Allied Mechanical, Inc.

ALLIED MECHANICAL, INC. 343 NLRB No. 74 631 Allied Mechanical, Inc. and United Steelworkers of America, AFL–CIO–CLC. Cases 31–CA–26120, 31–CA–26135, 31–CA–26184, 31–CA–26194, 31– CA–26276, and 31–RC–8202 November 19, 2004 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS SCHAUMBER, WALSH, AND MEISBURG On December 19, 2003, Administrative Law Judge Lana H. Parke issued the attached decision.1 The Re- spondent filed exceptions and a supporting brief. The General Counsel and Charging Party each filed an an- swering brief, and the Respondent filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions2 and briefs and has decided to affirm the judge’s rulings, findings,3 and conclusions as modified below and to adopt the recommended Order as modified below.4 These combined representation and unfair labor prac- tice cases arise in the context of an election conducted in a bargaining unit of production, maintenance, shipping and receiving, and programmer employees at the Re- spondent’s Ontario, California facility on March 6. The Union lost the election and thereafter filed election ob- jections and several unfair labor practice charges regard- 1 All dates refer to 2003 unless otherwise indicated. 2 No exceptions were filed to the judge’s dismissal of the 8(a)(3) and (1) allegations regarding employee Marcello Pinheiro’s postelection performance review, reduction of hours, and selection for lay off. There were also no exceptions filed to the judge’s finding that the Re- spondent violated Sec. 8(a)(3) and (1) by issuing written discipline to Pinheiro on March 25. Likewise, there were no exceptions filed to the judge’s finding that the Respondent violated Sec. 8(a)(1) of the Act when, after the election, it ascribed its preelection reduction in employ- ees’ hours to retaliation for employees’ union activity. On November 4, 2004, the Respondent withdrew its exception to the judge’s finding that it violated Sec. 8(a)(3) and (1) by disciplining and discharging employee Walter Reddoch. The Respondent also filed a motion to reopen the record or for special leave to file a supplemental brief on the propriety of a Gissel bargaining order in light of changed circumstances. The General Counsel and the Charging Party opposed the motion. Given our disposition of the Gissel issue herein, we deny as moot the Respondent’s motion. 3 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance 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. 4 We have also substituted a new notice to conform it to the language of the recommended Order. ing the Respondent’s conduct before, during, and after the election. The judge found that the Respondent committed sev- eral unfair labor practices and recommended sustaining three of the Union’s election objections and overruling three others.5 The judge further found that the Respon- dent’s unlawful and objectionable conduct impeded the election process and prevented the possibility of ensuring a fair rerun election. The judge recommended ordering the Respondent to bargain with the Union pursuant to NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). As set forth below, we affirm the judge’s unfair labor prac- tice findings and sustain the Union’s Objection 9 regard- ing the Respondent’s enforcement of its posting policy during the critical period. We further find, however, that the coercive effects of the Respondent’s unlawful con- duct can be satisfactorily mitigated, and a fair rerun elec- tion ensured, by the use of the Board’s traditional reme- dies. We accordingly reverse the judge’s finding that a Gissel bargaining order is warranted. We instead direct a second election. 1. We find, for the reasons set forth in the judge’s de- cision, that the Respondent violated Section 8(a)(3) and (1) by disciplining and discharging employee Timothy Hays on January 23, and by issuing a reprimand to em- ployee Marcello Pinheiro on January 31. We also agree with the judge that the Respondent violated Section 8(a)(1) by threatening employee Pablo Rodriguez after the election with unspecified reprisals. In addition, we agree with the judge that the Respon- dent’s discriminatory enforcement of its posting policy during the critical period not only violated Section 8(a)(1) but also interfered with employee free choice. As more fully set forth in the judge’s decision, the Respon- dent permitted posting of nonwork-related notices at a tool crib and on restroom walls. The Respondent, how- ever, removed union literature posted in these same loca- tions. By removing union literature from employee post- ing areas in its facility while permitting other nonwork- related notices to remain, the Respondent violated the Act. Fixtures Mfg. Corp., 332 NLRB 565 (2000). In addition, by removing union literature during the critical period, the Respondent denied its employees access to an important medium of communication during the cam- 5 The judge recommended sustaining the Union’s Objection 2 re- garding Supervisor Cliff Conley’s conduct on election day, which allegedly created an impression of surveillance, the Union’s Objection 5 concerning the Respondent’s reprimand of employee Pinheiro during the critical period, and the Union’s Objection 9 concerning the Respon- dent’s enforcement of its posting policy during the first few weeks of the critical period. In the absence of exceptions, we adopt pro forma the judge’s recommendations to overrule the Union’s Objections 1, 3, and 4. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 632 paign. For this reason, the Respondent’s discriminatory enforcement of its posting policy is objectionable and warrants setting aside the election. Waste Management, Inc., 330 NLRB 634 fn. 2, 635, and 636 (2000); Ford Motor Co., 315 NLRB 609, 615 (1994). Accordingly, we sustain the Union’s Objection 9. In light of this rul- ing, we find it unnecessary to pass on the Union’s Objec- tions 2 and 5.6 2. Under the circumstances of this case, we find, con- trary to the judge, that a Gissel bargaining order is not necessary. We find that the Board’s traditional cease- and-desist and other affirmative remedies including post- ing of a notice will sufficiently address the Respondent’s misconduct to ensure that a fair rerun election can be held, and that these remedies and the holding of a rerun election will satisfactorily protect and restore employees’ Section 7 rights. 6 Unlike his colleagues, Member Schaumber would overrule the Un- ion’s Objection 9 and, further, would reach and overrule the Union’s Objections 2 and 5. Objection 2 alleges that Supervisor Conley’s continued presence where employees exited the Respondent’s facility on their way to the polling place on the day of the election created an impression of sur- veillance and interfered with employee free choice. In Member Schaumber’s view, Supervisor Conley’s conduct on election day did not create an impression of surveillance. Member Schaumber notes that Conley was never closer than 150 feet to the polling location and there was no evidence that any employee had to pass by Conley in order to reach the polling place. For these reasons, Member Schaumber would overrule Objection 2. Objection 5 alleges that the Respondent’s unlawful reprimand of employee Pinheiro during the critical period interfered with employee free choice. Although Member Schaumber agrees with his colleagues that the Respondent violated Sec. 8(a)(3) and (1) by reprimanding employee Pinheiro during the critical period, he is of the view that Pinheiro’s reprimand would not reasonably tend to interfere with em- ployee free choice because it was not widely disseminated among unit employees. Therefore, Member Schaumber would overrule Objection 5. Objection 9 alleges that the Respondent discriminatorily enforced its posting policy during the critical period by removing union literature from posting places where nonwork-related notices were allowed to remain. This conduct was also alleged in the complaint as an unfair labor practice. Member Schaumber would find that the Respondent’s removal of pro and antiunion fliers from the restroom and tool crib walls where other nonwork-related notices were posted during the first 2 weeks of the critical period was not a violation of the Act nor was it objectionable. He notes that throughout the critical period employees could post any flier, regardless of its content, on a bulletin board in the employee breakroom and the Respondent did not disturb these postings. Moreover, for approximately 5 weeks before the election, the Respon- dent allowed all campaign related literature, regardless of its content, as well as nonwork-related notices, to remain posted in its facility. In these circumstances, Member Schaumber would find that the Respon- dent’s enforcement of its posting policy would not reasonably tend to interfere with employees’ ability to communicate among themselves about unionization nor interfere with employee free choice; accord- ingly, he would dismiss this complaint allegation and overrule Objec- tion 9. AMENDED CONCLUSIONS OF LAW 1. Respondent violated Section 8(a)(3) and (1) of the Act by: (a) Discriminatorily issuing written disciplinary no- tices to Timothy Hays and Walter Reddoch on January 23, 2003. (b) Discriminatorily discharging Timothy Hays and Walter Reddoch on January 23, 2003. (c) Discriminatorily disciplining Marcelo Pinheiro on January 31 and March 25, 2003. 2. Respondent violated Section 8(a)(1) of the Act by: (a) Impliedly and coercively telling an employee that Respondent had retaliated against employees by reducing employees’ hours. (b) Threatening an employee with unspecified reprisals by telling him he would lose by supporting the Union. (c) Discriminatorily prohibiting the posting of union literature. 3. The unfair labor practices set forth above affect commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act. 4. Respondent did not engage in any unfair labor prac- tices other than those found above. ORDER The National Labor Relations Board orders that the Respondent, Allied Mechanical, Inc., Ontario, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified below. 1. Delete paragraph 2(a) and reletter the subsequent paragraphs. 2. Substitute the attached notice for that of the admin- istrative law judge. