Home Lumber & Supply Company

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wickes Lumber, a Division of the Wickes Corpora- tion, d/b/a a Home Lumber & Supply Company and Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 533, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 32-CA-217 (for- merly 20-CA- 12886) September 26, 1979 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND TRUESDALE On June 29, 1978, Administrative Law Judge Rus- sell L. Stevens issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, limited to the issue discussed below, and the General Counsel filed cross-excep- tions, a brief in support thereof, and an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge as modified herein. The Administrative Law Judge found, inter alia, that Respondent violated Section 8(a)(1) of the Act by threatening to suspend or terminate employees if they voted in a Board-conducted election, and Sec- tion 8(aX3) and (1) of the Act by suspending II em- ployees who did vote in that election.' We disagree. There is no substantial dispute about the facts of the incident which led to the suspensions. Respondent maintains an office and place of business in Reno, Nevada, where it is engaged in the retail and nonre- tail sale and distribution of lumber products. The two facilities involved herein are the main yard, located at 250 Chism Street, Reno, and the truss department, located a few blocks away, at 275 Ralston Street. As found by the Administrative Law Judge, on January 27 or 28, 1977, the Union held an organiza- tional meeting attended by yard employees. As noted by the Administrative Law Judge it was "possible that two or three truss department employees also attended," although the testimony on that point was inconclusive at best. On February 2, the Union filed a I Counsel stipulated that the following employees were suspended on May 18, 19, and 20, 1977, for voting in a Board-conducted election: Dave Boneck, Chris Thompson, Isaac Mark Galperin. Daniel Middleton. Randy Knox. Ralph Dickey, David Estes, Rudolfo Ruiz, Steve Silva, Robert Holt, and Ryall Bowker. petition seeking to represent the Respondent's yard employees. At the representation hearing and in its brief filed subsequent to the representation hearing, the Union consistently and clearly described the unit as limited to employees located at the 250 Chism Street (main yard) location. Thereafter the Regional Director found the petitioned-for unit appropriate and directed an election to be conducted on May 18. On April 21, Respondent submitted an Excelsior list which included only employees employed at the 250 Chism Street location and election notices were posted only at that location. On or about May 16, a full 2 days before the sched- uled election, Respondent learned that certain truss department employees were discussing the possibility of leaving work to vote in the yard election, Juniper, the truss department foreman, promptly informed truss department employees that the unit in which the election was to be conducted was limited to yard em- ployees, that truss department employees were not eligible to vote, and that truss department employees who insisted on leaving their jobs without permission would be disciplined. Juniper voiced a similar warn- ing on May 18 when in fact truss department employ- ees left their work stations and proceeded to the yard where they attempted to vote (and voted under chal- lenge). In ignoring the directives of their employer and in insisting on their "right" to vote in the yard election, truss department employees informed Juniper that they viewed the matter "as a civil rights issue," but proffered no additional explanation. Respondent sus- pended for 3 days the truss department employees who left work without authorization on May 18.. Relying on our decision in E. H. Limited, d/b/a Earringhouse Imports,2 the General Counsel argued that the suspension of the truss department employ- ees in the circumstances described above violated Section 8(a)(3) of the Act. The Administrative Law Judge also was persuaded that Earringhouse is dispos- itive of the instant case and found the 8(a)(3) viola- tion solely on the basis of that decision. We disagree. In so doing, we note that reliance on Earringhouse is misplaced, for in that case the issue was the proper accommodation between an employee's right to at- tend a hearing during working hours, involving his own employment, and an employer's legitimate inter- est in operating his business without disruption. The Board concluded that an employee has a right pro- tected by the Act to attend a Board hearing or other- wise participate in various stages of the Board's pro- cesses, and that a discharge for such attendance or participation is unlawful. The critical distinction be- 2227 NLRB 1107 (1977). enforcement denied 600 F.2d 930 (D.C. ('ir. 1979). 245 NLRB No. 7 358 HOME LUMBER & SUPPLY COMPANY tween the instant case and Earringhousea is that in Earringhouse the involved employees' own on-the-job interests were immediately involved in the hearing which they left the workplace to attend. In the instant case, however, the employees' own employment inter- ests would not be affected by the election because they were excluded from the unit, and the employees, as found by the Administrative Law Judge, were well aware of that fact. Consequently, we conclude that the conduct of the employees in leaving their work- place to vote, in contravention of Respondent's direc- tions to remain, was not protected under Section 7 of the Act. Accordingly, in the circumstances presented in this case, Earringhouse does not provide a basis for finding either the suspensions or the threats to sus- pend unlawful.4 In passing, we are constrained to comment on our dissenting colleague's analysis of the record evidence and with the inferences she has drawn therefrom. Simply stated, it is plain as a pikestaff that the truss department employees were fully aware that they were not eligible to vote in the main yard election and that they insisted on voting (and walked off the job to do so) out of a sense of pique. The Administrative Law Judge so found, and the record so shows. In the first place, as discussed previously, the back- ground facts demonstrate that the representation pro- ceeding involved the yard employees exclusively and that nothing that occurred during the preelection stage could have misled truss department employees into believing that their employment interests were in any way at stake or involved. Moreover, as also noted above, truss department employees were told by Juni- per the day before the election that they were ineligi- ble to vote. Although our colleague suggests that em- ployees may have had reason to mistrust Juniper, she failed to consider that at no time did truss department employees directly challenge Juniper's veracity or the accuracy of his statement concerning their ineligibil- ity.s Nor, as far as the record shows, did truss depart- 3 In its exceptions and brief, Respondent contends that the finding in Ear- ringhouse is limited to violations of Sec. (aX4) of the Act and that Earring- house is inappropriate here because the instant complaint alleges violations of Sec. 8(aX3) of the Act. We find it unnecessary to pass on this contention in view of our disposition of this case. I Inasmuch as the legal pnnciples elucidated in Earringhouse have no ap- plication here, Member Truesdale finds it unnecessary to pass on the ques- tion of whether or not Earringhouse was itself decided correctly. In this connection, Member Truesdale notes he was not a member of the panel that decided Earringhouse. 