Indiana Metal Products Corp., 1040 (1952)

contends that any employee who is on the seniority list and eligible for recall is entitled to vote.

The Board has heretofore held that the mere fact that laid-off employees have contractual seniority rights does not entitle them to vote, but rather the test of the right to vote is whether they have a reasonable expectation of reemployement in the near future.8 The record shows that the employees under consideration have no such expectancy of recall. Accordingly, we find that, as there is no reasonable prospect of reemployment of the employees in question, they, are ineligible to participate in the election.

Order IT IS HEREBY ORDERED that the petitions filed in Cases Nos. 8-RC1626 and 8-RC-1627 be, and they hereby are, dismissed.

[Text of Direction of Election omitted from publication in this volume.] 8 General Motors Corporation, 92 NLRB 1752 ; Igleheart Brothers Division General Foods Corporation, 96 NLRB 1005 ; Vulcan Tin Can Co., 97 NLRB 180.

INDIANA METAL PRODUCTS CORPORATION and INTERNATIONAL UNION,

UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO. Case No. 13-CA-5149. September 8, 195f Decision and Order On December 28, 1951, Trial Examiner Earl S. Bellman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that the Respondent cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. Thereafter, the Respondent and the Union each filed exceptions to the Intermediate Report, with a supporting brief.' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Styles, and Peterson].

The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The I A copy of its brief before the Trial Examiner was also Med by the Respondent in support of its exceptions.

100 NLRB No. 161.

rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and supporting briefs, and the entire record in the case, and hereby adopts the findings,2 conclusions, and recommendations of the Trial Examiner, with the exceptions, additions, and modifications set forth below.

1. We agree with the Trial Examiner's finding that the Respondent violated Section 8 (a) (1) of the Act by (a) Foreman Lewis' threat to employee Gilliland, about the middle of May 1950, that if he 'joined a union or signed any papers' his 'days would be numbered';

   (b) Foreman Roe's interrogation of employee Sheetz on April 24, 1950, concerning Sheetz' union membership and his statement to Sheetz that 'there are 50 people that . . . [signed union cards] and they are all going to get fired'; and (c) granting its employees paid holiday and insurance benefits for the purpose of inducing them to reject the Union .3

   In reaching this conclusion, we reject, as the Trial Examiner did, the Respondent's contention that it should not be held in violation of the Act on account of Lewis' and Roe's conduct, because only isolated incidents are involved, it instructed its supervisors not to interfere with the Union's organizational campaign, and it made plain to the employees that they could join, or refrain from joining, the Union, without fear of reprisal. For the interrogation and threats by Lewis and Roe were in fact part of a general pattern of unlawful conduct by the Respondent designed to thwart the Union, and were not, as the Respondent argues, mere isolated incidents. The instructions to the foremen, which were first given on April 28, after the interrogation and threat by Foreman Roe, were never communicated to the employees' And the alleged statements of neutrality contained nothing therein specifically referring to, or disavowing, the prior unlawful conduct of Lewis and Roe.5 Moreover, the protestations of neutrality were belied by Respondent's subsequent unlawful conduct discussed below.

   2 The exceptions filed with respect to the credibility findings made by the Trial Examiner are without merit. As set forth in Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C. A. 3), the Board attaches great weight to the credibility findings of Trial Examiners insofar as they are based on demeanor, and accordingly does not overrule a Trial Examiner's resolution of credibility except where a clear preponderance of all the relevant evidence convinces us that this resolution was incorrect. No basis exists for overruling him in this case. We therefore adopt the Trial Examiner's credibility findings.

   8 For the reasons appearing in the Intermediate Report, we agree with the Trial Examiner's finding that there is no merit in the Respondent's claim that Section 10 (b) of the Act requires a dismissal of that part of the complaint which alleges these 8 (a) (1) violations because neither the charge nor the amended charge specifically sets forth such conduct. See N. L. R. B. v. Samuel J. Kobritz, d/b/a Star Beef Company, 193 F. 2d 8 (C. A. 1). See also Pacific American Shipowners Association, et al., 98 NLRB 582, and cases cited therein. The Respondent's related motion to dismiss is accordingly denied.

   ON. L. R. B. v. Bird Machine Co., 161 F. 2d 589 (C. A. 1) ; Eastman Cotton Mills, 90

   NLRB 31, 79.

   5 Eastman Cotton Mills, supra, at page 79 ; Fulton Bag and Cotton Mills, 75 NLRB 883, mod. on other grounds, 175 F 2d 675 (C. A 5).

   Nor do we perceive any basis for disturbing the Trial Examiner's findings as to the paid holiday and insurance programs. The paid holiday plan was formally announced to the employees on June,20, 1950, less than a month after the hearing on the Union's representation petition which was filed on April 27, 1950.11 Although the Respond'ent's board of directors in December 1949 authorized the adoption of such a program when adequate funds were available for the purpose, ,the record does not support the Respondent's claim that, by about June 20, a paid holiday plan was financially feasible, and that it was for that reason, and no other, that the plan was placed in effect. The production graph relied upon by the Respondent shows only the :approximate number of units produced since January of 1950, and in no way proves the financial capacity claimed by the Respondent.

   Moreover, the graph, when considered in the light of other evidence in the record, suggests that the time was not financially propitious for instituting the paid holiday plan .7 Thus, it appears that the Respondent's production in April was low, that June was a declining month production-wise, and that, at the time the plan was announced, the .Respondent expected the following month's production to be low on account of the plant's shutdown for 10 days to provide vacation time for the employees. Further, even assuming an interpretation of the .evidence of Respondent's financial capabilities most favorable to, it, the Respondent's position would not be any more tenable. For ;it would then appear that the Respondent was financially able to grant its employees paid holiday benefits not only on about June 20, but also ,before the filing of the representation petition, as pointed out by the Trial Examiner. Significantly enough, this was not done. In the face -of all the foregoing, including the facts that the Respondent was not committed to its employees to announce the plan when it did, and that no other compelling legitimate reason for the announcement at that time has been shown, we find for the reasons stated by the Trial Examiner that the announcement was timed to induce the employees to reject the Union s With respect to the insurance program, the record shows that on July 25, just 8 days before the Board directed an election at the Respondent's plant, the Respondent entered into an insurance contract for the benefit of its employees and immediately advised the employees 5 Case No. 13-RC-1270.

   7 Under the announced plan, the Fourth of July was to be the first holiday entitling the employees to this benefit 8 Significantly, on August 15, 8 days before the Board-directed election at its plant was to be held, ,the Respondent sent a letter to each of its employees in which it urged them to vote against the Union and pointed out, among other things, that The CIO tells a great story about the shiny side of its wares . It speaks of high wages, vacation pay, holiday pay, job security; and insurance benefts. These are all good things, and we have them here rsght now . . . (Emphasis added.) of that fact.9 Although the Respondent's board of directors had, in December 1948, approved the idea of an insurance program, the Respondent contends that it was not until,July 1950 that it was finally able to obtain an insurance contract which made provision- for dividends to, the employees and for the computation of premiums based on the Respondent's own experience, and that the insurance plan was announced to the employees at that time without regard to any other considerations. As stated above, however, we are not impressed with the Respondent's position in this matter. General Manager Schroeder's testimony, for example, that 'something that happened in the spring of 1950', made possible for the first time since December 1948 the type of insurance contract desired by the Respondent, is vague and unconvincing. Moreover, the detailed description of the insurance contract signed by the Respondent which was sent to the employees during the latter part of July, although accompanied by a letter in which the Respondent stated that the adopted plan 'fits the needs of our people as you will see on the...