Spring City Knitting Co.

National Labor Relations Board - Board DecisionsAug 31, 1987

285 N.L.R.B. 426 (N.L.R.B. 1987)

426 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Spring City Knitting Company and International Ladies' Garment Workers' Union, AFL-CIO Spring City Knitting Company and Utah-Arizona District Council, International Ladies' Garment Workers' Union, Western States Region, AFL- CIO, Petitioner. Cases 28-CA-5426 and 28- RC-3649 31 August 1987 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 18 January 1982 Administrative Law Judge Roger B. Holmes issued the attached decision. The General Counsel, the Respondent, and the Charg- ing Party, International Ladies' Garment Workers' Union, AFL-CIO (the Union) filed exceptions and supporting briefs, and all three filed answering briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and i The Respondent, the General Counsel, and the Union have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings No exceptions were filed to the judge's dismissal of the allegation that the Respondent, through Personnel Specialist Rippel, violated Sec 8(a)(1) by telling employee Lawson, a union adherent, that "you girls are troublemakers radicals " Contrary to his colleagues, Member Babson would reverse the judge and find that the Respondent violated Sec 8(a)(1) when Plant Manager Lord cautioned employees in a letter dated 1 March 1979, "don't sign any cards, they can be fatal to a business [emphasis in original] " In the context of the Respondent's numerous unfair labor practices, including other threats of plant closure, Member Babson finds this statement to be a not-too-subtle threat of plant closure calculated to discourage employees from executing union authorization cards Member Babson finds that the instant case is factually distinguishable from Mt Ida Footwear Co., 217 NLRB 1011 (1975), relied on by the judge in dismissing this allegation In Mt Ida there were no unfair labor practices found and thus, unlike here, the statement in Mt Ida did not occur in the context of numerous unfair labor practices Because Member Babson finds Mt Ida factually distin- guishable, he finds it unnecessary to pass on the analysis of the Board majority in that case Member Babson agrees with the judge's finding that Supervisor Pinon did not unlawfully threaten her cousin, employee Hernandez, with plant closure during a conversation at the home of Hernandez' grandmother on 2 April 1979 In so doing, Member Babson notes that Pinon's remarks on this occasion did not directly link the possibility of plant closure with the onset of employees' union activities Member Babson also agrees with the judge's finding that Pinon did violate Sec 8(a)(1) on 29 May 1979 when she told Hernandez in a conversation at Hernandez' home that the plant would close in 2 months because of the Union In agreeing with the judge's conclusions concerning each incident, Member Babson does not rely on the family relationship of Pmon and Hernandez or on the home setting in which each incident occurred. conclusions, to modify his remedy, 2 and to adopt his recommended Order as modified. This case involves many allegations of unfair labor practices occurring during organizing cam- paigns at three of the Respondent's plants. In early 1979,3 union organizing campaigns commenced at the Respondent's plants at Glendale and Flagstaff, Arizona, and at Deming, New Mexico. Separate elections at each plant were eventually scheduled. The first election was held at the Deming plant on 23 May. The Union won, and was certified as the collective-bargaining representative on 1 June. Shortly thereafter, the Respondent closed the Deming plant. The Glendale and Flagstaff elec- tions were each held on 28 June. The Union won at Flagstaff and lost at Glendale. Based on record evidence, the judge found a number of violations of the Act at all three plants. Except as indicated, we adopt his conclusions.4 Member Babson agrees with the judge's finding that the Respondent was not obligated to bargain with the Union over its decision to close its Deming plant To the extent that the Union argues that the closure was in reality a transfer of work to the Glendale plant, Member Babson notes that there is-insufficient evidence to support this contention and, in any event, assuming it to be true, the judge's conclusion that the Respondent was not obligated to bargain over the decision is consistent with the Su- preme Court's opinion in First National Maintenance Corp. P. NLRB, 452 U.S 666 (1981), and with any of the views expressed in the Board's deci- sion in Otis Elevator Co , 269 NLRB 891 (1984) 2 Interest will be computed in accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987) Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amend- ment to 26 U S C Â§ 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977). a Hereafter all dates referred to are 1979. 4 We agree with the judge's conclusion that the Respondent, through Deming Plant Manager Lord, violated Sec 8(a)(1) by advising employees that company officials may discover the identity of those who sign au- thorization cards. In so doing, however, we rely on the analysis set out in the majority opinion in .4dco Metals, Inc., 281 NLRB 1300 (1986) Contrary to his colleagues, Chairman Dotson would not find the Re- spondent's comments violative of Sec. 8(a)(1). Unlike Adco, the Respond- ent's comments can not reasonably be construed as a statement of an in- tention on the part of the Respondent to purposefully subpoena card- signers at a hearing in retaliation for their signing cards Rather, here the Respondent truthfully advised employees that at prior NLRB hearings cards had been placed in evidence and cardsigners had been subpoenaed. As he stated in his concurrence in Adco, numerous circumstances can lead to the disclosure of the identity of cardsigners, and employees cannot sign cards with the assurance that their identities will not be dis- closed. We agree that the judge correctly found that the Respondent violated Sec. 8(a)(1) by ordering off company property its off-duty employees who were distributing union handbills at the Deming plant parking lot. In so doing, we do not rely on TR.W. Bearings, 257 NLRB 442 (1961), which was overruled by the Board in Our Way, Inc, 268 NLRB 394 (1983) In adopting the judge's conclusion, we note that an employer may not deny off-duty employees access to its parking lot except where justi- fied by business reasons On this point, see Tri-County Medical Center, 222 NLRB 1089 (1976). No business reasons were offered here. Contrary to his colleagues, Chairman Dotson would not find that the Respondent violated Sec 8(a)(1) by denying off-duty employees access to its parking lot He would reverse the holding in Tri-County Medical Center, 222 NLRB 1089 (1976), and return to the holding in GTE Len- kurt, Inc, 204 NLRB 921 (1973), that a no-access rule that is nondiscrim- inatory is presumptively valid absent a showing that no adequate alterna- tive means of communication exist Continued 285 NLRB No. 49 SPRING CITY KNITTING CO. 1. The judge concluded that the Respondent vio- lated Section 8(a)(1) by announcing to its Glendale and Flagstaff employees, through a 10 April memo, that its savings growth account (a supplemental re- tirement plan) was for "non collective bargaining unit employees." He further concluded that the Re- spondent through Director of Industrial Relations Stanley Hallman also violated Section 8(a)(1) by advising Glendale employees at a meeting in May that the plan was only for nonunion employees. Relying on American Sunroof Corp., 248 NLRB 748, 749 fn. 12 (1980), enfd. in relevant part 667 F.2d 991 (6th Cir. 1981), the judge found that these violations stemmed from the Respondent's failure to assure employees that the benefits of the plan would be negotiable if they should choose to be represented by a union. We adopt the judge's find- ing of a violation with respect to Hallman's re- marks to employees. In so doing, Member Johan- sen and Babson note that they agree with the hold- ing of American Sunroof Corp., and thus agree that Hallman's remarks are violative of Section 8(a)(1).5 However, for the reasons set forth below, a panel majority reverses the judge and dismisses the alle- gation concerning the Respondent's 10 April memo to employees. Member Johansen finds no violation based on the 10 April memo because he concludes that the alle- gation concerning the Respondent's memo was not fully litigated. He notes that this matter was not al- We agree with the judge's conclusion that the Respondent 's assistant 'plant manager, 'Taylor, violated Sec 8(a)(1) by creating the impression of surveillance of union activities when he approached three employees around 1 March 1979 and initiated a conversation by stating that he un- derstood that there was a union meeting that night . In so doing, we addi- tionally note that in the same conversation Taylor violated Sec 8(aXl) by coercively interrogating the employees and by threatening plant clo- sure if a union came into the plant . We further note that , contrary to our dissenting colleague, the evidence is insufficient to establish that the time and place of the union meeting was well publicized through discussions and leaflets. - Chairman Dotson would not find that the Respondent violated Sec. 8(a)(1) by Assistant Plant Manager Taylor's statement to three employees that he understood there was a union meeting that night Inasmuch as the place and time of union meetings was well publicized through various leaflets and discussions, Chairman Dotson does not agree with his col- leagues that the Respondent by this remark unlawfully created the im- pression of surveillance. Finally, Chairman Dotson would not find violative of Sec 8(a)(l) Plant Manager Lord's statement to employee Canton As the Deming plant was closing on 29 June, Canton went to Lord's office and told him "good bye' and that she had enjoyed working with him Lord replied, "You should have thought about that when you were voting." The judge found that Lord's statement interfered with the employees ' rights to select a union Chairman Dotson disagrees in light of the ambiguous nature of Lord 's statement and the absence of any threats or other unlaw- ful conduct accompanying the statement Because we agree with the judge's conclusion that employees Elkins and Jones were discharged in violation of Sec . 8(a)(3) of the Act, we shall order the Respondent to remove from its files any reference to their unlawful discharges . See Sterling Sugars Inc , 261 NLRB 472 ( 1982). 5 In so doing , Members Johansen and Babson find it unnecessary to rely on the testimony of employee Hensley who testified that she could not recall whether Hallman stated that the plan was limited to nonunion employees. 427 leged as a violation in the General Counsel's amended consolidated complaint. Thereafter, the General Counsel did not raise this allegation at any time during the 37 days of the hearing. This matter was first alleged in the General Counsel's posthear- ing brief to the judge and accordingly was not liti- gated as a violation at the hearing. In these circum- stances, Member Johansen finds that this matter was not fully litigated and therefore reverses the judge's finding of a violation. See Middletown Hos- pital Assn., 282 NLRB 541 (1986). Regarding the 10 April memo, Chairman Dotson would reverse the judge's finding of a violation be- cause he disagrees with American Sunroof and would find that in cases such as this, where an em- ployer employs both represented and unrepresented employees, language identifying a specific benefit as being for noncollective-bargaining unit employ- ees is merely descriptive in nature and, without more, cannot be found to be an unlawful threat to withdraw benefits should employees vote in a union. Thus, because the Respondent's' memo does not on its face indicate that the Respondent would refuse to make this benefit available to 'union-repre- sented employees, and in the absence of evidence that the Respondent intended by implementing this plant to thwart unionization, the Chairman would find nothing coercive or threatening in the memo. See Firestone Synthetic Fibers Co. v. NLRB, 374 F.2d 211 (4th Cir. 1967); Goodyear Tire & Rubber Co. v. NLRB, 413 F.2d 158 (6th Cir. 1969).6 2. The judge also found that the Respondent, through its chairman of the board, C. Ray Martin, violated Section 8(a)(1) by advising employees in preelection speeches at the Glendale and Flagstaff plants that they would lose their right to deal di- 6 For the same reasons, Chairman Dotson, contrary to his colleagues, would not find unlawful Hallman's statement at an employee meeting that the plan was for nonunion employees Contrary to his colleagues , Member Babson would adopt the judge's finding of a violation . In this regard, Member Babson agrees with long- standing precedent that an employer violates Sec 8(a)(1) by promulgat- ing, maintaining, and informing employees that it has a benefit plan which excludes from coverage employees who join a union, choose union representation , are members of a bargaining unit, or are covered by a col- lective-bargaining agreement. American Sunroof, supra, Niagara Wires, Inc, 240 NLRB 1326 (1979); Randleman Co., 283 NLRB 451 (1987). Member Babson further agrees with the judge that, although this viola- tion was first alleged in the General Counsel's posthearing brief, the matter has been fully litigated Member Babson notes that the memo was introduced into evidence at the hearing without objection and that all elements of the violation are evident on its face . Thus, Member Babson finds that all of the facts necessary to decide this issue are before the Board and notes that the Respondent does not contend otherwise, Fur- ther, he finds the violation closely related to par 24(a) of the amended complaint which alleged Hallman's similar remarks about the plan to be unlawful As noted , a panel majority has found Hallman's remarks to be a violation of Sec 8(a)(1) Finally, he finds Middletown Hospital inapposite. There, unlike here, the General Counsel did not move to amend the com- plaint; the issue there did not involve , as here, a document which speaks for itself, and the unfair labor practices at issue there were not closely related to other alleged violations 428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD rectly with management if the Union were voted in. We reverse these findings of the judge under the principles enunciated by the Board in Tri-Cast, Inc., 274 NLRB 377 (1985). In Tri-Cast, the Board, noting that Section 9(a) contemplates a change in the manner in which an employer and employee deal with each other, found that it is not an objec- tionable retaliatory threat for an 'employer to advise employees of this change during the course of an election campaign. See also United Artists Theatre Circuit, 277 NLRB 115 (1985). According- ly, we view Martin's remarks in this regard as being merely a realistic account of the effects of collective-bargaining representation and not-to con- stitute an unlawful threat or interference with the Glendale election. 3. The judge found that the Respondent violated Section 8(a)(1) by granting increased vacation ben- `efits to employees at its Glendale and Flagstaff plants in order to discourage support for the Union. Thus, he found that the Respondent changed its existing vacation practice by offering employees the option of receiving one-half of their vacation pay in July. In adopting the judge's con- clusion as to vacation pay, we note that the record fails to support the Respondent's contention that it had a past practice of modifying vacation pay in response to employee preference. The only record evidence of this was the testimony of Personnel Director Dorothy Binsteel whom the judge did not credit. Binsteel indicated that in 1963 the Respond- ent altered the payment of vacation pay from July to December following an employee poll. A single incident some 16 years earlier cannot be said to constitute a past practice for the modification at issue. Accordingly, we agree with the judge's con- clusion in this regard. We disagree, however, with his further conclu- sion that the Respondent offered employees an ad- ditional week's vacation. The record shows, that the Respondent announced in June that the two plants would close for the week of 2 July, and that supervisors simply asked employees whether they intended to be off work the week prior to the clos- ing. No employees' entitlements appear to have been increased and we agree with the Respondent's contention that it did not offer an additional week of vacation, but merely inquired whether employ- ees intended to be absent from work. Accordingly, we shall dismiss this allegation. 4. The judge concluded that the Respondent, through its Flagstaff office manager, Bruce Moxon, violated Section 8(a)(1) by asking employee Gary Elkins whether he would vote a "resounding no" in the representation election. We disagree. The judge found that Moxon had approached Elkins as Elkins was loading a box in the ware- house on the afternoon before the election. Moxon in essence asked Elkins whether he would be able to vote the following day and, when Elkins effec- tively indicated he would, Moxon then told Elkins to "make sure you vote a resounding `No."' Elkins told Moxon that he would vote "yes." We cannot agree that Moxon's remarks amounted to an unlaw- ful interrogation. We find that Moxon's remarks were declarative, and not interrogative, in nature, and were at most an exhortation. Accordingly, we conclude that Moxon's remarks do not constitute an unlawful interrogation and we reverse the judge's fording of a violation. 5. Relying on PPG Industries, 251 NLRB 1146 (1980), the judge found that the Respondent, through Hallman, violated Section 8(a)(1) by coer- cively interrogating employee Hamett about her union activities and sympathies. We disagree. In so doing, we note initially that in Rossmore House, 269 NLRB 1176 (1984), the Board reversed PPG, supra, and determined that it would no longer apply that standard in assessing the lawfulness of interrogations. Instead, the Board determined the appropriate standard to be whether under all the circumstances, the interrogation reasonably tends to restrain,, coerce, or interfere with rights guaran- teed by the Act. See also Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). Applying this standard to the present case, we conclude that Hallman's.ques- tioning of Hamett was not a coercive interrogation, Thus, we note that Harnett was an open union sup- porter who wore a union emblem on her blouse. On the day in question, Hallman approached Hamett at her work station at the Flagstaff facility to ask if she had accepted the Respondent's savings growth plan. During the course of their conversa- tion, Hallman several times asked Hamett why she supported the Union and why she was wearing a union emblem. Hamett replied that she wore the emblem because she liked it and said that employ- ees wanted better benefits. Hallman also asked her if the Union had promised her more money and told her that she would not earn any more money. Considering all the circumstances, we conclude that Hallman's questioning of Harnett was not a co- ercive interrogation, and we shall dismiss this com- plaint allegation. See Continental Industries, 279 NLRB 920 (1986). 6. We adopt the judge's conclusion that the Re- spondent violated Section 8(a)(1) by refusing to excuse employee Tallas from work to attend the Board representation hearing. In so doing, we find it unnecessary to rely on Earringhouse Imports, 227 NLRB 1107 (1977), enf. denied 600 F.2d 930 (D.C. SPRING CITY KNITTING CO. Cir. 1979), cited by the judge, which, unlike the in- stant case, did not involve the rights of employees who were subpoenaed to attend a Board hearing. Instead, we rely on the analysis in Newland Knit- ting Mills, 165 NLRB 788, '793-794 (1967), dealing with subpoenaed employees, in finding the Re- spondent's conduct to have been violative of Sec- tion 8(a)(1). We note that on the facts here the Re- spondent, at the least, placed Tallas in a position in which she, on her own, had to choose between her job and honoring the subpoena. Further, while the judge found that Tallas was neither "punished nor penalized" when she left work to attend the hear- ing, we do not find that this means the Respondent in effect excused Tallas' absence. In this regard, we note that Supervisor Castillo indicated at the hear- ing that he considered Tallas' absence to be an un- excused absence. We further note Castillo's testi- mony that unexcused absences are considered when taking disciplinary action against employees. Accordingly, we find that the General Counsel has established the complaint allegation that the Re- spondent unlawfully refused to excuse Tallas from work to attend the representation hearing. 7. We agree with the judge's conclusion that the Respondent closed its Deming plant for economic reasons rather than for union-related reasons or for the purpose of chilling union activities at its plant in Glendale and/or Flagstaff. In so doing, we note that the appropriate standard to be applied in ana- lyzing whether the partial closing of a business is violative of Section 8(a)(3) is that set out in Textile Workers v. Darlington Mfg. Co., 380 U.S. 263 (1965), that is , a partial closing of a business is an unfair labor practice under Section 8(a)(3) where the closing was motivated by a purpose to chill un- ionism in any of the employer's remaining plants and that the employer may reasonably have fore- seen that the closing would likely have this effect. Darlington, supra at 275.7 Based on the credited testimony of the Respond- ent's chairman of the board, Martin, and on the documentary evidence submitted by the Respond- ent, we agree with the judge that Deming was closed for economic reasons. We further find that the General Counsel has not established the ele- ments of the violation as set out in Darlington. In this respect, contrary to the General Counsel's po- sition, the present case is factually distinguished from Midland-Ross Corp., 239 NLRB 322 (1978), enfd. 617 F.2d 977 (3d Cir. 1980), cert. denied 449 7 To the extent that the fudge's decision can be read to indicate that the closing would be unlawful if discriminatory without more , i e, with- out a showing that the closing was motivated by a desire to chill union- ism of the Respondent's other employees and that such a chilling effect was reasonably foreseeable , the judge 's decision is in error See, e g., Pur- olatorArmored, 268 NLRB 1268 fn 3 (1984) 429 U.S. 871 (1980), where the Board concluded that the employer accelerated the closure of its union- ized plant to chill union activities at a second plant then being organized. Unlike the present case, the evidence in Midland-Ross established that the em- ployer timed the closure of the plant to have the maximum impact on the employees at the plant being organized to influence their vote in the up- coming election. Thus, the evidence established that absent the employer's unlawful purpose, the unionized plant would not have been closed until 6 months after the election at the second plant when its lease expired. There was no such acceleration here. Further, unlike in Midland-Ross, there were no unlawful notices posted at the nonunionized fa- cility referring to the closing of the unionized facil- ity. (See 239 NLRB at 331-332, 337.),-Accordingly, we adopt the judge's dismissal of this complaint al- legation. 8. The judge considered the Union's objections to conduct affecting the outcome of the Glendale election, and recommended that the election be set aside based on the following findings. He recom- mended that Objection 3 be sustained based on the Respondent's grant of I week's vacation pay in ad- vance and an additional week of vacation, and the Respondent's 10 April memo to employees an- nouncing a supplemental retirement plan limited to noncollective-bargaining unit employees. He fur- ther recommended that Objection 4 be sustained based on Hallman's advising employees at the meeting that the supplemental retirement plan was for nonunion employees only; Personnel Specialist George Ripple's refusal to explain the retirement plan to employee Mary Ann Lawson because she was wearing a union badge; and Martin's advice to employees in a preelection speech that management would be unable to deal directly with employees if the Union were voted in. Finally, the judge recommended that Objection 1 be overruled because of his fording that the Re- spondent did not violate the Act when it posted at the Glendale,plant the 15 June notice announcing the proposed closing of the Deming plant. We agree with the judge's recommendations that Objection 1 be overruled and that Objections 3 and 4 be sustained and that the election be set aside. We sustain ,Objection' 3, however, only on the basis of the Respondent's grant of 1 week's vacation pay in advance. As discussed, supra, we have found that the Respondent did not offer employees an ad- ditional week of vacation. Moreover, the Respond- ent's 10 April memo to employees predated the critical period which commenced with the Union's filing of the petition on 3 May. See Ideal Electric & Mfg. Co., 134 NLRB '1275 (1961). Further, we sus- 430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tain Objection 4 solely on the basis of Hallman's advising employees that the savings-growth plan was for nonunion employees only8 and on Rippel's refusal to explain the supplemental retirement plan to Lawson because she was wearing a union badge. As discussed supra, we do not agree that Martin's statement to employees that management could no longer deal directly with employees if they voted in the Union was either violative of Section 8(a)(l) or objectionable conduct. Based on the above con- duct found to be objectionable, we set aside the election conducted at the Glendale plant and shall direct that a second election be held.9 ORDER The National Labor Relations Board orders that the Respondent, Spring City Knitting Company, Flagstaff and Glendale, Arizona, and Deming, New Mexico, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating employees about their union ac- tivities; their union sympathies; or the events which occurred at a union meeting. (b) Threatening employees that the plant would close if the employees selected the Union as their collective-bargaining representative, or because the employees had selected the Union as their collec- tive-bargaining representative. (c) Offering employees and granting them a week's vacation pay in advance in order to dis- courage employees from assisting or supporting the Union. (d) Refusing to describe benefits to an employee because the employee was wearing a union badge. (e) Creating the impression among employees that their union activities were being kept under surveillance by telling them that the Respondent understood that they were holding a union meet- ing. (f) Prohibiting employees from distributing union literature during their nonworking time in non- working areas of the company property. (g) Telling employees that the Company was withholding from them the introduction of the Company's savings-growth plan because a repre- sentation election was pending, and that the sav- ings-growth plan was only for nonunion employ- ees. s For the reasons set forth above, Chairman Dotson would not find Hillman's remark to constitute objectionable conduct. 9 Because the evidence does not establish that the Union ever achieved majority status among the unit employees at Glendale, we agree with the judge that the issuance of a bargaining order is inappropriate In so doing, however, we rely on Gourmet Foods, 270 NLRB 578 (1984). (h) Threatening reprisals against employees who had voted in favor of union representation in an NLRB-conducted election. (i)' Telling an employee at the time the Company was closing the Deming plant that she should have thought about that when she was voting in the election. (j) Discouraging employees from engaging in union activities by telling them that employees who sign union cards may be subpoenaed to testify in court in front of company officials regarding the circumstances surrounding their signing such cards. (k) Discharging employees because they engage in union or protected, concerted activities. (1) Withholding from employees the introduction of the Company's savings-growth plan because a representation election was pending. (m) Refusing an employee's request for a pay ad- vance because of his union activities. (n) Refusing to excuse from work an employee who had been subpoenaed to attend an NLRB rep- resentation hearing. (o) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer Gary Elkins and David L. Jones imme- diate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiv- alent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed, and make them whole for any loss of earn- ings and other benefits suffered as a result of the discrimination against them in the manner set forth in the remedy section of the judge's decision, with interest as prescribed in New Horizons, supra. (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the dis- charges will not be used against them in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facilities in Flagstaff and Glendale, Arizona, copies of the attached notice marked "Appendix" 10 together with a translation of the of- 10 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " SPRING CITY KNITTING CO 431 ficial English language notice into the Spanish lan- guage. Copies of the notice, on forms provided by the Regional Director for Region 28, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Mail a copy of the official English language notice, together with a translation of that notice into the Spanish language , to the last known ad- dress of each unit employee who was employed by the Respondent on 29 June 1979, at the Deming plant. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. [Direction of Second Election omitted from pub- lication.] APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT coercively question you about your union activities or sympathies or the events which occurred at a union meeting. WE WILL NOT threaten you that the plant will close if you select the Union as your collective-bar- gaining representative or because you had selected the Union as your collective-bargaining representa- tive. WE WILL NOT offer to or grant you a week's va- cation pay in advance in order to discourage you from assisting or supporting the Union. WE WILL NOT refuse to describe benefits to you because you wear a union badge. WE WILL NOT create the impression among you that your union activities are being kept under sur- veillance by telling you that we understand that you are holding a union meeting. WE WILL NOT prohibit you from distributing union literature during your nonworking time in nonworking areas of our property. WE WILL NOT tell you that our Company is withholding from you the introduction of the Com- pany's savings-growth plan because a representa- tion election is pending, and that the savings- growth plan is only for nonunion employees. WE WILL NOT threaten reprisals against those of you who have voted in favor of union representa- tion in an NLRB-conducted election. WE WILL NOT tell you at the time our Company is closing a plant that you should have thought about that when you were voting in the election. WE WILL NOT discourage you from engaging in union activities by telling you that employees who sign union cards may be subpoenaed to testify in court in front of company officials regarding the circumstances surrounding your signing such, cards. WE WILL NOT discharge or otherwise discrimi- nate against any of you for supporting International Ladies' Garment Workers' Union, AFL-CIO or any other union. WE WILL NOT withhold from you the introduc- tion of our savings-growth plan because a represen- tation election is pending. WE WILL NOT refuse your request for a pay ad- vance because of your union activities. WE WILL NOT refuse to excuse from work an employee who had been subpoenaed to attend an NLRB representation hearing. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Gary Elkins and David L. Jones immediate and full reinstatement to their former jobs or, if those job no longer exist, to substantially equivalent positions without prejudice to their se- niority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharges, less any net interim earnings, plus interest. WE WILL notify each of the above-named em- ployees that we have removed from our files any references to his discharge and that the discharge will not be used against him in any way. SPRING CITY KNITTING COMPANY Hector 0. Nava and Jane Goldman, Esqs., for the General Counsel. 432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Daniel F. Gruender, Lewis P. Ames, and Marshall W. An- statidig, Esqs. (Shimmel, Hill, Bishop & Gruender), of Phoenix, Arizona, for the Respondent and the Em- ployer. James E. Youngdahl and Liza S. Hirsch, Esqs. (Youngdahl & Larrison), of Little Rock, Arkansas, for the Charg- ing Party and the Petitioner. DECISION STATEMENT OF THE CASE 1. PRELIMINARY MATTERS ROGER B. HOLMES, Administrative Law Judge. Based on an unfair labor,practice charge in Case 28-CA-5426, which was filed on July 12, 1979, by International Ladies' Garment Workers' Union, AFL-CIO, the Gener- al Counsel issued on January 2, 1980, an amended con- solidated complaint alleging violations of Section 8(a)(1), (3), and (5) of the Act by Spring City Knitting Compa- ny. (See, G.C. Exh. 1(11).) Based on a petition in Case 28-RC-3649, which was filed on May 3, 1979, by Utah-Arizona District Council, International Ladies' Garment Workers' Union, Western States Region, AFL-CIO, a representation election was held on June 28, 1979, among the production and mainte- nance employees at the Employer's Glendale, Arizona plant and satellite facility. A supplemental decision on objections to conduct affecting the results of the election, order directing hearing, and notice of hearing was issued on September 13, 1979, by the Acting Regional Director for Region 28. (See G.C. Exh. 1(q).) On the 'same date, the Acting Regional Director also issued an order con- solidating cases in both of these matters. The trial was held on 37 days between April 15, 1980, and March 13, 1981, at both Phoenix, Arizona, and Deming, New Mexico. The time for the filing of posttrial briefs was extended to August 24, 1981. The lawyers for all the parties filed excellent briefs, which were persua- sively argued from their respective points of view. Sub- sequently, during the period of time between the last day for the filing of briefs and January 11, 1982, certain mo- tions, responses, oppositions, and requests were received from the parties. These will be discussed. A. Charging Party's Motion to Disqualify Respondent's Attorney and Law Firm from Participation in This Case, and Respondent's Request for Attorneys' Fees In his brief, the attorney for the Charging Party argues in support of his motion, which was made during the trial, that Attorney Daniel F. Gruender and the law firm of Shimmel, Hill, Bishop & Gruender, who are repre- senting the Respondent-Employer in this proceeding, be disqualified by the Board from participation in this case. (See pp. 88-93 of the posttrial brief filed on behalf of the Charging Party-Petitioner.) The motion was made on the 33d day of trial, which occurred on December 9, 1980, at Deming. (Tr. 6938-6941.) Attorney Gruender had been the principal witness to testify on that particular day. (Tr. 6804-6919.) The Charging Party asserts that the motion was timely made after hearing Attorney Gruender's testimony, which, in the Charging Party's opinion, revealed the basis for the Charging Party's motion. At the trial, I indicated that I would rule on the motion in this decision. (Tr. 6945.) The basis stated for the Charging Party's motion is the Charging Party's legal position that the record in this proceeding demonstrates that Attorney Gruender and certain other attorneys in the law firm had violated the provisions of 29 U.S.C. Â§ 433(b)(1) by failing to file the required reports with the Secretary of Labor. In the Charging Party's opinion, the activities engaged in by the Respondent's attorneys were "persuader activities" covered by the LMRDA. The attorneys for the Respondent take the legal posi- tion that their activities are exempt from the provisions of 29 U.S.C. Â§ 433(b)(1), and,' furthermore, that the NLRB has no jurisdiction to enforce the reporting and disclosure requirements of that section. (Tr. 6938-6941, and R. Br. 308 and 317.) I shall deny the Charging Party's motion for the fol- lowing reasons. In my view, the LMRDA empowers only the Secretary of Labor with the authority to inves- tigate allegations regarding such activities and, when it is appropriate, to seek enforcement of the provisions of 29 U.S.C. Â§ 433(b)(1). In that connection, see 29 U.S.C. Â§ 440 and 29 U.S.C. Â§ 521. There is no contention or evi- dence that the Secretary has made any determination in this instance that 29 U.S.C. Â§ 433(b)(1) has been violated. Accordingly, the Charging Party's motion is denied. In view of the foregoing ruling, there is another pre- liminary matter that I must consider. That matter in- volves the request made by the attorneys for the Re- spondent in their posttrial brief that they be reimbursed for their legal fees in defending against the Charging Party's motion to disqualify them from participation in this case. (R. Br. 316 and 317.) The Respondent takes the legal position that the Board should order the Charging Party to pay the attorneys for the Respondent for their "attorney's fees for having to defend and answer such a frivolous and meritless claim, obviously lacking in good faith." Thus, the Respondent's request is made on a dif- ferent basis than the Equal Access to Justice Act, P.L. 96-481, 94 Stat. 2325, which became effective on Octo- ber 1, 1981, and which provides a means for seeking re- imbursement from the General Counsel of the Board. See Sections 102.143 through 102.155 of the " Board's Rules and Regulations. Under the line of cases following Tiidee Products, 194 NLRB 1234 (1974), and Heck's, Inc., 215 NLRB 765 (1974), the Board has found, on occasion, that a respond- ent's "patently frivolous," as distinguished from "debata- ble," defense to unfair labor practice allegations warrant- ed the truly extraordinary remedy of requiring the re- spondent to pay attorneys' fees and litigation costs. See the Board's discussion of that issue in Kings Terrace Nursing Home, 227 NLRB 251 (1976). See also the Board's decisions in Electrical Workers IUE Local 1507 (General Electric), 252 NLRB 473 fn: 1 (1980); Marriott Corp., 258 NLRB 755 fn. 1 (1981); Beira Mfg. Co., 233 NLRB 1126 (1977); Vancouver Plywood Co., 235 NLRB 635 fn. 3 (1978); and Dalziel Supply Co., 235 NLRB 56 SPRING CITY KNITTING CO 433 fn. 2 (1978). Note the recommendation of another admin- istrative law judge in A. O. Smith Corp, 236 NLRB 605 fn. 31 (1978), "It is recommended that respondent's prayer for payment of reasonable attorney's fees and ex- penses be denied, as the `affirmative action' clause in Sec. 10(c) of the Act clearly applies to remedies to be en- forced against charged parties, not charging parties." The Board did not disagree with that judge's recommen- dation in its decision. The A. 0. Smith case is persuasive here. Accordingly, I shall deny the request by the attor- neys for the Respondent on the basis that such a reim- bursement order against the Charging Party would not be available to the Respondent in this Board proceeding under these circumstances. Therefore, it is not necessary to reach the question of whether the Charging Party's motion falls into the Board's category of "patently frivo- lous" or "debatable" in these circumstances. B. Charging Party's Motion to Strike Respondent's Posttrial Brief and Request for Attorneys' Fees The Charging Party filed a motion on August 28, 1981, which asks, among other things, that the Respond- ent's posttrial brief be stricken on the grounds that it was not timely filed. The Certificate of Service attached to the Respondent's posttrial brief shows that copies of that brief were mailed to the counsel for the General Counsel and the attorney for the Charging Party on August 24, 1981, which was the due date for the receipt of briefs. Thus, the Charging Party's copy was not received in the mail until after the due date. That apparently led to the conclusion that the Respondent's brief had been mailed in Phoenix, Arizona, on the due date, but it had not been timely received in the Division of Judges' office in San Francisco. However, copies of the Respondent's posttrial brief were hand delivered and were received in the Divi- sion of Judges in San Francisco at 3:43 p.m. on August 24, 1981, according to the date stamp. That fact, of course, was not within the knowledge of the attorney for the Charging Party at the time he filed his motion How- ever, that fact of timely filing of the Respondent's brief was pointed out by the attorney for the Respondent in his response to the Charging Party's motion, and, there- fore, the attorney for the Charging Party conceded in his letter dated September 8, 1981, that his earlier motion to reject the Respondent's brief was without merit. Accord- ingly, that part of the Charging Party's motion is denied. In the circumstances described above, the attorneys for the Respondent ask that the Board order the Charg- ing Party to pay the Respondent for its attorneys' fees for having to answer the Charging Party's motion to strike the Respondent's posttrial brief As pointed out in the previous section of this decision, I find that this re- quest is made on a different basis than the basis provided for in the Equal Access to Justice Act. I shall deny the Respondent's request for attorneys' fees on the basis that such a reimbursement order would not be available to the Respondent in this Board proceeding under these cir- cumstances for the reasons stated in the previous section. C Motions to Correct Transcript and to Reconsider Rulings Made During the Trial The motions, which were made in posttrial documents, to make various corrections in the transcript of the pro- ceedings are hereby granted with regard to the unop- posed corrections, but denied with regard to the correc- tions opposed by a party for the reasons stated in the op- position. In addition, there are some other minor errors in the record, but none of those errors are truly signifi- cant to a determination of the issues presented in this case. The requests, which were made in posttrial briefs, that certain rulings made during the course of the trial be re- considered at this time are hereby denied. This is not a situation of simply being tenacious or stubborn, but in- stead, it is a situation where the basis for the rulings are reflected in the record, and I am not persuaded that a different result should be reached at this point in time. FINDINGS OF FACT II. JURISDICTION AND LABOR ORGANIZATIONS The Board's jurisdiction is not in issue in this proceed- ing. The Respondent-Employer is engaged in the manu- facture and sale of men's and boys' underwear. It is a wholly owned subsidiary of Cluett, Peabody & Co., Inc. The facilities involved are located at Flagstaff and Glen- dale, Arizona, and Deming, New Mexico The Employer meets the Board's criteria for asserting its jurisdiction under the direct outflow standard. The status of both the Charging Party and the Peti- tioner as being labor organizations within the meaning of the Act was admitted. III. THE WITNESSES AND CREDIBILITY RESOLUTIONS A total of 80 witnesses testified during the trial of this proceeding. The transcript contains 7598 pages, and there are several hundred pages in the exhibits. In view of the foregoing, and considering the neces- sary length of this decision, I have decided not to discuss each one of the 80 witnesses individually. Rather than set forth here such a lengthy discussion, I will summarize briefly the criteria on which credibility resolutions have been made in the circumstances of this case. Then, I will indicate in the findings of fact the names of each witness whose testimony has been relied on. The demeanor of the witness while testifying on the stand has been the most important consideration in arriv- ing at credibility determinations. However, the demeanor of the witness has not been an exclusive criteria. Instead, I have also considered any contradictions or inconsisten- cies in the witness' account on the stand, and the inher- ent plausibility and probability of the witness' version, when that version is considered in the context of sur- rounding events. I have also considered the witness' abil- ity to recall facts on direct examination without the ne- cessity of being led, and how well, or how poorly, a wit- ness answered questions during cross-examination by the experienced attorneys in this case. (With regard to the use of leading questions on direct examination, see rule 611(c) of the Federal Rules of Evidence, and the adviso- 434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ry committee note with regard to subdivision (c). Federal Rules of Evidence for United States Courts and Magis- trates, effective July 1, 1975, with Notes by the Federal Ju- dicial Center, Pertinent Advisory Committee Notes and Rel- evant Legislative History, West Publishing Company, 1979 Edition. See also 3 Wigmore, Evidence Â§ 769 (Chadbourn rev. 1970); Weinstem's, Evidence Â§ 611 (1977 ed.), and Jones, Evidence Â§ 24:11, page 93 (6th ed. 1972).) Of course, the occupation or position held by the wit- ness has been considered in weighing the witness ' identi- fication with one of the parties to the proceeding, and, therefore , the witness ' possible or potential interest in the outcome of the litigation. (See also, for example, Gold Standard Enterprises, 234 NLRB 618, 619 (1978).) An- other factor has been whether a corroborating witness was available to support the witness ' version , and wheth- er such a witness was called to testify . (See, for example, Martin Luther King Nursing Center, 231 NLRB 15 (1977), and Hitchiner Mfg. Co, 243 NLRB 927 (1979).) Still another factor has been whether the witness ' version finds support in any of the substantial amount of docu- mentary evidence introduced by the parties. Not surprisingly , in view of the passage of time, some witnesses remembered certain past events with greater clarity and accuracy than they did other matters. I have taken note of that fact in assessing the reliability of some portions of their testimony in view of their recollections. (See, for example, Krispy Kreme Doughnut Corp., 245 NLRB 1053 fn. 1 (1979).) In summary , I have attempted to evaluate the matters affecting the witnesses ' credibility that were brought out on the record by the lawyers for each party , and also to weigh the arguments regarding credibility that the law- yers have urged. I will set forth the findings of fact based on the portions of the witnesses ' testimony which, in my view , are: (1) credible ; (2) accurate ; and (3) reli- able. Necessarily , I cannot accept the testimony of other witnesses whose testimony is inconsistent with , or con- tradicts, the credited account of the findings of fact, or witnesses who have given testimony that is not convinc- ing regarding its accuracy and reliability . Thus, the other testimony that has been considered , but not credited, will not be set forth herein. See ABC Specialty Foods, 234 NLRB 475 fn. 2 (1978). Finally , considering the size of the record , and the substantial number of factual issues and legal issues, I have also decided to depart from the usual format of de- cisions that I have issued in recent years . In order to avoid repetition and to assist persons who wish to read the decision, I will adopt here a different format that has been utilized at times by some other administrative law judges. That is, I will consider the entire record and reach conclusions based on the entire case . However, I will separate the conclusions and insert them following the findings of fact on each one of the General Counsel's complaint allegations and the Union's objections to the election. IV. THE TERMINATION OF GARY ELKINS AND DAVID L. JONES AT THE RESPONDENT'S FLAGSTAFF FACILITY A. Allegations In the General Counsel's amended consolidated com- plaint, which was introduced into evidence as General Counsel's Exhibit 1(11), the General Counsel alleges in the paragraphs numbered below: 19. On or about June 28, 1979, the Respondent discharged employees Gary Elkins and David L. Jones at its Flagstaff, Arizona plant. 20. Since the date of the discharges of its employ- ees as described above in paragraph 19, the Re- spondent has failed and refused to reinstate, or offer to reinstate, said employees to their former or sub- stantially equivalent positions of employment. 21 The Respondent engaged in the acts and con- duct as described above in paragraphs 19 and 20 be- cause said employees joined or assisted the District Council or engaged in other union or concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, and in order to dis- courage membership in the District Council. B. Facts The Board, of course, may take judicial notice of its own decisions and proceedings , as well as published court decisions Although certain facts concerning the representation proceedings involving the Flagstaff plant of the Respondent may be gleaned from the record, the Board may more, conveniently take notice of its own findings in its decision in Spring City Knitting Co., 249 NLRB 212 (1980). That decision involved what is com- monly called a "certification test" case because the Board 's certification in the underlying representation proceeding, Case 28-RC-3654, was being challenged by the respondent-employer The Board's Order in the unfair labor practice proceeding was subsequently en- forced by the United States Court of Appeals for the Ninth Circuit. See the court's succinct statement of the facts and the court 's conclusions in Spring City Knitting Co. v. NLRB, 647 F. 2d 1011, which was decided on June 12, 1981. In accordance with the request made by the at- torney for the Charging Party in his posttrial motion made on August 28, 1981, I have taken notice of the amendment to footnote 6 of the court 's opinion (which is noted at 107 LRRM 3125, 3307) Gary Elkins and David Jones worked for the Re- spondent for a relatively brief timespan during May and June 1979. Both of them were terminated on Thursday, June 28, 1979, which was the day of the representation election referred to in the proceedings described above. During the time of their employment by the Respondent, both Elkins and Jones were students at Northern Arizo- na University. Elkins was studying at that time to obtain a bachelor of science degree in police science and admin- istration , and Jones was seeking a Master's degree in the same field. SPRING CITY KNITTING CO Bruce Moxon, who is the office manager and the ship- ping manager at the Respondent's Flagstaff facility, is the one who hired both Elkins and Jones. As distinguished from a fixed work schedule, such as 8:30 a.m. to 5 p.m. on Mondays through Fridays, Elkins and Jones enjoyed the privilege of working a more flexible schedule. Jones explained at the trial, "I was employed part- time and I reached an agreement with Bruce at the time I was em- ployed that since I was an NAU student and I was working on my Master's degree that my employment would be whatever hours I could put in per day and that these hours I would advise my supervisor that day when I came to work, about how many hours I would be working that day." Jones informed Moxon that his class- es were in the evening hours, but sometimes he was re- quired to be in the library to do research during the mornings or afternoons. Moxon was agreeable with that, and he did not require that Jones work any minimum number of hours each week. Later on, Moxon did ask Jones several times to work additional hours during the week and on weekends, but Jones told Moxon that he would not be able to do so because of his school hours. Similarly, Moxon agreed to a flexible time schedule for Elkins to work for the Company. At the initial employ- ment interview, Elkins informed Moxon that he was at- tending college at Northern Arizona University, and that his classes were held on Mondays, Wednesdays, and Fri- days. Elkins said that he was able to work during the afternoons on those 3 days and during the mornings on Tuesdays and Thursdays Elkins testified, "He told me to come in when I could." There was no mention of a mini- mum number of hours that Elkins would be required to work. Moxon told Elkins that Armando Ceballos, who was the warehouse assistant supervisor at the time, would "log" the hours that Elkins would work, and that Elkins should inform Ceballos at the time he was leaving if Elkins was leaving work early. Like the situation with Jones, on some occasions Moxon asked Elkins to work overtime. Elkins explained to Moxon on those occasions that he had research to do at the library or something that he had to get done. According to Elkins, Moxon told him that there was "no problem." Ceballos' office was located in the warehouse of the Employer's Flagstaff facility, whereas Moxon's office was located in the main plant at Flagstaff. Both Elkins and Jones reported to Ceballos and took their orders from him. Joint Exhibit B-63 contains copies of the Company's timecards for Jones, and General Counsel's Exhibit 13 is a copy of an index card on which Jones noted his own hours of work. Joint Exhibit B-65 contains copies of the Company's timecards for Elkins. A copy of the general plant rules, which were applica- ble to employees at the Flagstaff facility, was introduced into evidence as Respondent's Exhibit 18. The document describes certain actions by employees which "may be cause for termination of employment." Among those items is one entitled, "Leaving the plant." It provides that "No employee is to leave the plant during working hours without permission of his or her supervisor." Both Elkins and Jones had signed written acknowledgments that they had read and understood the Company 's securi- 435 ty rules and regulations (See R Exhs. 19 and 21.) Elkins had been informed by Moxon during his initial employ- ment interview that the Employer had a disciplinary system of three verbal reprimands; three written repri- mands, and then the employee was terminated. Neither Elkins nor Jones ever received any verbal or written reprimands or warnings from the employer. On Wednesday, June 27, 1979, Moxon and Elkins had a conversation that afternoon in the warehouse Elkins testified, "I was approached by Mr. Moxon and I was loading a box from the shelves there and Mr. Moxon asked me if I'd have any trouble getting away from my classes to attend voting the next day. I said, no, sir, I wouldn't. He replied to me, he said, make sure you vote a resounding 'No' and I informed him that I would be there to vote and that I would vote 'Yes "' That same afternoon there was discussion among the employees in the warehouse with regard to a union meeting that was scheduled to be held later that day. In fact, when Jones had arrived at work at 1 p.m. that day, he informed Ceballos that he was going to the union meeting. According to Jones, Ceballos "just nodded." Apparently, other employees were interested in finding out whether the Company would pay the employees for attending the Union's meeting, and approached Ceballos with that inquiry. According to Jones, Ceballos told the employees, "No, we weren't going to get paid for it and he didn't care who went to the meeting, but we weren't going to get paid for it." About 15 minutes later, Jones observed Moxon enter the warehouse and go into Ceballos' office Moxon then came out of the office with Ceballos and spoke to the employees. Jones testified: Bruce was asking Ray and Ken real loud where they had heard there was a union meeting and they advised Bruce that they'd received letters on it and Armando told them that there would be a union meeting at 3:30 that day at Saw Mill Union Hall. Bruce told them, and I guess it was extra loud to tell everybody else that there wasn't a meeting that day and that even if there was a meeting that nobody was going to be allowed to go to it, be- cause there was too much extra work to be done that day And then he left. After he left, oh, I guess it was about a quarter or ten minutes to 3:00, Ar- mando came back out of his office and I asked Ar- mando again if there was going to be a union meet- ing to see what was going on, and he said, no, there wasn't a union meeting. I said, now wait a minute, you told me there was a union meeting. Now you're telling me not. I said, what's the problem. He says, well, I don't know and I don't care. I says, well, I'm going to go to the union meeting like I told you before. He said, fine, I don't care what you do. So it was about 3:00 o'clock-oh, about ten (10) minutes later it was about 3 00 o'clock. I asked Ray and Ken if they were going to go to the meeting, along with myself and Gary Elkins and they told us, no, they weren't going to go, because they were afraid they'd lose their jobs, and at that time Mr. Elkins and I left to go to the meeting. 436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Elkins recalled that Moxon also told the employees that it was illegal for the Union to have a meeting within 24 hours of an election. Elkins told Moxon that he be- lieved that there was going to be a union meeting, and that he was going to go According to Elkins, Moxon said nothing in reply to Elkins' assertion. Elkins also re- called that both he and Jones informed Ceballos at the break period at 3 p in. that they were leaving to go to the union meeting, and that Jones had asked Ceballos whether they would be fired if they left. According to Elkins, Ceballos told them "no" and "we'll see you " Both Elkins and Jones left the Employer's warehouse be- tween 3 and 3.05 p in., and both attended the union meeting that afternoon. The next day, June 28, 1979, Elkins and Jones rode to- gether to the main plant where the representation elec- tion was to take place. Just before they entered the building, they heard some people call their names They went across the street and spoke with the people, who had been attempting to organize the Union, and who in- formed Elkins and Jones that they had been terminated by the Company for leaving work without permission the day before Those persons also informed Elkins and Jones that they had a right to cast a challenged ballot in the election. Elkins and Jones then went inside the main plant building where they spoke with Moxon. They asked if he knew where they were supposed to vote. Moxon replied that he did not know, but that he would check. Moxon then went inside the office. However, Elkins and Jones had already been informed of the voting location, so they proceeded to the voting line When they reached the voting line, some other employees told Elkins and Jones that they had heard that they had been terminated Nevertheless, Elkins and Jones replied, "not to our knowledge yet " Both Elkins and Jones cast challenged ballots in the representation election. Later that same day at 1 p.m, Elkins and Jones report- ed to work at the warehouse. Jones testified: placed on the desk in the office where it could have been visible to the participants in the conversation. Thus, I find that the tape recording was not secretly made However, even if Elkins had made the tape recording of the conversation without disclosing to the other partici- pants that he was doing so, I would still find the tape recording to be admissible . (See an earlier case before me when the charging party in that case had made a tape recording of face-to-face conversation with an agent of the respondent in that case, and the charging party had made a tape recording of a telephone conversation with a Board agent In both instances, the charging party had not disclosed to either person that he was recording their conversations with him Plumbers Local 598 (Rust/- WS H), 255 NLRB 450 (1981)) The tape recording made by Elkins was received into evidence as Respond- ent's Exhibit 23 in this case. For an explanation regard- ing what happened to the cassette after Elkins turned it over to an agent of the Board, see transcript pages 1685- 1692. Nevertheless, the tape recording is not helpful in this instance in making the findings of fact. The record- ing only covers a brief portion of some part of the con- versation involved here The major portion of the tape recording covers some other conversation and what ap- pears to be a classroom lecture on certain aspects of criminal law. Introduced into evidence as Joint Exhibit B-62 was a copy of the Company's exit interview form for Jones. It is dated June 28, 1979, and over the signatures of Moxon and Ceballos, it states : "Dave was terminated for leaving job without notifying his immediate supervisor at 3.00 p.m. 6-27-79 " Introduced into evidence as Joint Exhibit B-64 was a similar form for Elkins which gave the same reason by the Company for Elkins' termination. The findings of fact in this section are based on por- tions of the credited testimony of Elkins and David Jones (as distinguished from Richard Jones whose testi- mony is recorded in volume 27 of the transcript) and on documentary evidence. About five (5) minutes or so after 1:00 o'clock Bruce and another supervisor-maybe there was two (2) other supervisors from the main plant- came over, went into Armando's office and there was discussion in there for about five (5) minutes or so. Then they called Mr Elkins and myself in there and advised us that we were being fired for leaving the warehouse the day before without notifying Ar- mando that we were leaving and they wanted us to sign some papers I refused to sign the papers and so did Mr Elkins And I told Bruce at that time that I disagreed with the fact that I had not told Armando that I was leaving, that I had, and he knew I was leaving And I told him I wasn't-and then there was some little more discussion and I told him I wasn't going to sit there and argue with him about it And then I went in and got my time card that he showed me and I left. Before they had entered the office, Elkins was carry- ing a tape recorder with him, and he turned it on. Based on Elkins' testimony, I find that the tape recorder was C. Conclusions I conclude that the General Counsel has established a prima facie case of discrimination with regard to the Re- spondent's termination of Elkins and Jones, and that the Respondent has not established that the termination of Elkins and Jones would have taken place even in the ab- sence of union activities on their part Wright Line, 251 NLRB 1083 (1980). Thus, the evidence shows. ( 1) union activities on the part of Elkins and Jones on the day before they were terminated; (2) the Respondent's knowledge of those union activities, which encompass Elkins' stated intention to vote "yes" in the representa- tion election, and the stated intention of both Elkins and Jones to attend the union meeting that day, and (3) animus towards employees' organizational rights, which is revealed in the commission of other unfair labor prac- tices to be discussed later in this decision. The Board held in International Business Systems, 258 NLRB 75 fn. 3 (1981), "Unlawful motivation may be, and indeed as a practical matter must be, inferred from all the circum- stances." SPRING CITY KNITTING CO 437 With regard to the reason asserted by the Company for their termination, the evidence shows that the Com- pany had permitted both Elkins and Jones to work flexi- ble schedules in order to accommodate their desire to attend college classes and to undertake research in the li- brary whenever it was necessary. Note that Elkins told Moxon of his belief that there was going to be a union meeting held that afternoon and of his intention to attend, but Moxon said nothing in reply. Note also that Jones told Ceballos at 1 p.m. of his intention to attend the union meeting, and that Ceballos "just nodded," and at 3 p.m. when Jones again informed Ceballos of his in- tention to attend the union meeting , Ceballos said, "fine, I don't care what you do." Finally, when both Elkins and Jones inquired of Ceballos about whether they would be fired if they left, Ceballos told them "no." After considering the foregoing, I conclude that a pre- ponderance of the evidence establishes that the Respond- ent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act by termi- nating Elkins and Jones on June 28, 1979 Wright Line, supra. V. EVENTS ALLEGED TO BE 8(A)(1) VIOLATIONS AT RESPONDENT'S FLAGSTAFF PLANT A. Paragraph 23(a) 1. Allegations In the General Counsel's amended consolidated com- plaint , the General Counsel alleges the following in para- graph 23(a): 23. Commencing in May 1979, the Respondent, by its agents and supervisors, engaged in the follow- ing acts and conduct at its Flagstaff, Arizona, plant. (a) On a date in May 1979, which is presently not more specifically known, Stanley P. Hallman inter- rogated an employee concerning the employee's ac- tivities on behalf of or sympathy for the District Council. 