5 The dissent echoes the General Counsel's contention that employees had cause to question Juniper's statement, given the Respondent's commission of other unfair labor practices. As indicated previously, we commend to our colleague a close reading of the record which establishes that no truss department employees accused Juniper of lying or of attempting to mislead them. Rather, the employees saw the dispute as one involving their "civil rights" as divorced from any right under the Act. we also note that in any event Juniper's involvement in the Respondent's unfair labor practices was minimal and that. as found by the Administrative Law Judge, truss department employees intended to register ment employees bother to contact the Union or the Board's Regional Office to resolve any lingering un- certainty over their "right" to participate in the elec- tion-this despite the fact the truss department em- ployees clearly had more than ample time to contact the Union, the Board, or both prior to the election date.6 In these circumstances, we find it incomprehensible that our colleague would quarrel with the Adminis- trative Law Judge's finding that the professed confu- sion of truss department employees was "far-fetched and unlikely" and that truss department employees "were well aware of the situation, but were deter- mined to vote anyway. They wanted to express their opinion regardless of whether or not their votes would be counted." Accordingly, we shall dismiss those portions of the complaint alleging Respondent violated Section 8(a)(1) of the Act by threatening employees if they voted in a Board election and Section 8(a)(3) and (1) of the Act by suspending employees who voted in the election. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Wickes Lumber, a division of the Wickes Corpora- tion, d/b/a Home Lumber & Supply Company, Reno, Nevada its officers, agents, successors, and as- signs, shall: I. Cease and desist from: (a) Interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed to them in Section 7 of the Act, in violation of Section 8(a)(1) of the Act, by: causing employees to believe that Respondent was engaging in surveillance of their union activities; telling employees that a fellow em- ployee was transferred because of his union activities; interrogating and threatening employees concerning their union activities; telling employees they would not receive wage increases because of their union ac- their votes without regard to their eligibility. In this connection employee Bowker's testimony in response to the question, "Did you check with anyone to check the correctness of Mr. Juniper's decision?" is particularly instruc- tive: No. I didn't. I had a rather positive attitude myself. I feel that if there is a company vote. or a county or city. or state vote, that this should be my privilege to vote for the things that concern me. Further doubt of the good faith of employees is cast by the Respondent's uncontroverted credited testimony that prior to the election he contacted the Union to clarify the eligibility issue and to help prevent any possible prob- lem caused by an attempt on the part of truss department employees to vote. In these circumstances, it seems highly unlikely that truss department em- ployees could have remained ignorant of the true state of affairs as they claimed at the hearing. 359 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tivities; and promising and granting wage increases in order to discourage union activities. (b) Discouraging membership in Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 533, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organization, by transferring, or in any other manner discriminating against, employ- ees because of their union activity. (c) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights to organize, to form, join, or assist labor organi- zations, including the above-named organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action, which is found necessary to effectuate the policies of the Act: (a) Transfer Dave Boneck from his present job in the truss department, to his former job as forklift op- erator in the main yard, at his former rate of pay plus interim raises given to him, plus interest, replacing, if necessary, any employee assigned to Boneck's former job. (b) Post at its two Reno, Nevada, operations cop- ies of the attached notice marked "Appendix." 7 Cop- ies of said notice, on forms provided by the Regional Director for Region 32, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 32, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges unfair labor practices other than those found herein. MEMBER MURPHY, concurring in part and dissenting in part: Unlike my colleagues, I would find that Respon- dent's conduct in threatening to suspend and there- after actually suspending I I employees because they In the event that this Order is enforced by a Judgment ofa United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." voted in a Board-conducted election violated the Act. Accordingly, I would adopt the Administrative Law Judge's conclusions that the threats violated Section 8(a)(1) of the Act and that the actual suspensions vio- lated Section 8(a)(3) and (1). However, as discussed below, I would not adopt the Administrative Law Judge's finding that the employees at issue were aware that they were not in fact eligible to vote in the election. The record establishes that on the date of the elec- tion 11 truss department employees left their work- place to vote in the face of a warning from their su- pervisor that they would be suspended if they did so. Upon their return, the employees were suspended for 3 days. It is undisputed that Respondent, the Union, and Regional Office representatives understood that the unit was limited to main yard employees and did not include the truss department employees. However, contrary to my colleagues, the record does not estab- lish that it is equally clear that the truss department employees knew that they were excluded from the unit.8 Truss department employees were involved in the union organizing campaign from its inception. They attended union meetings, one of which was held in the home of a truss department employee, and union authorization cards were distributed among them. The notice of election, posted at the main yard, was observed by at least two truss department employees who told the remaining truss department employees about it. Significantly, the notice of election broadly describes the unit as all classifications employed at the Employer's Reno, Nevada, facility and does not specifically limit the unit to those employees who worked at the main yard. Classifications of employees generally are the same at the two locations, including forklift operators, sawmen, laborers, truckdrivers, and others and thus, as argued by the General Counsel, these employees had many reasons to believe they were eligible to vote. The only information to the contrary was provided by the employees' supervisor, Dennis Juniper, who, on the morning of the election, told them the election did not concern them and thev would be suspended if they went to vote. In finding that the truss department employees were aware of their ineligibility, the Administrative Law Judge and the majority rely on the undisputed evidence that Juniper told the employees that they were not eligible to vote. However, this view ignores the Administrative Law Judge's findings-to which I Apparently my colleagues' "caretul reading" of the record only leads them to a distortion of the evidence contained therein and a consequent misreading of the facts. The Administrative Law Judge's findings in this regard were based only in minor part on a credibility resolution and are, as stated above. unsupported by the record. 