was in fact satisfied with Shields until November 5, and that they had been on friendly terms during most of the period of Shields' employment. Hale also testified that he did not discuss Shields' discharge with Gilbert. Gilbert, however, testified that Shields for months before his discharge had been an unsatisfactory and troublesome employee in re- spects Hale did not mention in his testimony or as to which he contradicted Gilbert's testimony. Included in Gilbert's criticisms were that Shields did poor work, that he was uncooperative and disobedient in carrying out his supervisor's directions, that he was belligerent and tried to pick fights with employees and supervisors, that various supervisors and employees complained about him, and that he demanded frequent reassignments whenever he got tired of the work he was doing. On the basis of demeanor while testifying and the record in its entirety, I find Gilbert's testimony about Shields' employment record exaggerated and incredible. On the other hand, Shields' testimony contained a num- ber of inconsistencies, self-contradictions, and variances from his pretnal affidavit. These include, for example, his different versions as to when he began to wear a union button; as to whether he worked overtime more or less than a quarter-hour; as to whether or not he was ever told that repeated absence without notice was a dischargeable of- fense ; and as to whether on his last day of employment he was the only employee wearing a union button, or others were wearing them also, or he did not know as he was not in the plant but only in the office that day. Concluding Findings as to Shields' Discharge Shields, who was a member of the Union and active on its behalf, was discharged, 1 week before the election, by an employer who had made "perfectly clear" its intent to "fight union troublemakers with every ounce of energy we have .... " The Respondent asserts as the principal reason for Shields' discharge his absenteeism. Hale testified that he also considered the admittedly "minor" incidents, but he did so in the contest of Shields' absences. It is apparent from the record that the Respondent's rule as to absenteeism, to the extent that there was a rule, was unwritten and not very explicit as to its terms . Moreover, the record shows that the rule was frequently disregarded, and that Hale tolerated Shields' frequent absences prior to November 5. It was on that date that Hale claimed he gave Shields the first warn- ing. None of the warnings were reduced to writing. On the other hand, whatever the terms of the Respondent's rule or practice as to absenteeism, it is clear that an employer can require employees to show up for work on schedule unless good cause is shown for failure to do so. And Shields was absent, without advance notice and without calling in, on GILBERT INTERNATIONAL, INC Monday and Wednesday of one week, and again on Mon- day of the next week, although he had specifically commit- ted himself to come to work that day. He did not give Hale any explanation of the first absence other than "personal business." His excuse of illness for the second absence was unconvincing, not only to the Respondent but also in Shields' testimony at the hearing. As to the third absence, the General Counsel's brief points out that Shields was not told production work was to be scheduled that Monday, and he could reasonably have assumed that only mainte- nance work would be done as in previous deer hunting seasons. But Shields had committed himself to come in that day with no reservation as to the nature of the work to be assigned, and his only excuse for not doing so was that he had been talked into going hunting in circumstances that made it difficult to notify Hale. Moreover, when Shields returned on November 13, and again on November 14, he seemed to be defying Hale to discharge him. It was Shields who first mentioned discharge on November 13, and he mentioned it repeatedly before Hale told him on November 14, when Shields asked if he was discharged, that he was. The General Counsel has established the Respondent's union animus, as well as various suspicious circumstances in the discharge of Shields, including the timing, a week before the election; the absenteeism rule, shown to be vague and frequently disregarded; the tolerance of Hale for Shields' frequent absences prior to those in November; and Hale's reliance, as additional reasons for discharging Shields, on the admittedly "minor" incidents never men- tioned to Shields as grounds for discipline and in one in- stance never mentioned at all to Shields. The Respondent, however, has shown that it had valid reasons for discharging Shields, and the General Counsel has the burden of estab- lishing the allegation that Shields' discharge was unlawfully motivated. In that respect, Shields admitted, and the evi- dence shows, that no supervisor saw him sign up employees in the Union and apparently no supervisor knew he had done so. As Shields also admitted, while he signed a card and wore a union button in the plant, practically all the employees did so. There is no evidence that Shields played a leadership role in the Union or that the Respondent be- lieved he did. No antiunion remarks were made by the Respondent to or about Shields. And no disciplinary action was taken against any of the other employees who, Shields admitted, were also active on behalf of the Union. In conclusion, I find, upon the entire record, that the General Counsel has failed to show, by a preponderance of credible and probative evidence, that Shields was dis- charged