2. Facts Stanley P Hallman, who is the director of industrial relations for the Respondent, made trips to all the Re- spondent's plants to explain to the employees about the Company's new savings growth plan. More will be said about the savings growth plan in other sections of this decision, but for the moment, it should be noted that he made two trips in May 1979 to the Respondent's Flag- staff plant The first one was on May 7, 1979, and the second one was later in May 1979. Maria Hammett was an employee of the Respondent at the Flagstaff plant at the time. She wore a union emblem on her blouse. Introduced into evidence as General Counsel's Exhibit 9 was a cloth emblem with the Union's name and insignia. The emblem is approximately 3-1/2- by-3-l/2 inches in size, and it is in red and blue colors on a white background. About 2 weeks after Hallman's meeting with employ- ees at the Flagstaff plant with regard to the savings growth plan, Hammett had a conversation with Hallman at her work station. She testified: He went from place to place-he went from place to place where we are work there. And, he got to where I was at. He got there and he greeted me. He asked me how I was, and I told him I was fine And, that day, I had an emblem dust like that one right on the front of my blouse, he asked if I had accepted the plan that they offered. I told him, no. He asked me why I said that my check was very small and that I could not afford to take any more out of my check He asked me for the emblem that I had on my blouse He asked me why I had this emblem on my blouse. I told him because I liked it. He asked did I have a problem with the company. I told him, no. I told him I was working very happily there. He asked me why did I want the union to come into this company And, I told him because we wanted to see if we had better ben- efits. He asked me if the people from the Union promised to give me more money I told him, no. They didn't promise anything. He said, then why do you want the union to come in. I told him we wanted better benefits. He said, you will not earn any more money. What these people do is merely make a lot of promises, but you will not earn more money. With regard to her ability to speak and to understand the English language, Hammett said, "I can say I speak-I can say I speak very little English because I don't speak English completely. But I do understand and I can also speak Not correctly, but I can speak it and I can understand it." Hammett answered certain questions at the trial in the English language. (See, for example, Tr. 1230, 1231, and 1232.) At other times the questions were translated from the English language into the Span- ish language and her responses were in the Spanish lan- guage and, therefore, translated by the interpreter into the English language. She also attempted to translate certain statements , while she was on the witness stand, from the English language into the Spanish language (Tr. 1246.) The findings of fact in this section are based on por- tions of the credited testimony of Hammett and portions of the testimony of Hallman, but only with regard to the time of his visits to the Flagstaff plant in May 1979. The timing of the visits is supported by documentary evi- dence. To take one example, see Joint Exhibit B-12, which is a memorandum dated May 8, 1979, from Moxon to employees and that memo refers to the visit on the previous day by Hallman and George Rippel, who is a personnel specialist of the Respondent, to speak about the savings growth plan 3 Conclusions In Hanes Hosiery, 219 NLRB 338 (1975), the Board held: "We long have recognized that the test of interfer- ence, restraint, and coercion under Section 8(a)(1) of the Act does not turn on Respondent's motive, courtesy, or gentleness, or on whether the coercion succeeded or 438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD failed The test is whether Respondent has engaged in conduct which reasonably tends to interfere with the free exercise of employee rights under the Act." The Board cited NLRB v. Illinois Tool Works, 153 F.2d 811 (7th Cir. 1946), enfg. 61 NLRB 1129 (1945). In Fruehauf Corp., 237 NLRB 399 (1978), the Board stated : "an interrogation of an employee's union sympa- thies or his reasons for supporting a union need not be uttered in the context of threats or promises in order to be coercive The probing of such views, even addressed to employees who have openly declared their prounion sympathies, reasonably tends to interfere with the free exercise of employee rights under the Act, and conse- quently, is coercive" The Board cited ITT Automotive Electrical Products Division , 231 NLRB 878 (1977), and the cases cited at footnote 2 in that case. In its decision in PPG Industries, 251 NLRB 1146 (1980). The Board specifically overruled its earlier deci- sions in Stumpf Motor Co., 208 NLRB 431 (1974), and B. F. Goodrich Footwear Co., 201 NLRB 353 (1973), "to the extent they hold that an employer may lawfully initi- ate questioning about employees ' union sentiments where the employees are open and known union supporters and the inquiries are unaccompanied by threats or promises." With the foregoing Board decisions in mind, I con- clude that the Respondent engaged in unfair labor prac- tices in May 1979 by its interrogation of Hammett re- garding her union activities and sympathies. B. Paragraph 23(b) 1 Allegations In the General Counsel's amended consolidated com- plaint , the General Counsel alleges the following in para- graph 23(b): (b) On or about May 22, 1979, Solomon Castillo refused to excuse from work an employee who had been subpoenaed to attend a representation hearing before the National Labor Relations Board. 2. Facts The representation hearing involving the Employer's Flagstaff and Glendale, Arizona employees was held on May 18 and 23, 1979, at Phoenix. There was no agree- ment among the General Counsel, the Charging Party, or the Respondent relating to the appearance of wit- nesses at the representation hearing. Patsy Tallas worked for the Respondent for about 6 years until December 1979 when she left her employ- ment as a production employee at the Flagstaff plant. In April 1979 she received a subpoena to attend the repre- sentation hearing On the day before the hearing opened, Tallas took her subpoena to the company office. There a photostatic copy was made of her subpoena, and the original subpoena was returned to her. Tallas attended the first day of the representation hearing. She estimated that about nine employees from the Flagstaff plant at- tended the first day of the hearing, and she thought that more than nine employees from the Glendale plant at- tended that day. Before the hearing resumed on the second day, Tallas went to the company office where she spoke with Salo- mon Castillo Jr., who at that time was the plant manager of the Flagstaff facility. Tallas informed Castillo that she was going to attend the hearing, but Castillo told her that it was not necessary for her to go. Castillo informed her that only four employees were going to attend, and that he had already told those four people that they could go Tallas then returned to her work station. Later on after work that day, Tallas spoke with Union Organizer Caesar Reyes, who advised her of the time he was going to pick her up. Tallas told him that she did not know if she was going because she had been told in the office that only four people were going to attend. Reyes told Tallas that they would talk with Castillo, so Tallas and Reyes went inside the plant. Castillo spoke with Reyes in his office while Tallas re- mained about 10 feet away in an outer office. Tallas overheard their conversation. Castillo told Reyes that Tallas could not go and, if Tallas did go, she was not ex- cused. Reyes replied that Tallas had a right to go if she wanted to go. Then another union organizer, Miguel Ma- chucha, came in and told Reyes not to argue and that Tallas was going. Neither Reyes nor Machucha were called to testify at the trial in the proceeding before me Tallas did attend the second day of the representation hearing , and thereafter, she was not punished nor penal- ized by the Company. Tallas was not called as a witness by any party on either day of the representation hearing. Introduced into evidence as Joint Exhibit B-20 was a copy of a notice that was posted on May 22, 1979, on the bulletin board at the Flagstaff plant. According to Castillo, actually four employees from Flagstaff, rather than one employee as specified in the notice, were al- lowed to attend the second day of the hearing. The notice stated: Dear Associates. The hearing being conducted by the National Labor Relations Board in order to determine which employees are eligible to vote during the union election, commenced on Friday, May 18, 1979. It has been continued until Wednesday, May 23, 1979. A number of you have advised us that the union has subpoenaed you to appear at the hearing. How- ever , union representatives assured us last Friday, that the union will not call any witness to testify at the hearing Accordingly, employees will not be ex- cused from work in order- to attend the hearing, in- asmuch as they will not be testifying. Nevertheless, we will honor requests to be ex- cused from work from five (5) employees from the Glendale plant and one (1) employee from the Flag- staff plant so that they may attend the hearing in a representative capacity. Such requests will be grant- ed on a first-come first-served basis. Since the union is subpoenaing and inducing some of our employees to attend the hearing even though it will not call them to testify, the union's only purpose can be to disrupt our operations and SPRING CITY KNITTING CO. cause economic injury to us and to you. We do not believe that the law requires us to suffer such injury. Obviously, the 'union's attempt to injure your company is also an attempt to injure you be- cause the only way that your company can com- pensate you for your work is if it is profitable. To the extent that the union's efforts to disrupt our op- erations by inducing our employees to be absent from work causes economic injury to the company, it also causes economic injury to you. We will inform you of the results of the hearing as soon as the Regional Director of the National Labor Relations Board issues a decision on the eligi- bility of employees. /s/ Dorothy Binseel Dorothy Binseel Director of Personnel Western Division The findings of fact in this section are based on por- tions of the credited, testimony of Tallas and on a portion of Castillo's testimony, but only with regard to the post- ing of Joint Exhibit B-20 and the number of employees to be permitted to attend the hearing. In addition, the findings are based on stipulations by the parties and doc- umentary evidence. 3. Conclusions Based on the foregoing, I conclude that the evidence does establish that the Respondent refused to excuse from work an employee who had been subpoenaed to attend an NLRB representation hearing. The Employer was shown her subpoena, and a photostatic copy was made of her subpoena. Thus, the employer had knowl- edge that Tallas had been subpoenaed. If the Respondent had reason to believe that the Board's processes were being abused by the subpoena process, then the appropri- ate method for presenting that issue for determination was by filing a petition to revoke the subpoenas. That procedure was followed by the Employer on May 21, 1979. See Joint Exhibit B-19. Thus, the question of whether the Board's processes were being abused, and whether the subpoena on Tallas and other employees should be revoked, was a question to be determined ini- tially by the Board's hearing officer at the representation hearing, and to be reviewed by higher authority if raised on appeal. (See the court's opinion in the certification test case referred to in sec. IV above.) I conclude that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act by re- fusing to excuse from work an employee who had been subpoenaed to attend a Board representation hearing. Earringhouse Imports, 227 NLRB 1107 (1977). As a pro- duction employee who did sewing work in "joining bands" at the Flagstaff plant, Tallas also had her "on-the- job interests . . . immediately involved in the hearing." See the Board's decision, which distinguishes the Ear- ringhouse case, in Home Lumber Co., 245 NLRB 358 (1979). C. Paragraph 23(c) 439 1. Allegations In the General Counsel's amended consolidated com- plaint, the General Counsel alleges the following in para- graph 23(c): (c) On or about June 18, 1979, Bruce Moxon threatened employees that the Respondent would close the plant if the District Council were selected as their bargaining representative. 2. Facts Gary Elkins, whose termination has been discussed in section IV herein, also related hearing a statement to em- ployees by Bruce Moxon, who is the office manager and the shipping manager at the Respondent's Flagstaff plant. Elkins testified, "Yes, in mid-June sometime, Bruce Moxon came into the warehouse. He was carrying a memorandum or something that was put out by Spring City. He posted it and went on to say that we could read it during our break and that. But he told us essentially that the Deming plant was going to close down because they had voted in a union." The findings of fact in this section are based on por- tions of the credited testimony of Elkins. 3. Conclusions Focusing on the allegation of 8(a)(1) conduct de- scribed above, the question presented in this section is not whether the Respondent, in fact, was going to close its Deming plan because the employees had voted in a union, nor is the question here what the notice said. Both of those matters will be discussed later in this decision. The question here is whether Moxon told employees that the Deming plant was going to close down because the employees had voted in a union. As indicated in the find- ings of fact, I conclude that Moxon did make that state- ment, which I conclude is coercive and threatening to Flagstaff employees with regard to the rights of Flagstaff employees to select a union as their collective-bargaining representative, and, therefore, is violative of Section 8(a)(1) of the Act. The attorneys for the Respondent point out in their posttrial brief that there is a variation between the literal wording in the General Counsel's allegation in paragraph 23(c) and the testimony related by Elkins as to what Moxon said. That is, Moxon is alleged to have threat- ened that the Respondent would close the Flagstaff plant if the Union was selected as their bargaining representa- tive, whereas Elkins' testimony is as related above. (See p. 267 of the Respondent's' posttrial brief.) Although I have given consideration to the Respondent's argument, I conclude that findings of fact set forth above are suffi- ciently related to the General Counsel's allegation so as not to preclude the finding of a violation of Section 8(a)(1) of the Act. 440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD D Paragraphs 23(d) and (e) 1. Allegations In the General Counsel's amended consolidated com- plaint , the General Counsel alleges the following in para- graphs 23(d) and (e). (d) On or about June 26, 1979, C. Ray Martin, in meeting with employees, threatened to close the plant if the District Council were selected as their bargaining representative. (e) On or about June 26, 1979, C. Ray Martin, in a meeting with employees, threatened employees that they would lose the right to talk directly to management about their problems and that they would lose their agreeable working conditions and relationship with management if the District Coun- cil were selected as their bargaining representative. 2 Facts Ray Martin, who is the chairman of the board and the chief executive officer of the Respondent, gave a speech on June 26, 1979, to the assembled employees at the Em- ployer's Flagstaff plant Just prior to the speech, Alan M. Riley, who is the director of southern operations for the Respondent and who was formerly president of the Employer's western operations, gave a tape recorder to Bruce Moxon, who has been previously identified. Moxon recorded the speech given by Martin on one side each of two tape recording cassettes. Joint Exhibit B-48(b) is a typed transcript of the tape recordings of the speech given on June 26, 1979, by Martin at the Flagstaff plant. I find that exhibit to be more reliable than the recollections of various witnesses who attempted at the trial to remember what had been stated on that long ago occasion. That is not said in any sense to be critical of the witnesses. Instead, it is a situa- tion where I find that the tape recordings of the speech provide a more accurate and reliable account of what Martin actually said on that occasion. There are two "gaps" in the transcription where ap- parently some of Martin's words were lost. One such gap resulted from the time it took Moxon to change from one tape cassette to another. (See p. 18 of Jt Exh. B- 48(b).) Moxon indicated at the trial that it took him only 3 or 4 seconds to accomplish that task. Another gap ap- parently resulted from the sounding of a buzzer at the plant. With those two exceptions, I find that the docu- ment reflects what Martin said during that speech. Martin's speech covered many topics. The transcrip- tion is typed double-spaced on a little over 21 pages. The entire exhibit is in evidence for review by those who have a need to do so. Rather than repeat the entire speech here, I will mention certain portions from the speech. Needless to say, the entire speech has been con- sidered, and the parts read in their context. In summary, Martin briefly mentioned the history of the Company (pp. 1-2); the need to produce and to sell a quality product in order to stay in business and have jobs for employees (pp. 3-5); problems encountered and an open-door policy (p. 6); Martin's viewpoint on the inter- ests of union organizers (p. 7); benefits which the Com- pany had given (pp. 7-9); the effect of signing union cards (p. 10); company benefits for employees (pp. 11- 12); company mistakes and errors in judgment (p 12); the effect of selecting a union (p. 13); the loss of jobs to foreign competition (p. 14); the closure of Genesco's Ainsbrooke plant in Alabama (pp. 14-16); the Company's pension plan versus the Union's plan (p. 16); the effect of collective-bargaining negotiations, economic strikes (pp. 16-19), and the future (pp. 19-22). Although Martin told the Flagstaff employees about the closure of Genesco's Ainsbrooke plant in Alabama, in which the employees had a union contract, Martin also told the employees, "This company was compelled to shut down its plants because it could no longer com- pete in the market place." (p. 15.) Thus, his statement, . . it can happen anywhere" has to be read in the con- text of his entire speech when Martin discusses competi- tion. In his speech, Martin also told the employees, "But once a union is selected, we can no longer deal directly with you as an individual; our duty will be to deal only with your representative and treat you all as one group." (See p. 13 of Jt. Exh. B-48(b).) Martin further stated, "When they win, you lose your right to deal with us di- rectly. You lose your right to take your personal prob- lems to Junior or to some of the other supervisors." (See p. 19 of the exhibit.) Martin also said, "If you vote for the union, it does not mean that you get more; it means you have given up your right to speak for yourself and have given that right to the union." The findings of fact in this section are based on docu- mentary evidence and a portion of the testimony of Moxon, but only with regard to his use of the tape re- corder to record Martin's speech 3. Conclusions With regard to the allegations set forth in paragraph 23(d), I conclude that the evidence does not support the General Counsel's allegations that Martin threatened to close the plant if the Union was selected as the bargain- ing representative. As indicated above, his statement "it can happen anywhere" must be read in the context of his speech in which he talked about the inability of the Genesco plant to compete in the market place, and the need for the Respondent's employees to produce a qual- ity product in order to stay in business and to have jobs. Accordingly, I must recommend to the Board that para- graph 23(d) of the General Counsel's complaint be dis- missed As the Board pointed out in its decision in Fideli- ty Telephone Co., 236 NLRB 166 (1978), with regard to a speech given by the respondent in that case, "A respond- ent is responsible only for the remarks it makes to em- ployees and not for the impressions that employees may derive from the remarks." With regard to the allegations in paragraph 23(e), I conclude that the evidence does support the General Counsel 's allegations , and that Martin's statements quoted above do violate Section 8(a)(1) of the Act. In Sacramento Clinical Laboratory, 242 NLRB 944 (1979), the Board held, " . . we find that the reference to em- ployees' loss of access to management constituted a vio- SPRING CITY KNITTING CO 441 lation of Section 8(a)(1) of the Act. We conclude that this statement is a clear misstatement of employee rights set forth under Section 9(a) or the Act and an unlawful threat of loss of benefits . C & J Mfg. Co., 238 NLRB 1388 ( 1978), Han-Dee Pak, 232 NLRB 454 ( 1977).. . . In the instant case it is' clear that Respondent intended to convey and in fact did convey the message that all direct dealings between the employee and Respondent would be banned and that the employee would each and every time be forced to seek the intervention of the bargaining representative." E. Paragraph 23(3 1. Allegations At footnote 25 on page 62 of counsel for the General Counsel's posttrial brief, the General Counsel makes a motion to amend his amended consolidated complaint to further allege that the Respondent violated Section 8(a)(1) of the Act when Moxon interrogated employees by asking them where they had heard that there was a union meeting and by asking Elkins whether he would vote a "resounding no" in the representation election. (See also the General Counsel's contention stated at fn. 18 on p. 55 of his posttrial brief.) 2. Facts The findings of fact with regard to this matter have al- ready been set forth in section IV above. It would be repetitious to set forth that conduct again. 3. Conclusions Counsel for the General Counsel argues that this matter was "fully litigated" during the trial, and he points out that both Elkins and Moxon testified regard- ing this matter . The attorneys for the Respondent argue that the matter was not "fully litigated " and urge the "General Counsel waited nearly two and one-half years to make its allegation and it does so now in a post-hear- ing brief after the record is closed ." (See p . 4 of Re- spondent 's answer to the General Counsel's motion to amend the amended complaint , which document was re- ceived on September 15, 1981.) The motion under consideration here is not the only allegation that the General Counsel seeks to add to his amended consolidated complaint. Other motions to amend will be pointed out later in the decision . Howev- er, this discussion is equally applicable to those similar motions. The unfair labor practice charge , filed by the Union in this case lists certain specific allegations of 8(a)(1) conduct , but the Union 's charge also alleges un- specified conduct at each one of the three plants of the Respondent . See appendix A to General Counsel's Ex- hibit 1(n), in which the Union alleges that the Respond- ent was "otherwise interfering with, restraining and co- ercing employees in exercise of their rights under Sec- tion 7." Note also the printed language under the "basis of the charge" which reads , "By the above and other acts, the above -named employer has interfered with, re- strained and coerced employees in the exerciseâ€ž of_ the rights guaranteed in Section 7 of the Act." As indicated previously, the allegations of 8(a)(1), (3), and (5) conduct from the General Counsel's amended consolidated com- plaint are set forth in this decision. Considering the broadly worded unfair labor practice charge and the ex- isting allegations of the General Counsel in the amended consolidated complaint, I conclude that the instant motion under consideration to add allegations of interro- gation by Moxon are closely related to the subject matter of the complaint allegations. See Alexander's Res- taurant, 228 NLRB 165 (1977), enfd. 586 F.2d 1300 (9th Cir. 1978). 1 reach the same conclusion with regard to the subject matter of the complaint and the additional al- legations which the General Counsel seeks to add to his complaint. With regard to the timing of the General Counsel's motions, see the Board's decision in Herbst Supply Co., 222-NLRB 448 (1976), in which the Board found that the administrative law judge in that case erred by not permitting the General Counsel to amend the complaint to add another 8(a)(1) allegation. As footnote 2 of the ALJD in that case makes clear, the motion was made in the General Counsel's brief. There have been a number of cases where the Board has concluded that a matter has been "fully litigated" at a trial, and that the Board should rule on the matter. For example, see the Board's decision in Rai Research Corp., 257 NLRB 918 fn. 4 (1981), in which the Board held in part, "Although the complaint does not specifically allege this conduct to be a violation of t4 e Act, the issue was fully litigated at the hearing and the record fully supports the finding of a violation." The following cases also involved the "fully litigated" issue in various con- texts. The list is not meant to be exhaustive, and the cases are listed merely in descending chronological order: Woody's Truck Stops, 258 NLRB 705 (1981); Pace Oldsmobile, 256 NLRB 1011 (1981);, Baytown Sun, 255 NLRB 154 (1981); Hacienda Hotel & Casino, 254 NLRB 56 (1981); Laborers Local 889 (Ferrante & Sons), 251 NLRB 1579 (1980); Peat Mfg. Co., 251 NLRB 1117 (1980); United Services for the Handicapped, 251 NLRB 823 (1980); Great Atlantic Tea Co., 244 NLRB 1097 (1979); Ackerman Mfg. Co., 241 NLRB 621 (1979); Savoy Brass Mfg. Co., 241 NLRB 51 (1979); St. Joseph Hospital East, 236 NLRB 1450 (1978); Timken Co., 236 NLRB 757 (1978); Niagara Falls Medical Center, 236 NLRB 342 (1978); Alcan Forwarding Co., 235 NLRB 994 (1978); Meilman Food Industries, 234 NLRB 698 (1978); Pitts- burgh Press Co., 234 NLRB 408 (1978); Southwest Distrib- uting Co., 232 NLRB 635 (1977); H. C. Thomson, Inc., 230 NLRB 808 (1977); Griffin Inns, 229 NLRB 199 (1977); and General Dynamics Corp., 227 NLRB 334 (1976). With the foregoing guidance from the, Board in mind, I conclude that the motions made by counsel for the General Counsel in his posttrial brief should be granted: (1) because the allegations which the General Counsel seeks to add to the amended consolidated complaint are closely related to the existing allegations of the com- plaint, and (2) because the matters were "fully litigated" at the trial by the testimony of the witnesses involved and the introduction of documentary evidence where ap- 442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD plicable. Accordingly, those motions are hereby granted. As indicated previously , the additional allegations will be discussed subsequently at the appropriate places, but as to the instant allegation , I conclude that the evidence shows that Moxon engaged in interrogation of employees on June 27 , 1979, at the Respondent 's Flagstaff plant with regard to employees ' union activities and with regard to how an employee was going to vote in the Board -conducted representation election . See the cases discussed in section V,A above. VI. EVENTS ALLEGED TO BE 8(A)(i) VIOLATIONS AT BOTH THE RESPONDENT'S FLAGSTAFF AND GLENDALE PLANTS A. Paragraphs 25(a) and 11(b) 1. Allegations In the General Counsel's amended consolidated com- plaint, the General Counsel alleges the following in para- graph 25(a): 25. Commencing on or about June 18, 1979, the Respondent engaged in the following acts and con- duct at both its Glendale and Flagstaff, Arizona, plants: (a) On or about June 18, 1979, the Respondent posted a notice informing employees of the closing of the Deming facility and thereby threatened em- ployees with plant closure if they selected the Dis- trict Council as their bargaining representative. In the General Counsel's amended consolidated com- plaint, the General Counsel alleges the following in para- graph 11(b). (b) On or about June 18, 1979, the Respondent, by posting notices to its employees subscribed by Alan M. Riley at its Glendale and Flagstaff, Arizo- na, plants, announced its decision to close the Deming, New Mexico, plant. The foregoing is also alleged to be in violation of Sec- tion 8(a)(3) and (5) of the Act. That will be discussed later. Although the allegations in paragraph 18 also in- volve the Flagstaff and Glendale employees, those alle- gations regarding the closing of the Respondent's Deming, New Mexico plant will be discussed in section X herein. 2. Facts Introduced into evidence as Joint Exhibit B-34 was a copy of the notice dated June 18, 1979, which was posted on that date by the Respondent at the Flagstaff plant. It states: Dear Associates: The Company has reviewed the economics of its operation in Deming, New Mexico; and, after care- ful consideration of the continuing losses being in- curred, it can no longer justify keeping that plant operating. Even though the operations of the Deming facili- ty are the same as the Glendale plant, the produc- tivity of the Deming plant has been disappointing. Accordingly, the Company has reluctantly conclud- ed that it no longer makes good business sense to continue to hope for a profitable operation in Deming. Last Friday, June 15, 1979, the Company repre- sentative met with the union representative, provid- ed him with wage and economic information he re- quested, explained the company's disappointment with the productivity at Deming, and proposed to close down the Deming plant on or about the week of June 25, 1979. The union representative told us he would get back to us today. In the meantime , we have had to object to the holding of the election on June 28, 1979, the date demanded by the union, since many of our employ- ees will not be present in the plant that day, either because of vacation or preparations for the Pow Wow. We believe everyone should vote in this elec- tion, and we don't know why the union should be trying to hold it when many employees will be absent. When we learn more about the date of the elec- tion, we will let you know. A. M. Riley Introduced into evidence as Joint Exhibit B-33 was a copy of the notice dated June 18, 1979, which was posted on that date by the Respondent at the Glendale plant. It is similar in content to Joint Exhibit B-34, except for the fourth paragraph. In the notice posted at the Glendale plant, that fourth paragraph reads: In the meantime, we have had to object to the scheduling of the election on June 28th, the date de- manded by the union, since a full and representative complement of employees will not be present in the Glendale plant during that week because of vaca- tions. The findings of fact in this section are based on docu- mentary evidence and stipulations by the parties. 