360 HOME LUMBER & SUPPLY COMPANY no exceptions were taken-that Respondent engaged in numerous and egregious unfair labor practices, in- cluding engaging in surveillance and interrogating and threatening employees for their union activity: telling employees that a fellow employee was trans- ferred because of his union activities: telling employ- ees they would not receive wage increases because of their union activities; and promising benefits and granting wage increases in order to discourage union activities, as well as transferring employee Boneck twice to discourage his union activity. In view of this unlawful conduct by Respondent, I find it incredible that the majority and the Adminis- trative Law Judge can find that the truss department employees were obligated to rely on their supervisor's bald assertion that they were not eligible to vote. On the contrary, I find that these employees had no rea- son whatsoever to put their faith in statements by Respondent's agents concerning any aspect of their involvement with the Union or the election. And, aside from Juniper's statements to employees, there is no direct evidence that the truss department employ- ees knew they were not included in the bargaining unit. Indeed, the evidence described above establishes that they were not aware of their exclusion, and that, in refusing to follow Juniper's instructions that they refrain from voting, the employees were exercising their right to participate in a Board proceeding. Though the Union had knowledge of the exclusion of the truss department employees from the unit, I reject the majority's implication that such knowledge could be imputed to these employees. I further fail to see any substantive distinction be- tween this case and Earringhouse,9 upon which the Administrative Law Judge relied in finding the sus- pensions unlawful, but which the majority find is in- appropriate.' ° In this case, as in Earringhouse, em- ployees were disciplined by their employer for participating in the Board's processes. Indeed, an ar- gument can be made that the instant facts present a stronger case for finding a violation, for the right to vote in a Board-conducted election should surely be as protected as the right to be present at a Board hearing. Furthermore, in the instant case the employ- 9 E. H. Limited, d/b/a Earringhouse Imports. 227 NLRB 1107 (1977). en- forcement denied 600 F.2d 930 (D.C. Cir. 1979). I respectfully disagree with the court and adhere to the Board's decision until such time as the Supreme Court has passed on the issue. 10 As noted by the majority. Respondent contends that Earringhouse is inapposite because the holding therein is limited to 8(a54) violations. The truss department employees' conduct in leaving the workplace to vote was a clear effort to utilize the Board's processes and thus falls squarely within the holding of Earringhouse I find it immaterial that the complaint alleged only that the suspensions violated Sec. 8(aK3). for it is the nature of the conduct in which the employees engaged- not the precise section of the Act alleged by the General Counsel to have been violated- which determines whether an employer unlawfully imposed discipline on the employees for their ac- tivity. ees were off the job for, at most, 45 minutes, and. as the Administrative Law Judge tlfund. Respondent failed to establish that it suffered any actual loss from the employees' brief absence. In these circumstances, I find, as the majority did in Earringhouse, that Re- spondent has failed to establish any "legitimate and substantial business justification" for ordering the truss department employees to refrain from voting in the election. Accordingly, I would find that Respondent's threats to suspend them for engaging in such activity violated Section 8(a)( I ) of the Act, and that the sus- pensions themselves violated Section 8(a)(3) and () of the Act. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL. Nor interfere with. restrain, or coerce our employees in the exercise of their rights guar- anteed to them in Section 7 of the Act, in viola- tion of Section 8(a)( i) of the Act, by: causing our employees to believe that we are engaging in sur- veillance of their union activities: interrogating and threatening our employees concerning their union activities: telling our employees that a fel- low employee was transferred because of his union activities: telling our employees they would not receive wage increases because of their union activities; and promising benefits and granting wage increases in order to discourage union activities. WE WILL NOT discourage membership in Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 533, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or in any other labor organization, by transferring or in any other manner discriminating against em- ployees because of their union activity. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the ex- ercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Sec- tion 7 of the Act, or to refrain from any or all such activities. WE w.i. transfer Dave Boneck from his pre- sent job in the truss department to his former job as a forklift operator in the main yard, at his 361 DECISIONS OF NATIONAL LABOR RELATIONS BOARD former rate of pay plus interim raises given to him, plus interest, replacing, if necessary. any employee assigned to Boneck's former job. WICKEs LUMBER, A DIVISION OF IHE WI(KES CORPORATION, D/B/A HOME LUMBER & SUPPLY COMPANY DECISION STATEMENI OF IIE CASE RUSSELL. L. STEVENS, Administrative Law Judge: This matter was heard in Reno, Nevada, on April 11, 1978.' The complaint, issued July 29, is based upon an original charge filed May 17, and four amended charges filed by May 23, and June 14, June 22, and July 28 by Teamsters, Chauf- feurs, Warehousmen and Helpers Local Union No. 533, International Brotherhood of Teamsters, Chauffeurs. Ware- housemen and Helpers of America (Union). The complaint alleges that Wickes Lumber, a division of The Wickes Cor- poration, d/b/a Home Lumber & Supply Company (Re- spondent) violated Section 8(a)(1) and (3) of the National Labor Relations Act. (Act). All parties were given full opportunity to participate. to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of Gen- eral Counsel and Respondent. Upon the entire record,2 and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent is, and at all times material herein has been. a Delaware corporation with an office and place of business in Reno, Nevada, where it is engaged in the retail and non- retail sale and distribution of lumber products. During the past calendar year Respondent, in the course and conduct of its business operations, received gross revenues in excess of $500,000, and sold and delivered goods valued in excess of $50,000 directly to customers located outside the State of Nevada. I find that Respondent is, and at all times material herein has been, an employer engaged in commerce and in opera- tions affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Teamsters, Chauffeurs, Warehousemen and Helpers Lo- cal Union No. 533, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America is. and at all times material herein has been, a labor organi- zation within the meaning of Section 2(5) of the Act. All dates hereinafter are within 1977, unless stated otherwise. 2 At the henng, the General Counsel withdrew from the complaint pars. Vl(b). (e), (i), and (k), alleging 8(aX)(1) violations, and paragraph IX, alleging an 8(a) 3) and () violation. 1. ItIE A.LE.II) UNF AIR LABOR I'PR.( II('iS Background Prior to events involved herein, the Employer was named Htome Lumber & Supply Company. That company was purchased by Respondent. whose headquarters are located in Saginaw, Michigan. The facility involved in this contro- versy is comprised of two separate functions, commonly called the main yard or yard, and the truss department. The yard is located at 250 Chism Street. Reno, Nevada, and the truss department is a few blocks distant, at 275 Ralston Street in Reno. Three groups of employees, totalling ap- proximately 35. worked at the yard during times relevant herein. Those groups were divided into three functions, with employees classified as foremen, frklift operators, saw men, side-load operators. short-haul drivers, warehouse- men, salespersons, clerks, and laborers. russ department employees. totalling approximately 13. were classified as foremen, truckdrivers, forklift operators, saw men, and la- borers. Paul NeetP is manager and superintendent of the yard. At times relevant herein, there were three foremen in the yard, named Jim White, Al Ford. and Hector Feliciano. Those three reported to Neef. Dennis Juniper is manager of the truss department, and Lloyd Stewart was foreman of the truss department in February and March 1977. The work of the yard generally involves grading, storing, selling. and shipping lumber. The truss department builds wooden roof trusses, which are sold by., and shipped from, that de- partment. The work and activity of the yard and truss de- partment are different, and there is no regular interchange of employees