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. IT IS FURTHER ORDERED that the election held on March 6, 2003, in Case 31–RC–8202 is set aside and that the case is remanded to the Regional Director for Region 31 for the purpose of conducting a new election. [Direction of Second Election omitted from publication.] 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 Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union ALLIED MECHANICAL, INC. 633 Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT discharge or otherwise discriminate against any of you for supporting the United Steelwork- ers of America, AFL–CIO–CLC or any other labor or- ganization. WE WILL NOT discipline or otherwise discriminate against any of you for supporting the Union or any other labor organization. WE WILL NOT discriminatorily prevent you from post- ing union literature. WE WILL NOT tell any of you that we have retaliated against you for your support of the Union. WE WILL NOT threaten any employee that he will lose by supporting the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, within 14 days from the date of the Board’s Order, offer Timothy Hays and Walter Reddoch full re- instatement to their former jobs or, if those jobs no longer exist, to a substantially equivalent position, with- out prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILL make Timothy Hays and Walter Reddoch whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of Board’s Or- der, remove from our files any reference to the unlawful discipline and discharges of Timothy Hays and Walter Reddoch, and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that the dis- cipline and discharges will not be used against them in any way. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful discipline of Marcelo Pinheiro, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the discipline will not be used against him in any way. ALLIED MECHANICAL, INC. Michelle Youtz Scannell and Christy Kwon, Attys., for the Gen- eral Counsel. Steven D. Atkinson, Atty. (Atkinson, Andelson, Loya, Ruud & Romo), of Los Angeles, California, for the Respondent. Robert J. Stock, Atty. (Gilbert & Sackman), of Los Angeles, California, for the Charging Party. DECISION, REPORT AND RECOMMENDATION ON OBJECTIONS STATEMENT OF THE CASE LANA H. PARKE, Administrative Law Judge. This consoli- dated case was tried in Los Angeles, California, on September 8–12, 2003,1 pursuant to a consolidated complaint and notice of hearing in Cases 31–CA–26120, 31–CA–26135, 31–CA– 26184, 31–CA–26194, and 31–CA–26276 and Report on Ob- jections in Case 31–RC–8202, order directing hearing, notice of hearing, and order consolidating cases issued by the Regional Director for Region 31 of the National Labor Relations Board (Region 21) on June 26 and August 21, respectively. The con- solidated complaint is based on charges filed by United Steel- workers of America, AFL–CIO–CLC (the Union or Petitioner) against Allied Mechanical, Inc. (Respondent). The consolidated complaint alleges Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) by discharging employees Walter Reddoch and Timothy Hays (Reddoch and Hays, respectively), by disciplining em- ployee Marcelo Pinheiro (Pinheiro), by giving Pinheiro an un- favorable performance ranking in “attitude,” by reducing Pin- heiro’s working hours, by selecting Pinheiro for layoff, and by undertaking these actions because said employees had engaged in union and other protected concerted activities and to discour- age employees from engaging in such activities. The consolidated complaint further alleges Respondent inde- pendently violated Section 8(a)(1) of the Act by threatening an employee with retaliation because of his union activities and by promulgating and enforcing an ad hoc rule prohibiting union literature posting, and thereby interfering with, restraining, and coercing employees in the exercise of their Section 7 rights. As remedy for the above alleged unfair labor practices, the General Counsel seeks an order requiring Respondent to bar- gain with the Union (Gissel remedy).2 On March 13, the Petitioner filed Objections 1 through 10 to the representation election conducted March 6. The Petitioner thereafter withdrew Objections 7 and 8. In its posthearing brief, the Petitioner withdrew Objections 6 and 10, modified Objection 1 to eliminate Jose L. Rodriguez from the objection, and modified Objection 3 to eliminate all allegations except with respect to Frederico Hernandez’s raise. The remaining objections allege the Employer engaged in certain conduct during the critical laboratory period that interfered with the election. Objections 4, 5, and 9 correlate to allegations of the complaint, while Objections 1, 2, and 3 concern independent allegations of the Employer’s misconduct. Issues 1. Did Respondent violate Section 8(a)(3) and (1) of the Act by the following conduct: (a) On January 23, terminating Reddoch and Hays. (b) On January 31, disciplining Pinheiro? 1 All dates are in 2003 unless otherwise indicated. 2 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 634 (c) In February, issuing Pinheiro a performance review with a low ranking in “attitude?” (d) On March 6, reducing the working hours of Pinheiro? (e) On March 25, issuing a written discipline to Pinheiro? (f) On April 8, selecting Pinheiro for lay-off? 2. Did Respondent independently violate Section 8(a)(1) of the Act by the following conduct: (a) On January 28, promulgating and enforcing an ad hoc rule prohibiting posting of union literature? (b) In March, threatening an employee with unspecified re- taliation because of union activities? (c) In March, enforcing an ad hoc rule prohibiting posting of union literature? 3. Did Respondent engage in conduct as alleged above and/or other conduct alleged in the Union’s Objections 1, 2, and 3 so as to interfere with the election herein? On the entire record,3 including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel, Respondent, and the Charging Party, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a California corporation, with a facility in On- tario, California (the facility), manufactures machine parts.4 During the calendar year preceding the complaint, a representa- tive period, Respondent purchased and received at its facility goods, supplies, and materials valued in excess of $50,000 directly from suppliers located outside the State of California. Respondent admitted and I find it to be an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and the Union to be a labor organization within the meaning of Section 2(5) of the Act.5 II. ALLEGED UNFAIR LABOR PRACTICES A. Alleged Violations of Section 8(a)(3) 1. The discipline and termination of Hays Employed by Respondent from February 19, 2001, to Janu- ary 23, 2002, Hays contacted the Union in December 2002, arranged and attended union meetings with other employees on January 7, 14 and 16, and became a member of the employee organizing committee. On January 20, Hays discussed the upcoming January 23 union meeting with 10 to 15 employees and continued to discuss it with employees in the days follow- ing. Some of the discussions took place near Hays’ work area 3 The record includes two post-hearing documents, Respondent’s Exhs. 24 and 25: requests to proceed filed with the Board by the Union in Case 31–RC–8202 on January 28 and February 7, respectively. 4 Respondent is a “job shop” as distinguished from a “production shop,” manufacturing individual or custom work rather than large quan- tity runs. 5 Where not otherwise noted, the findings herein are based on the pleadings, the stipulations of counsel, and/or unchallenged credible evidence. where Miguel Sedano, who on one occasion told Hays and a coworker to get back to their work areas, could observe him.6 On January 23, Slater informed Bechtol of his decision to terminate Hays. On that same day, Hays was called to Bech- tol’s office after lunch. Miguel Sedano and Bechtol were pre- sent. Miguel Sedano gave Hays a disciplinary action notice dated January 22, which read, in pertinent part: This disciplinary action is for the following reasons: 1) Excessive Discrepancies (see attached DR’s, refer- ence documented verbal warnings). 2) Excessive talking & not paying attention to job.7 3) Work area not being kept clean.8 Hays asked to see the discrepancy reports referred to, and Bechtol [gave] him five discrepancy reports numbered, dated, and described as follows: Discrepancy Report Stated cause and corrective action (CA) no. and date _______________________________ No. 6567-1/14/2002 . . . broken insert while roughing the bores . . . setting boring bar incorrectly . . . boring bar insert coming lose [sic] while machining. CA: Operators in- structed to inspect that the tools are sharp and tight prior to running the part, check more often to help reduce this type of problem.9 No. 6579-1/26/2002 Drill pushed in the holder, making hole shallow for the boring end mill. Which caused the boring end mill to hit the bottom of the hole making the hole oversize. CA: Operator in- structed to use end mill holder in place of collect holder to insure that the set screws will prevent to[ol] from mov- ing. [Handwritten on the bottom of the DR]: Operator was told he needed to pay more attention when he is set- ting up.10 No. 6646-5/11/2002 Heading on program, specified 1/2 thick cutter. Program was changed to use 3/8 thick cutter. Operator used 1/2 6 It is not unusual for Miguel Sedano to tell employees to stop talk- ing and return to work. In the past, Miguel Sedano has interrupted conversations Hays had with coworkers to tell them to return to work. There is insufficient evidence for me to infer that Miguel Sedano knew Hays was discussing union matters with coworkers in January, but it is clear that Miguel Sedano knew Hays was talking to coworkers more than usual. 7 While Hays had been told on occasion that he was talking too much, he had never been warned about it. 8 Hays credibly denied this accusation; Respondent had never warned him of such a problem. 