3. Conclusions The Respondent's notices in question here refer to eco- nomic reasons, rather than union-related reasons, for the Respondent's closing of its Deming plant. For example, the Respondent's notices refer to the "economics of its operation in Deming;" the continuing losses being in- curred; "the productivity of the Deming plant has been disappointing"; and "it no longer makes good business sense to continue to hope for a profitable operation in Deming." Thus, the reasons for the Deming plant clos- ing, advanced by the Respondent in its notices to the Flagstaff and Glendale employees, were economic rea- sons. Although the third paragraph of the Respondent's no- tices gives the Respondent's view of the meeting be- tween Respondent's representatives and the union repre- SPRING CITY KNITTING-, CO. 443 sentative, it reiterates "the company's disappointment with the productivity at Deming" as the explanation given by the Respondent to the union representative. The fourth paragraph of the Respondent's notices re- lates to the Company's view of the scheduling of the representation elections. I conclude that the evidence does not support the General Counsel's complaint allegations that the Re- spondent's notices threatened the Flagstaff and Glendale employees with plant closure if they selected the Union as their bargaining representative. Regardless of whether the notices were posted in answer to the Union's cam- paign literature, as the Respondent urges, or in the ab- sence of inquiries by employees on the subject, as the General Counsel urges, the notices do not contain any threat of plant, closure. Therefore, the expression of the Respondent's views are protected by the "free speech" provisions of Section 8(c) of the Act. With regard to the General Counsel's complaint allegations of 8(a)(1) con- duct in paragraph 11(b), the I'tespondent's notices again reflect the Respondent's view that it had "proposed to close down the Deming plant on or about the week of June 25, 1979" to the union representative, who said that he would contact the Respondent on June 18, 1979. The meeting of the representatives of those two parties will be described later in section X herein. However, at this point, I conclude the Respondent's notices are expres- sions of the Respondent's view that it had made a pro- posal to the Union to close the Deming plant, rather than an announcement of its decision to close the Deming plant. Accordingly, I must recommend to the Board that the allegations of 8(a)(1) conduct in paragraph 25(a) and paragraph 11(b) of the General Counsel's amended con- solidated complaint be dismissed. B. Paragraphs 25(b), (c), and (d) 1. Allegations In the General Counsel's amended consolidated com- plaint, the General Counsel alleges the following in para- graphs 25(b), (c), and (d): (b) On or about June P 8, 1979, the Respondent offered employees an additional week of vacation in order to dissuade them from giving their assistance or support to the District Council. (c) On or about June 18, 1979, the Respondent .offered employees the benefit of receiving one week's vacation pay in advance in order to dissuade them from giving their assistance or support to the -District Council. (d) On or about June 26, 1979, the Respondent granted employees the benefit of receiving one week's vacation pay in advance in order to dissuade them from giving their assistance or support to the District Council. 2. Facts The practice of the Company, as it existed in June 1979 at the Flagstaff and Glendale plants, was for the employees to receive two vacation periods. Those con- sisted of I week vacation in July and 1 week vacation in December. (See, for example, it. Exh. B-17 and A. Exh. B-27.) Depending on an employee's length of service with the Company, the employee received in December vacation pay based on a percentage of the employee's earnings . (See, for example, G.C. Exh. 10, and in particu- lar that employee's paycheck stubs for "vacation pay 1977" and "vacation pay 1978.") In addition to the regular times for vacation described above, an employee, who was eligible for more than 2 weeks of vacation, could also make application to his su- pervisor for time off during periods of time other than when the plant was temporarily shut down. (See R. Exhs. 14(a) through (f). Note the wording there on R. Exh. 14(a), "The Plant will be closed the weeks of July 04 and December 26, 1977. If eligible for more than two weeks, see your supervisor.") In June 1979 employees were approached at their work stations by their supervisors and given the option of receiving half of their vacation pay prior to the July vacation week, and the remaining half of their vacation pay in December, rather than receiving all their vacation pay in December. (See it. Exh. B-45(a); Jt. Exh. B-46, and A. Exh. B-49(b).) In addition, employees were asked by their supervisors if they were taking time off from work during the week of June 25, 1979, which was the week prior to the scheduled July vacation period. (See A. Exh. B-45(b).) The representation elections at the Flagstaff and Glendale plants were held on Thursday, June 28, 1979. (See it. Exhs. B-54 and B-55.) The findings of fact in this section are based on por- tions of the credited testimony of the following wit- nesses, whose names are given in alphabetical order: Julia Adjuilar, Apolinaria Campos, Sachiko T. Cecil, Bessie Hensley, Yolanda Hiller, Mary Ann' Lawson, Maria Maestas, Virginia Mendivil, Lilia Mendoza, Rose Noriega, Ruby Rentrope, Patsy Tallas, and Dorothy Vargas. In addition, the findings of fact have been based on documentary evidence. 3. Conclusions I conclude that the evidence establishes that the Re- spondent made a change in its vacation pay practice, as it existed in June 1979, at its Flagstaff and Glendale plants. The change was beneficial to employees in that the employees were given the option of receiving half of their vacation pay in July, rather than having to wait until December to receive their vacation pay. In addi- tion, counsel for the General Counsel argues persuasively that the eligibility to receive vacation pay was consider- ably shortened, which, was a benefit to the employees. Thus, instead of being required to work until December to be eligible for vacation pay, the General Counsel points out that employees were considered to be eligible for half of that pay in June 1979. (See p. 73 of counsel for the General Counsel's posttrial brief.) Employees were also given the option of taking time off from work during the week prior to the scheduled vacation week in July. Thus, in eff_ ect, an employee was offered a 2-week summer vacation period, if the employ- ee so chose, rather than the I-week period. 444 r DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The timing of the grants of those benefits to employees during the weeks just prior to the holding of representa- tion elections at both the Flagstaff and Glendale plants, when considered with the other unfair labor practices found in this decision, warrants an inference that the Re- spondent changed its existing policy at that time and granted those benefits to its employees in order to dis- courage its employees from supporting the Union. Re- spondent's offers of explanations through its witnesses for these changes were not convincing nor credible. Ac- cordingly, I conclude that the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act as alleged in paragraphs 25(b), (c), and (d). C. Paragraph 25(e) 1. Allegations At page 66 of the posttrial brief filed by the General Counsel, it is urged that C. Ray Martin, who is the Re- spondent's chairman and chief executive officer, violated Section 8(a)(1) of the Act by telling Respondent's em- ployees at the Flagstaff and Glendale plants in a memo dated April 10, 1979, that the Respondent's supplemental retirement plan, which is known as the savings growth account, was for "non collective bargaining unit employ- ees." See Joint Exhibit B-1. 2. Facts About April 10, 1979, a letter was sent to all employ- ees of the Respondent at its Flagstaff and Glendale plants. The letter is dated April 10, 1979, and is over the signature of C. Ray Martin, who is the chairman and the chief executive officer of the Respondent. A copy of that letter was introduced into evidence as Joint Exhibit B-1. It states: Dear Associate: For several years now, many of you have voiced strong comments in group meetings and at other times about a need to improve our retirement pro- gram. Many have asked if there could be a way you could contribute toward a plan so that your retire- ment income would be a contribution of company and employee contributions resulting in more retire- ment money for you. We, in turn, have been work- ing hard to accomplish your requests; we have given the parent corporation officials several recom- mendations to improve the Retirement Plan for you. Now we are very pleased to announce the intro- duction of an extremely liberal and lucrative supple- mental retirement plan for non collective bargaining unit employees. Effective July 1 of this year, all eli- gible employees will have the opportunity to have a percentage of income deducted from each pay and placed in a trust plan which will result in a much greater amount of return money'"for retirement. This plan will be called the Savings Growth Ac- count and here is a very brief outline of how it will work. You will be given complete details in written material and in information sessions over the next few months. You may have up to 11% of your income de- ducted from each pay in any single increment: 1%, 2%, 3%, 4%, 5%, 6%, 7%, 8%, 9%, 10%, 11%. The Company will add 25% to all money you contribute up to the first 6% of your pay and then place the total of this money in an account in your name. This means if, for instance, over a years time you have $400 deducted from your pay, the Com- pany's addition will increase the amount to $500 placed in your account. A high interest rate, initially in the area of 9%, will be earned on all money in your account. You will not have to pay federal income tax on the money added by the Company nor the interest earnings until you withdraw it. As you can easily see, this is a great benefit and one we are very excited about. We are going to en- courage each and every one of you to take advan- tage of this opportunity to the fullest extent you can afford. We count this as a giant step forward in our ben- efit program, and we are going to continue to work toward providing more things in the future that will make Spring City Knitting Company an even better place to work. As always, we will continue to ap- preciate any comments and suggestions you may have. Sincerely yours, /s/ C. Ray Martin C. Ray Martin The findings of fact in this section are based on docu- mentary evidence and a stipulation by the parties. 3. Conclusions The wording of Martin's letter is not in dispute, nor is the fact that the letter was sent to the Respondent's Flagstaff and Glendale employees about April 10, 1979. Martin also testified in this proceeding, and documents were introduced with regard to the savings growth ac- count. Hallman also testified on the subject. However, the issue here is not the eligibility requirements of the savings growth account, but instead the issue raised by counsel for the General Counsel is whether the statement in Martin's letter independently violates Section 8(a)(1) of the Act. For the reasons already set forth in Section 4(f) of this decision and based on the rationale of the cases cited therein, I conclude that this matter was "fully litigated" at the trial. I find the General Counsel's argument to be persuasive that Martin's statement in his letter to employees with regard to the plan being for "non collective bargaining unit employees" is coercive in that it tells employees that the benefits of the plan are restricted or limited to "non collective bargaining unit employees," rather than indi- cating that the benefits of such a plan would be subject SPRING CITY KNITTING CO. to negotiation, if the employees selected a union as their collective-bargaining representative. See American Sun- roof Corp., 248 NLRB 748, 749 fn. 12 (1980). According- ly, I conclude that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act by the statement in Martin's letter telling the em- ployees that the plan was limited to "non collective bar- gaining unit employees." VII. EVENTS ALLEGED TO BE AN 8(A)( 1) VIOLATION AT THE RESPONDENT'S GLENDALE PLANT A. Paragraph 24(a) 1. Allegations In the General Counsel's amended consolidated com- plaint, the General Counsel alleges the following in para- graph 24(a): 24. Commencing in May 1979, the Respondent, by its agents and supervisors specified below, en- gaged in the following acts and conduct at its Glen- dale, Arizona, plant: (a) On a date in May 1979, which is presently not more specifically known, Stanley Hallman and George Rippel threatened employees with loss of benefits if they selected the District Council as their bargaining representative. 2. Facts Stanley P. Hallman, who is the director of industrial relations for the Respondent, and George J. Rippel, who is a personnel specialist for the Respondent, made trips to the various plants of the Respondent in order to ex- plain the Respondent's new savings growth account to the Respondent's employees. According to Hallman, he visited the Glendale plant on May 8 and 9, 1979, for that purpose. Although there is some variation among the employee witnesses with regard to the dates on which the meeting took place, I accept Hallman's testimony re- garding those two dates as being accurate. During the course of one of the meetings at the Glen- dale plant, a female employee asked Hallman what would happen regarding the plan, if a union came into the plant. Hallman told the group that the plan was only for nonunion employees. The findings of fact in this section are based on por- tions of the testimony of the following persons, whose names are listed in alphabetical order: Sachiko T. Cecil; Stanley P. Hallman, but only with regard to the dates of his meetings with employees at Glendale ; Bessie Hensley, Maria Maestas, Rose Noriega, and Dorothy Vargas. In addition, the findings of fact are based on a stipulation of the parties. 3. Conclusions For the same reasons that have been discussed in sec- tion VI,C herein, I conclude that telling employees that the savings growth account was for nonunion employees threatened employees with a loss of benefits if they se- lected the Union as their collective-bargaining represent- ative. Accordingly, I conclude that the evidence sup- 445 ports the General Counsel's allegations of 8(a)(1) con- duct, as described above, and that the Respondent has further engaged in conduct violative of Section 8(a)(1) of the Act. B. Paragraphs 27(b), (c), and (e) 1. Allegations In the General Counsel's amended consolidated com- plaint, the General Counsel alleges the following in para- graphs 24(b) and (c): (b) On or about June 20, 1979, and June 26, 1979, C. Ray Martin, in meetings with employees, threat- ened to close the plant if the District Council were selected as the employees' bargaining representa- tive. (c) On or about June 26, 1979, C. Ray Martin, in a meeting with employees, promised employees wage increases if they refrained from joining, sup- porting or assisting the District Council. The posttrial brief filed by the General Counsel urges in footnote 38 on page 93 a -similar allegation regarding Martin's speech at the Glendale plant as the General Counsel had alleged in paragraph 23(e) of the complaint regarding Martin's speech at the Flagstaff plant. See sec- tion V,D herein regarding that allegation. I shall consid- er this as paragraph 24(e). 2. Facts Tape recordings were made of the speeches made by C. Ray Martin to the employees at the Glendale plant on June 26 and 27, 1979. Transcripts of those tape record- ings were introduced into evidence as Joint Exhibits B- 49(a), B-50, and B-51. I find that those transcripts, rather than the recollections of various witnesses, are the more accurate and reliable accounts of what Martin told the employees. Thus, I have made the findings of fact in this section based on documentary evidence. 3. Conclusions For the reasons already set forth in section V,D above, I reach the same conclusion regarding the allega- tions in paragraph 24(b) quoted above. In addition, I find that the transcripts of the speeches do not support the al- legations in paragraph 24(c) quoted above. As indicated in the findings of fact, I find the transcripts to be more accurate and reliable rather than the attempts of wit- nesses to recall long past events. I am not unmindful of the fact that the General Counsel urges that the Re- spondent failed to produce transcripts of all the speeches that Martin gave at the Glendale facility. (See pp. 79-86 of the posttrial brief filed by the General Counsel.) The General Counsel points to Martin's statement, "I ad- dressed most of you last evening .. . ." (See p. 1 of Jt. Exh. B-49(a).) Martin' s statement supports the logic of the General Counsel's argument that a fourth speech was given. Martin's statement is clear and unambiguous. His statement was tape recorded, which, as explained above, enhances the accuracy of reporting what he said. Never- 446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD theless, as Joint Exhibits B-49(a), B-50, and B-51 show, Martin's speeches were basically the same text with only minor variations . I am not prepared to speculate that his fourth speech was so different from the transcripts of his other three speeches as to establish the General Coun- sel's allegations in paragraphs 24(b) and (c). Accordingly, for all the reasons set forth above, and set forth earlier in section V,D herein, I must recommend to the Board that the allegations in paragraphs 24(b) and (c) of the General Counsel's amended consolidated complaint be dismissed. With regard to the General Counsel's contention, which I have designated above as paragraph 24(e), 'I con- clude that the matter was "fully litigated" for the reasons which have already been given in section V,E. Further- more, for the reasons that are set forth in section V,D above, I reach the same conclusion since the General Counsel is making the same allegation with regard to Martin's speech to the Glendale employees as the Gener- al Counsel did with regard to Martin's speech to the Flagstaff employees. Accordingly, I conclude that the Respondent has further violated Section 8(a)(1) of the Act in the Glendale speech as alleged in section V,D above. C. Paragraph 24(d) 1. Allegations Mary Ann Lawson, an employee of the Respondent at the Glendale plant, testified on day 6 of the trial in this proceeding, which was April 23, 1980. Although Lawson was still on the witness stand and subject to ex- amination by all parties, the General Counsel moved to amend the General Counsel's amended consolidated complaint to add paragraph 24(d) based on the testimony given by Lawson. (See Tr. 1166-1186.) The General Counsel's motion was granted. George Rippel, who has previously been identified in this decision, is the one who is alleged by the General Counsel to have violated Sec- tion 8(a)(1) of the Act in this instance. Rippel testified on day 19 of the trial of this proceeding, which was on July 11, 1980. The General Counsel alleges in paragraph 24(d) as follows: (d) On or about early June 1979, George Rippel told an employee that he refused to describe bene- fits to her because she was wearing a union badge and that union adherents were troublemakers. 2. Facts After one of the meetings held at the Glendale plant to explain the Respondent's new savings growth account to employees , employee Mary Ann Lawson asked George Rippel if he would explain the retirement plan to her be- cause she did not understand what had been said. Lawson and Rippel sat down at a table, and Rippel started to read to her when he looked in the direction of Lawson 's union badge that she was wearing . According to Lawson , Rippel then said , "I am not going to explain anything to you. He said , as long as you're wearing that Union badge and then he said , what has the Union done for you. He said , the company has done more for you than the Union has . And, then he said, you girls are trou- blemakers. And, then he called us radicals. And, I said, you should not-I said, don't you-I said you shouldn't dare call me a radical. I said, we're not radicals. And, then he said, you girls are causing trouble for the little old ladies that have been with-working there a long time. So, and then he was mad, you know, you could see he was mad with his eyes and he punched his fist like that." The findings of fact in this section are based on por- tions of the credited testimony of Lawson. " 3. Conclusions I conclude that the evidence supports the General Counsel's allegations with regard to Rippel's refusal to describe company benefits to her because she was wear- ing a union badge, and that such a statement is coercive in violation of Section 8(a)(1) of the Act. However, with regard to Rippel's statement regarding "troublemakers" ,and "radicals," I conclude that the expression of such views are protected by Section 8(c) of the Act. Thus, I recommend to the Board that the portion of the allega- tion relating to "troublemakers" be dismissed, and that a violation be predicated only on Rippel's statement re- garding his refusal to explain the benefits to Lawson be- cause she was wearing a union badge. VIII . THE UNION'S OBJECTIONS TO THE REPRESENTATION ELECTION HELD AMONG THE EMPLOYEES AT THE GLENDALE PLANT A. Objections In the Acting Regional Director's Supplemental Deci- sion on .Objections to Conduct Affecting the Results of the Election, Order Directing Hearing and Notice of Hearing, the following objections of the Union were or- dered to be heard in this proceeding: 1. The Employer posted a notice announcing the closing of its Deming, New Mexico, plant and other matters, and took other action to close the Deming plant, under circumstances making clear its inten- tion to intimidate Glendale voters. 3. The Employer manipulated its vacation system and annual bonus so that employees were pressured to take vacation in order to postpone the election, and conditions of employment changed and rewards promised and delivered in exchange for rejection of the Union. 4. The Employer further interfered with the free choice of employees by threats of plant closure and other retaliation, and other conduct designed to and having the effect of intimidation of the eligible voters. B. Facts With regard to Objection 1 quoted above, I find the facts to be those that are already set forth in section VI,A of this decision. With regard to Objection 3 quoted above, I find the facts to be those that are already set forth in sections SPRING CITY KNITTING CO. VI,B, and C of this decision . See sections VII,A,C, and B regarding Objection 4. C. Conclusions For the reasons that are set forth in section VI,A of this decision, I recommend to the Board that Objection 1 be overruled. For the reasons that are set forth in sections VI,B, and C, I recommend to the Board that Objection 3 be sus- tained. See Dal-Tex Optical Co., 137 NLRB 1782 (1962). For the reasons that are set forth in sections VII,A,C, and B, I recommend to the Board that Objection 4 be sustained. See Dal-Tex Optical Co., supra. Because I have recommended to the Board that Objec- tions 3 and 4 be sustained, I further recommend to the Board that the first election be set aside and that the Board order that a new election be conducted among the employees in the unit found appropriate at the Glendale plant. The attorney for the Charging Party urges in his post- trial brief at pages 83 through 88 that a bargaining order is appropriate with regard to the Glendale plant. In par- ticular, the attorney for the Charging Party cites the Board's decision in United Dairy Farmers Cooperative Assn., 257 NLRB 772 (1981). (See pp. 86-88 of the post- trial brief filed by the attorney for the Charging Party and also his letter dated September 1, 1981, regarding that case.) In the instant case, as in United Dairy, the evi- dence does not establish that the union ever achieved majority status among the unit employees. I find United Dairy to be distinguishable from the instant case in that footnote 8 of the United Dairy decision indicates that Member Zimmerman viewed the decision of the United States Court of Appeals for the Third Circuit to be "the law of the case" on the remand of that proceeding to the Board. The footnote states: Chairman Fanning and Member Jenkins adhere to their position, as set forth in the original Deci- sion and Order in this proceeding, that the Board possesses the authority to issue a nonmajority bar- gaining order. Member Zimmerman respectfully recognizes the Third Circuit's decision as binding upon the Board for the purpose of deciding this case. He therefore finds it unnecessary to determine whether the Board has such authority. In the circumstances described above, I conclude that the United Dairy decision is not a precedent for issuing a bargaining order in this case where the evidence has not established that the Union ever achieved majority status among the Glendale employees. Accordingly, the Charg- ing Party's request for a bargaining order is hereby denied. 447 IX. EVENTS ALLEGED TO BE 8(A)(1) VIOLATIONS AT THE RESPONDENT'S DEMING PLANT A. Paragraph 22(a) 1. Allegations In the General Counsel's amended consolidated com- plaint, the General Counsel alleges the following in para- graph 22(a): 22. Commencing on or about March 1, 1979, the Respondent, by its agents and supervisors specified below, engaged in the following acts and conduct at its Deming, New Mexico, plant: (a) On or about March I, 1979, John Lord, in a leaflet distributed to employees, threatened to close the plant if the employees selected the Union as their bargaining representative. 2. Facts Introduced into evidence as Joint Exhibit A-2 was a copy of a leaflet dated March 1, 1979, which was ad- dressed to the employees of the Respondent at the Deming plant. The leaflet appeared over the signature of Plant Manager Lord. The document is typed single- spaced and covers slightly over one page. The entire text is in evidence for those who have a need to review the entire document. In part, it states: We have been in operation for several years, we intend to be here for years to come providing good secure jobs for all of us. Don't swallow exaggerated claims or outright lies. Consider every statement, don't even' listen if you don't want to, especially don't sign any cards, they can be fatal to a business. The findings of fact in this section are based on docu- mentary evidence. 3. Conclusions In the Board's decision in Munro Co., 217 NLRB 1011 (1975), the Board found no violation in a statement made by the president of the company in a speech to the em- ployees, where he stated, among other things, "Especial- ly don't sign any cards. They can be fatal to a business." The Board cited its earlier decision in Airporter Inn Hotel, 215 NLRB 824 (1974). The attorneys for the Re- spondent argue that the Board precedent in Mt. Ida Foot- wear is applicable here. (See pp. 150-153 of the posttrial brief filed by the attorneys for the Respondent.) The General Counsel urges that the Mt. Ida Footwear case is distinguishable because, in his view, the use of the word "fatal" here was not expressly stated by Lord to refer "to benefits, union demands, or strikes." (See pp. 10-12 of the posttrial brief filed by the General Counsel.) I conclude that the Respondent's argument in favor of ap- plying the Mt. Ida Footwear precedent is persuasive and, accordingly, I must recommend to the Board that the al- legations set forth in paragraph 22(a) of the General Counsel's amended consolidated complaint be dismissed. 448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. Paragraphs 22(b), (c), (d), and (s) 1. Allegations In the General Counsel's amended consolidated com- plaint, the General Counsel alleges the following in para- graphs 22(b), (c), and (d)â€¢ (b) On or about March 1, 1979, Byron Taylor threatened to close the plant if the employees se- lected the Union as their bargaining representative. (c) On or about March 1, 1979, Byron Taylor in- terrogated employees concerning the employees' ac- tivities on behalf of or sympathy for the Union. (d) On or about March 1, 1979, Byron Taylor at- tempted to create the impression among employees that their activities on behalf of the Union were being kept under surveillance by the Respondent by verbally stating to employees of the Respondent that he understood they were holding a union meet- ing and, on or about March 2, 1979, by interrogat- ing an employee about events at that meeting. The General Counsel also contends that Taylor threat- ened an employee about March 2, 1979, that the Compa- ny would close the plant if the employees selected the Union. That allegation is predicated on the testimony of Angie Zamora Ramirez, who related a conversation with Taylor about that date. (See pp 14-17 of the posttrial brief filed by the General Counsel, and see pp 230-232 of the posttrial brief filed by the attorneys for the Re- spondent.) 2. Facts About March 1, 1979, Patsy Moreno, who was an em- ployee of the Respondent at the time, had a conversation with Byron E. Taylor, who was assistant plant manager at the Deming facility at the time The conversation took place at the folding line. Two other employees, Christina Meraz and Angie Zamora Ramirez, were also present during the conversation and were also called as witnesses at the trial. Taylor approached the employees, and he told them that he understood that there was a union meeting that night. Taylor then asked why they wanted a union, and whether they were satisfied with the way they were run- ning things at the plant. Moreno replied that she did not like the way they were treated. Taylor then asked if they did not know that they could close down if a union came in the plant. Taylor asked the employees how they were going to feed their families then. Moreno respond- ed that they could not close down the plant because of a union. Taylor asked who had told her that lie Moreno said that she did not know. About March 2, 1979, Angie Zamora Ramirez, who was an employee of the Respondent at the time, had a conversation with Assistant Plant Manager Taylor at Ra- mirez' work station. No one else was present. Taylor asked Ramirez how the meeting had gone last night, and she replied, "real nice." Taylor next asked her what the Union could do for them, and Ramirez replied, "to be treated like a human being." According to Ramirez, Taylor then told her that, if the Union came in, "the company could not afford to pay the wages the union asked for." The findings of fact in this section are based on por- tions of the credited testimony of Moreno, Meraz, and Ramirez. 