between the two functions. Employees occa- sionally transfer between the two, however. Approximately on January 27 or 28, the Union held a meeting attended primarily by yard employees. It is possi- ble that two or three truss department employees also at- tended.' Authorization cards were distributed to the em- ployees, and possible union representation was discussed. A second meeting of employees was held by the Union in late February or early March, attended mostly by yard employ- ees but also attended by a few truss department employees. On February 2, the Union filed a representation petition with National Labor Relations Board foir approximately 33 employees in Respondent's facility at 250 Chism Street (the yard facility). A hearing was held on the petition, and on April II the Regional Director for Region 20 issued her decision and direction of election. The election was limited to employees at the yard, 250 Chism Street. The election was scheduled for May 18. On April 20. Respondent held a meeting of all its yard employees to discuss benefits it planned to initiate, and to distribute a description of those benefits.' The union election was conducted on May 18 at the yard. Prior to and on the day of the election, truss department employees discussed, among themselves and with Juniper. the possibility of their voting. Juniper told the employees All individuals herein are referred to by their last names. 4 George David Boneck, whose testimony is discussed inf/r. testified that two or three truss department employees attended. but he could not recall who they were. Resp Exh 6. 362 HOME LUMBER & SUPPLY COMPANY they were not eligible to vote, since the unit included only yard employees. Juniper instructed the employees not to leave the truss department, but they did, and proceeded to the polling place to vote. Because the employees left con- trary to their instructions. II of them were suspended for 3 days. Issues The principle issues are whether or not Respondent's su- pervisors violated Section 8(a)(1) of the Act by unlawful interrogations, statements and promises, and granting of benefits, and 8(a)(3) and (1) by transferring an employee and suspending 11 employees on the day of the election. A. Alleged Impression of Surveillance Paragraph Vl(a) of the complaint alleges that, on or about January 29, Thomas Davis caused employees to be- lieve that Respondent was engaging in surveillance of their union activities. Davis is Respondent's sales manager., Robert Stone, one of Respondent's employees, testified that he attended the union meeting in January, and that the meeting was men- tioned among employees the following morning in the cof- fee room, while Davis was present. Stone testified that Da- vis "was joking with some of the fellows, and he asked someone, 'How did the meeting go last night?'" Davis did not testify. In the absence of other unfair labor practices, possibly a remark such as the one in issue would be de minimis, or could be found not violative of the Act. However, that is not this case. Under the circumstances. the remark is part of a course of action, and is actionable. The remark is par- ticularly revealing since it was made the morning after the first union meeting with employees. Davis' inquiry inevita- bly would create the impression that Respondent was able quickly to learn of the union activities of its employees. even though those activities took place away from Respon- dent's premises. The coercive nature of such a statement by a supervisor is apparent. The only question is one of credi- bility. The remark was not denied. Stone was not cross- examined concerning the remark. and Stone was a convinc- ing witness, who is credited. This allegation is supported by the record.' B. Alleged Interrogation by Feliciano Paragraph Vl(c) of the complaint alleges that, on an un- known date in February or March. Feliciano, one of Re- spondent's yard supervisors,' interrogated an employee con- cerning union activities. I Respondent stipulated that Davis is a supervisor within the meaning of the Act. I Respondent cites C d E Stores. Inc., 91 LRRM 1057 (1950), as authority for the proposition that Davis' question did not violate Section 8(aX I) of the Act. That citation is inapposite. In that case the Board found the statement that was involved to be coercive, on an alternate theory, rather than being a creation of impression of surveillance. Under the circumstances of this case, it is clear that Davis conveyed the impression that Respondent was abreast of all union activity in the plant. I Feliciano was stipulated by Respondent to be a supervisor within the meaning of the Act. Boneck, a forklift operator tfor Respondent since 1973. testified that he signed a union authorization card, and was an active advocate of unionization among the employees. He said he talked with Feliciano on one occasion in the yard: "He walked up to me and said Mr. Logan was all upset inside the office. He wanted to know who was the instigator of the union. I just told him he'd never find out from me."' The remark attributed to Feliciano clearl 5 is coercive, and in violation of the Act, if it was made. The only ques- tion is one of credibility of witnesses. Feliciano did not spe- cifically deny the remark. He testified. out of order. and the predicate for the issue was not before him when he testified. but his general denial reaches Boneck's specific testimon. He testified that he never talked with Boneck about the Union. Boneck was a calm, sincere, witness and a long-time em- ployee of Respondent. He was convincing, and he is cred- ited on this issue. Feliciano's general denial was not persua- sive, particularly in view of his general knowledge of the union activities and his position with Respondent. Felici- ano's testimony on other matters is discussed in/ta. This allegation is supported by the record. C. Alleged Statement bh Stewart Paragraph Vl(d) of the complaint alleges that, on un- known dates in February or March, Llod Stewart ' told employees on different occasions that Boneck was trans- ferred to the truss department because of Boneck's union activities. Boneck's transfer to the truss department is alleged as an unfair labor practice and is discussed ifra. Ryall Bowker was a truckdriver in the truss department from April 1976 until June 1977. Shortly before Boneck was transferred to the truss department (in Februar or March). Bowker talked with Stewart. Bowker testified: Well, Lloyd told me we were getting a new fork lift operator and that would be all he would be doing. running the fork lift: that he had been a trouble-maker over in the other yard due to union activity. activities; and that we were to make it as uncomfortable fir him as possible so he would quit. Stewart did not testify, nor was Bowker cross-examined on this issue. Bowker was a convincing witness, and his version of the conversation with Stewart is credited in its entirety. The statements made by Stewart clearly are coer- cive, and were intended to indicate to employees the extent to which Respondent would go to interfere with union ac- tivities. It is clear that Stewart's remark was about Boneck. since there was no other transferee to the truss department at the time involved. This allegation was proved. D. Alleged Statement by Nee' Paragraph Vl(f) of the complaint alleges that, on various unknown dates from February or larch 1977 until on or ' Winston Logan is Respondent's general manager. ,0 Stewart then was foreman of the truss department. and Respondent stipulated that he was a supervisor within the meaning ofit the Act 363 DEC(ISIONS OF NATIONAL LABOR RELATIONS BOARD about May 4, 1977, Paul Neef advised employees that Re- spondent would not grant scheduled wage increases be- cause of the Union. Feliciano testified that meetings of all yard employees have been held by Respondent every other Tuesday since early 1977. He said the subject of wage increases frequently is discussed at the meetings, and Neef customarily responds that "it was up to Saganaw [sic] to approve the wage raises." Feliciano said Neef never told employees in the meetings that they could not get a raise because of the union activity. Feliciano testified