9 Hays told Bechtol Larry Owens had done that part. L. Owens was also listed as operator on this DR. 10 Hays did not recall ever being so warned. Miguel Sedano admit- ted adding the comment in January (presumably January 23 when he added comments to the other DRs). The part was salvaged. I conclude Miguel Sedano did not warn Hays. ALLIED MECHANICAL, INC. 635 cutter which caused miscut. CA: Heading on program has been changed to reflect correct thickness of 3/8 thick. No. 6679-7/8/2002 Twin bore was not setup correctly when switching from 1 setup for roughing 8.800 to finish setup for roughing 8421. CA: check and double check tools when changing over setup. More tools may be needed in the shop to accommodate multiple setups. This may not have happened if there were two boring bars setup for operations that were already running. [Handwrit- ten on the bottom of the DR]: Opera- tor was told that a machinist should be able to adjust the same boring head for different diameter as needed. But needed to check his work.11 No. 6714-8/16/2002 Twin bore was set incorrectly by tool crib and was not rechecked by machin- ist before running tool. (roughing bor- ing bar). CA: Boring bars are to be set by machinists not tool crib. [Hand- written on the bottom of the DR]: Machinist was warn[ed] about this problem before. And was told that we couldn’t afford to make the same type of mistake twice.12 No. 6721-9/17/2002 Item #1 Misinterpret program call-cut of rotation per section. (2) Operator made a program change. From center drill to 90° spot drill and forgot to change Z depth. CA: Item #1 visually double check section pinned at plate to program call-out to print specs. (2) Program has been corrected to the cor- rect Z value or depth. [Handwritten on the bottom of the DR]: Tim Hay was told to think about the differences be- tween a center drill to a 90° spot drill and check distance to go on the screen display.13 Hays asked why he was receiving disciplinary action for things that had happened months ago. Bechtol said Hays’ mis- takes had cost the company considerable money, referring to DR 6679 (the AKT part), in which Respondent set its cost at 11 Sedano admitted adding the handwritten comment to the bottom of this discrepancy report on January 23. Slater testified that after trying for months to save the part, Respondent considered it unsalvageable in mid-January. 12 Hays credibly denied he was ever so warned. Sedano admitted adding the handwritten comment to the bottom of this discrepancy report on January 23. 13 Employee Pablo Rodriguez had run the part incorrectly before it came to Hays, but welding repaired his error. Hays mistakenly over- sized the counter sink, and welding also repaired it. Hays then satisfac- torily remachined the part. Sedano admitted adding the handwritten comment to the bottom of this discrepancy report on January 23. $29,589.14 Hays accused Bechtol of firing him because he was organizing a union. Bechtol denied the accusation and gave Hays an employee separation report, which noted that prior disciplinary action was given on that same date, January 23, and stated the following reason for termination: “In reference to Disciplinary action date 1/23/03 and DR#’s 6567, 6579, 6646, 6679, 6714, and 6721.” When informed of his termination, Hays directed profanity and vulgar gestures at Bechtol and slammed and kicked the door on exiting the office.15 Leaving the office to retrieve his tools, Hays saw Reddoch about 20 to 30 feet away and yelled to him that he had just been fired. About 5 to 10 people were within hearing distance. Later, Hays went to the scheduled union meeting and told attending em- ployees, most of who already knew, that he had been fired. Mark Burnett (Burnett) who was still employed by Respon- dent at the time of the hearing, also made errors in machining parts. One error resulted in an estimated $20,000 to $25,000 cost to Respondent, but Respondent did not discipline Burnett. Other employees, including Will Chavez, Sharma, Eric Frank- lin, and Dave Leach, also made significant errors, and were not discharged.16 Mark Slater (Slater), Respondent’s president, testified that on January 22 he decided to terminate Hays and Reddoch, whose termination is described hereafter, in order to make a statement about work quality. Slater asserted a rash of production quality problems had occurred, and Reddoch and Hays were the worst offenders. He testified that on January 22 he decided to termi- nate Hays because of the production quality problems and be- cause the company had realized their efforts to save the AKT part were unavailing; the part would have to be scrapped at a cost of nearly $30,000.17 Slater informed Bechtol of his deci- sion on January 23. 2. The discipline and termination of Reddoch Respondent employed Reddoch December 13, 1999 to Janu- ary 23. Beginning January 7, he discussed union benefits with 14 Hays was aware of the July 8, 2002 DR and had expected to be fired at that time, but Sedano had said Respondent would not fire Hays but would try to fix the part. 15 Hays later apologized to Bechtol and others in attendance at his termination for this conduct, which apology Bechtol and Miguel Se- dano accepted. 16 Respondent issued disciplinary action notices to Sharma on Janu- ary 15 and February 21, respectively. The January 15 notice stated that stacked chips caused the end mill to damage the part. Since alignment was not checked, all remaining features were miscut at a cost of ap- proximately $29,894. The notice of February 21 stated Sharma had miscut an AKT 25 K Lid worth $25,951 and that “[f]urther disciplinary action may be required if the part cannot be salvaged.” Slater testified Respondent did not discharge Sharma because he had (with a break in service) worked there for over 10 years, that he was a good employee, and was learning the machine on which the errors were made. Slater admitted Miguel Sedano had recommended Sharma’s discharge. 17 It is unclear whether Slater said he realized the part was unsal- vageable in December or in January. He testified that the January scrap costs were unusually high at about $90,000 compared to $20,000 to $30,000 for most months. Presumably, those costs included the AKT part as well as Sharma’s mistake. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 636 other employees and invited them to union meetings.18 He attended union meetings with other employees on January 7, 14, and 16, and became a member of the employee organizing committee. On January 16, the organizing committee planned a meeting for January 23 to which all unit eligible employees would be invited. Thereafter, during work hours the week of January 20, Reddoch invited numerous employees to the Janu- ary 23 meeting. The office window of Day-Shift Supervisor Miguel Sedano overlooked Reddoch’s machine area, and Mi- guel Sedano walked around the machining areas during the day. During the week of January 20, Miguel Sedano several times told Reddoch who was talking to another employee about the Union, to stop talking and return to work.19 Reddoch traditionally ate lunch and played cards with em- ployees, including Hays and Cedric Partlow (Partlow) at an outdoor picnic table. Supervisor Cliff Conley (Conley) com- monly joined the group. At lunch on January 21, with Conley present, Reddoch asked Partlow if he planned to attend the meeting on Thursday at the Best Western (referring to the un- ion meeting scheduled for January 23.) Conley said he did not need to hear about that, and Reddoch told Partlow they would talk about it later. Thereafter, Conley did not join the group for lunch and card playing. Hays corroborated Reddoch’s account. Conley denied it and maintained he was unaware of any union activity prior to the terminations of Reddoch and Hays. Re- spondent called Partlow, who was still employed, to testify. In his initial testimony, he said he did not recall any such lunch table conversation. Under cross-examination, however, when asked if and when Reddoch had told him about the January 23 meeting, Partlow exhibited such confusion and equivocation as follows, that I cannot accept his original testimony: A. Well, I am not quite sure when but as I recall, it seemed like to me, I didn’t find out about it until practi- cally the day when it was—the same day. I mean, it was—I don’t know. I just didn’t—no one ever really told me about it. And, you know, it just—I think I was told the same day that the meeting was held. . . . . Q. Could [you have been told] at lunch? A. It is possible but, you know, I just don’t—you know, it was just it went through one ear and out the other ear because it just wasn’t that important to me. Although Conley had admittedly joined the group regularly, he said he ceased doing so prior to January 23 because he was too busy. Under cross-examination, he was less definite, say- ing only that he did not remember playing cards with the group 18 Reddoch invited leadman Murad Murad to the January 16 meet- ing, and he attended. 19 Reddoch testified that prior to union activity in the facility, he had had conversations with employees at his machine without Sedano inter- rupting them. No evidence was presented, however, as to comparable length of the exchanges and no evidence that Sedano knew Reddoch was discussing the Union in the latter conversations. I cannot, there- fore, infer any union animus by Miguel Sedano’s directing employees to stop talking, but I conclude the supervisor was aware that Reddoch was doing considerably more talking than usual. that week. I found his manner in giving this testimony guarded and his stated reason for deserting the group unconvincing. Conley also testified that he first realized a union organizing campaign was going on at the company a few days after the discharges of Hays and Reddoch when “there were rumors flying around . . . that there was union activity going on.” I accept Conley’s testimony regarding the rumors, but I question the timing he assigns. On January 23, Hays confronted Miguel Sedano and Bechtol with the fact of employee union activity. It is implausible that Conley was not informed of that, and so he must have known of ongoing union activity from Hays’ January 23 proclamation. Therefore, if Conley first learned of employ- ees’ union activity from “rumors flying around,” he must have learned of it before Hays was fired. I credit Hays and Red- doch’s accounts of what occurred at the January 21 lunch gath- ering. I also infer from Conley’s reaction to Reddoch’s men- tion of the Thursday meeting that Conley knew the meeting Reddoch referred to was a union