3. Conclusions In its decision in South Shore Hospital, 229 NLRB 363 (1977), the Board held, "In determining whether a re- spondent created an impression of surveillance, the test applied by the Board is whether employees would rea- sonably assume from the statement in question that their union activities had been placed under surveillance, Schrementi Bros., Inc., 179 NLRB 863 (1969)." See also the Board's decisions in Dillingham Marine Co., 239 NLRB 904 (1978), and Star Kist Samoa, 237 NLRB 238 (1978). "We are not here concerned with whether this state- ment was true, or whether it proved actual surveillance. The significant fact, in our opinion, is whether Cope- land's statement had a reasonable tendency to discourage the employees in exercising their statutory rights by cre- ating the impression that he had sources of information about their union activity " American National Stores, 195 NLRB 127 (1972). See also Overnite Transportation Co., 254 NLRB 132, 133 (1981), where the Board held "it is irrelevant whether the statement implied a threat, or whether the supervisor learned about the meeting from an employee who volunteered the information." Applying the legal principles of the Board precedents, I conclude that the evidence shows that the Respondent did create the impression among its employees that their union activities were being kept under surveillance by the statements made by Taylor set forth above regarding the union meeting. Certain Board cases pertaining to the interrogation of employees by their employer with regard to their union activities have already been discussed in section 4(a) of this decision I conclude that the Board's legal principles are equally applicable to the questioning by Taylor set forth above in this section. "It would be the ultimate in naivete to assume that the threats to close if the Union came in were not communi- cated to other members of the unit here involved. We view such threats as one of the most flagrant means by which an employer may interfere with the exercise of employee rights under Section 7 of the Act." C & T Mfg. Co, 233 NLRB 1430 (1977). See also the Board's decisions in General Stencils, 195 NLRB 1109 (1975), and Chandler Motors, 236 NLRB 1565 (1978). With regard to the Supreme Court's decision in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), the Board has held, "Gissel does not sanction predictions regarding the consequences of unionization which are based solely on subjective considerations. Under this test, a determina- tion of legality or illegality would be virtually impossi- ble. To come within the aegis of Gissel, such predictions must be based on objective facts from which the employ- er can convey a reasonable belief as to demonstrably probable consequences of unionization." Patsy Bee, Inc., 249 NLRB 976 (1980). See also the Board's decision in SPRING CITY KNITTING CO. Sans Souci Restaurant. In applying the Supreme Court's holding in Gissel, the Board has stated in still another case, "Respondent is free to communicate to its employ- ees its beliefs and even its predictions if its predictions are based solely on objective facts which convey its belief as to demonstrably probable consequences beyond its control." Crown Cork & Seal Co., 255 NLRB 14 (1981). Applying the precedents cited above, I conclude that the evidence shows that the Respondent made threats to its employees to close its Deming plant, if the employees selected the Union to represent iihem, based on the state- ments made by Taylor as set forth above in this section. In view of the foregoing conclusions, I further con- clude that a preponderance of the evidence establishes that the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act with regard to creating the impression of surveillance among its employees that their union activities were under sur- veillance by the Respondent; by interrogating employees regarding their union activities, and by making threats that the Respondent would close its Deming plan if the employees selected the Union as their collective-bargain- ing representative. C. Paragraph 22(e) 1. Allegations In the General Counsel's amended consolidated com- plaint, the General Counsel alleges the following in para- graph 22(e): (e) On or about March 114, 1979, Byron Taylor prohibited employees from distributing union litera- ture during their non-working time in the Respond- ent's parking lot. 2. Facts About March 14, 1979, about 20 employees of the Re- spondent, who were on the Union's organizing commit- tee, engaged in distribution of union leaflets to employ- ees in their automobiles about 3:30 p.m. after working hours that day. (Regarding the hour, see Tr. 555.) Patsy Moreno was one of the employees who engaged in the union handbilling. Moreno prepared a diagram of the area where the distribution took place, and she and other witnesses utilized that document to illustrate their accounts. (See G.C. Exh. 5, and, for example, see Mor- eno's testimony at Tr. 531-541; 553-568; 570-571, with regard to certain markings which were made on that ex- hibit.) The letter "H" on General Counsel's Exhibit 5 marks the spot on the diagram where Morerro was handbilling. It is at one of the two gravel road exits from the Em- ployer's unpaved parking lot. The letter "I" indicates on the diagram where other employees initially were hand- billing in the Employer's parking lot. Angie Zamora Ra- mirez was one of the employees in the group designated as letter "I" on the diagram. (See Tr. 586.) _ Although the handbilling was taking place, Moreno observed Assistant Plant Manager Byron E. Taylor and Purchasing Agent and Supervisor Frank Coble come out 449 of the office door. (See letter "J" on the diagram.) Ac- cording to Moreno, Taylor walked over to the employ- ees who were handbilling and told them "that we had no business there on Mr. Lord's property, to get out. And he said that he didn't want anybody there loitering.. . . And then he said to get out, that the pole was the boundary line of Mr. Lord's property." The employees who were in the parking lot then moved over near the spot designated as letter "M" on the diagram, which was on the street side of the electricity pole. (See Tr. 587.) Taylor made some other remarks, which Moreno could not recall, and then she said Taylor made a vulgar ges- ture to the employees with his finger. The findings of fact in this section are based on por- tions of the credited testimony of Moreno and Ramirez, and on documentary evidence. . 3. Conclusions In its decision in Hoerner Waldorf Corp., 227 NLRB 612 (1976), the Board stated: Section 7 of the Act guarantees employees "the right to self-organization, to form, join, or assist labor organizations . . . ." 29 U.S.C. Â§ 157. It is well recognized that "organization rights are not viable in a vacuum; their effectiveness depends in some measure on the ability of employees to learn the advantages and disadvantages of organization from others." Central Hardware Co. v. N.L.R.B., 407 U.S. 539, 543 (1972). Since the beginning of the administration of the Act, union solicitation, the right of employees to discuss organization among themselves, has been considered essential to the free exercise of Section 7 rights Peyton Packing Compa- ny, Inc., 49 NLRB 828 (1943), affd. 142 F.2d 1009 (C.A. 5, 1944), cert. denied 323 U.S. 730. In Repub- lic Aviation Corporation v. N.L.R.B., 324 U.S. 793, 801-803 (1945), the Supreme Court agreed with the Board 's determination that invalid rules against so- licitation are "inimical to the right of organization." In fact, the right of an employee to engage in union solicitation is so basic to Section 7 of the Act that a bargaining representative cannot waive that right, no matter what concessions are obtained in return. N.L.R.B. v. Magnavox Company of Tennessee, 415 U.S. 322, 324-327 (1974). At issue in the present case is the right of an em- ployee to exercise this right, protected by Section 7 of the Act, to engage in organizational activities at the place of his employment. Addressing itself to the organizational rights of employees, the Supreme Court has stated "No restriction may be placed on the employees' right to discuss self-organization among themselves, unless the employer can demon- strate that a restriction is necessary to maintain pro- duction or discipline." N.L.R.B. v. Babcock & Wilcox Company, 351 U.S. 105, 113 (1956). Because of its discriminatory enforcement, Respondent's no- solicitation rule is without justification and accord- ingly must fall. The Respondent is therefore with- 450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD out excuse for the imposition of its restriction on Stephenson's organization rights. As the findings of fact show , Taylor ordered the em- ployees to leave the Company's property at a time when those persons were attempting to engage in solicitation and distribution on behalf of the Union. Taylor made no assertion to the employees at the time of the incident that their activities created any safety hazard ; littering problem , or in any way interfered with production or discipline . The activity took place after the conclusion of the working day. See the Board 's decision in T.R. W., Inc., 257 NLRB 442 (1981 ). The distribution took place in a nonworking area of the Company's property. See the Board's decision in Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962). I conclude that Taylor 's actions were presumptively unlawful in restricting employees' rights during their nonworking time and in nonworking areas, and that the Respondent has not overcome that presump- tion . Accordingly , I conclude that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act as alleged by the General Counsel. D. Paragraph 22(t) 1. Allegations In the General Counsel's amended consolidated com- plaint, the General Counsel alleges the following in para- graph 22(f): (f) On or about March 29, 1979, Patricia J. Nation threatened an employee that the Respondent would close the plant if the Union were selected by the employees as their bargaining representative. 2. Facts About March 29, 1979, Felicitas Chavez, who was an employee of the Respondent at the time, had a conversa- tion at her sewing machine with Supervisor Patricia Jean Nation. It was nearly quitting time, and Nation was dis- tributing a paper that contained questions and answers about the Union. Nation gave a copy of the document to Chavez, and she asked Chavez to read it. After Chavez did so, Nation inquired if Chavez had any questions. Chavez then asked, "Yes, that if unions were so bad, how come the government let them go on." Chavez fur- ther testified, "She said that the reason that was, was be- cause unions were very powerful and that I should be in- telligent enough to understand that this company could not afford to stay open if the union came in. And I asked her why not, since we, the employees, were going to pay the union dues. And she said that the reason was that- because of the competition and that this company could only stay in business if it was competitive." The findings of fact in this section are based on por- tions of the credited testimony of Chavez. 3. Conclusions For the reasons that have been discussed in the previ- ous section IX,B, with regard to the Gissel decision and other cases cited therein, I conclude that a preponder- ance of the evidence supports the General Counsel's alle- gation in paragraph 22(f) of his complaint, and that the Respondent has thereby further violated Section 8(a)(1) of the Act as alleged. E. Paragraph 22(g) 1. Allegations In the General Counsel's amended consolidated com- plaint, the General Counsel alleges the following in para- graph 22(g): (g) On or about April 2, 1979, Hortencia Pinon threatened an employee that the Respondent would close the plant if the Union were selected by the employees to represent them. 2. Facts About April 2, 1979, around 7 or 8 p.m., Lucy Her- nandez, who was an employee of the Respondent at the time, had a conversation with Unit Supervisor Hortencia Pinon at the house of Hernandez ' grandmother. Hernan- dez and Pinon are cousins . Pinon's supervisory status is in dispute, as will be discussed below. Present during the conversation was Hernandez' grandmother, who did not testify, and Sylvia Ortega, who was an employee of the Respondent at the time and who did testify at the trial. Pinon also testified at the trial. According to Hernandez, during that conversation Hernandez' grandmother asked Pinon "how's work." According to Hernandez, Pinon replied that it was "not too good, the plant might close down." Pinon also stated that "the union was no good" and she told Hernandez "you shouldn't have gotten involved in it." Hernandez replied that it was her business and not Pinon's. The foregoing findings of fact in this section are based on portions of the credited testimony of Hernandez. There is an issue concerning whether Hortencia Pinon, Clara Arrey, and Danny Mesa were supervisors within the meaning of the Act at the times relevant to this pro- ceeding. Plant Manager Lord made an announcement in March 1979 over the public address system at the Deming plant regarding a number of people who had been made supervisors. Included among those named by Lord in his announcement were Pinon, Arrey, and Mesa. Chavez testified with regard to Lord's announcement, "He said that he had given full authority to his employ- ees to fire or give them time off, discipline." Armijo re- called that Lord said in his announcement that those people named were "authorized to supervise." In addi- tion, she said that Lord told them, "Well, he said we had the authority of a supervisor to fire." Thompson recalled that Lord said in his announcement regarding the new supervisors that "they could tell us what to do." Grado related that Lord stated regarding Mesa that "we should follow his instructions." Lopez related that Mesa told her that he had the authority to fire employees and to assign work, and she recalled Lord had also said that those persons could fire employees and assign work when Lord made the announcement at the plant. Lopez SPRING CITY KNITTING CO. described Mesa as being the head mechanic at the plant and the person in charge of five other mechanics. It is undisputed that Pinon, Arrey, and Mesa attended supervisory meetings . Building Maintenance Supervisor Goodson also attended certain supervisory meetings. During the period from March to June 1979 , Goodson said that supervisory meetings were held about three or four times a week, and sometimes even twice in 1 day. A copy of the "Supervisors ' Guidelines" was introduced into evidence as Respondent 's Exhibit 3. Goodson said that copies of that document were distributed to all per- sons in the room at the supervisors ' meeting. Charging Party's Exhibit 1 was an acknowledgment that Goodson had signed regarding his receipt of his copy of the guide- lines. Charging Party 's Exhibit 1 is dated March 28, 1979 , and states, "I have been supplied with the supervi- sor's guidelines and any questions I will have in relation, I will take up with Mr . Lord." Thereafter follows a number of names and dates . Included in that list are the names of Pinon, Arrey, and Mesa . Respondent 's Exhibit 3 is a 19-page document, which is typewritten double- spaced. It has the following headings : A. unions; B. good personnel relations are important ; C. management-super- visor-employee relations ; D. how to handle employee complaints and problems ; E. what to do when the union knocks; F. you may; G. what you may not do; H. after the election. According to Goodson , at supervisory -meetings, Lord said , "Well, on several occasions he had stated that they would not tolerate a union , if the 'union came in. And that if the union did come in, the plant would close." The Deming Headlight is a newspaper published in Deming, New Mexico . A clipping from that newspaper was introduced into evidence as General Counsel's Ex- hibit 3 . The caption underneath the picture in the clip- ping states, "Spring City supervisors cited ." Included in the group picture are Arrey and Mesa. Pinon is not in the picture , but her name is included in the story under- neath the picture. The story concerns a plaque being awarded by an insurance company for 2 . 8 million em- ployee hours being worked at the Deming facility with- out a disability injury. The foregoing findings of fact in this section are based on portions of the credited testimony of Chavez, Kirk- land, Armijo, Aguilar, Thompson , Grado, Lopez, and Goodson, and also on documentary evidence and stipula- tions entered into by the parties. 3. Conclusions It is recognized that it is not necessary that a person possess all the authority that is set forth in Section 2(11) of the Act in order to be deemed to be a statutory super- visor because the criteria in Section 2(11) of the Act is to be read in the disjunctive. Ohio Power Co. v. NLRB, 176 F.2d 385 (6th Cir. 1949), cert. denied 338 U.S. 899 (1950); Arizona Public Service Co. v. NLRB, 453 F.2d 228 (9th Cir. 1971). Thus, having been given-the-authority by Lord to fire employees, I conclude that Pinon, Arrey, and Mesa were supervisors within the meaning of the Act at the times relevant , even though the evidence does not show that they possessed all the criteria under Sec- tion 2(11) of the Act. Furthermore , even if those three 451 persons were not found to be statutory supervisors, I conclude that the Respondent was responsible for their actions described herein in this section and other sections of this decision because Lord gave them the apparent au- thority to speak as supervisors when he made the an- nouncement of their supervisory status to employees over the public address system at the Deming plant. See the Board 's decisions in Speed Mail Service, 251 NLRB 476 (1980); Han-Dee Pak, 232 NLRB 454 (1977); Para- mount Trends, 222 NLRB 141 (1976). Having concluded that Pinon was a statutory supervi- sor at the times relevant herein, I turn now to a consid- eration of whether the evidence shows that Pinon's state- ments to Hernandez violated the Act under the circum- stances present during the conversation in question. First of all, the family relationship between those two persons is a factor that is not to be ignored. The setting of the conversation also suggests a family discussion at Hernan- dez' grandmother 's house with her grandmother as a par- ticipant in the conversation . Finally, the statements at- tributed to Pinon do not directly link plant closure with the selection of the Union by the employees. Certainly, the two subjects were mentioned in that brief conversa- tion , but the statement that "the plant might close down" was not linked directly to the employees' union activi- ties. Pinon 's opinion that "the union was no good" and that Hernandez should not have gotten involved in it are expressions of opinion which would find protection under the "free speech" provisions of Section 8(c) of the Act. Based on the foregoing analysis, I must recommend to the Board that the allegations in paragraph 22(g) of the General Counsel' s complaint be dismissed. F. Paragraphs 22(h) and (i) 1. Allegations In the General Counsel 's amended consolidated com- plaint , the General Counsel alleges the following in para- graphs 22(h) and (i): (h) On or about April 3, 1979, Gloria Herrera so- licited an employee to withdraw her union authori- zation card. (i) On or about April 3, 1979, Gloria Herrera in- terrogated an employee concerning the employees' activities on behalf of or sympathy for the Union. 2. Facts On April 3, 1979, Lucy Hernandez , who was an em- ployee of the Respondent at the time, had a conversation with her supervisor , Gloria Herrera. Hernandez in- formed Herrera that she wanted to get back her union card . Hernandez testified, "So, -at work that day, she came to my machine, and she said here, here's a paper. Read it and sign it if you want to. So, then, she gave me enough time to read it and enough time to sign it. So, an hour later she came and I signed it in front of her. So then she went to Mr. Lord's office to go get an enve- lope. So I wrote down the address to the union. So she said don 't worry about it. We'll take care of everything." 452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Hernandez did not put a stamp on the envelope. She said that she signed the form during her working hours, and she gave the papers back to Herrera . A copy of the letter, which had been signed by Hernandez , was intro- duced into evidence as General Counsel 's Exhibit 4. The letter is in both the English language and the Spanish language. It is addressed to the Union and, in part, it states: "This letter requests you return the authorization card I signed in Deming, New Mexico , at Spring City Knitting Company . I revoke any authorization I gave the Union." The findings of fact in this section are based on por- tions of the credited testimony of Hernandez and docu- mentary evidence. now. They was going to freeze the plan for a little while, but he wasn 't going to forget about it." Lord also told the employees that the employees in other plants had the savings plan, but that nothing could be done at Deming until the union question was re- solved. The findings of fact in this section are based on por- tions of the credited testimony of Renteria . The savings growth plan previously has been discussed in sections V,A, VI,C, VII,A, and VIII of this decision . Therefore, there is no need to repeat those earlier findings of fact here. 3. Conclusions 3. Conclusions In their posttrial brief, the attorneys for the Respond- ent discuss the foregoing incident at pages 190-193. They argue persuasively , "The letter was given to her at her request and at her suggestion . Under such circumstances there can hardly be found any element of intimidation, interference or coercion . This is not a case where the su- pervisor suggested or requested the employee to with- draw his or her authorization. The facts clearly indicate it was Hernandez who initiated the topic." The General Counsel urges in the posttrial, brief at pages 47-48 with regard to Hernandez that "her testimo- ny was out of chronological order," and that it was Her- rera who initiated the incident described above. I conclude that the Respondent has advanced the more persuasive argument here, and an argument which is consistent with the findings of fact. Accordingly, I con- clude that the evidence does not support the General Counsel 's allegations in paragraphs 22(h) and (i), and I must recommend to the Board that such allegations be dismissed. G. Paragraph 22(j) 1. Allegations In the General Counsel 's amended consolidated com- plaint, the General Counsel alleges the following in para- graph 22(j): (j) On or about May 16, 1979, and at a date in May 1979, which is presently not specifically known, John Lord informed employees that the Re- spondent had withheld the introduction of a savings growth plan because of the employees ' activities on behalf of the Union. 2. Facts In May 1979 Irene Renteria , who was an employee of the Respondent at the time , attended a meeting at which Lord spoke . The meeting was held prior to the represen- tation election at the Deming plant. Renteria identified some other employees who also attended the meeting. Lord told the employees that the savings growth plan was a good plan, and he expressed the hope that the em- ployees would take advantage of the plan. According to Renteria , Lord said , "But at the moment, he couldn't put it into effect on account of the election was on right The General Counsel urges at page 40 of the posttrial brief that the foregoing conduct violates Section 8(a)(3) of the Act, as well as Section 8(a)(1) of the Act as al- leged in the complaint. Although the General Counsel is arguing a different theory of a violation , or more accu- rately, an additional theory of a violation , she is relying on the same set of circumstances . There is no question that the Respondent did not, in fact, put the savings growth plan into effect for its Deming employees, al- though the Respondent takes the legal position that it did act lawfully. See pages 195-200 of the posttrial brief filed by the attorneys for the Respondent. After reviewing several of the Board 's decisions on this type of issue, I conclude that the General Counsel's position has merit , and that the Respondent has violated Section 8(a)(1) and (3) of the Act by withholding the in- troduction of its savings growth plan from its Deming employees because a representation election was pend- ing, and by telling its Deming employees that it had done so. See, for example , the Board 's decisions in Asso- ciated Milk Producers, 255 NLRB 750 fn 3 (1981), and cases cited ; Standard Brands, 230 NLRB 1205 (1977); Plasticrafts, 234 NLRB 762 (1978 ); North American Broadcasting Co., 225 NLRB 25 (1976). H. Paragraph 22(k) 1. Allegations In the General Counsel 's amended consolidated com- plaint, the General Counsel alleges the following in para- graph 22(k): (k) On or about May 25, 1979, Hortenzia Pinon threatened employees that the Respondent would close the plant because of the employees ' selection of the Union as their bargaining representative. 2. Facts On May 25 , 1979, Lucy Hernandez , who was an em- ployee of the Respondent at the time , had another con- versation with Unit Supervisor Pinon. That conversation took place at Hernandez ' house. Present were the parents of Hernandez and some unidentified visitors. Pinon asked Hernandez ' father for a tool . According to Hernandez , Pinon then "said that the plant was going to close down in two months because of the union." Pinon also remarked that the employees who had been SPRING CITY- KNITTING CO. high ,in their production "came down," and that she "was going to need to go get them," if the plant closed. The findings of fact in this section are based on por- tions of the credited testimony of Hernandez. 3. Conclusions Although the conversation described above in this sec- tion took place at the family residence of Hernandez, it is different from the conversation related in section IX,E herein in that Pinon linked the closing of the plant with the advent of the Union. Thus, while the setting was similar in nature to the conversation at Hernandez' grandmother's house, it is different in what Pinon stated to Hernandez. I conclude that Pinon's statement was co- ercive of employees' rights to select a union to represent them, and therefore, that the statement violates Section 8(a)(1) of the Act. See the cases cited in section IX,B herein. As set forth in section IXâ€žE herein, I have previ- ously concluded that Pinon was a supervisor within the meaning of the Act. 1. Paragraph 22(1) 1. Allegations In the General Counsel's amended consolidated com- plaint, the General Counsel alleges the following in para- graph 22(1): (1) On a date in June 1979, which is presently not specifically known, Mary Lou Rivera interrogated an employee concerning the employee's activities on behalf of or sympathies for the Union. 2. Facts The attorneys for the Respondent persuasively argue at page 204 of their brief: "General Counsel did not offer a scintilla of evidence in support of this allegation. There was no evidence presented by any witness concerning Ms. Rivera at any time during this hearing. Accordingly, the General Counsel has failed to sustain its burden in this regard and this allegation of the complaint should be dismissed." 1 agree with the Respondent's position be- cause I have found no evidence in the record with regard to this allegation. 3. Conclusions I must recommend to the Board that the allegations in paragraph 22(l) of the General Counsel's_ complaint be dismissed for a failure of proof. J. Paragraph 22,(m) 1. Allegations In the General Counsels amended consolidated com- plaint, the General Counsel alleges the following in para- graph 22(m): (m) On or about June 5, 1979, Byron Taylor threatened employees with unspecified reprisals be- cause of their selection of the Union. 2. Facts 453 About June 5, 1,979, Paul Earl Scott, who was an em- ployee of the Respondent at the time, a union shop stew- ard, and a member of the Union's organizing committee, had a conversation with Assistant Plant Manager Taylor. The conversation took place in the shipping department where Louise Taylor, -a quality control employee, and David Allison, a shipping clerk, were present. L. Taylor, who is the wife of former Assistant Plant Manager Taylor, was called to testify at the trial, but Allison was not. Taylor began the conversation by stating that some boxes had a layer of packages too many in them, and some boxes had a layer too few in them. A discussion then ensued between Taylor and Scott concerning the different sizes and styles of packages and boxes, during which Scott disclaimed responsibility for the error, and Scott pointed out that he had been sent home from work earlier in the week. (See Tr. 616-618.) At that point, ac- cording to Scott, Taylor told him "this is because you and your union people that you elected have told the sewers to slow down their production. He said we are going to make you, pay, you and all 134 others of you." There were 134 votes cast for the Union in the repre- sentation election held on May 23, 1979, in a unit of the Deming employees. See the tally of ballots that was in- troduced into evidence as part of Joint Exhibit A-57 in the proceeding. The findings of fact in this section are based on por- tions of the credited testimony of Scott and on documen- tary evidence. 3. Conclusions As urged by counsel for the General Counsel, I con- clude that the evidence shows that Taylor did make a threat of unspecified reprisals against the 134 employees who had recently voted, at that point in time, in favor of union representation in the election. (See pp. 45 and 46 of the posttrial brief filed by the General Counsel. For the Respondent's contrary view, which adopts the ver- sions given by the Taylors, see pp. 204-208 of the post- trial brief filed by the attorneys for the Respondent.) I conclude that Taylor's threat against employees who had voted for the Union violates Section 8(a)(1) of the Act. K. Paragraph 22(n) 1. Allegations In the General Counsel's amended consolidated com- plaint, the General Counsel alleges the following in para- graph 22(n): (n) On or about June 11, 1979, Clara Arrey threatened employees that the Respondent would close the plant because of the employees' activities on' behalf of the Union. 2. Facts During the lunch break at the plant about June 11, 1979, Norma Kirkland, who was an employee of the Re- 454 DECISIONS OF THE NATIONAL LABOR ,RELATIONS BOARD spondent at the time, had a conversation with Supervisor Arrey. A friend of Kirkland's, whose name is Rita Ortega, was also present. However, she was not called by any party as a witness at the trial in this proceeding. Another witness who has the same last name, Sylvia Ortega, did testify, but that was on another matter. (See Tr. 2568-2621.) According to Kirkland, Arrey said, "that if the union kept fighting, they would close it down very soon." The findings of fact in this section are based on por- tions of the credited testimony of Kirkland. 3. Conclusions As set forth in section IX,E, herein, I have already concluded that the evidence establishes that Arrey was a statutory supervisor at the time relevant herein. I further conclude that Arrey's threat described above violates Section 8(a)(1) of the Act as alleged. L. Paragraph 22(o) 1. Allegations In the General Counsel's amended consolidated com- plaint, the General Counsel alleges the following in para- graph 22(o): (o) On or about June .18, June 19 and June 23, 1979, Daniel C. Mesa told employees that the plant was closing because of the employees' selection of the Union as their bargaining representative. 2 Facts About June 18, 1979, Susana A. Lopez, who was an employee of the Respondent at the time, had a conversa- tion with Maintenance Supervisor Danny Mesa. The conversation took place about 10 a.m. at Lopez' sewing machine at the plant. Mesa asked Lopez where she was going to work now, and she responded by asking Mesa where he was going to work. Mesa told her that he was transferring to Glen- dale, and Lopez said that she was also. Lopez then said that they were not going to close the Deming plant, but Mesa replied that they were going to do so. Mesa said that the decision had been made a long time ago to close the Deming plant if the Union came in. Mesa then offered to bet Lopez $150 of his money to $90 of her money that the plant would close by the fol- lowing Monday. Lopez declined the offer to bet. About June 18, 1979, Dolores Valdez, who was an em- ployee of the Respondent at the time, had a conversation with Maintenance Supervisor Mesa at her machine. The conversation took place in the morning. Maria Elena Al- lenson also was present. However, neither Mesa nor Al- lenson was not called by any party to testify as a witness in the trial of this proceeding. Mesa asked Valdez what she was going to do now that they were going to close the plant. Valdez respond- ed that she was going to receive unemployment. Mesa told her that he would stay in Deming for about 15 days while the machinery was packed. Valdez then asked who else was going to Glendale, and Mesa replied that there were other supervisors who were going so that they would not lose their benefits and insurance. About a half hour later, Valdez and Mesa had a second conversation that day. According to Valdez, at that time Mesa informed her that he already knew "that if the union won , the plant was going to close." Valdez asked Mesa why he said that, and, according to Valdez, Mesa replied , "because the union was asking for too much money." Valdez stated that they had not even had time to talk with Lord. On June 19, 1979, Valdez had still another conversa- tion with Mesa at the machine where she was working. That conversation took place during the morning. Ac- cording to Valdez, Mesa told her "that he had bet Susana Lopez . . . that if the union won, they would close the plant right away. That he did ' not know how it had lasted so long from the election until that time." Valdez then said that the people thought they were going to close the plant because of the Union. Mesa told her it was because of the Union's fault. (Regarding the use of the word "fault," see Tr. 239-246 and 263.) About June 23, 1979, Valdez had another conversation with Mesa. That conversation also occurred in the morn- ing. Rosa Loya and Maria Elena Allenson were present. Neither person was called by any party as a witness in this' proceeding . Mesa said that he did not understand what reasons they had for bringing the Union in the plant. Mesa also told the employees that they saw now why the Company was going to close the plant. The findings of fact in this section are based on por- tions of the credited testimony of Lopez and Valdez. 