that he attended all em- ployee meetings until he quit his job in March 1978. Stone testified that he attended a meeting of all yard em- ployees, shortly after the first union meeting with employ- ees, in January. Stone said that it was the first such yard employees' meeting he had attended, and that the foreman, together with all supervisors and Neef and Logan, were there. Stone testified that union matters were discussed "somewhat," and "when someone asked 'when would we get a raise,' Mr. Neef would say, 'It has been approved, but we cannot give it at this time, because of the union trou- ble.'" On cross-examination, Stone testified that the meet- ing of yard employees he attended was one of the regular biweekly meetings held by Respondent. Stone said Felici- ano's version of the meeting was not correct. Later in his cross-examination, Stone said Respondent did not have regular biweekly meetings, and the one referred to by him was the first one held during Stone's employment. Bill Sprague, a local truckdriver in the main yard, testi- fied that he attended regular biweekly meetings of employ- ees held by Respondent, the first of which was held in Janu- ary. Sprague said that, at one of the meetings: Oh, probably employees asked Mr. Neef about a raise and he said there had been one approved for all of us but they would not give it to us until the differ- ence about the union was settled. Boneck testified that the biweekly meetings of employees commenced in February. Boneck testified concerning one of the meetings: The gentleman who asked the question about the wage increases for the main yard was Jesse Alvarez, and he directed it to Paul Neef, and Paul Neef an- swered that wages had been approved but their hands were tied because of the union difficulty until it was over with. They could not give any wages out. Richard Kierdorf, Respondent's manager of industrial relations, testified that he was present at a meeting with employees on February 7. He said the issue of wage raises came up: The response, and it was from myself, was identical to what I just previously stated: We informed the em- ployees that they would be granted increases in the normal like manner had there been no union organiza- tional attempt. Neef testified that the question of raises frequently was asked at the biweekly employee meetings. He said he told employees at a meeting in February that a wage increase was pending, but he denied ever telling employees at any of the meetings that they could not get wage increases so long as the Union was in the picture. Neef said he has no author- ity to grant general wage increases, and that he told em- ployees when they asked about increases that only head- quarters personnel in Saginaw had that authority; that if such a raise were "in the making," he would so notify the employees. Neef said that the biweekly meetings have been held every other Tuesday since November 1976, and that the subject of wage increases comes up at almost every meeting. Discussion Stone's testimony concerning the schedule of employee meetings appeared self-contradictory, but that fact ap- peared to arise from confusion, rather than an attempt to mislead. Generally, Stone was a convincing witness, and his testimony on this point was credibly corroborated by Sprague and Boneck. Kierdorfs testimony is somewhat enigmatic, in that he testified relative to the meeting of February only and, fur- ther, he said that he was the one who answered the em- ployee who asked about a raise. All other witnesses, includ- ing Neeft said Neef was the one who replied. No witness. other than Kierdorf. testified that Kierdorf said anything about raises. In view of these facts, Kierdorfs testimony on this subject is given no weight. Resolution of this issue depends solely upon credibility considerations. The witnesses were closely observed, and their testimony has been carefully considered. Considerable reliance is placed upon Stone, who gave the impression of being a sincere witness, interested in giving honest answers. Sprague and Boneck credibly corroborated Stone. The tes- timony of those three employees is credited over the denials of Feliciano and Neef. So far as the statement is concerned, it is clear that Neef's blaming the Union for the employees' not receiving a raise is coercive and in violation of the Act." Whether or not raises then were being legally planned by Respondent is immaterial. The only' issue involved in this allegation is whether or not Neef made the statement attributed to him. It is further found, based upon Bowker's credited testi- mony, that when Neef and Davis (a stipulated supervisor) told Bowker individually that he could not get a raise be- cause of the Union, Respondent violated Section 8(a)( ) of' the Act. This allegation is supported by the record. E. Alleged Promise of Benefits Paragraph Vl(g) of the complaint alleges that, on an un- known date in April, Respondent promised that clothing allowances would be implemented in order to discourage union activity. Boneck testified that in April, after he was transferred to the truss department, there was a meeting of employees of that department, attended by Kierdorf, Juniper, a lady from San Diego and, briefly, Logan. Boneck testified: I1 Marine World USA. 236 NLRB 89 (1978); Sta-Hi Division, Sun Chenm- cal Corporation, 226 NLRB 646 (1976). HOME LUMBER & SUPPLY COMPANY A. Oh, they readvised our medical plan and bet- tered it for us. They told us they were going to give us uniforms and they were looking into the wage increase, after a few people asked about it. Q. During all the time you worked there did you ever have a uniform? A. No. Q. After this meeting did you receive a uniform? A. No. Bowker testified that he attended the truss department meeting, and his testimony corroborated that of Boneck. Kierdorf testified that Respondent has had a standard package of benefits for employees, including uniforms, for at least 10 years. He stated that a meeting of yard depart- ment employees was held on April 20, at which time those employees did not have uniforms. The employees were given a benefit pamphlet," concerning which Kierdorf testi- fied: A. This is a copy of the benefit, hourly employees benefits of the Wickes Lumber Division and was passed out at a meeting held on April 20. 1977 to the hourly employees at 250 Chisum. [sic] The benefit pre- sentation was put on because primarily there were some new benefits that were being implemented on a Division-wide basis; they granted, for instance, three personal holidays, and some improvements in the in- surance program. Kierdorf also testified: A. The Lumber Division has one set of benefit package, one benefit package, which is then imple- mented at all its locations. The decisions as to what any changes are made at the divisional level and then they are granted and implemented at all locations. Q. How is this benefit package granted to a newly- acquired unit? How is this done? A. As quickly as is reasonable the employees at the newly-acquired location are put not into the total package of the Lumber Division. There are sometimes problems which are encountered which take a little longer to change or implement programs, especially in the area of pensions and insurance programs. Discussion Kierdorfs explanation of Respondent's standard benefit package, including uniforms, and its extension to newly ac- quired operations, was logical and convincing, and is cred- ited. The fact that the package was presented to truss depart- ment employees on April 20 is not in dispute. Further, Kierdorf testified: . . The question during the benefit presentation that was brought up by the employees, which was the pur- pose of the meeting, as to why providing uniforms was in the list of benefits when in fact they did not have provided uniforms. The question of timing is important, but the subject was not fully explored at the hearing. Respondent acquired '2Rap. Exh. 6. Home Lumber Company on March 1, 1974. yet did not give the benefits "package" to employees until more than 3 years later. It is possible, as Kierdorf seemed to imply, that some benefits were in effect and that Respondent's Exhibit No. 6 merely brought the