meeting. After lunch on January 21, Miguel Sedano summoned Red- doch to the office of Tom Bechtol (Bechtol), facility manager. Bechtol gave Reddoch a disciplinary action notice dated Janu- ary 15, which read in pertinent part: On 1/8/03 you ran part 1GO2267-1 job number X2680. A miss cut on Data-C-of .922” deep by .780” wide was made due to some changes, which were not needed, in the program made by you. The changes were not checked and this caused the part to be scrapped. Then on the next part of the same number and job some changes were made to the x, y, and z-axis set posi- tions. Derek Smith told you that the center of the tooling ball was x0 and y0, which was incorrect; you started run- ning the part without verifying that the x, y, and z-axis set- tings matched the program, which was a proven program. X axis was off +.625” causing the part to be damaged. Es- timated cost of damage is $5,264. Immediate improvement must be shown and main- tained or further disciplinary action will be taken, up to and including termination. The part referred to in the disciplinary notice had been ma- chined three times. The first time Reddoch machined it per- fectly, but John Lombardo, the machinist at the next step, dam- aged it. The second time, when Reddoch changed the work- station, the machine defaulted to another setting, which Red- doch did not catch, and consequently miscut the part. The third time programmer Derek Smith misprogrammed values, causing another miscut.20 Neither John Lombardo nor Smith was pre- sent at the disciplinary meeting. Reddoch asked if John Lombardo or Derek Smith had been disciplined for their roles in the mistakes, but Bechtol did not answer. The following day, Reddoch complained to Bechtol about the disparate treat- ment, and Bechtol said he would look into it. There is no evi- dence he did so, and there is no evidence either John Lombardo or Derek Smith received discipline for his mistake on the part. 20 Reddoch stopped the part as soon as he saw the miscut occurring, and the part was salvaged. ALLIED MECHANICAL, INC. 637 In the morning of January 23, Reddoch worked on a part that had been set up off-center by the night shift machine operator, Vince Hamilton (Hamilton). Reddoch reported the problem to Miguel Sedano who sent the part to inspection. Later that day, Reddoch was called to Bechtol’s office. With Miguel Sedano present, Bechtol gave Reddoch a disciplinary action notice dated January 23, which concerned the part Reddoch had ear- lier given Sedano and which read in pertinent part: On 1/21/03 [sic]21 you ran art number sub-140005-001, job number x2727-200 operation 5500. Part was run off center by .040”. You did not set up the part, but you should have checked the parts position. You started checking the part when you were finishing the critical holes, checking should have been done during semi finishing. Ref. DR#6844.22 Reddoch protested he had not been responsible for the mis- take. Bechtol did not respond but only said Reddoch made too much money to make such mistakes, and the company would have to let him go. He gave Reddoch an employee separation report dated January 23, which referred to the cause of termina- tion as “Disciplinary actions given on 10/31/00, 1/15/03, and 1/23/03 and DR# 6844.” While Bechtol agreed to Slater’s motivation in terminating Reddoch, i.e., the amount of scrapping his work engendered, he was unable to recall anything about his discussions with Slater regarding the disciplinary notices or the termination. Bechtol cited Marco Lopez, Quang Dang, and Paul Cortis as employees who had also been terminated for poor quality work. Quang Dang was terminated for not meeting company standards in his 90-day probationary period. Paul Cortis was laid off as a re- duction in force. In addition to those employees, Slater testi- fied that Respondent terminated Brad Green, Phillip Potter, and Dwane Robinson for poor quality work. Company records show the three to have been laid off due to lack of work. Slater claimed they were actually fired, but Respondent misstated the cause of termination to permit them to draw unemployment. I cannot accept his explanation. There is no evidence of such a company practice, and I note neither Reddoch nor Hays were similarly accommodated. 3. The discipline, performance review, reduced hours, and layoff of Pinheiro Beginning in January, Pinheiro attended union meetings and posted and distributed union flyers to employees at work, hand- ing one to Miguel Sedano on one occasion.23 On a later occa- sion, Pinheiro told his supervisor, Eddie Rogers, he meant no disrespect by his union activities. Rogers replied that Pinheiro 21 The date of January 21 appears to be an inadvertent error as the corresponding DR is dated January 23. 22 DR# 6844 refers to a discrepancy report (DR) of that number. DRs do not constitute discipline. Respondent prepares a DR for every part not completed exactly to specification. Respondent provides the DR to the purchaser. Although DR# 6844 (dated January 23) noted both Reddoch and Hamilton were operators on part sub-140005-001, Hamilton was apparently not disciplined for his share of the mistake. 23 Burnett and employee Edwin Shook also posted prounion flyers, some of which were removed. was a hard worker, and he had no problem with that (meaning the union activity). In January, Pinheiro asked Rogers and Miguel Sedano not to remove flyers he had posted. On January 31, after observing fliers had been removed, Pinheiro told Rogers and Miguel Se- dano he planned to file a charge with the NLRB over their re- moval. Later that day, Respondent issued Pinheiro a discipli- nary action notice, which read in pertinent part: On Tuesday night, 1-28-03 Marcelo was machining job num- ber X2618-074Hsq. on the Toshiba. He unloaded the part and it was not finished. One of the seal faces still needed to be serrated. The part will have to be set up again to finish it. Pinheiro protested he had the part inspected before unloading it as required, and the inspector “bought”24 it; thereafter Pin- heiro reloaded the part and finished it within the time target and without scrapping it. Respondent did not withdraw the disci- plinary notice, and Pinheiro refused to sign it. Sometime after that discipline, Pinheiro told Rogers that if Bechtol continued to “harass” him, he would get a lawyer.25 On February 6, Rogers gave Pinheiro a performance review covering the period September 3 to December 2, 2002. Rogers marked Pinheiro as poor in “attitude,” noting in the comment section that Pinheiro “threatened to fight one of his co- workers.” In the employee comment section, Pinheiro wrote, “Vick had threatened to go talk to Mark & tell him things that were not true about me . . . . All I said to Vick was that there were consequences to his actions.” In testimony, Pinheiro ad- mitted he had threatened to “kick [the] butt” of coworker Vick Sharma (Sharma) who had spread rumors about him. Sharma called the police when his supervisor refused to do so. Rogers sent both employees home. Prior to the election, Respondent reduced Pinheiro’s work hours. Bechtol told him it was because work was slow. Other employees’ work hours were reduced as well, and some em- ployees were laid off.26 On March 6, Pinheiro served as an observer at the election. On March 25, Respondent issued a disciplinary action notice to Pinheiro for “excessive discrepancies and quality problems within a 6-month period.” The disciplinary notice referred to DRs 6864, 6907, and 6914, which state as follows: Discrepancy Report Stated cause and corrective action (CA) no. and date _______________________________ No. 6864-Feb. 14 There was porosity in the casting. The sand in the porosity caused the mate- rial to tear.27 24 “Buying” a part is Respondent’s term for an inspector having passed off on or endorsed a part as completed. The inspector, Belton, who was present at the disciplinary meeting, admitted he had “bought” the part. Bechtol later orally “disciplined” Belton. 25 This comment was motivated by Pinheiro having heard that Bech- tol had asked a coworker if Pinheiro had made mistakes. 26 The General Counsel does not dispute the lawfulness of Respon- dent’s decision to reduce employees’ hours but only its selection of Pinheiro. 27 Rogers, Pinheiro’s supervisor, did not consider this DR to be Pin- heiro’s fault. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 638 No. 6907-March 14 Insufficient lubrication while tap- ping28caused the material to tear. Op- erator has been instructed to put a gen- erous amount of Molecular’s Tapping Fluid inside the hole and also apply Tapmatic while tap is cutting.29 No. 6914-March 19 Operator used wrong dia drill to drill these holes. Did not check dia of tool before using it. Operator has been told to check every tool before using them and check 1st hole he drills before go- ing any further. By letter dated March 26, Bechtol informed Pinheiro Re- spondent would remove DR no. 6864 from the March 24 disci- plinary action. The disciplinary action remained in effect. On April 8, Respondent laid off six employees. Bechtol told Pinheiro he would be laid off as work had decreased and he was the least senior employee.30 Pinheiro remained on layoff until his recall In June.31 B. Alleged Independent Violations of Section 8(a)(1) Consolidated complaint paragraph 15 alleges that Respon- dent, by Miguel Sedano, threatened an employee with unspeci- fied retaliation because of his union activities. About 1 week after the election, Pablo Rodriguez (Rodriguez) who is still employed by Respondent, complained to Miguel Sedano about Respondent having cut employees’ work hours for a few weeks before the election, saying he knew the hours had been cut because of the Union. Miguel Sedano replied that of course if employees attacked the company, the company would get back at them. When Rodriguez said he supported the Union for better wages, Miguel Sedano said Rodriguez would be the one to lose. Consolidated complaint paragraphs 16 and 17 allege that Re- spondent promulgated and enforced an ad hoc rule prohibiting the posting of union literature. In late January/early February, Respondent permitted the posting of nonwork-related flyers at its tool crib and restroom walls while, during that same time, it removed union flyers from the same locations. C. The Requested Gissel Remedy The parties stipulated as follows: the appropriate collective- bargaining unit herein included no more than 91 employees during the period January 7 through January 24. During that same period, 57 of Respondent’s employees signed union au- thorization cards stating, “I hereby authorize the United Steel- workers of America-AFL–CIO–CLC to represent me in collec- tive bargaining.” 