3. Conclusions I conclude that the foregoing findings establish the al- legations of paragraph 22(o) of the complaint, based on the legal principles discussed in the cases that have been cited previously in section IX,B, herein. As set forth in section 8(g) herein, f have previously concluded that Mesa was a statutory supervisor at the times relevant. M. Paragraph 22(p) 1. Allegations In the General Counsel's amended consolidated com- plaint, the General Counsel alleges the following in para- graph 22(p): (p) On or about June 19, 1979, Josie Herrera told employees that the plant was closing because of the employees' selection of the Union as their bargain- ing representative. 9 2. Facts About June 19, 1979, there was a conversation be- tween Maria Teresa Pena and Supervisor Josie Herrera while Pena was at work at her machine. Herrera was distributing a production report regarding repair work. Pena asked Herrera why they were going to close the plant. According to Pena, Herrera replied, "Because of the union. Because all the workers were excited because SPRING CITY KNITTING CO. of the union . . . and they were not doing the work, the quotas:" The findings of fact in this section are based on por- tions of the credited testimony of Pena. 3. Conclusions I conclude that Supervisor Herrera's telling an em- ployee that the Respondent was closing the Deming plant "because of the union" is a coercive statement in that it restrains employees from exercising their- rights under Section 7 of the Act to select a union to represent them in collective bargaining , if they wish to do so. Ac- cordingly, I further conclude that Herrera 's statement violates Section 8(a)(1) of the Act. N. Paragraph 22(q) 1. Allegations In the General Counsel's amended consolidated com- plaint, the General Counsel alleges the following in para- graph 22(q): (q) On or about June 19, 1979, Marta Carbajal told employees that the plant was closing because of the employees' activities on behalf of the Union. 2. Facts About June 19, 1979, Lupe Lucero, who was an em- ployee of the Respondent at the time, had a conversation with her supervisor, Marta Carbajal. The conversation took place at Lucero's machine at the plant. Carbajal asked Lucero what she was going to do now that the plant was going to be closed. Lucero replied that she would either go on welfare or unemloyment. Carbajal laughed and made an uncomplimentary remark to Lucero. Carbajal also stated that Lord had said 2 days before the election that, if the Union came in, the plant was to be closed. Lucero told Carbajal that it was not true, and Carbajal repeated her statement to Lucero. The findings of fact in this section are based on por- tions of the credited testimony of Lucero. 3. Conclusions Like the similar statements made by other supervisors regarding the closure of the Deming plant because of the Union, I conclude here that Carbajal's statement violates Section 8(a)(1) of the Act. 0. Paragraph 22(r) 1. Allegations In the General Counsel's amended consolidated com- plaint, the General Counsel alleges the following in para- graph 22(r): (r) On or about June 19, 1979, John Lord threat- ened to refuse to extend to an employee an advance on the employee's compensation because of the em- ployee's activities on behalf of the Union. 2. Facts -455 About June 19, 1979, Paul Earl Scott, who was an em- ployee of the Respondent at the time, a union shop stew- ard, and a member of the Union's organizing committee, had a conversation after 1 p.m. that day with Frank Coble, who was the Respondent's purchasing agent at the time. The conversation took place in the packaging department where Scott unloaded carts. Scott informed Coble that his wife, who had been hos- pitalized due to a heart problem, had been released from the hospital that day. Because Scott's wife was pregnant at that time, Scott explained that he needed to get his car out of the repair shop in order to have his car available in the event it became necessary, to rush his wife to Las Cruces. Scott told Coble that he needed "a partial draw on my paycheck," and he asked to see Lord. Coble told Scott that he would check on the matter and get permis- sion for Scott to see Lord. About 20 minutes later, Coble returned and told Scott that he had explained the situation to Lord and relayed Scott's request for "a partial draw." According to Scott, Coble then told him, "Mr. Lord has instructed me to inform you, due to the circumstances, he felt that you should request your partial draw from the union." Scott said at the trial that he did not receive the ad- vance in pay from the Company which he had sought on June 19, 1979. However, he stated that on another occa- sion several months earlier, he had requested and re- ceived an advance in pay. At the trial, Lord admitted that he was aware at the time in question that Scott was one of the chairpersons of the Union's organizing committee. (See Tr. 812-813.) The findings of fact in this section are based on por- tions of the credited testimony of Scott and the admis- sion by Lord. 3. Conclusions At page 42 of the posttrial brief, the General Counsel urges that the foregoing conduct not only violated Sec- tion 8(a)(1) of the Act, but also violates Section 8(a)(3) of the Act. The General Counsel argues, "Additionally since Lord's conduct discriminated against Scott on the basis of his union support and activities, it also violated Section 8(a)(3) of the Act." As noted in section IX,G, herein, the General Counsel is urging an additional theory of a violation, but he is basing that theory on the same set of circumstances. The fact that Scott previously had received a pay advance, and the fact that Lord sug- gested that Scott at the time in question here request his pay advance from the Union, suggests a disparity in treatment with regard to pay advance requests based on Scott's union activities. Although the attorneys for the Respondent urge that Scott's request for a pay advance fell into the category of "a mandatory subject of bargain- ing between an employer and the union," the fact that the Union recently had 'won the representation election at the Deming plant did not preclude the Employer from continuing its past practice of granting a request for a pay advance, prior to bargaining on that subject with the Union. (See pp. 228-229 of the posttrial brief filed by the attorneys for the Respondent for a full statement-of Re- 456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent's position on that matter.) After considering the foregoing, I conclude that the evidence shows that the Respondent has violated both Section 8(a)(1) and (3) of the Act by Lord's statement and disparate conduct in this instance. P. (t) Lord attempted to discourage Respondent's employees "from engaging in union activities by telling them that the name of union adherents would be ascertained and appropriate reprisals taken." The General Counsel relies, on the same leaflet which is dated March 1, 1979, and which was described, in part, in section IX,A of this de- cision. 1. Allegations In footnote 9 on page 14 of the posttrial brief filed by the General Counsel, the General Counsel moves to amend the amended consolidated complaint by adding an allegation that Respondent violated Section 8(a)(F) of the Act on June 29, 1979, when Lord told employee Ildara Canton at the time that the Deming plant was closing, "Well, you should have thought about that when you were voting." 2. Facts About June 29, 1979, Ildara Canton, who had been an employee of the Respondent for 3-1/2 years at the time, went to Plant Manager Lord's office for the purpose of saying farewell to him. Canton testified, "It was a very short conversation. I just went into the office, and I saw him, and I told him that I just wanted to say goodbye, and that it had been very nice working for you. And then he answered me, `Well, you should have thought about that when you were voting.' And that was it. I left the office." The fmdings of fact in this section are based on por- tions of the credited testimony of Canton. 3. Conclusions At the time that the testimony from Canton was pre- sented at the trial, it was offered by the General Counsel in support of the allegations regarding the closure of the Deming plant, rather than as an independent violation of Section 8(a)(1) of the Act. (See Tr. 432-440.) However, in the posttrial brief, the General Counsel has made a motion to amend the complaint to allege that same con- duct as being violative of Section 8(a)(1) of the Act. (See pp. 13-14 of the posttrial brief filed by the General Counsel and fn . 9 in particular .) For the reasons previ- ously discussed in section V,E, herein, I conclude that the matter has been "fully litigated," and I shall grant the General Counsel's motion. Although the Respondent views Lord's statement to Canton as being "an expres- sion of personal opinion and belief," I conclude that the evidence shows that such a statement interferes with em- ployees' rights to select a union in a representation elec- tion, if they desire to do so. (See pp. 232-234 of Re- spondent's posttrial brief for a fuller statement of Re- spondent's position.) Therefore, I conclude that the Re- spondent has further violated Section 8(a)(1) of the Act by Lord 's statement to Canton when the Deming plant was closing. Q. (u) At footnote 8 on page 12 of the General Counsel's posttrial brief, the General Counsel makes a motion to amend the amended consolidated complaint to further allege as a violation of Section 8(a)(1) of the Act that 1. Facts As noted in section IX,A of this decision, the entire text of the leaflet is in evidence for review by those who have a need to do so. It is Joint Exhibit A-2. In part, it states: Another tactic unions use is to tell you the cards are "confidential ." Don't be misled , such cards much to the suprise of the employees who sign them have appeared as evidence in public lawsuits before the National Labor Relations Board. In many cases employees who have signed cards have been subpoenaed as witnesses to testify in open court in front of Company officials about the cir- cumstances surrounding the signing of cards. Who signs cards is often as "secret" as a conver- sation on a ten party country telephone line.- Now, we are not saying this to threaten anyone. We simply want you to know what these cards can mean and what you might have heard how secret and confidential these cards are, may not be true. The findings of fact in this section are based on docu- mentary evidence. 2. Conclusions For the reasons which have already been set forth in section V,E in this decision, I conclude that this matter has been "fully litigated," and I hereby grant the General Counsel 's motion. Counsel for the General Counsel persuasively argues that the Board's decision in Lundy Packing Co., 223 NLRB 139 (1976), is applicable here. In that case, the Board held , "Similarly, we view Lundy' s remarks con- cerning the nonsecrecy of union cards as an open at- tempt to discourage union activity. In this connection, we agree with the Administrative Law Judge that `there was no reason for informing employees that they might be required to testify in open court other than to let them know that the names of union adherents could be ascertained and appropriate reprisals taken .' N.L.R.B. v. Finesilver Manufacturing Co., 400 F.2d 644, 646 (C.A. 5, 1968)." In accordance with the foregoing precedent, I conclude that the Respondent has further violated Sec- tion 8(a)(1) of the Act by the statements made by Lord in the leaflet quoted above. R. (v) 1. Allegations In footnote 13 on page 28 of the posttrial brief filed by the General Counsel, the General Counsel moves to amend the amended consolidated complaint by adding an SPRING CITY KNITTING CO. allegation that the Respondent violated Section 8(a)(1) of the Act when Supervisor Carmine Flammia on several occasions during the election campaign threatened em- ployees that the plant could be closed because of the Union. 2. Facts During the time that employee Donald F. White was working for the third time for the Respondent from Jan- uary- or February 1979 until the plant -closed in June 1979, White had conversations with Supervisor Carmine Flammia regarding the Union. According to White, Flammia said, "That the union wouldn't be any good. for me, and do nothing but cost mi., money, and he'd tell me they can close the plant, close clown." The findings of fact in this section are based on por- tions of the credited testimony of White. 3. Conclusions Supervisor Flammia was called by the Respondent to testify as a witness at the trial. (See Tr. 2714-2754.) However, the attorneys for the Respondent correctly point out that the General Counsel had not moved to amend his complaint at that time. (See Tr. 1615-1620, and see p. 3 of the Respondent's posttrial answer to the General Counsel's motion to amend the amended com- plaint.) Although the General Counsel's amendment was not proposed during the course of the trial, and his motion was not made until he filed his posttrial brief, I conclude that the matter was "fully litigated" based on the legal principles set forth in the cases' that have been described in section V,E, herein. Accordingly, I hereby grant the General Counsel's motion to amend his com- plaint, and I conclude that the evidence shows that Re- spondent violated Section 8(a)(1) of the Act by Flam- mia's statement that the Company could close the plant when that statement is considered in the context of the conversation regarding the Union. S. (w) 1. Allegations In footnote 15 on page 45 of the posttrial brief filed by the General Counsel, the General Counsel moves to amend -the amended consolidated complaint by adding an allegation that the Respondent on March 16, 1979, pro- mulgated a rule that prohibited the distribution of union literature on the Company's premises. 2. Facts Introduced into evidence as Joint Exhibit A-17 was a copy of a notice dated March 16, 1979, which was posted at the Deming facility. (See also the stipulation regarding' the posting of the notice at Tr. 856-857.) The notice appeared over the signature of Plant Manager Lord. The notice contains two paragraphs, one of which is in the English language and one of which is in the Spanish language. The English language part of the notice states: "Due to the confusion on Wednesday March 14th, 1979, to clear the air consistent with past 457 policy, employees are permitted to distribute in non work areas of the Company property." At the trial, the Spanish language portion of the notice was translated into the English language by the interpret- er being used at that point in the trial. (He is also an agent of Region 28 of the Board, but his serving as an interpreter was not objected to on that basis.) His trans- lation of the Spanish language protion of the notice ap- pears in General Counsel's Exhibit 2. It states: "Due to the confusion Wednesday March 14, to clear the air con- sequent to past politics, employees are permitted to dis- tribute in no space of the Company." It was stipulated at the trial that Lord does not speak the Spanish language. (See Tr. 2381.) It was apparent from the number of persons who testified during the trial that the Respondent had employed persons who spoke the Spanish language, or who spoke both the English language and the Spanish language. The findings of fact in this section are based on docu- mentary evidence, stipulations by the parties, and obser- vation of the Deming witnesses as to the language uti- lized by them on the witness stand. 3. Conclusions Based on the cases that have been discussed in section V,E,, herein, I conclude that this matter has been "fully litigated," and I hereby grant the General Counsel's motion to amend his complaint. Based on the cases set forth in section IX,C, herein, I conclude that the Spanish language portion of the Respondent's notice violates Sec- tion 8(a)(1) of the Act insofar as it prohibits employees from distributing union literature in nonworking areas of the Company's premises,during their nonworking time. X. THE EVENTS PERTAINING THE CLOSING OF THE DEMING PLANT A. Allegations In the General Counsel's amended consolidated com- plaint, the General Counsel alleges the following in para- graphs 11, 12, 13, and 17 to be violations of Section 8(a)(1), (3), and (5) of the Act: 11. (a) On or about June 15, 1979, the Respond- ent, by its attorney Daniel F. Gruender, in the pres- ence of Alan M. Riley, in an airport in Dallas, Texas, announced its decision to close the Deming, New Mexico, plant. (b) On or about June 18, 1979, the Respondent, by posting notices to its employees subscribed by Alan M. Riley at its Glendale and Flagstaff, Arizo- na, plants, announced its decision to close the Deming, New Mexico, plant. 12. On or about June 29, 1979, the Respondent ceased operations at the Deming, New Mexico, plant. 13. The Respondent engaged in the acts and con- duct described above in paragraph 11, and its sub- paragraphs, and paragraph 12 without having af- forded the Union an opportunity to negotiate and bargain as the exclusive representative of the Re- 458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent 's employees in the unit described above in paragraph 8 with respect to its decision to close such plant and the effects of the decision to close such plant upon said unit employees. 17. At all times since June 15 , 1979, the Respond- ent has refused to bargain collectively with the Union as the exclusive bargaining representative of the Respondent 's employees in the appropriate unit described above in paragraph 8 by engaging in the acts and conduct described above in paragraph 13, and paragraph 16 and its subparagraphs. In the General Counsel 's amended consolidated com- plaint , the General Counsel alleges the following in para- graph 18 as being violative of Section 8(a)(1) and (3) of the Act: 18. The Respondent closed its plant at Deming, New Mexico, as described above in paragraph 11, and its subparagraphs , and paragraph 12, in order to discourage membership in, sympathy for, and activi- ties on behalf of, the Union among its employees at its Deming, New Mexico , plant , and in order to dis- courage membership in, sympathy for, and activities on behalf of, the District Council at its Glendale and Flagstaff, Arizona, plants. B. Facts The allegations set forth in paragraphs 8, 9, and 10 of the General Counsel 's amended consolidated complaint were admitted to be true. They stated: 8. The following employees of the Respondent constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees employed at the Employer's Deming, New Mexico, plant; excluding office clerical employ- ees, guards and supervisors as defined in the Act. 9. On or about May 23 , 1979, a majority of the employees in the unit described above in paragraph 8, by a secret ballot election conducted under the supervision of the Regional Director for Region 28 of the Board , designated and selected the Union as their representative for the purpose of collective bargaining with the Respondent , and on or about June 1 , 1979 , said Regional Director certified the Union as the exclusive collective-bargaining repre- sentative of the employees in said unit. 10. At all times since June 1, 1979 , the Union has been the representative of the Respondent 's employ- ees in the unit described above in paragraph 8, and, by virtue of Section 9(a) of the Act, has been, and is now , the exclusive representative of all employees in said unit for the purpose of collective bargaining with respect to rates of pay, wages , hours of em- ployment and other terms and conditions of em- ployment. The facts pertaining to the posting of the notices on June 18, 1979 , at the Respondent 's Flagstaff and Glen- dale plants regarding the closing of the Deming plant have been set forth in section VI,A herein , in connection with the General Counsel 's 8(a)(1 ) allegations in para- graphs 25(a) and 11 (b) of his complaint . As indicated in section VI ,A herein , I concluded that the notices did not independently violate Section 8(a)(1) of the Act. At the times material , there were three manufacturing plants in the western division of the Company's oper- ations. The facility located in Deming was described as being "a feeder plant" or "a satellite plant ," as distin- guished from the other two plants that were located in Flagstaff and Glendale . Ray Martin , who is the chairman of the board and the chief executive officer of the Re- spondent, explained at the trial: The Deming operation was set up initially as a feeder plant or a satellite plant without all the facili- ties to make it into a plant that could serve the cus- tomer both in shipping and in the many services that are necessary to process the orders to maintain the inventory. All the inventory , as soon as it's produced in Deming is transferred at standard cost to Glendale. Glendale maintains a warehouse with finished goods. Deming only produced a very limited number of styles and sizes where Glendale has to produce all the sizes and all the styles of the major customers and maintain an inventory ; so, it's a finished goods inventory. There are many other support services that Glen- dale must render to be able to dispose of the goods to ship the goods that are produced in Deming. J. C. Penney was the primary customer for the prod- ucts produced by the employees at the Deming plant, al- though some products were also produced for K mart and Sears . Alan M. Riley, who was formerly president of the western operations and who was director of the southern operations of the Respondent at the time of the trial , said that the Deming employees basically produced only two types of products . One was a T-shirt with a round collar, and the other was a single seat model brief. The brief line was started in October 1978 at Deming. During the first half of 1979 , the Deming plant produced 15 to 18 different styles of its products, as contrasted with the Glendale employees who produced 75 to 80 dif- ferent styles of underwear. The Flagstaff plant was different from the other two plants in the western division in that it produced solely for Sears. Riley described it as being a total operating unit and not simply a feeder plant. Riley explained that the Flagstaff plant produced its products ; stored them in its own warehouse facilities; received orders from Sears, and shipped the products directly from its facilities to the customer. As noted above , the Deming plant did not ship its products directly to any customers, but instead the Deming products were sent to the Glendale facility. The administrative offices for the western division were located at the Glendale facility. In addition , the fo,- SPRING CITY KNITTING CO lowing functions were performed at the Glendale facili- ty (1) payroll; (2) accounting, (3) personnel; (4) data processing; (5) warehousing of finished products from both the Glendale and Deming plants; (6) receipt of cus- tomer's orders, (7) shipment of products to customers; (8) quality control supervision, and purchasing of sup- plies Several persons who were former employees of the Respondent at the Deming facility testified at the trial with regard to statements that they earlier had heard about the future of the Deming plant. Those statements came from Plant Manager Lord in each instance with the exception of one statement coming from the former president of the western operations of the Company. Around May 1978, Russell Miller, who was president of the western division of the Respondent at that time, and who later died in December 1978, spoke to one of the Respondent's employees, Paul Earl Scott, on the oc- casion of the anniversary of the Respondent's plant being in Deming According to Scott, Miller told him that Miller was pleased with the Deming plant, that things were going well there; that the Company had taken an option to lease 15 acres adjacent to the Deming plant; that they had great plans for expanding the plant, that the Company was considering the possibility of installing a bleach plant, that the Deming plant had been chosen over a plant in Georgia for adding a brief line because the Deming facility had room for expansion and was better located strategically Subsequent to that conversa- tion, the initial production of men's briefs underwear began in October 1978 at the Deming plant Several former employees of the Respondent at the Deming plant described meetings of employees in the canteen area with Plant Manager Lord. It is not clear whether they all attended the same meeting, or whether they attended different meetings of employees Patsy Moreno attended a meeting in the canteen area around January 1979. According to Moreno, Lord told the em- ployees present that "the production had shown some improvement" for the past year Lord also said that "he was going to open a bleaching plant somewhere " He also said that he was thinking of having a place to put in new material so that it would be handy According to Moreno, Lord further told the employees that "he was very proud of us, because we were really showing some improvement, some profit," and he also told them that they "had a good future." Susana A. Lopez recalled a meeting in January 1979 in the canteen area with Lord. She stated that Lord told the employees that they had an exceptionally good year; that they had a bright future; that they had a lease with an option to buy 5 acres to build a bleach plant. Esperanza Aguilar related a meeting with Lord that she believed was held towards the end of 1978 or the first of 1979 in the canteen at the Company. According to Aguilar, Lord told the employees that he was very happy because they had shown some progress; they had shown a profit for the first time, and they intended to build a bleaching plant and warehouse at the Deming fa- cility. Ildara Canton recalled a meeting in the cafeteria when she said Lord made a speech to the employees. She 459 placed the timing of the meeting as being in January 1979 after she had returned to work at the Company from her Christmas vacation. According to Canton, Lord informed the employees that the "company was very happy with Deming; that we had made more of what they were expecting from us." She said that Lord told them that they had "a very bright future in front of us." He also said that the Company had leased the land across from the plant in order to expand . However, she said that Lord told them that "they hadn't told him, but that he was sure that was for a bleaching plant so some men would work in there, not just a woman." Paul Earl Scott also recalled a speech by Lord, but he said that it was made over the public address system at the plant. He also placed the timing of that event as being after his return to work from Christmas vacation. According to Scott, Lord stated, "that production had been up pretty well"; that the employees had been asked to produce over their quota on several occasions and had done so, that Lord was pleased with how things were going, that the Company had taken a lease on 15 acres adjacent to the plant; that the Company had plans for ex- panding the plant, but Lord could not say if there was going to be a bleach plant or something else. When Donald F. White was rehired by the Company in January or February 1979, Lord told him that he had a good future and long-term employment with the Com- pany. White recalled that Lord also told him that the Company had a million dollars invested in the business. Ray Martin was the one who made the crucial deci- sions regarding the Deming plant. He was the one who decided to make the proposal to the Union that the plant be closed. That was communicated by Attorney Gruender with Riley to Union Representative Vickers on June 15, 1979, which will be described in greater detail later in this section Martin also was the one who decided that the Deming plant be closed on June 29, 1979. His reasons may be grouped under two broad headings: (1) "existing economics of the Deming oper- ation," and (2) the reduction in orders from customers in March and April 1979, and information he received from major customers regarding their future orders. Those ultimate decisions were not made by Martin until June 1979, but earlier that year he had examined the situation in Deming in January and April 1979. How- ever, action was not taken at those earlier times towards closing the Deming plant. The financial statement concerning the western divi- sion operations, including the Deming plant, for the 12- month period ending December 31, 1978, was received by Martin around January 15, 1979. A copy of that state- ment was introduced into evidence at the trial as Re- spondent 's Exhibit 80. A copy of a similar financial state- ment for the 3-month period ending March 31, 1979, was introduced into evidence as Respondent's Exhibit 81. A copy of a similar statement for the 4-month period ending April 28, 1979, was introduced into evidence as Respondent's Exhibit 82. Those latter two statements were received by Martin about April 15 and May 15, 1979, respectively. (See also the stipulation regarding certain figures that did not reproduce clearly in the pho- 460 ' DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tocopying process at Tr. 6255-6257.) In Martin's view, the financial results at Deming were not living up to his expectations. For example, he testified with regard to re- spondent's Exhibit 80: The December table was particularly significant from the standpoint, I believe as I stated before, it would establish a brief line. It was into the fourth month, the month of December. I thought that I should be able to see significant progress in the area with the addition of the 5,000 dozen per week of brief unit. Any significance into going into the March state- ment , it had .given us time , we made a rate adjust- ment , the piece rates in Deming as of January 1, 1979, were made identical to the rates, existing rates in Glendale. That, of course, the significance of that was that it was eliminating the advantage of a feeder plant because a feeder plant being established on the basis of reduced costs, to be produced at a cheaper price, at a lower price.' That eliminated the benefit of a feeder plant on the basis that what was really hap- pening was-and which I reviewed it in great detail , it wasn' t only making the rates the same, I was particularly anxious, and the reason that we had increased the rates at the end of 1978 or the be- ginning of '79, was to see if this could'possibly be a factor in our turnover. We had turnover rates in Deming that were ex- cessive. Far out, and compared to the Glendale op- eration as an example. We were sustaining turnover rates in the area of 180 to `190 percent turnover. THE WITNESS: The relationship between turnov- er is very factually shown in the financial state- ments in the area of makeup . The greater the turn of makeup reflects, the greater turnover in employ- ees reflects into makeup which is directly can be followed in the financial statement. That is one particular thing that I was focusing on, was an improvement on