package up to date b incorporat- ing changes, but the record is not entirely clear. Boneck and Bowker said they never received uniforms, even after the election, and Kierdorf could not recall other- wise. There is no dispute about the fact that employees did not have uniforms prior to April 20. Respondent did not explain why it chose April 20. which is within the critical preelection period (less than 30 days) to announce its intention to implement the uniform allow- ance. Had that date been tied to standard procedure. or otherwise logically explained, perhaps a different conclu- sion would be required. However, that is not this case. Uni- forms were long withheld, apparently without good reason so far as the record shows, then were promised during the heat of battle. Under such circumstances, the oniN logical conclusion is that Respondent intended, by its promises. to influence the impending election. This allegation is proved. F. Alleged Granting of WaJge Increases Paragraph VI(h) of the complaint alleges that, on or about May 5, Respondent granted wage increases in order to discourage union activity. The fact that employees were given wage increases in May is not in dispute. Stone and Sprague testified relative to their individual interviews when they were given raises. The fact that Respondent gave its employees annual raises on June 15 in 1975. and on June 1. 1976. is shown hb General Counsel's Exhibit 4. and is not in dispute. Kierdorf testified: A. Historically the center had granted increases. primarily or pretty close to. on an annual basis for most of its employees and then during the course of the year they would grant individual increases for those employees who had not been granted an increase dur- ing the so-called "across the board" type increases. new hires, or employees who just started. whose due dates for annual increase came at a later date. The principal question. therefore, is Respondent's reason. if any. for departing from past practice and giving the raise in May 1977. rather than in June. Respondent offered no explanation. and contends that the May raise was "paral- lel" with past raises; i.e., roughly at the same time. Any departure, however, is important in this case. since the elec- tion was so close in time to the usual June date for raises. Because of that departure, the inference is clear and strong, and is made, that that raise was advanced in order to influ- ence the election.' Kierdorf offered, as a reason for the raise, testimony re- lating to a wage survey conducted for Respondent's infor- mation and guidance. Kierdorf said increases were autho- rized for Respondent's employees on March 16, on the basis of the survey. However, that testimony is somewhat beside the point. There is no substantial dispute about the need to '1 Neport Diision of Wt'inre Kniting Aills. Inc, 216 NLRB 1058 1975). 365 DECISIONS OF NATIONAL LABOR RELATIONS BOARD give employees a raise, and raises were given annually in 1975 and 1976. There is nothing to show doubt about some raise having to be given in 1976.'4 The only substantial question is why it was given in May instead of June. If Respondent was convinced that a raise was necessary in 1977, and if it wanted to depart from its customary June date, it would seem that the raise would have been given in March when it was authorized, rather than in May. No explanation for the delay was given. The only reasonable explanation is that Respondent wanted to influence the election of May 18 by giving the raise as close as possible to that date. The inference is drawn that such was Respon- dent's plan." The combination of factors: (a) union activity, (b) Re- spondent's knowledge of, and opposition to, that activity, (c) Respondent's antiunion activity and other unfair labor practices described herein, (d) the impending election, and (e) the raises given out of phase and just 2 or 3 weeks prior to the election, compel the conclusion that the raise was, as alleged, given in violation of Section 8(a)(1) of the Act. G. Alleged Threats by Juniper on May 17 and June 3 See section I infra. H. Alleged Transfer of Boneck Paragraph VII of the complaint alleges that on an un- known date in February or March, Respondent transferred Boneck from the yard to the truss department, because of his union activity. There is no dispute about the fact that Boneck was twice transferred; the only dispute involves the reason for the transfer. Further, there is no dispute about pay; Boneck did not receive lower wages as a result of the transfer. Boneck testified that in the first or second week of Febru- ary, he talked with Neef, while John Brush, a fellow em- ployee, was present: I asked Paul about why he split the shifts during the week, make us come in and work straight time on Sat- urdays. Paul never give me an answer right then. I questioned him again and I told him that I didn't like it and he said he didn't give a good goddamn what I did or what I cared. I told him that was why John and I went down to sign union cards. On the following Monday or Tuesday, Boneck said, he was transferred from his job as a forklift operator in the yard to a job as a laborer in the timber shed (union yard). Boneck testified that the laborer job he did was less desirable than the job of forklift operator, was one he did not want, and was a job he had done 20 years ago, when he first started working with lumber. The job consisted primarily of sorting lumber, with some sales responsibilities. In late March or 14 As pointed out by General Counsel. Respondent did not sustain the burden of proving its contention that a raise was necessary. However, there is nothing to show that Respondent's business was so unusual that it was outside the inflationary business climate prevalent in 1977. Administrative notice can be taken of that highly inflationary period. "1 Sylacauga Garment Company, 210 NLRB 501 (1974); Revco Drug Cen- ters of the West. Inc., 188 NLRB 73 (1971). early April, Neef asked Boneck if he wanted to go to the truss department as a forklift driver and Boneck said "no." Later that day, Davis asked Boneck the same question and got the same answer. Boneck said he had more seniority in the yard, and that he wanted his old job back. Boneck ob- jected to the transfer, and Davis said Boneck had to trans- fer "or I'll pull your card." Boneck was the most senior of the four forklift operators in the yard, and when he was transferred to the truss department, he was replaced by Dick Brewer, who had been a laborer in the timber shed. After the transfer, he spent approximately 20 percent of his time driving a forklift, and the rest of his time building trusses and doing odd jobs. Brush testified that he commonly worked with Boneck. and after Boneck was transferred, he worked with his re- placement (Brewer) approximately 2-1/2 months. Based upon his daily observation, Boneck was a much more effi- cient, careful, and accurate forklift operator than Brewer; Boneck could do 25 loads on an average day, and Brewer could do 10. Brewer was a learner, and Boneck was one of the more knowledgeable of Respondent's employees.' Brush corroborated Boneck's testimony concerning the lat- ter's conversation with Neef. Juniper testified that the truss department was experienc- ing an upsurge of business in February and March, and he asked Neef for an additional man. 7 who could operate a forklift. Neef said he would see what he could do. Two forklift operators who recently had quit the truss depart- ment were in effect replaced by Boneck. Neef testified that he knew nothing about Boneck's union activity, Boneck was not transferred because he was a trou- blemaker, and Boneck was transferred solely for business reasons. Transfers like Boneck's were not unprecedented. When Brewer was transferred back to the timber shed, a new employee was hired to take his place in the yard. Neef said no employee complained to him about having to work Saturdays on straight time, and that he does not recall Boneck objecting, or telling, Neef that was why he signed a union card. Discussion Boneck's testimony concerning the Saturday work and his telling Neef about signing the union card was corrobo- rated by Brush and is credited. Neef did not deny that con- versation; he merely said he did not recall it. There is no dispute about the facts that Juniper asked Neef for an addi- tional man, and that Neef had authority to make the two transfers of Boneck. Boneck was a long-time employee of Respondent, was the senior forklift operator in the yard, and, so far as the record shows, had a good work record. Boneck's testimony that the work in the timber shed was less desirable than his work in the yard; that he protested both his transfers; and that he was transferred over his objection and under threat of discharge, was not denied, and is credited. ' Brush's assessment of Boneck's work qualities was not challenged or denied. "7 Juniper credibly testified that supervisors of the yard did he hiring for the truss department. 