28 The term for threading holes. 29 Rogers said Pinheiro may or may not have known of the method the day man had used on the same job. 30 Bechtol’s statement was inaccurate as machinist Rusalin Manea was hired after Pinheiro. However, Pinheiro was least senior in his work center, which was slow at that time. 31 The General Counsel does not question the lawfulness of Respon- dent’s layoffs but only its selection of Pinheiro. III. DISCUSSION OF ALLEGED UNFAIR LABOR PRACTICES A. The Discipline and Discharges of Hays and Reddoch Respondent contends it had no knowledge of any union ac- tivity among its employees prior to the discharges of Hays and Reddoch. I cannot accept that assertion. As set forth above, I have concluded that Conley, Respondent’s foreman, knew of employees’ union activities prior to January 23. It follows, therefore, that Respondent had knowledge of its employees’ union activities prior to its discharges of Hays and Reddoch.32 Discharge circumstances can also support an inference of knowledge. Music Express East, Inc., 340 NLRB 1063 (2003). The circumstances of these two discharges support an inference that Respondent knew of employees’ union activity in general and that Hays and Reddoch were significant proponents of the activity. In drawing that inference, I have noted it was Red- doch who posed the lunch table question about the union meet- ing and that both Hays and Reddoch were unusually interactive with coworkers in the 3 days preceding their discharges, which would reasonably draw employer attention to them. Hays had received no disciplinary action notices from Re- spondent prior to that given him when he was discharged on January 23. It is clear the notice’s first two reasons for dis- charge, excessive talking and messy work area, were not true concerns of Respondent. Respondent failed to provide eviden- tiary support for either of the two assertions, and as to the latter, Miguel Sedano, Hays’ supervisor, additionally said he fre- quently saw employees talking together, and it was not unusual for him to tell them to go back to work. These unfounded ac- cusations cannot have been reasons for Hays’ discharge, and their very inclusion in the disciplinary notice suggests pretext.33 The six DRs Respondent issued to Hays constitute Respon- dent’s only colorable discharge explanation. All were issued in 2002, the last more than 4 months prior to Hays’ discharge. Slater, who made the discharge decision, said Hays’ scrapping record prompted it; however the parts referenced in three of the DRs were not scrapped, which gives rise to a question as to why they were included in the discharge documentation. Mi- guel Sedano added handwritten comments to the bottoms of three of the DRs on the day of discharge to reflect oral warn- ings that were never given to Hays,34 which gives rise to an- other question of why Miguel Sedano felt it necessary to fabri- cate evidence against Hays. The only reasonable inference is that Respondent felt the DRs needed beefing up and that Re- spondent felt that way because reliance on the DRs was spuri- ous. 32 A supervisor’s knowledge of union activity is ordinarily imputable to the employer, and no basis exists here for not doing so. Woodlands Health Center, 325 NLRB 351, 361 (1998). 33 By the hearing, Respondent had essentially abandoned these two reasons and shifted its focus to Hays’ DRs. Shifting explanations for discharge also demonstrate pretext. Douglas Foods Corp, 330 NLRB 821 (2000). 34 As set forth above, I have credited Hays’ denial of being given the oral warnings belatedly reflected on the DRs, and I have noted Miguel Sedano’s volte-face admission of adding the comments on the day of Hays’ discharge. ALLIED MECHANICAL, INC. 639 As to Hays’ mistake on the AKT part, the scrapping of which cost Respondent nearly $30,000 and which might rea- sonably support a discharge, still more questions arise: Why did Miguel Sedano tell Hays at the time of the mistake that Re- spondent would not fire him? Why did Respondent wait until January 23 to discharge Hays for a mistake that occurred on July 8, 2002? If, as Slater contended, it was only in December or January Respondent learned the part would have to be scrapped, why did Conley testify Respondent knew about a week after the mistake that the part would have to be scrapped? If Respondent was so concerned about scrapping that it fired Hays for his July 2002 mistake, why didn’t Respondent fire Sharma for his equally costly January and his February mis- takes?35 Why was Hays’ discharge so peremptorily abrupt when no exigency existed? Respondent provided no adequate answers to these questions, and I conclude the only reasonable answer is that Respondent’s asserted reasons for issuing Hays a disciplinary action notice and discharging him on January 23 are pretextual.36 Reddoch’s January 21 discipline and January 23 discharge were even more obviously pretextual than Hays’.37 Other em- ployees shared equal or even greater culpability in the mistakes that assertedly motivated Reddoch’s termination. Yet none was fired. Respondent gave no cogent explanation why they and still other employees who made similar or more costly errors were not fired. In comparison to other disciplinary actions in evidence, Reddoch’s discharge was unusually abrupt, and one of the participants, Bechtol, suffered a singular memory defi- ciency concerning management discussions leading up to it. Respondent also presented spurious evidence to support its discharge of Reddoch. Of 15 DRs for parts Reddoch worked on from June 2000 until the date of his discharge, only 3 clearly reflect operator error. Respondent’s production of old and immaterial production discrepancies strongly suggests dis- charge pretext. Finally, comparative terminations offered by 35 Respondent argues the situations are different because it has not yet been determined that the part Sharma miscut on January 14 will have to be scrapped, and Sharma has 10-year seniority. I discount both arguments. Sharma’s January 15 disciplinary action notice says noth- ing about salvageability in contrast to his February 21 disciplinary action notice, which notes salvage determination on the “AKT 25 K Lid worth $25,951” is pending. As to seniority, there is nothing in state- ments to Hays, Reddoch, or Sharma to suggest that seniority played a role in any discharge determination. 36 The General Counsel did not allege a violation of the Act by Re- spondent’s issuance of a disciplinary action notice to Hays on January 23. However, as the facts surrounding the discipline were fully and fairly litigated, and as the issue is closely connected to other allegations of the complaint, I have considered the lawfulness of the discipline herein. Gallup, Inc., 334 NLRB 366 (2001); Letter Carriers Local 3825, 333 NLRB 343 fn. 3 (2001); Parts Depot, 332 NLRB 733 (2000). 37 The General Counsel did not allege a violation of the Act by Re- spondent’s issuance of a disciplinary action notice to Reddoch on Janu- ary 21. However, as the facts surrounding the discipline were fully and fairly litigated, and as the issue is closely connected to other allega- tions of the complaint, I have considered the lawfulness of the disci- pline herein. Gallup, Inc., supra; Letter Carriers Local 3825, supra; Parts Depot, supra. Respondent as evidence that Reddoch’s discharge fit within normal parameters, are inapt. Two of the named employees were terminated during their probationary periods, and four were laid off for lack of work. As counsel for the General Counsel urges, since “the reasons proffered [by Respondent] are inadequate and conflicting . . . a finding of improper motive is appropriate.” With regard to the discipline and discharges of Hays and Reddoch, I conclude Respondent’s stated reasons for both dis- cipline and discharges are pretextual. It is not, therefore, neces- sary to “go through the burden-shifting inquiry as to whether [they] would have been discharged had [they] not engaged in union activity, as required by Wright Line.38 Sodexho Marriott Services, 335 NLRB 538 fn. 6 (2001) [citations omitted]. However, if I were to apply a Wright Line analysis, I would find the General Counsel met his burden of showing that Hays and Reddoch’s protected conduct was a motivating factor in Respondent’s decision to discipline and then to discharge them. I would also find that Respondent did not meet its shifted bur- den to demonstrate that the same actions would have taken place even in the absence of protected conduct. Accordingly, I conclude Respondent disciplined and fired both employees because of their activities in support of the union organizing drive. B. Pinheiro’s Discipline, Performance Review, Reduction of Hours, and Selection for Layoff Respondent gave Pinheiro a disciplinary action notice on January 31, the same day he told supervisors he planned to file charges with the NLRB over Respondent’s removal of proun- ion postings. I have considered whether Respondent’s stated reasons for the disciplinary notice were pretextual. Pinheiro’s mistake, which formed the basis for his January 31 discipline, was a quickly remedied error of omission. It resulted in neither cost nor deadline delay to Respondent and was, at least in part, an inspector as well as machinist error. The evidence supports a conclusion that no other machinist making so harmless an error would have been disciplined, and, in the event, the errant inspector was only orally reprimanded. Moreover, the timing of Pinheiro’s supernumerary discipline, coming shortly after Pinheiro had threatened NLRB action but 3 days after the mis- take occurred, is particularly suspect. Based on these consid- erations, I conclude Respondent’s reasons for the January 31 written discipline were pretextual and the discipline was given because of Pinheiro’s vigorous support of the Union. Under the Sodexho reasoning set forth above, it is unnecessary to apply a Wright Line analysis. However, under Wright Line, the evi- dence would require me to conclude the General Counsel has met his burden of showing that Pinheiro’s protected activity was a motivating factor in Respondent’s decision to discipline him on January 31. I would also find that Respondent did not meet its shifted burden to demonstrate that the same discipline would have occurred in the absence of the protected conduct. 