because of his union or concerted activities. Ac- cordingly, I find that the evidence does not establish that Shields was discharged in violation of Section 8(a)(3) and (1) of the Act, and I shall therefore recommend dismissal of these allegations of the complaint.8 IV THE OBJECTIONS TO THE ELECTION A petition for an election was filed by the Union in Case 26-RC--4653 on October 18, 1973, and an election pursuant 8 See South Carolina Industries, Inc, 181 NLRB 1031 (1970), Munro Enter- prises, Inc, 210 NLRB No 62 (1974) 545 to a Stipulation for Certification Upon Consent Election was held on November 21, 1973. The tally of ballots showed, of 14 eligible voters, 5 cast ballots for and 8 against the Union, and I ballot was challenged, which was not sufficient in number to affect the results of the election. The unresolved issues raised by the Union's objections to the election that were consolidated with the issues in the com- plaint case therefore involve conduct that occurred between October 18 and November 21, 1973. These issues are the same as those raised in the complaint proceeding. It is found above that the Respondent interrogated and threatened employees, orally and in writing, on or about November 7 and 8, 1973, in circumstances that constituted violations of Section 8(a)(1) of the Act. I find that such conduct, occurring during the critical preelection period, precluded the employees from exercising their freedom of choice in selecting or rejecting the Union, and constitutes substantial interference with the election .9 I shall therefore recommend that the election of November 21, 1973, in Case 26-RC-4653, be set aside, and that case be remanded to the Regional Director for Region 26 for the purpose of conduct- ing a new election at such time as he deems the circum- stances permit the free choice of a bargaining representative V 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 de- scribed in section I, above, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that the Respondent be ordered to cease and desist therefrom and from infringing in any like or related manner upon its employees' Section 7 rights, and that it take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW I. The Respondent , Gilbert International , Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union # 1516, International Brotherhood of Electrical Workers, AFL-CIO, CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating employees about their union membership and activities , and threatening employ- ees that union organization would result in loss of employ- e Wilkinson Manufacturing Co v N L R B, 456 F 2d 298 (C .A 8 1972); Forbes Pavilion Nursing Home, Inc, 198 NLRB No 113 (1972), Royal Alumi- num Foundry, Inc, 208 NLRB No 8 (1974), VCA Sterling, Inc, 209 NLRB No 28 (1974) 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment and job benefits, in order to discourage membership m and activities on behalf of the above-named Union, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: that said case be remanded to the Regional Director for Region 26 to conduct a new election at such time as he deems the circumstances permit the free choice of a bar- gaining representative. 10 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in Section 102.47 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 11 In the event that the Board 's 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 be changed to read "Posted pursuant to a judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." ORDER 10 The Respondent, Gilbert International, Inc., Jonesboro, Arkansas, its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Coercively interrogating employees about their union membership and activities, and threatening employees that union organization would result in loss of employment and of job benefits, in order to discourage membership in and activities on behalf of Local Union # 1516, International Brotherhood of Electrical Workers, AFL-CIO, CLC, or any other labor organization. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Post at its plant in Jonesboro, Arkansas, copies of the attached notice marked "Appendix." 11 Copies of the no- tice, on forms provided by the Regional Director for Region 26, after being duly signed by the Respondent's representa- tive , shall be posted by the Respondent immediately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 26, in writ- ing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be dis- missed insofar as it alleges violations of Section 8(a)(3) of the Act, and of Section 8(a)(1) of the Act other than as specifically found herein. IT IS FURTHER RECOMMENDED that the election conducted on November 21, 1973, in Case 26-RC-4653, be set aside, and APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An agency of the United States Government WE WILL NOT coercively interrogate employees about their union membership or activities , or threaten em- ployees with loss of employment and of job benefits in the event of unionization , in order to discourage mem- bership in or activities on behalf of Local Union # 1516, International Brotherhood of Electrical Work- ers, AFL-CIO, CLC, or any other labor organization. WE WILL NOT in any like or related manner interfere with , restrain , or coerce our employees in the exercise of the rights guaranteed in the National Labor Rela- tions Act. GILBERT INTERNATIONAL, INC (Employer) Dated By (Represtative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, Clifford Davis Federal Building, Room 746, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-3161.