makeup and other indi- rect costs , in the Deming operation. In Respondent's Exhibit 80 on page 7 of the Deming section, there'is an item for labor makeup. For the 5- week period that ended on December 31, 1978, the amount was $19,487.51, which represented 31.14 percent of the direct labor cost at Deming. In the similar period that had ended on December 31, 1977, the labor makeup figure had been $11,318.04. For the full 12 months that ended on December 31, 1977, the labor makeup had been $114,349.36, whereas for the 12-month period that ended on December 31, 1978, the amount of labor makeup had increased to $184,731.82. The latter figure represented 25.3 percent of the direct labor cost at Deming. As re- vealed in Respondent's Exhibit 82, the percentage of makeup continued to increase so that the ratio was 42 percent of the direct labor cost for the 4 months ending April 28, 1979. Makeup costs were a matter of concern to the Respondent because such costs represent money that the Company had to pay out to make up the differ- ence between what an employee earned on a piece-rate basis and what the employee would be entitled to under the minimum wage law. Martin did not take action with regard to the Deming plant in January 1979. He explained that Miller had died on December 18, 1978, and at that time, Miller's former position as president of the western operations had not been filled. Riley was not named to that position until March 1979, at which time Martin discussed with him the problems that he perceived to be existing at the Deming plant. In April 1979, after receiving the financial statement for the period that ended March 31, 1979, Martin again spoke with Riley with regard to the problems at the Deming plant. At that time Martin discussed the closing of the Deming plant with both Riley and Attorney Gruender. However, Martin did not take any action at that time as a result of his conversation with Attorney ' Gruender. Martin explained, "He reminded me that the union was exercising an organizing campaign in Deming, and that he felt we would be subjecting ourselves to legal difficulties with the National Labor Relations Board if we closed the plant-if we proposed to close or closed the plant at that general election campaign." Martin further testified, "Mr. Gruender was very persua- sive, and I told him that I would defer any proposal to close the facility in Deming at that time. That was after I received the March figures." Nevertheless, Martin's expectations for the Deming plant were not met. He pointed at the trial to the turnov- er rate that he had hoped would have improved after the wage rates of the Deming employees had been raised at the beginning of 1979. Martin explained, "The feeling was if we gave them more money, that is an increase in the rates, increase the piece rates as well as the hourly rates, that it would have an effect in retaining those people and keeping ' them from leaving our employ." Martin pointed out that he had hoped that the increase in piece rates would also help attract new employees to the Deming facility. Martin defined at the trial what he viewed to be "the operational difficulty" at the Deming plant: The operational difficulty in being unable to get Deming to produce up to standards that had been established. We were operating, at this time, on the same basis, the same piece rate, same labor rates were in effect in Deming as they were in Glendale. We were unable to keep our people, our turnover was very heavy. Our ability to get additional people to take their place was becoming increasingly diffi- cult. Training costs had become exhorbitant because we were in a constant training program. We had very few of our operators who were making pro- duction, consequently resulting in a greatly out-pro- portioned makeup cost. We were dust unable to- the performance of the operation was dust not- even after the efforts we expended on it with all the additional training, supervision, we were dust unable to get the operation soundly footed. SPRING CITY KNITTING CO. 461 The failure of the Deming plant to meet its production schedule resulted in an oversupply of cloth at the Deming facility. Both Martin and Riley -pointed out that more cloth than was actually needed by the Deming em- ployees was shipped to the Deming plant. The Company had a practice of anticipating the needs of each plant for cloth, from which to make the underwear, and to ship that cloth to the plant prior to the time that the cloth would be needed. If a plant falls behind in its production, then there is an unnecessary "build-up" of cloth at the plant. Martin said, "The logistics of it is that in keeping the supply there, either they have to use it, and when the schedules were beyond the point of reason, cloth had to be transferred to other locations, whether it be Glendale or even transferred back to the eastern operations. So, it was an additional economic strain or added cost to the operation." The decline in customers' orders for the Respondent's products, as compared with the orders received in the prior year, and the conversations Martin had in person and by telephone with the Company's major customers regarding their future orders were matters of concern to Martin. On a weekly basis, Martin received reports re- garding the orders obtained by the Company from its customers, and the reports compared those orders with the orders received during the prior year. Respondent's Exhibit 75 shows all the orders received by the Compa- ny on a weekly basis in 1979 as compared with those re- ceived on a weekly basis in 1978. Page 2 of that exhibit shows for 1979 on a weekly basis the variance in orders received from four major customers and "others," as compared to the orders from those customers in 1978. Page 3 relates to orders from the J. C. Penney Company for boys' underwear. Page 4 relates to men's underwear ordered by J. C. Penney. Page 5 relates to boys' under- wear for Sears. Page 6 relates to men's underwear or- dered by Sears. Page 7 relates to both men's and boys' underwear ordered by K mart. Page 8 reflects men's and boys'. underwear ordered by C. R. Anthony. Page 9 covers underwear ordered by "others." For March, April, and May 1979, page 1 of Respond- ent's Exhibit 75 reveals the following for each week in those 3 months as compared with each week and the year to date figures from 1978. 1979 week Percent Compared to 1978 week Percent Compared to 1978 year-to- date 3/7/79 ..................................................... -24.7 -21.3 3/14/79 ... ....................................... -403 -23.0 3/21/79 ........... .. ........... ..................... -23.5 -23.0 3/28/79. .............. ........................... +36.2 -20.4 4/4/79 ........... ......................... .......... -54.0 -27.1 4/11/79 ........ ............. .................... -271 -27,1 4/18/79 ............ ............... ............. +260 -23.9 4/25/79 ....... ................ .......... ...... + 14.4 -21.5 5/2/79 ............. ...... ...................... +36.7 -18.2 5/9/79 ................................... ............. -13.0 -17.6 5/16/79 . ........... ............... ............. +42.1 -14.0 5/23/79 .............. ........ ..... ............... -21.0 -145 1979 week Percent Compared to 1978 week Percent Compared to 1978 year-to- date 5/30/79 ....................................................... +19.7 -13.2 Because of the significance of orders from J. C. Penney to the Deming plant, which produced about 70 percent of its output for Penney, it is important to exam- ine pages 3 and 4 of Respondent's Exhibit 75. Page 3 compares the orders for boys' underwear re- ceived by the Respondent from J. C. Penney in 1979 by each week of those 3 months as compared to each week for those months in 1978 and also the "year-to-date" fig- ures. 1979 week Percent Percent Compared Compared to 1978 to 1978 week year-to- date 3/7/79 ........................................................ + 14,9 +9.8 3/14/79 ...................................................... -78.6 -.2 3/21/79 ........................................................ -25.6 -.2 3/28/79 ...................................................... -42.7 -5.3 4/4/79 ............ _ ........................................... -81.6 -47.8 4/11/79- ..................................................... -15.2 -41.7 4/18/79 ........................................................ +32.2 -37.7 4/25/79 ....................................................... +75.7 -30.3 5/2/79 ........................................................ +252.4 -22.6 5/9/79 ........................................................ +410.7 -14.6 5/16/79 ........................................................ +51.9 -51.9 5/23/79._ .................................................... -31.0 -16.2 5/30/79 ........................................................ -17.8 -16.3 Page 4 of Respondent's Exhibit 75 reveals similar in- formation for similar time periods, but with regard to ,orders received from J. C. Penney for men's underwear: 1,979 week Percent Compared to 1978 week Percent Com- pared to 1978 year-to- date 3/7/79 .......................................................... -44.3 -42.8 3/14/79 .......................................................... -76.2 -45 7 3/21/79 ........................................................ -39.8 -452 3/28/79 ................................... ................... +13.1 -42.7 4/4/79 ...................................................... .. -55.4 -43.4 4/11/79 ........................................................ -45.5 -43.5 4/18/79 .................. ................ ........ ............ -31.0 -42.8 4/25/79 ........................................................... -28.1 -42.1 5/2/79 .......................................................... -43.8 -42 2 5/9/79 ..................................................... .... -40 1 -41.8 5/16/79 ........................................................... -5.7 -38.9 5/21/79 ................................. ....................... -7.1 -37.9 5/30/79 ...... ..... ............. .......... ................. ...... -7.8 -37.3 462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD With regard to the decline in customers' orders and his conversations with customers, Martin testified: The primary use that I make of the record is de- termining trends and order patterns, cumulative, as is on the first page, in making determinations about whether we have adequate capacity to cover the re- ceipt of orders, or, whether the receipt of orders is below what our capacities are. Then it is analyzed very closely by customers so that in my weekly contacts with my customers I can relay to them in- formation regarding the order pattern that is being established from them as a customer, and therefore be able to determine if the situation, if there's an in- crease in orders, whether that would be temporary or there's a decrease in orders, which is equally im- portant. Q. Now with respect to the Deming plant at a time prior to the shutdown of that plant, did you make any effort to ascertain whether or not the loss of orders, as reflected on this document, were going to be temporary or permanent? A. Yes. I discussed it with each of our customers because it was very concerning. When you're in the, area, of 22-25 percent reduction in orders, it is a major change. So, this was discussed with each of the customers to determine if there's a likelihood of the trend being reversed, if we make up the dozens, or just what their prospects were for the remainder of the year. Q. What did you discover? I have conversations on a weekly basis with each of our customers regarding many things, the most important thing is in relationship to the orders we receive, the orders come to us directly. We tabulate the orders and we develop trends and we discuss the trends with the buyers, with the customer. I feel that the customer's in a much better posi- tion to make a determination about the future of his merchandise, of his order patterns than we would be. I rely on the customer to give us direction as to what he anticipates as far as the future, or the busi- ness he anticipates will be good or to stay the same or further decline. It's a business discussion with him on the basis of making a determination of whether we're adequately covered or inadequately covered as far as productivity and inventory is con- cerned. Q. (By Mr. Gruender) When did you contact the customer to make or ascertain whether the trend that you saw on your records were temporary or permanent? A. It would have been the latter part of May and the first part of June, in that area. Q. What information were you provided? A. I was told that we could not expect a reversal of the trend. They did not anticipate being able to make up the loss in orders that had occurred at that point in time . That their best judgment was that this was declining, the recession was a very vital part of their ability to sell merchandise, and they did not feel we should anticipate a comeback. At the trial, Martin specifically identified the persons with whom he had his conversations. They were: Dave Stewart of Sears; Bill Carey and John Dumbra of J. C. Penney, and Jerry Easler of K mart. In answering one of the questions put to him with regard to the Respondent's financial statements, Martin referred to the familiar phrase, "the bottom line," or the net profit or net loss to the business. Martin stated, "The bottom line, Mr. Gruender, as a businessman , is the only thing that really counts. That is whether you made a profit or you've sustained a loss." Examining those "bottom line" figures in Respondent's Exhibits 80, 81, and 82, which have been previously referred to in this section, the following figures are shown with regard to the net profit or net' loss at Deming facility: Mo. ending 12/31/78 12 mos. of 1978 ($5,285.99) loss ($199,673.40) loss Mo. ending 3/31/79 First 3 mos. of 1979 ($50,418.43) loss ($119,088.43) loss Mo. ending 4/28/79 First 4 mos. of 1979 ($42,173.38) loss ($161,261.81) loss By adding or subtracting, where appropriate, the effect of the Deming losses during those time periods on the Company's operations can be ascertained by looking at the figures for Glendale and for Flagstaff on Respond- ent's Exhibits 80, 81, and 82. The point here is not simply to set forth all of the information shown on those exhibits because the exhibits are in evidence for review by those who have a need to do so. Respondent's Exhib- its 42, 43, 44, and 45 are copies of financial statements covering the first 3 months of 1979, the first 4 months of 1979, the first 5 months of 1979, and the first 6 months of 1979 respectively. Respondent's Exhibits 46 and 47 show the weekly production reports for 1978 and through June 25, 1979. After the May figures came in , Martin described what his concerns were: Then again after I received the May figures and as I already testified, I was concerned about the lack of orders, the building up of inventory from a corporate standpoint. I was still further discouraged with the Deming operation, our total inability to motivate the people and get the productivity capac- ity out of the plant that we felt was there. The equipment was there. We were doing every- thing. We'd increased the piece rates to make them equivalent to the Glendale rates and I could see no reason why we should not be getting the productiv- ity, why we should have the turnover that contin- ued. So naturally I was extremely concerned about the future of the Deming operation. As a matter of fact, at that point in time I had lost a great deal of confidence in the ability to ever be able to put the Deming plant on a productive capacity that it would be able to absorb its overhead. SPRING CITY KNITTING_COâ€ž As a result, Martin went to Arizona on June 6, 1979, when he again spoke with Riley and Gruender, Martin testified: I discussed it with Mr . Riley at that time. He too said he knew of nothing further that could be done as far as salvaging the-in making the Deming unit into a productive unit. At that time I also talked with Mr. Gruender and told him that I appreciated his-I felt that-ex- pressed to him that I felt the delay in April was un- necessary and I felt that I should have made the move at that time, that now we were a month later and the same circumstances we're facing in addition to other areas such as the orders. I explained to him that I was aware of his warn- ing or his thoughts regarding the possible legal action that he expressed to me in April, but that I, as a businessman and looking at this situation in its entirety, I felt that the move must be made at this time, that I could no longer justify the losses in Deming. I could no longer justify the inventory buildup, that I felt that it was necessary at that time to pro- pose the closing of the Deming facility. Then on the 7th of June I returned to New York to have a meeting with Mr. Gordon Allen who is President of Cluett Peabody. The purpose of that meeting was to advise Mr. Allen of my decision, of my decision to propose the closing of the facility. Q. Then what happened? A. That was on the 8th of June. On the 13th of June, that was after further checking my figures, production figures and other financial documents, I called Mr. Riley and I told him that everything had been considered and it was now that I had request- ed proposing to the union the closing of the facility in Deming, New Mexico. I called Mr. Gruender at the same time and asked him to proceed on the necessary requirements in ad- vising the union of our proposal to close the facility and soliciting any suggestions that they might have that would be-could possibly be helpful. In his pretrial affidavit, Martin had stated that he tele- phoned Riley on June 13, 1979, and advised Riley that the continued operation of the Deming plant was not ad- visable. (See Tr. 1912.) However, he testified at the trial that it was not "a definite conclusion" at that point in time. Martin said that the decision was made to close the plant prior to June 15, 1979, when representatives of the Respondent met at the Dallas-Fort Worth airport with Union Representative Vickers. However, Martin ac- knowledged at the trial that, "We had exhausted what I felt were all areas that we could pursue to make the op- eration economically sound ." Martin so advised Gruender. He stated, "I advised our attorney that we had exhausted all possibilities that I knew to make the plant economically sound. I told him to propose to the Union that we close the plant." With regard to his deciding to make a proposal to the Union to close the Deming plant, rather than announcing a final decision to close the plant , Martin also said, "I 463 was still holding out hopes that we would be able to get suggestions from Mr. Vickers and from his staff that could 'possibly help us to overcome the burdens we had encountered and make it profitable and economically sound." However, Martin acknowledged at the trial, "I did not have any idea what it [the Union] might possibly be able to pose to us because I had really exhausted every possible potential that I knew... . I had every hope that they would be able to." When he was questioned about whether the Respond- ent could have afforded to continue operations at the Deming plant, Martin explained , as far as the corporation was concerned , he was sure that the' corporation could afford to do so, "but we were losing money in excess of a million dollars a year. I could no longer justify the op- eration of a plant with such staggering losses." As a result of the instructions he had received from Martin, Gruender contacted by telephone on June 15, 1979, John Vickers, who is manager of the Texas-Okla- homa District Council of the Charging Party and who is director of organization for half of the Union's central states region. Gruender informed Vickers that he was taking an airplane to Dallas, and he said that he wanted to meet with Vickers to talk with him about the Deming plant. Gruender mentioned that the plane would arrive about 3:30 p .m. in Dallas, and he inquired about direc- tions to Vickers' office. Vickers said he would meet Gruender at the Dallas-Fort Worth airport terminal. Gruender said that Riley would accompany him and bring the information that Vickers had requested in his letter to the Respondent. (See Jt. Exh. A-62) That afternoon the three gentlemen met at a coffee- shop in the Dallas-Fort Worth airport terminal. They discussed the requests made in the Union's letter to the Respondent, and Riley produced lists disclosing the names of Deming employees ; their wage classifications; their functions; their rates; those employees on makeup; those paid by piece rate; and those paid by hourly rate. Gruender said he did not have a complete copy of a de- scription of the working conditions and benefits, but Gruender said he would send one to Vickers as soon as their meeting was concluded. Vickers replied that he thought that he already had a copy of the Company's benefits and working conditions. Gruender explained to Vickers that the Company did not have a policy manual and, therefore , he could not furnish one as requested. Riley also produced a copy of a booklet describing the Flagstaff and Glendale insurance plan, which Gruender said was the same as the Deming plan. Gruender said he would supply a copy of the Deming plan to Vickers after their meeting. Gruender also furnished a copy of the Company's pen- sion retirement plan to Vickers. Gruender then gave the Company's views of the problems encountered with the Deming plant. (See Tr. 6811-6813 and 6817.) Gruender also stated that the Company was making the proposal to shut down the Deming plant. A discussion then ensued concerning whether the Company's proposal must be presented to the Union's committee , rather than to Vickers alone , and each party 464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD expressed opposing views on that subject without any agreement being reached. Gruender offered the Union the use of the Company's cafeteria to hold a meeting with the Deming employees; the use of the Company's bulletin boards, or the use of the public address system to communicate with the Deming employees. Thereafter followed a discussion be- tween the parties about an earlier incident pertaining to the Union's desire to utilize the Company's bulletin boards and an incident allegedly involving a Weingarten type of issue involving an employee. Gruender informed Vickers that the Company was going to communicate the Company's proposal to the Company's supervisors. Vickers objected to the Compa- ny's doing so, but Gruender insisted that the Company would inform its supervisors. A discussion then followed between the parties with regard to the time when the Union would respond to the Company's proposal to close the Deming plant. Gruender pressed for an early response, and he expressed the Company's view with regard to the urgency of the situation. The end result was that Vickers said, according to Gruender, "I will get back to you on Monday." The parties also expressed opposing opinions on relat- ed matters and regarding what had caused the problems at the Deming plant. Vickers attributed those problems to "bad leadership," and Vickers gave an example re- garding the switching of trained operators from one line to another. (See Tr. 6906.) Gruender acknowledged to Vickers, "There certainly may have been errors made." Vickers also said that the Company was bargaining in bad faith, with which statement Gruender disagreed. Subsequent to the meeting at the Dallas-Fort Worth airport, the supervisors at Deming were notified about the proposal to close the Deming plant. (See A. Exh. A- 70.) On June 18, 1979, Gruender sent a letter to Vickers with the Deming booklet and a description of the work- ing conditions and benefits. (See A. Exh. A-74.) Gruender also wrote to Vickers on June 19, 1979, and included a one page profit and loss statement for Deming as of May 26, 1979, (See Jt. Exh A-75.) Next, an unfair labor practice charge was filed on June 20, 1979, by the Company against the Union, and an unfair labor practice charge was filed on June 21, 1979, by the Union against the Company. (See Jt. Exhs. A-76 and A-77.) On June 22, 1979, Vickers wrote a letter to Gruender, but because of a mistake in the address on the envelope, Gruender did not receive that letter until June 29, 1979. (See A. Exh. A-85.) Meanwhile, Gruender sent a mailgram on June 22, 1979, to Vickers and asserted that no response had been received from the Union. Gruender announced a June 25, 1979 deadline for a response. (For the full text, see Jt. Exh. A-79(a).) Vickers replied by telegram on June 25, 1979, and indicated a desire to bargain. col- lectively and to receive the information which he had re- quested. (For the full text, see Jt. Exh. A-81) On June 26, 1979, Gruender sent two additional telegrams to Vickers, and in the second telegram requested proposals immediately from the Union. (See Jt. Exhs. A-82(a) and A-82(b).),Gruender said at the trial that he received no response from the Union on June 27 or 28, 1979. The findings of fact in this section are based on por- tions of the credited testimony of Aguilar, Canton, Gruender, Lopez, Martin, Moreno, Riley, Scott, and White. In addition, the findings of fact are based on doc- umentary evidence. C. Conclusions The two strongest elements in the prima facie case es- tablished by the General Counsel and the Charging Party with regard to the Respondent's motivation in closing the Deming plant are: (1) the unfair labor prac- tices previously described and found herein, which in- cluded, among other violations, threats to close the Deming plant and statements connecting the closure of the plant with the advent of the Union; and (2) the timing of the proposal to close the Deming plant on June 15, 1979, and the actual closing on June 29, 1979, after the Deming employees had selected the Union as their collective-bargaining representative on May 23, 1979, and the announcement of the closing of the Deming plant to employees at the Flagstaff and Glendale plants prior to the representation elections held among those employees on June 28, 1979. The unfair labor practices committed by various super- visors and agents of the Respondent already have been set forth, so there is no need to reiterate those findings here. However, it cannot be overlooked that the unfair labor practices occurred at all three of the Respondent's plants in its western division during the union organizing campaigns at each one of those plants, and that the unfair labor practices occurred during the span of time when the Respondent also was considering the future of the Deming plant and making the decisions that resulted in the plant ceasing production on June 29, 1979. With regard to the element of the timing of Respondent's ac- tions, those facts also have been described in this section and in prior sections of this decision. Of course, the inquiry into the issues raised by the pleadings does not end simply with a determination about whether the General Counsel and the Charging Party have established a prima facie case. The issue then arises as to whether the Respondent has presented evi- dence that rebuts or overcomes that prima facie case. I conclude that the Respondent's evidence has succeeded in doing so. Martin was the one who made the crucial decisions re- garding the Deming plant I conclude that his testimony concerning his reasons for closing the Deming plant find support in the regularly kept business records maintained by the Respondent in its normal course of business. I conclude further that the records are persuasive evidence of the validity of the reasons given by Martin at the trial for closing the Deming plant: (1) that the Deming plant was not an economically sound operation; and (2) that the orders from customers had declined. I conclude that Martin's testimony combined with the documentary evi- dence described in the findings of fact herein reveal that the Respondent has shown that the Deming plant was closed for economic reasons, rather than for union-relat- ed discriminatory reasons, or for "chilling" effect rea- sons. I SPRING CITY KNITTING CO. 465 Without repeating here the findings of fact, it will be noted in summary that the "bottom line" for the Deming plant was that it had sustained losses for the 12 months of 1978; for the first 3 months of 1979, and for the first 4 months of 1979. Martin made it clear that the Deming plant did not live up to his expectations with regard to the makeup pay costs to the Respondent; an increased turnover rate, notwithstanding the increase in wage rates to make Deming equal to those paid at Glendale; a lack of increased productivity, which caused Deming to fall behind in its production schedule and to encounter the resulting oversupply problem with cloth. Martin also pointed to the decline in customers' orders during 1979, as compared with similar time periods for the previous year. The General Counsel and the Charging Party focus on the weekly fluctuations shown by the Respondent's records, but Martin made it clear that it was the year-to- date comparison, or "trend" in customers' orders that was of concern to him. The records referred to in the findings of fact herein lend support to Martin's testimony regarding the decline when one examines the records on a cumulative basis. In particular, the decline in orders from J. C. Penney was the most significant, insofar as the Deming plant was concerned, because about 70 percent of the Deming production was for that company. The counsel for the General Counsel argues at page 117 of his posttrial brief that Martin's testimony regarding his conversations with Respondent's customers was not of- fered to prove the truth of the matters asserted by the out-of-court declarants. That is correct, but the testimo- ny shows what, Martin did as a result of his conversa- tions In other words, his customers may have been tell- ing him accurately about their future order expectations, or those customers may have been inaccurate, but Martin acted, in part, on what those customers told him at that time. Martin based his decisions on the information that was available to him at that point in time. Therefore, in- formation or records of what actually happened after the crucial decisions were made does not seem as significant as the information which existed at the time the decisions were made. Respondent's evidence also makes it clear regarding why neither Flagstaff nor Glendale was considered for closing, rather than Deming Glendale produced the full line of garments and contained the support functions for personnel and administrative matters, as well as facilities for warehousing. Flagstaff was a self-contained unit in that it worked on production specifically for Sears. Nei- ther plant was shown to be experiencing all the econom- ic problems that the Respondent found in the "feeder" plant operation at Deming. Although I have considered the lengthy testimony given by Plant Manager Lord, which covers a total of more than 600 pages in volumes 4, 13, 28, and 29, I have given substantially less weight to his account, notwith- standing the position he occupied at the Deming facility. For example, the proposal to close the Deming facility did not originate with him. More significantly, I con- clude that he did not exert any real impact on the ulti- mate decision that was made to close the Deming plant. That decision was made by the Chairman of the Board and Chief Executive Officer Martin. The foregoing ob- servation is not made in any way critical or demeaning to Lord, but instead, the evidence shows that it was Martin's decision, not Lord's, which ultimately led to the closing of the Deming plant as a producing facility. Thus, I have focused on Martin's reasons for propos- ing to the Union that the plant be closed, and Martin's reasons for deciding actually to close the plant. Martin is the one here who made the crucial decisions that are in- volved herein. It is in the same light that I view the testimony of var- ious witnesses about the optimistic statements expressed to employees by Lord regarding the expansion of the Deming facility; the progress in production and profit- ability, and what may be characterized as a bright