38 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Mgt. Corp., 462 U.S. 393 (1983). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 640 On March 25, Respondent issued Pinheiro another discipli- nary action notice for “excessive discrepancies and quality problems within a 6-month period.” The disciplinary notice named three DRs, one of which was later withdrawn and one of which may have been due to insufficient information. The assessed cost to Respondent was $100. Given the discrepant treatment accorded Pinheiro by the March 25 disciplinary no- tice, I conclude that, like the January 31 notice, it was pretex- tual, and the discipline imposed because of Pinheiro’s union support. As to Pinheiro’s performance review, reduction of hours, and selection for layoff, I have applied a Wright Line analysis. Under that analysis, to prove an employee was disciplined in violation of Section 8(a)(3), the General Counsel must first persuade, by a preponderance of the evidence, that an em- ployee’s protected conduct was a motivating factor in the em- ployer’s decision. If the General Counsel is able to make such a showing, the burden of persuasion shifts “to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct.” Wright Line, supra at 1089. The burden shifts only if the General Counsel establishes that protected conduct was a “substantial or motivating factor in the employer’s decision.” Budrovich Contracting Co., 331 NLRB 1333, 1333 (2000). Put another way, “the General Counsel must establish that the employees’ protected conduct was, in fact, a motivating factor in the [employer’s] decision.” Webco Industries, 334 NLRB 608 fn. 3 (2001). The elements of discriminatory motivation are union activ- ity, employer knowledge, and employer animus. Farmer Bros. Co., 303 NLRB 638, 649 (1991). Here, those elements are met: Pinheiro was actively involved in supporting the Union, Re- spondent was aware of it, and Respondent demonstrated its animosity by its unlawful January 31 and March 25 discipline. It is not so clear the General Counsel has established that pro- tected conduct was, in fact, a motivating factor in Respondent’s performance review, reduction of hours, and selection for lay- off of Pinheiro as required by Webco Industries, supra. None- theless, I have assumed the General Counsel has met his initial burden, and I have shifted the burden to Respondent to demon- strate it would have given Pinheiro a poor attitude rating in his performance review, reduced his hours, and selected him for lay-off even in the absence of his protected activities. I con- clude Respondent has met its burden as to all three actions re- garding Pinheiro. Concerning his performance review, Pinheiro admittedly threatened a coworker with physical violence. To have re- ceived merely a poor attitude ranking on his performance re- view less than 2 months later cannot be considered extraordi- nary or unreasonable. I recognize the legitimacy or equity of Respondent’s action is immaterial if Respondent’s motive in assigning the attitude rating was unlawfully retaliatory.39 How- ever, the reasonableness of Respondent’s action is a factor to be considered. I have also considered that no attendant antiunion sentiments accompanied the rating, which was given by a su- pervisor who had earlier assured Pinheiro he had no problem with his union activity. Regarding his hour reduction and lay- 39 E & L Transport Co., 331 NLRB 640 (2000). off, Pinheiro was among a group of Respondent’s employees who received nondiscriminatory hour reductions and layoffs. His seniority level was in line with those selected for hour re- ductions and layoffs, and he was recalled to employment when work picked up. The General Counsel asserts but has not shown that Pinheiro’s selection was “clearly tied” to his union activities. Accordingly, I conclude Respondent has demon- strated it would have taken those actions even in the absence of Pinheiro’s union activities. IV. INDEPENDENT VIOLATIONS OF SECTION 8(a)(1) Although Respondent lawfully reduced its employees hours prior to the election, when Miguel Sedano ascribed the reason to company retaliation for employee union activity, he violated Section 8(a)(1) of the Act.40 Informing employees an em- ployer’s conduct is discriminatorily motivated coerces employ- ees and independently violates the Act even if the conduct is not unlawful. K-Mart Corp., 336 NLRB 455 (2001); Owens Corning Fiberglass Co., 236 NLRB 479, 480 (1978). Miguel Sedano’s further statement that Rodriguez would be the one to lose if he supported the Union constituted a threat of unspeci- fied reprisal in violation of Section 8(a)(1) of the Act. Respondent admittedly removed union literature from post- ing areas where it permitted employee personal notices to re- main. “Where an employer permits its employees to utilize its bulletin boards for the posting of notices relating to personal items . . . or, in general, any nonwork-related matters, it may not ‘validly discriminate against notices of union [material] which employees also posted.].”’ [footnotes omitted.] Honey- well, Inc., 262 NLRB 1402 (1982).41 Here, Respondent did not “uniformly [prohibit] the posting of non-work-related messages on its bulletin boards.”42 Respondent’s removal of prounion literature therefore violated Section 8(a)(1) of the Act. A. The Propriety of a Bargaining Order By January 24, a majority of Respondent’s unit employees had designated the Union as their collective-bargaining repre- sentative. Respondent argues that “while 63% of the bargain- ing unit employees may have signed authorization cards,” the Union did not have “overwhelming support.” Such is not re- quired to support a bargaining order if Respondent’s conduct otherwise warrants one. In Gissel Packing Co., supra, the Supreme Court identified two categories of cases in which a bargaining order is appropri- ate: Category I cases are exceptional situations involving outra- geous and pervasive unfair labor practices that traditional remedies cannot resolve and which make a fair election impos- sible. Category II cases involve unfair labor practices that are less extraordinary but that nonetheless have a tendency to un- 40 The General Counsel did not allege a violation of the Act by Mi- guel Sedano’s implied assertion that Respondent’s reduction in hours was to “get back at” employees. However, as the facts surrounding the statement were fully and fairly litigated, and as the issue is closely connected to other allegations of the complaint, I have considered the lawfulness of the statement herein. Gallup, Inc., supra; Letter Carriers Local 3825, supra; and Parts Depot, supra. 41 Enfd. 722 F.2d 405 (8th Cir. 1983). 42 Wal-Mart Stores, Inc., 340 NLRB 703 fn. 1 (2003). ALLIED MECHANICAL, INC. 641 dermine majority support and impede the election process. As such unfair labor practices render the possibility of a fair elec- tion slight, “employee sentiment once expressed through cards would . . . be better protected by a bargaining order.” The instant matter meets the standards for a Gissel category II bargaining order. On the day of a scheduled unit wide union- organizing meeting, Respondent precipitately and unlawfully fired two prominent employee organizers. Hays’ discharge was dramatically made known to many employees when he shouted out the news as he left the plant, and both discharges were re- ported to additional employees at the two union meetings held a short time later. The discharges were so devoid of valid basis that they must have been calculated to send a warning to all employees of the consequences of union advocacy, and it is reasonable to infer that employees viewed them as such. The discharge of leading union adherents is a “hallmark” violation43 and has an especially pernicious effect on other employees. National Propane Partners L.P, 337 NLRB 1006 (2002). While it is true, as Respondent argues, that the bulk of the union authorization cards were signed on January 23 and 24, the day of and the day following the discharges, that does not show the discharges were without effect among employees. It is reasonable to expect discharges that remained unremedied through the date of the election to affect even stalwart prounion sentiment and to intimidate employees. Moreover, Respon- dent’s continued unlawful conduct could only have reinforced intimidation. Even after the Union’s unsuccessful election bid, when employees might have expected antiunion animosity to cool, Respondent continued its unlawful conduct. On January 31, Respondent unlawfully disciplined Pinheiro, a prominent and outspoken union adherent. In January and February, Re- spondent unlawfully removed prounion literature from com- pany posting areas. About a week after the election, Miguel Sedano’s ascribed the company’s reduction in hours to anti- union retaliation and told an employee he would “lose” by sup- porting the union. About 3 weeks after the election, Respon- dent issued Pinheiro another unlawful disciplinary notice. Those actions could only have served as a continuous warning to employees of the dangers attendant on union adherence.44 In these circumstances, the possibility of erasing the effects of Respondent’s violations is slight, and the holding of a fair rerun election pursuant to timely objections is improbable. See Jo- seph Stallone Electrical Contractors, Inc., 337 NLRB 1139, 1139–1140 (2002); L.S.F. Transportation, Inc., 330 NLRB 1054, 1056 (2000). Accordingly, having determined that the Union enjoyed majority status in the appropriate unit and that Respondent’s unfair labor practices undermined majority sup- port and impeded the election process, I find a bargaining order is an appropriate remedy in this case.45 43 Douglas Foods Corp., supra at 822. 