366 HOME LUMBER & SUPPLY COMPANY Neef acknowledged that Boneck's old job in the yard was filled, first by Brewer and later by a new employee. It is apparent from the foregoing that it was not essential to transfer Boneck, either to the timber shed or to the truss department. The exchange, Brewer for Boneck, resulted in detriments rather than advantage, to Respondent. Juniper and Neef agreed that transfers such as Boneck's were un- usual; generally, employees for the truss department were hired from the outside. On the other hand, Respondent had ample reason to make the transfers improperly. Respondent's antiunion ani- mus is clear from the record. Neef's knowledge of Boneck's union activity is apparent. Respondent's interests would be served if Boneck were off the payroll, and one way to get him off would be through discouragement. On the other hand, if Boneck refused to quit, his presence in the truss department would not be detrimental, since the employees of that department were not eligible to vote in the union election (see infra). Boneck's transfers are found to have been because of his union activities, as alleged, in violation of Section 8(a)(3) and (1) of the Act. 1. Alleged Threats, and Suspension of Employees Paragraph VI(j) of the complaint alleges that on or about May 17, Juniper threatened employees with suspension if they attempted to vote in an NLRB election. Paragraph VI(I) alleges that on or about June 3, Juniper threatened employees by letter that they would be terminated if they again attempted to vote in an National Labor Relations Board election. Paragraph VIII alleges that on or about May 18 until May 23, Juniper suspended employees who voted in an NLRB election. Counsel stipulated that 11 employees, named infra, were suspended for 3 days. There is no substantial dispute about the incident which led to the suspension. Respondent contends that truss de- partment employees were not included within the unit for which employees were voting on May 18, and therefore were not entitled to vote. The truss department employees insisted upon voting, left their jobs over the employer's ob- jection to go to the main yard to vote, were away from their jobs for a period of time estimated by witnesses as being approximately 10 to 45 minutes, and were suspended by Respondent for 3 days-May 18, 19, and 20-upon their return to the truss department. General Counsel contends that the employees were engaged in protected activity. and relies for authority upon Earringhouse. ' The record is abundantly clear, and it is found, that, as agreed among Respondent, the Union, and NLRB repre- sentatives, the unit involved in the controversy was limited to main yard employees and did not include truss depart- ment employees. Possibly, as argued by General Counsel, classifications of employees generally are the same at the two locations, including forklift operators, saw men, labor- ers, truckdrivers, and others, but the fact remains that the unit, for whatever reason, was limited to employees at 250 1I Brush's testimony on this point is credited. Brush no longer works for Respondent. E. H. Limited, dbl/a Earringhouse Imports, 227 NLRB 1107 (1977). Chism Street. That fact conclusively is shown by the follow- ing: (a) address of the establishment involved is shown on all relevant documents as 250 Chism Street. On no docu- ment is the address of the truss department, 275 Ralston Street, shown. (b) Juniper, the truss department foreman, is acknowledged by all parties as a supervisor, yet he is not mentioned in the R case decision." (c) The Excelsior list2' includes no truss department employees. Neither the NLRB nor the Union raised any question, or oiced an) objection, to the list. (d) Notice of election posters were posted only at the main yard; none was posted at 275 Ral- ston Street. (e) At the R hearing, Kierdorf used a sketch of 250 Chism Street to illustrate the plant at which unit em- ployees worked, and no objection was made. (f) According to Kierdorf's testimony, which was not challenged or con- tradicted, the only employees discussed at the hearing were those working at 250 Chism Street, and no reference. direct or indirect, was made to the truss department. (g) The Union's R hearing briefP makes no mention of truss depart- ment employees, or of Juniper, the foreman. (h) Kierdorf credibly testified, without challenge or contradiction, that he met with an NLRB representative the evening before the election, and asked her to help prevent any possible prob- lem that might arise because of an attempt by truss depart- ment employees to vote. Kierdorf stated, "I believe she did tell me she did contact the Union." It is not beyond question, however, that truss department employees fully understood that only main yard employees were eligible to vote. Possibly some lack of clarity is shown by the following: (a) Some truss department employees at- tended some, if not all, union meetings with employees. (b) Truss department employees sometimes go to the main yard on business. On one such occasion, Boneck saw the election notice and, upon return to the truss department, told the employees there about the notice. Bowker also saw the notice. Boneck testified that, at one of the union meet- ings in February or March, a union representative said "They would represent everybody employed by Wickes in this area." (c) Employees in the truss yard discussed the Union among themselves. (d) Bowker testified that he as- sumed he was entitled to vote in the election, although he never was told that he was. General Counsel's witnesses appeared to contend that they really did not know that the unit was limited to 250 Chism Street, but that contention is farfetched and unlikely. It is clear that truss department employees were well aware of the situation, but were determined to vote anyway. They wanted to express their opinion, regardless of whether or not their votes would be counted. Boneck's testimony quoted in (c) above is given no credence. Bowker's assump- tion, stated in (d) above, is unrealistic and unconvincing. However, regardless of these considerations, the question remains as to whether the employees' actions were pro- tected. If they are protected, the reasonableness of their belief in their right to vote is immaterial. The fact that the employees were told by Juniper and Stewart not to go to the main yard to vote is clear from Boneck's testimony: 20 GC. Exh. 2(b). 21 Resp. Exh 3. 