future for the Deming plant. I find that Lord did, in fact, make such statements as are described in the findings of fact. (See also, for example, a newspaper account attributed to Lord regarding expansion of the plant, C.P. Exh. 3.) Furthermore, at the trial Lord admitted to discussing with employees his "wishes and aspirations" and his "dreams" for adding a bleach plant and a nonprofit child-care facility. (See- Tr. 2336-2338.) Nevertheless, Lord was not the one who made the decisions regarding the closing of the Deming plant. Thus, while Lord's statements regarding the Deming plant's accomplish- ments and its future cannot be ignored as one factor in evaluating the truthfulness of the reasons advanced by Martin, I have given such statements less weight. (See pp. 27-30 of the posttrial brief filed by tI}e attorneys for the Charging Party for their views and argument regard- ing Lord's statements.) I apply the same analysis to the May 1978 conversa- tion between Miller and Scott. Even though Miller held a higher level position than Lord did at that time, Miller passed away prior to the time that Martin made his deci- sions regarding' the Deming facility. In connection with Scott's testimony concerning, his conversation with a de- ceased person, I have carefully scrutinized his account because the possibility of confrontation and contradiction by the declarant was eliminated. See, for example, Hazen & Jaeger Funeral Home, 95 NLRB 1034, 1043 fn. 9 (1951), enfd. NLRB v. Hazen, 203 F.2d 807 (9th Cir. 1953). The trial testimony of Riley; and the arguments of counsel with respect to objections and motions relating thereto, span over 1000 pages of the transcript. (See vol- umes 11 and 20-25.) As indicated in the findings of fact and reiterated above with regard to Lord and Miller, it was Martin, rather than Riley, who made the crucial de- cisions pertaining to the Deming plant. However, Riley did have input into that decision insofar as Martin dis- cussed the matter with Riley and others. Both the Gen- eral Counsel and the attorneys for the Charging Party argue against accepting Riley's account, and they, among other things, point to a direct contradiction between Riley's testimony at the trial and his earlier pretrial affi- davit regarding who made the decision to close the Deming plant. (See, for example, p. 118 of the posttrial brief filed by the General Counsel, and see, for example, pp. 38-39 of the posttrial brief filed by the attorneys for the Charging Party. See also Riley's testimony at Tr. 466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1845-1847.) I conclude that Martin's testimony on this matter is more reliable Martin was the one who spoke with Gordon E. Allen, who was the president of the parent company, and, therefore, Martin was in a position to know what their conversation covered and who actu- ally made the decision. Riley was not shown to have been present during that conversation and, thus, he would not have been in a position to relate exactly what had been said. I conclude that Riley simply made an error in his pretrial affidavit, which he corrected at the trial. Although I have accepted Martin's testimony on this point, and on many other matters, I have still relied on portions of Riley's account, as indicated in the find- ings of fact. The Supreme Court's decision in First National Main- tenance Corp. v. NLRB, 452 U.S. 666 (1981), issued after the trial in this proceeding concluded, but prior to the time that the parties filed their posttrial briefs. The par- ties address the Court's opinion ably from their respec- tive points of view of the facts and issues in this case, but I find the Respondent' s arguments to be the most persua- sive on the applicability of the Court's decision here. (See pp. 111-113 of the posttrial brief filed by the attor- neys for the Respondent.) As the Supreme Court held: We conclude that the harm likely to be done to an employer's need to operate freely in deciding whether to shut down part of its business purely for economic reasons outweighs the incremental benefit that might be gained through the union's participa- tion in making the decision, and we hold that the decision itself is not part of section 8(d)'s "terms and conditions," . .. "over which Congress has man- dated bargaining." The Court continued with a discussion "to illustrate the limits of our holding," but I find the Respondent's ar- gument persuasive that those limitations given by the Court do not make First National Maintenance inapplica- ble to the present case. Like the situation in the First Na- tional Maintenance case, the Respondent here did not intend to replace the discharged employees at Deming or to move the Deming operation elsewhere. As discussed previously, I have concluded that the Respondent's deci- sion regarding the Deming plant was based on economic considerations, notwithstanding the showing of union animus revealed in the unfair labor practices found earli- er herein. The losses, which are shown in the Respond- ent's financial statements, occurred prior to the Union's certification as the employees' collective-bargaining rep- resentative. As the Court observed in First National Maintenance, "the union was not selected as the bargain- ing representative or certified until well after petitioner's economic difficulties at Greenpart had begun We thus are not faced with an employer's abrogation of on-going negotiations or an existing bargaining agreement." Because the Court's opinion issued only last summer, there have not been a great many interpretations of that opinion up to this point in time (However, see the text of the address given by Professor William B. Gould of the Stanford University Law School to the American Bar Association's Section of Labor and Employment Law, 107 LRR 342-349.) I conclude that the legal prin- ciples enunciated by the Court in First National Mainte- nance are applicable here I conclude that the Respond- ent was not required to bargain with the Union with regard to its economically based decision to close the Deming plant, although the Respondent here did, in fact, give notice to the Union on June 15, 1979, of the Re- spondent's intention to do so. Of course, the Respondent was still obligated to bargain with the Union regarding the effects of its closing of the Deming plant on the em- ployees involved. As shown in the findings of fact in this section, and also in section XI to follow, I conclude that the Respondent did meet and bargain with the Union with regard to the effects on employees of the Deming closing. In summary, I conclude that the Respondent has intro- duced evidence that overcomes the prima facie case es- tablished by the General Counsel and the Charging Party, and that the Respondent has shown that its clos- ing of the Deming plant was based on economic consid- erations, rather than union-related discriminatory consid- erations, or for its "chilling" effect on employees at Deming, Flagstaff, or Glendale. I conclude that the Su- preme Court's decision in First National Maintenance ap- plies here, and that the Respondent was not required to bargain with the Union with regard to its economic deci- sion under these circumstances, although it was required to bargain about the effects on employees, and that the Respondent has done so as shown in this section and the section to follow Accordingly, I conclude that a prepon- derance of the evidence does not establish the allegations in the General Counsel's amended consolidated com- plaint quoted at the beginning of this section, and I must recommend to the Board that those allegations of the complaint be dismissed XI. EVENTS PERTAINING TO THE UNION'S REQUEST FOR INFORMATION A. Allegations In the General Counsel's amended consolidated com- plaint , the General Counsel alleges the following in para- graphs 14 and 15: 14. (a) Since on or about June 22, 1979, the Union has requested the Respondent to furnish the Union with rates of compensation paid to its em- ployees at its plants in Arizona, and Georgia, and copies of its weekly payrolls for its Arizona, Geor- gia and New Mexico plants from January 1, 1978 to June 22, 1979 (b) Since on or about July 25, 1979, the Union has requested the Respondent to furnish the Union with information concerning the seniority rights granted by the Respondent for its employees who transfer between the Respondent's plants. (c) Since on or about July 25, 1979, the Union has requested the Respondent to permit review by a financial expert of certain of the Respondent's busi- ness records. 15. The information and review requested by the Union, as described above in paragraph 14, subpara- SPRING CITY KNITTING CO. graphs (a) through (c), is necessary for, and relevant to, the Union's performance of its function as the exclusive collective-bargaining representative of the employees in the unit described above in paragraph 8. In the General Counsel's amended consolidated com- plaint, the General Counsel alleges the following in para- graphs 16 and 17 to be violations of Section 8(a)(1) and (5) of the Act: 16. (a) Since on or about June 22, 1979, the Re- spondent has failed and refused to furnish the Union wii h the information requested by it as described above in paragraph 14, subparagraph (a), and para- graph 15. (b) Since on or about July 25, 1979, the Respond- ent has failed and refused to furnish the Union with the information requested by it as described above in paragraph 14, subparagraph (b), and paragraph 15. (c) Since on or about July 25, 1979, the Respond- ent has failed and refused to permit review of its business records as requested by the Union, which review is described above in paragraph 14, subpara- graph (c), and paragraph 15. 17. At all times since rune 15, 1979, the Respond- ent has refused to bargain collectively with the Union as the exclusive bargaining representative of the Respondent's employees in the appropriate unit described above in paragraph 8 by engaging in the acts and conduct described above in paragraph 13, and paragraph 16 and its subparagraphs. B. Facts Introduced into evidence as Joint Exhibit A-86 was a copy of a telegram from Union Representative Vickers to Attorney Gruender, in which Vickers requested that negotiations begin at 11 a.m. on July 5, 1979, in Deming. Introduced into evidence as Joint Exhibit A-87 was a copy of a letter dated July 3, 1979, from Gruender to Vickers, in which Gruender suggested July 10, 1979, as a meeting date. Introduced into evidence as Joint Exhibit A-90 was a copy of a letter dated July 11, 1979, from Gruender to Vickers, which gave the Respondent's posi- tions with. regard to the requests for information made by Vickers in his letter dated June 22, 1979. (See A. Exh. A-85.) Introduced into evidence as Joint Exhibit A-91 was a copy of a mailgram dated July 11, 1979, from Gruender to Attorney Youngdahl, in which Gruender gave the Respondent's view regarding Youngdahl's tele- gram of July 5, 1979, and further suggested the afternoon of July 13, 1979; the afternoon of July 25, 1979, and the morning of July 26, 1979, to meet with the Union in Deming. Introduced into evidence as Joint Exhibit A-93 was a copy of a telegram dated July 18, 1979, from Vickers to Gruender, in which the Union agreed to meet with the Respondent on the afternoon of July 25, 1979, and the morning of July 26, 1979, in Deming. Representatives of the Union and the Company met on July 25 and 26, 1979, at the Ramada Inn in Deming. Present on behalf of the Union were: Attorney Young- 467 dahl; Union Representative Vickers, and a union commit- tee of about eight people. Present for the Company were: Attorney Gruender; Attorney Ames; President of Western Operations Riley, and Plant Manager Lord. A copy of Youngdahl's contemporaneously made notes of those sessions was introduced into evidence as Charging Party's Exhibit 7. At the July 25, 1979 meeting, which began at 3 p.m., Gruender made the initial proposal to the Union that the Company would agree to pay accumulated vacation pay to the Deming employees. Gruender also proposed that the Company place the Deming employees in jobs at other plants in the Respondent's western division as jobs opened up. Youngdahl then asked a series of questions regarding the vacation plan and what the Company's plan meant in terms of money for the Deming employ- ees. Youngdahl also asked a series of questions concern- ing Gruender's proposal for jobs for Deming employees in other plants. According to Youngdahl, Gruender an- swered some of his questions, but did not respond to others. Youngdahl asked for a list of Deming employees as of the last day of the closing of the plant and as of various other days in 1979. Gruender took the position that the Company would give the Union information re- garding the employees who were on the payroll when the plant closed, but not those who left employment ear- lier. The Union held a caucus and then made a counterpro- posal to the Company. The Union's counterproposal called for the payment of more vacation pay by the Company to the Deming employees. With regard to jobs for the Deming employees, the Union also made a coun- terproposal to the Company. First, the Union proposed that the Deming plant be reopened by the Company. Secondly, the Union proposed that, until the Deming plant was reopened, the Company give all Deming em- ployees the right to transfer to other plants of the Re- spondent to fill vacancies that occurred on and after June 18, 1979, and that the employees be placed in any job for which they were "trainable." Any disagreements between the Company and the Union with regard to the "trainability" of employees for jobs were to be arbitrated by the parties. The Union also proposed that the Deming employees "carry seniority for, all purposes," and that the Company pay the moving expenses of the employees. The Union further proposed that the Company pay sev- erance pay to those Deming employees who elected not to transfer to other jobs. The parties discussed how vacation pay for Deming employees should be computed; the extension of insur- ance coverage for Deming employees until they got jobs elsewhere, or for 1 year's time, whichever period of time was longer; whether the standards for transfer of em- ployees should be the same for all Deming employees, or different for high producers; and the seniority rights of Deming employees who transferred to Flagstaff or Glen- dale. Gruender said he would not discuss severance pay with the Union until the Union made a monetary propos- al. Youngdahl recalled generally that Gruender and Riley had said that there were no written rules relating to se- 468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mority other than what might be set out in booklets which had already been supplied to the Union. (See Tr 2081.) Youngdahl also recalled that Gruender said the Company would not agree to permit the Deming em- ployees to "bump" Flagstaff and Glendale employees out of their jobs. (See Tr. 2084, but see also R. Exh. 30, which is a copy of a letter from Youngdahl to the Re- gional Director for Region 28, in which Youngdahl urges that the Respondent has not answered the Union's request regarding the "consequences" of seniority status at the Flagstaff and Glendale plants) The parties ad- journed their meeting on July 25, 1979, at 7 p.m. that day The same representatives of the Union and the Compa- ny met again at 8:30 a.m. on July 26, 1979, at the same location. The Union made a proposal that the Company continue to pay for insurance coverage for the Deming employees for 1 year, unless the employee otherwise was covered. Gruender agreed to hold a caucus on that pro- posal, but he said that there was little chance for that proposal to succeed. Gruender also inquired about two Genesco plants in Alabama, which had closed, and he asked if Genesco had given severance pay to those em- ployees. Youngdahl and Vickers said they knew nothing about that, but they would look into it, and, if they found out anything, the Union would inform the Compa- ny. The next couple of hours were devoted to a discussion of why the Respondent had closed the Deming plant. Gruender did not concede that the Company's decision to close the plant was a subject for collective bargaining. Youngdahl asked when the final decision was made, and Gruender replied that it was after June 15, 1979. Gruender said that the Company only made the proposal to close on June 15, 1979 Youngdahl asked when it was first considered by the Company, and Gruender replied that it had been considered in January 1979 and also in mid-April 1979 when the Company had received the March figures, which he said were especially bad from the standpoint of keeping the Deming plant open Gruender also said that the only favorable month in Deming had been in June 1978. Gruender enumerated various problems at Deming, which he said included: training, mandatory overtime; meeting production, the Company had worn out its "welcome" with the employ- ees; the Deming employees gave the Company only some of their time, a short labor supply, people who were not willing to work, a lack of confidence in top management that they could "turn around" the Deming situation, the decision not to put more capital into Deming; the different logistics, a drop in the market, production was not being met in Deming, the Company was cutting back its least profitable plant; perhaps the Company had made the wrong decision when they had expanded in Deming, and the rates in Deming were es- sentially the same as those paid in Glendale Vickers asked whether an independent engineer had made a feasibility study of the plant, and Gruender re- plied that the problems at Deming were beyond engi- neering. There next ensued what Youngdahl described as being a "very angry exchange" between Gruender and Vickers with regard to their meeting at the Dallas-Fort Worth airport on June 15, 1979 (See Tr. 1989-1990.) In response to a question from Youngdahl, Gruender said he would not discuss the Company's competitors or problems in the stores. Next the parties discussed the Company's financial statement that was dated June 19, 1979, and which previ- ously had been furnished by the Company to the Union. (See Jt. Exh. 75.) Youngdahl said that the Union wanted an auditor or a financial expert to examine the books and records from which those figures on the financial state- ment had been taken. Gruender responded that it was neither necessary nor relevant to bargaining, and Gruender stated that the Company was not pleading an inability to pay Gruender said that overall the Company was profitable, and he denied the Union's request. Youngdahl next asked Gruender if anyone had made "a labor force analysis" with regard to locating the plant in Deming Gruender stated that Russell Miller had done so, but he was deceased and that Gruender did not have any written report or summary from Miller on that sub- ject. The parties then discussed what had taken place with regard to a proposed settlement agreement of cer- tain unfair labor practice charges. After caucusing separately, the Union made a sever- ance pay proposal of $25 per employee for each month of service. Youngdahl also inquired about who owned the Deming property and building and also about the Company's plans for expansion. Gruender made refer- ence to a bleach plant in Pennsylvania that had been or- ganized by another union, and he said that the Company had been looking for jobs for men at Deming, but Lord had been unable to get agreement on a new plant at Deming. Gruender said that the Company had taken an option on property there. Gruender also said that the Company was trying to sell the Deming building, but it had not been able to do so Gruender also mentioned that absenteeism and turnov- er had been terrible at Deming, whereupon Youngdahl inquired if they had been factors in reaching a decision to close the Deming plant. Gruender said, "Yes " Young- dahl told Gruender that people in Deming had said that they had been told those factors of absenteeism and turn- over were better at the Deming plant than they were at the Flagstaff and Glendale plants Gruender replied that he thought they were worse in Deming Youngdahl asked if Gruender had considered the fact that a union contract might make the employees feel better about their jobs Gruender said, "No." At that point, Gruender gave the Union two lists. One list was the most current list of employees and the other list was a list of employees for whom insurance premi- ums had been paid. At the trial, Youngdahl acknowl- edged that in his pretrial affidavit he had stated- "On return from caucus, Mr Gruender furnished us with copy of a list of unit employees, with pay rate informa- tion as of June 30, 1979 (the payroll period last worked by employees), and a list of employees for whom insur- ance premiums had been paid through July 1979 (I'm not sure about this latter list )" SPRING CITY KNITTING CO 469 Youngdahl asked for the Company's response to the Union's insurance proposal. According to Youngdahl, Gruender expressed his view that it was "totally unreal- istic." Gruender also said that the Company was not pre- pared to make a counterproposal, and he said that he did not know what the rates were. Youngdahl asked for a copy of the master insurance contract, and Gruender re- plied that there was none Felicitas Chavez and other members of the union com- mittee brought up various incidents involving grievance type of issues. Finally, the parties disagreed over the location for the next meeting. Youngdahl testified, "I said we wanted to meet in Deming the next time. Mr. Gruender said he'd only meet in Phoenix We said we'd only meet in Deming." The meeting ended at 12 noon. Subsequent to the meetings between the parties on July 25 and 26, 1979, there were exchanges of corre- spondence between them, but no further meetings were held. Attorney Youngdahl's letter dated August 2, 1979, sets forth the Union's position at that time regarding the status of negotiations between the parties and renews the Union's request for certain information from the Re- spondent (See Jt. Exh A-95.) Youngdahl's followup letter is dated August 20, 1979. (See Jt. Exh. A-96.) At- torney Gruender's letter dated August 29, 1979, sets forth the Respondent's position at that time on the status of negotiations between the parties. (See Jt. Exh. A-99.) A copy of Youngdahl's reply letter dated September 12, 1979, was introduced as Joint Exhibit A-102. A copy of Gruender's reply letter dated September 21, 1979, was introduced as Joint Exhibit A-103. The findings of fact in this section are based on por- tions of the credited testimony of Youngdahl and on documentary evidence, which includes the contempora- neous notes made by Youngdahl of the two meetings be- tween the Company and the Union. C. Conclusions With regard to the General Counsel' s allegations in paragraphs 14(a) and 16(a) of the General Counsel's amended consolidated complaint, I conclude that the evi- dence reveals that the Respondent furnished to the Union a list of the employees, with their pay rate infor- mation, for those employees who were employed by the Respondent at the time the plant closed on June 29, 1979, and also a list of employees for whom the Re- spondent had paid insurance premiums The Union's re- quest for payrolls at other plants located in Arizona and Georgia over a 1-1/2 year span of time was not shown to be relevant or necessary to bargaining over the effects of the Deming plant closing on Deming employees. With regard to the General Counsel' s allegations in paragraphs 14(b) and 16(b), I conclude that the Respond- ent furnished to the Union in documentary form at the June 15, 1979 meeting and subsequently in correspond- ence, the information the Company had regarding the policies applicable to employees. Gruender and Riley stated at the July 25, 1979 meeting with the Union that the Company had no written rules regarding seniority other than what had already been furnished to the Union. The Respondent's representatives also made clear their opposition in granting rights to the Deming em- ployees who transferred so that those former Deming employees could displace employees at Flagstaff and Glendale from their jobs. Thus, the Respondent's posi- tion regarding seniority was made known to the Union during the negotiating sessions With regard to the General Counsel's allegations in paragraphs 14(c) and 16(c), I conclude that the allega- tions lack merit because the Respondent was not re- quired to bargain with the Union regarding its decision to close the Deming plant (See sec X herein) The re- quest for a financial expert related to examining profit and loss figures, which, in turn, were related to the Re- spondent's decision to close the Deming plant, but not to an inability to pay insofar as bargaining over the effects of its decision on the Deming employees. Accordingly, I must recommend to the Board that the foregoing allegations and the allegations in paragraph 17 of the General Counsel's amended consolidated com- plaint be dismissed CONCLUSIONS OF LAW 1 The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Unions named herein are labor organizations within the meaning of Section 2(5) of the Act. 3 The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act by the following acts and conduct- (a) Interrogating employees about their union activi- ties; their sympathies for the Union; how they were going to vote in an NLRB-conducted representation election; and the events that took place at a union meet- ing. (b) Refusing to excuse from work an employee who had been subpoenaed to attend a representation hearing before the NLRB. (c) Threatening employees that the plant was going to close, if the employees selected the Union as their collec- tive-bargaining representative, or because the employees had selected the Union as their collective-bargaining rep- resentative. (d) Threatening employees that they would lose the right to talk directly to management about their prob- lems and that they would lose their agreeable working conditions and relationship with management, if the Union was selected as their collective-bargaining repre- sentative (e) Offering to employees and granting them an addi- tional week of vacation and a week's vacation pay in ad-- vance in order to discourage employees from assisting or supporting the Union (f) Telling employees that the Company's savings growth plan was for noncollective-bargaining unit em- ployees (g) Threatening employees with a loss of benefits if they selected the Union as their collective-bargaining representative. (h) Refusing to describe benefits to an employee be- cause the employee was wearing a union badge 470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (i) Creating the impression among employees that their union activities were being kept under surveillance by the Respondent by telling employees that the Respond- ent understood that the employees were holding a union meeting. (j) Prohibiting employees from distributing union liter- ature during their nonworking time in nonworking areas of the company property. (k) Telling employees that the Company was with- holding from employees the introduction of the Compa- ny's savings growth plan because a representation elec- tion was pending. (1) Threatening reprisals against employees who had voted in favor of union representation in an NLRB-con- ducted representation election. (m) Telling an employee at the time the Company was closing the Deming plant that she should have thought about that when she was voting in the election. (n) Discouraging employees from engaging in union activities by threatening them that employees who sign union cards may be subpoenaed to testify in court in front of company officials regarding the circumstances surrounding their signing such cards. 4. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (3) of the Act by the following acts and conduct: (a) Terminating Gary Elkins and David L. Jones be- cause they engaged in union activities or protected, con- certed activities. (b) Withholding from employees the introduction of the Company's savings growth plan because a represen- tation election was pending. (c) Refusing an employee's request for a pay advance because of the employee's union activities. 5. The unfair labor practices described above affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Because I have found that the Respondent has en- gaged in certain unfair labor practices within the mean- ing of Section 8(a)(1) and (3) of the Act, I shall recom- mend to the Board that the Respondent be ordered to cease and desist from engaging in such unfair labor prac- tices. In accordance with the legal principles set forth in the Board's decision in Hickmott Foods, 242 NLRB 1357 (1979), I conclude that a broad remedial order is war- ranted under the circumstances of this case. I shall also recommend to the Board that the Respond- ent be ordered to take certain affirmative action in order to effectuate the policies of the Act. Such affirmative action will include offers of immediate and full reinstate- ment to Gary Elkins and David L. Jones to their former positions of employment with the Respondent, without the loss of any of their seniority or other benefits, but if their former positions of employment no longer exist, then the Respondent should offer them reinstatement to substantially equivalent positions of employment with the Respondent, without the loss of their seniority or other benefits. I am not unmindful of the fact that Elkins ini- tially was hired to work only through August 1979 However, his termination intervened on June 28, 1979, and, thus, I cannot speculate at this stage of the proceed- ing as to what would have happened regarding contin- ued employment after August, but for the Respondent's termination of him. Therefore, I will recommend to the Board the usual remedy for a termination made in viola- tion of Section 8(a)(3) of the Act, and I will leave to the compliance stage of the proceeding whether a more re- strictive determination is appropriate. Backpay for Elkins and Jones will be computed in ac- cordance with the Board's decision in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest on such backpay to be computed in accordance with the Board's decisions in Isis Plumbing Co., 138 NLRB 716 (1962), Florida Steel Corp., 231 NLRB 651 (1977) See also Olympic Medical Corp., 250 NLRB 146 (1980) As indicated in the findings of fact and conclusions of law, I have concluded that the Respondent's withholding from employees of the Company's savings growth plan because a representation election was pending at Deming, and also refusing a Deming employee's request for a pay advance, violated Section 8(a)(3) of the Act, as well as Section 8(a)(1) of the Act. However, in view of the closure of the Deming plant, I conclude that a cease- and-desist order and communication of that order by means of a notice to employees are the only practical remedies at this time for those particular unfair labor practices, rather than imposing a monetary remedy on the Respondent for those unfair labor practices. In view of the apparent number of Spanish-speaking employees at the Respondent's plants involved herein, I shall also recommend to the Board that the official Eng- lish language notice be translated into the Spanish lan- guage , and that both the official English language notice and the Spanish language translation be posted at the Flagstaff and Glendale plants I further recommend to the Board that copies of both documents be mailed to the employees formerly employed at the Deming plant. See Fun Strikers, 250 NLRB 520 (1980), and Service Em- ployees Local 300, 257 NLRB 1335 (1981). Because the Deming plant ceased production on June 29, 1979, there is no point in recommending that the notices be posted there, unless the Respondent has resumed production at the Deming plant at the point in time the Respondent commences compliance with the terms of the Board's Order. Accordingly, I shall recommend to the Board that, in lieu of posting the notices, copies of the two no- tices be mailed by the Respondent to the last known ad- dress of each unit employee who was employed by the Respondent on June 29, 1979, at the Deming plant. [Recommended Order omitted from publication.]