44 Respondent’s argument that prepetition and postelection conduct has “no bearing on the possibility of a fair election for bargaining order analysis” is unpersuasive. Misconduct after an election further dimin- ishes the likelihood that traditional remedies will prove effective. Gen- eral Fabrications Corp., 328 NLRB 1114 (1999). 45 Respondent asserts that the Union’s filing of requests to proceed to election bars the Union from contending that no fair election could be held or that a bargaining order is warranted. Respondent cites no Objections to Conduct Affecting Results of Election The Union filed the petition in Case 31–RC–8202 on January 24.46 Region 31 conducted an election on March 6 among em- ployees in the following unit: All full-time and regular part-time production, maintenance, shipping and receiving employees and programmers em- ployed by Respondent at its facility located at 1720 Bon View, Ontario, California. The tally of ballots showed the Union received 37 votes and 42 votes were cast against the Union. On March 13 Petitioner timely filed Objections 1 through 10 to the election, which, as noted above, the Regional Director consolidated with the unfair labor practices alleged herein. The objections allege that Re- spondent engaged in certain conduct during the critical labora- tory period that interfered with the election. The evidence re- lating to Objections 4, 5, and 9 correlates to allegations of the complaint and is set forth above. Objections 1, 2, and 3 contain independent allegations of objectionable conduct, the evidence of which is set forth below. Objection 1 (as modified): The Employer allowed many su- pervisors inside the polling place. Petitioner contends that Respondent’s leadmen, Jesus Se- dano, Murad Murad, Milad Murad, Albert Viramontes, Hyun Lee, and Jerry Belton, are supervisors within the meaning of the Act and were allowed in the polling place during the voting. All seven cast challenged ballots in the election, and several spoke to other employees while waiting to vote.47 Section 2(11) of the Act defines a “supervisor” as any indi- vidual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. “The possession of even one of those attributes is enough to convey supervisory status, provided the authority is exercised with independent judgment, not in a merely routine or clerical manner.” Arlington Electric, Inc., 332 NLRB 845 (2000), quoting Union Square Theatre Management, 326 NLRB 70, 71 (1998). Any lack of evidence is construed against the party asserting supervisory authority.48 There is no evidence that any of Respondent’s lead men has authority to hire, transfer, suspend, lay off, recall, promote, authority in support of this contention, and I find it without merit as there is nothing inconsistent in the Union’s pursuing representation through election procedures and “then filing a refusal-to-bargain charge after the election is lost because of the employer’s unfair labor prac- tices.” Gissel, supra at fn. 34. 46 The critical period during which the parties’ conduct will be scru- tinized for its impact on voters commences with the filing of the peti- tion. National League of Professional Baseball Clubs, 330 NLRB 670 (2000); Ideal Electric Co., 134 NLRB 1275 (1961). 47 There is no evidence or contention any of the lead men spoke to other employees about the union or election-related matters while in the polling area. 48 NLRB v. Kentucky River Community Care, 532 U.S. 706, 712–713 (2001). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 642 discharge, assign, reward, or discipline other employees. The supervisory issues herein center on the authority to assign and direct employees, some measure of which authority each of the lead men exercised. Whether the exercise was with independ- ent judgment and not in a merely routine or clerical manner is the crucial question in determining the supervisory status of each. As the United States Supreme Court noted, “The statu- tory term ‘independent judgment’ is ambiguous with respect to the degree of discretion required for supervisory status. . . . It falls clearly within the Board’s discretion to determine, within reason, what scope of discretion qualifies.”49 The Board is careful not to give too broad an interpretation to the statutory term “independent judgment” because supervisory status results in the exclusion of the individual from the protections of the Act. Tree-Free Fiber Co., 328 NLRB 389 (1999). The Board does not find the exercise of only “routine” authority, i.e., that which does not require the use of independent judgment in directing the work of other employees, to fit within the ambit of Section 2(11) of the Act. Beverly Health & Rehabilitation Ser- vices, Inc., 335 NLRB 635 (2001). Evidence was adduced that during the critical period, the fol- lowing lead men performed the following duties:50 Jesus Sedano: deburring department lead man since Febru- ary 21. He distributed deburring work, giv- ing easier parts to less experienced employ- ees, watched to see the deburring work was done correctly, and taught correct procedures as necessary. If employee problems arose, he reported them to Mr. Conley. When di- rected by Mr. Bechtol or Mr. Conley that a part had to be completed quickly, he trans- mitted the information to the affected em- ployee. He reported to Mr. Conley the work quality of a probationary employee who was later fired. When deburring employee Enri- que Coronado wanted Respondent to hire a relative, he did not mention the matter to Je- sus Sedano but spoke only to Mr. Conley. Murad Murad: day shift lathe lead man; reported to Miguel Sedano who went over job assignments with him and assigned the lathe work. He some- times told employees their work areas were messy, they were going too fast, or they needed to be accurate. He was heard to tell Miguel Sedano that an employee was a prob- lem and he wanted him out. Miguel Sedano said he would see what he could do. There- after, the employee was transferred. Murad Murad said he intended to ask that one em- ployee be laid off rather than another, which was done.51 49 Kentucky River Community Care, supra at 712–713. 50 I have not included the extensive hearsay evidence presented re- garding leadman authority. Unless otherwise noted, I have discounted it as unreliable. 51 This evidence does not create a reasonable inference that Murad Murad effectively recommended the transfer or the layoff. Jerry Belton: inspector; filled in for Mr. Rogers when ab- sent, which regularly included the Saturday night shift but did not possess Mr. Roger’s authority. When substituting for Mr. Rogers, Mr. Belton assigned employees to machines and jobs from a prepared assignment list provided by Miguel Sedano or Mr. Conley. He helped employees read blueprints and complete jobs and checked employees’ work. At the end of shift, Mr. Belton locked up the facility. Mr. Belton asked employees to go home if there was no additional job to assign, normally saying, “I don’t have any work available for you right at the moment . . . I will call the foreman and find out if there’s anything else or do you want to go home.” Occasionally, Mr. Belton was called in as a witness when an employee was disciplined since, as inspector, he was generally avail- able. Albert Viramontes: day shift welding lead man; machinists went to him if they needed a part welded whereupon he assigned the part to a welder.52 Mr. Viramontes gave his opinion of appli- cant resumes to Mr. Conley and also told him if employees worked well or had trou- ble. Evidence was presented that Mr. Vi- ramontes opined that an employee who had sent Mr. Slater an email critical of supervi- sors and employees should be fired, and the employee was fired. There is no evidence, however, that Respondent considered Mr. Viramontes’s opinion in firing the employee. Milad Murad: supervised employees who worked on verti- cal turret machines and ran jobs himself; with Miguel Sedano, he prioritized job as- signments,53 assigned work, showed em- ployees what to do, gave advice, answered employee questions regarding what machine to use, other work matters and details, and helped employees as needed. He was heard to tell Miguel Sedano that Respondent needed to get rid of an employee who made too many mistakes, and the employee was laid off.54 Hyun Kun Lee: day shift NC mill lead man; oversaw the work of two mill machines and ran machines himself. Employees asked him for help or advice, and he demonstrated how jobs should be done. 52 Viramontes testified that Conley gave out the welding work. I find, however, that Viramontes also assigned work. 53 The evidence as prioritization was that Miguel Sedano informed Milad Murad what jobs needed to be done; Milad Murad told Miguel Sedano what machines were available, and Miguel Sedano decided to which machine a job would be assigned. 54 This evidence does not create a reasonable inference that Milad Murad effectively recommended the layoff. ALLIED MECHANICAL, INC. 643 It is true that the above leadmen assign work to the employ- ees they lead. However, that alone does not establish supervi- sory authority. As the Board has consistently stated, “[Work] assignment must be done with independent judgment before it is considered to be supervisory under Section 2(11).” McGraw-Hill Broadcasting Co., 329 NLRB 454, 459 (1999). There is no evidence that any employee direction by the six lead men demonstrated “the exercise of independent judgment [rather than the] . . . routine decisions typical of lead men.” Arlington Electric, above at 75. Assessment of employee skills, such as that made by Jesus Sedano and Milad Murad, without more, is not indicia of supervisory status. Williamette Industries, Inc., 336 NLRB 743 (2001). Recommendation of discipline, such as made by Milad Milad and Albert Viramon- tes, does not establish supervisory authority unless evidence shows the recommendations were effective, that is Respondent followed them. MJ Metal Products, 325 NLRB 240 (1997). There is no such evidence here. Additionally, the mere ability to report employee problems to higher management does not confer supervisory status. Passavant Health Center, 284 NLRB 887, 892 (1987). The party asserting supervisory status carries the burden of proving it. Kentucky River Community Care, 532 U.S. 706, 712–713 (2001); Dean & Deluca New York, Inc., 338 NLRB 1046, 1047 (2003) (“The party asserting [supervisory] status must establish it by a preponderance of the evidence [citations omitted]”). Petitioner has not met its bur- den of showing that the above lead men were supervisors at any relevant time hereto. Accordingly, their conduct in entering the polling area to vote in the election was not objectionable. I recommend Objection 1 be overruled. Objection 2: [S]upervisor Cliff Conley and [consultant and agent] Eli Sandoval . . . [stood] . . . where employees exited the plant on their way to the polling place. Conley had a Sony digital camera around his neck capable of taking not just still pictures but also videos. Conley and Sandoval stopped, ac- companied, and talked to employees while the employees were on their way to the polling place. Conley . . . surveilled . . . employees in the stipulated bargaining unit. On the day of the election, Conley wore a camera around his neck to record, if necessary, problems with demonstrators gath- ered in the company’s driveway.55 At 5:30 a.m., the day of the election, he greeted employees and union supporters gathered at the entrance gate, saying, “Today we’ll know; today it is finally over.” During the course of the day, Conley directed employ- ees exiting the shipping and receiving bay of building 1 to the polling area in a separate building, a distance of approximately 176 feet. At about 6 a.m., Burnett told Conley that he was ille- gally intimidating employees; Conley did not respond and con- tinued to direct employees to the polls. Occasionally, Mark Slater, Respondent’s president, Bechtol, and Sandoval joined 55 I credit Conley’s denial that he took any pictures or even turned the camera on. Hays saw what he believed to be a camera flash out of the corner of his eye and observed Conley shift the camera. A nonem- ployee bystander told Hays that Conley was taking pictures. Hays’ testimony is based on his inferential perceptions and hearsay, which I consider unreliable. him. Conley only spoke to employees to direct them to the polls. No evidence was presented, and it seems unlikely, that any employee needed direction to the polling area, which was in a building adjacent to employees’ workplaces. The Board has held the “continued presence of the Employer’s president at a location where employees were required to pass in order to enter the polling place was improper conduct[,]” which “inter- fered with employees’ freedom of choice in the election [foot- notes omitted].” Performance Measurements Co., 148 NLRB 1657, 1659 (1964). While there is no objectionable conduct in Conley’s merely carrying a camera, I conclude his continued presence where employees must pass by him to reach the poll- ing area was improper. While Respondent stresses that Conley’s distance from the polling area entrance was at least 150 feet, it is not the distance but the fact that employees had to pass by him that is significant. Accordingly, I recommend Objection 2 be sustained as to that conduct. Objection 3 (as modified): Employee Hernandez was given a raise. Frederico Hernandez received a raise about 1 month prior to the election. His work duties had earlier changed to include pressure testing (a higher paid job) while his deburrer work decreased. He requested and was granted a wage increase commensurate with his added job responsibilities. Accord- ingly, the Employer’s granting him a raise was not objection- able. I recommend Objection 3 be overruled. Objection 4: Days before the election, the employer reduced the hours of stipulated bargaining unit employee Marcelo Pin- heiro in retaliation for his union activities. In conformity with my conclusions above, I find the evi- dence does not support this objection. Accordingly, I recom- mend Objection 4 be overruled. Objection 5: Before the election, employee Marcelo Pin- heiro was given a written warning . . . to retaliate against him for his union activities. In conformity with my conclusions above, I find the evi- dence supports this objection. Accordingly, I recommend Ob- jection 5 be sustained. Objection 9: Before the election, and during the critical pe- riod, the employer . . . removed union literature from normal posting placed where employees are allowed to post papers concerning matters of personal, nonwork related and work- related matters, thereby imposing [a] discriminatory standard for union propaganda. In conformity with my conclusions above, I find the evi- dence supports this objection. Accordingly, I recommend Ob- jection 9 be sustained. Petitioner’s Objections 3, 5, and 9 are meritorious and con- stitute objectionable conduct affecting the results of the repre- sentation election held on March 6. In light of my findings with regard to the appropriateness of a bargaining order herein, I recommend Case 31–RC–8202 be severed from the unfair labor practice cases and remanded to the Regional Director for appropriate action consistent with the bargaining order. CONCLUSIONS OF LAW 1. Respondent violated Section 8(a)(3) and (1) of the Act by DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 644 (a) Discriminatorily issuing written disciplinary notices to Timothy Hays and Walter Reddoch. (b) Discriminatorily discharging Timothy Hays and Walter Reddoch. (c) Discriminatorily issuing written disciplinary notices to Marcelo Pinheiro. 2. Respondent violated Section 8(a)(1) of the Act by (a) Impliedly and coercively telling an employee that Re- spondent had retaliated against employees by reducing employ- ees’ hours. (b) Threatening an employee with unspecified reprisals by telling him he would lose by supporting the Union. (c) Discriminatorily prohibiting the posting of prounion lit- erature. 3. The following unit of Respondent’s employees is appro- priate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time production, maintenance, shipping and receiving employees and programmers em- ployed by Respondent at its facility located at 1720 Bon View, Ontario, California. 4. The Union has been at all times since January 23, and is, the exclusive bargaining representative of the employees in said unit for the purposes of collective bargaining within the mean- ing of Section 9(a) of the Act. 5. The unfair labor practices set forth above affect com- merce within the meaning of Section 8(a)(1) and (3) and Sec- tion 2(6) and (7) of the Act. 6. Respondent did not engage in any unfair labor practices other than those found above. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Respondent having discriminatorily discharged Timothy Hays and Walter Reddoch, it must offer them reinstatement and make them whole for any loss of earnings and other benefits, computed on a quarterly basis from date of discharge to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The recommended Order will also provide that Respondent bargain in good faith with the Union as the exclusive collective-bargaining representative of the above- described unit. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended56 56 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. ORDER The Respondent, Allied Mechanical, Inc., its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging any employee for supporting United Steel- workers of America, AFL–CIO–CLC (the Union) and to dis- courage employees from engaging in these activities. (b) Disciplining any employee for supporting the Union. (c) Discriminatorily prohibiting the posting of prounion lit- erature. (d) Impliedly and coercively telling any employee that Allied Mechanical, Inc. (the Employer or the Company), had retaliated against employees by reducing employees’ hours. (e) Threatening any employee he will lose by supporting the Union. (f) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) On request, bargain with the Union as the exclusive rep- resentative of the employees in the following appropriate unit concerning terms and conditions of employment and, if an un- derstanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time production, maintenance, shipping and receiving employees and programmers em- ployed by Respondent at its facility located at 1720 Bon View, Ontario, California. (b) Within 14 days from the date of this Order, offer Timo- thy Hays and Walter Reddoch full reinstatement to their former jobs or, if those jobs no longer exist, to a substantially equiva- lent position, without prejudice to their seniority or any other rights or privileges previously enjoyed. (c) Make Timothy Hays and Walter Reddoch whole for any loss of earnings and other benefits suffered as a result of the discrimination against them in the manner set forth in the rem- edy section of the decision. (d) Expunge from its files any reference to Timothy Hays and Walter Reddoch’s unlawful written discipline and dis- charges and thereafter notify them in writing that this has been done and that the discipline and discharges will not be used against them in any way. (e) Expunge from its files any reference to Marcelo Pin- heiro’s unlawful written discipline and thereafter notify him in writing that this has been done and that the discipline will not be used against him in any way. (f) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of back pay due under the terms of this Order. (g) Within 14 days after service by the Region, post at its fa- cility in Ontario, California, copies of the attached notice ALLIED MECHANICAL, INC. 645 marked “Appendix.”57 Copies of the notice, on forms provided by the Regional Director for Region 31 after being signed by Respondent’s authorized representative, shall be posted by Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to ensure that the no- tices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, Respondent has gone out of business or closed the facility in- 57 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” volved in these proceedings, Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by Respondent at any time since January 23, 2003. (h) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that Respondent has taken to comply. IT IS FURTHER ORDERED that Case 31–RC–8202 be severed from the other cases herein and remanded to the Regional Di- rector for appropriate action consistent with the above- bargaining order. IT IS FURTHER ORDERED that the complaint is dismissed inso- far as it alleges violations of the Act not specifically found.