22 Resp. Exh 2 367 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. It was said the company would look very harshly on anyone going over there and interfering with the election; that it had no concern about us at all. Q. Did you vote in that election? A. Yes. Q. Prior to casting your ballot did you have a con- versation with Dennis Juniper? A. Yes, When I was going over to vote. Q. Where did the conversation take place? A. In front of Dennis Juniper's office. Q. Who was present during that conversation? A. Ryall Bowker. Q. What was said in that conversation? A. I asked Dennis if I should punch out to go vote or just go over and vote. He said to go punch out and then I asked him if he was going to fire me or suspend me or what, and he said, "Probably suspend you."" Bowker corroborated Boneck's testimony on this point. Further, it is clear from the record that almost all the em- ployees left the truss department, that they went to vote in a group, and that production stopped until the employees returned. Kierdorf, who made the decision not to permit the em- ployees to go to the main yard to vote, said he did so be- cause he did not want the employees needlessly walking off the job at their own discretion. No proof of loss was intro- duced, but Kierdorf and Juniper testified that production loss did occur, and it is obvious that the entire plant could not stop production for the length of time involved without a loss. Under the circumstances involved herein, General Coun- sel's reliance upon Earringhouse appears well placed. The facts in Earringhouse are close enough to the facts herein to be controlling. Earringhouse involved a somewhat different set of facts in that there, the employees walked off the job. after a warning not to do so, to attend a representative hearing to which they had not been invited or subpoenaed, and an 8(a)(4) charge was litigated. The Board stated "the resolution of the dispute before us requires the making of a proper accommodation between an employee's right to at- tend a hearing during working hours and an employer's legitimate interst in operating his business without disrup- tion." In making that accommodation, the Board stated two criteria which it held are relevant in judging whether an employee's participation in a Board proceeding during regular working hours is protected by Section 8(a)(4). The employee's activity is protected, the Board held, where (a) the employer can establish no business necessity justifying a requirement that the employee stay on the job, or (b) a business necessity is established but which in the circum- stances is not on balance sufficient to overcome the employ- ee's assertion of his right to attend or participate in the proceeding. The Board found that the company failed to establish either that any valid reasons existed to support legitimate fears on its part that the employees' absence 2 Commonsense would dictate a telephone call by the employees to the Union at this point, but no such case was made. The employees contend they were not aware that the unit was comprised of employees at 250 Chism Street only, but failure to make the call casts doubt upon the employees' contentions. would cause any business or economic loss, or that the em- ployees' absence did in fact cause such loss. In the present case, only a short time of production loss was shown, and only two new employees were hired during the employees' period of suspension. As in Earringhouse, Respondent established no real loss, and in Earringhouse the Board held that even the fact that approximately one- half the production crew walked off was not adequate to show a loss. Here, all but one of the crew walked off, but no actual loss was proved. Respondent in this case established no fear on its part of business or economic loss. Participation in an election here is involved, rather than attendance at a Board hearing, but no legal difference is apparent. Here, the election did not involve the employees, but it was a Board election and, possibly, some employees could have thought they were entitled to vote. That activity would be as protected as the activity in Earringhouse, where employees attended a hearing at which, possibly, some em- ployees might participate from the audience section, by passing notes to their attorney. Attendance at a Board hearing and voting in a Board election both are protected by the Act, assuming the em- ployees have done nothing to remove that cloak of protec- tion. The underlying consideration of the employer, both in Earringhouse and in the instant case, was one of insubordi- nation. In both cases, the employees walked off their pro- duction jobs, after being warned not to do so, because they wanted to participate in a Board process when there was no requirement to do so (e.g., pursuant to a subpoena). In nei- ther case did the employees further the Board's process, or contribute to its administration, nor was the employees' presence necessary to protect their interests or to preserve their rights. But for the existence of Earringhouse, no violation of the Act here would be found. However, Earringhouse is found dispositive of the suspension issue herein, and upon that basis, the allegation is proved. There is no dispute about the fact that, orally on May 17, and by letter on June 3, Juniper threatened employees with suspension and termination if they attempted to vote in an NLRB election. In view of the finding, supra, that the ac- tions of employees in this case were protected under Ear- ringhouse, it is found that Juniper's threats were in violation of Section 8(a)(l 1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities set forth in section III above, oc- curring in connection with the operations of Respondent described in section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in unfair la- bor practices in violation of Section 8(a)( ) and (3) of the Act, I shall recommend that it be ordered to cease and 368 HOME IUMBIER & SUPPILY COMPANY desist therefrom, and to take certain affirmative actions de- signed to effectuate the policies of the Act. It has been found that Respondent unlawfully suspended the following employees: Dave Boneck. Chris Thompson. Isaac Mark Galperin. Daniel Middleton, Rands Knox. Ralph Dickey, David Estes. Rudolfo Ruiz. Steve Silva. Robert Holt, and Ryall Bowker. I will. therefore. recom- mend that Respondent make said employees whole for any loss of earnings suffered by reason of the discrimination against them, by payment to them of sums of money equal to that which they normally would have earned, absent the discrimination. less net earnings during such period, with interest thereon to be computed in the manner prescribed in F. W. Woolworth Conmpanv, 90 NLRB 289 (1950), and Flor- ida Steel Corporation, 231 NLRB 651 (1977).2' It will be further recommended that Respondent preserve and make available to the Board, upon request, all payroll records. social security payment records. timecards. personnel rec- ords and reports, and all other records necessary and useful to determine the amounts of backpay due and the rights of reinstatement under the terms of' these recommendations It has been found that Respondent unlawfully trans- ferred Boneck from hisjob as forklift operator in the main yard to a job in the truss department. It will be recommend- ed that Respondent transfer Boneck back to his old job in the main yard, at his former rate of pay plus interim raises given to him, replacing, if necessary, any employees as- signed to his former job Upon the basis of the foregoing findings of fact and upon the entire record, I hereby make the following: "See, generally, Isis Plumhing & Healing (Co. 138 NLRB 716 196b2 ()ONl.Sl()IONS OF LAW I. Respondent. Wickes Lumber. a division of The Wickes Corporation, d'b/a Home Iumber & Supply Conm- pany,. is an employer engaged in commerce within the meaning of Section 2(6) and (71 of the Act. 2. Teamsters. Chauffeurs. Warehousemenl and Helpers I.ocal nion No. 533. International Brotherhood of Team- sters, Chauffeurs. Warehousemen and Helpers of America is a labor organization within the meaning of Section 25) of the Act. 3. Respondent interfered with, restrained and coerced its employees in the exercise of the rights guaranteed them hb Section 7 of the Act, in violation of Section 8a)(1I) (of the Act, by: causing employees to believe that Respondent w-as engaging in surveillance of their union activities; interrogat- ing and threatening employees concerning their union ac- tivities: telling employees that a fellow employee was trans- ferred because of his union activities: telling employees they would not receive wage increases because of their union activities promising benefits and granting wage in- creases in order to discourage union activities, and threat- ening to suspend or terminate employees if the> voted in an NLRB election. 4. Respondent engaged in, and is engaging in, unfair la- bor practices within the meaning of Section 8(a)(31 and ( I) of the Act. by transferring employees and suspending em- ployees because of their union activity. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 369