Goodyear Aerospace Corp.

THE GOODYEAR AEROSPACE CORPORATION The Goodyear Aerospace Corporation' and Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of America, (UAW). Cases 9-CA-10525, 9-CA-10840, 9-CA- 11244, and 9-RC-11568 January 27, 1978 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On August 18, 1977, Administrative Law Judge James L. Rose issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,2 and conclusions3 of the Administrative Law Judge, to modify the remedy so that interest is to be computed in accordance with Florida Steel Corpora- tion, 231 NLRB 651 (1977),4 and to adopt his recommended Order, as modified herein.5 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, The Goodyear Aerospace Corporation, Berea, Kentucky, its officers, agents, successors, and as- signs, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph l(d): "(d) Granting wage increases calculated to inter- fere with employees' free choice to be represented by the Union or any other labor organization. However, nothing herein shall be construed as requiring the Respondent to revoke any wage increases or other benefits previously granted." 2. Insert the following as paragraph 2(a) and reletter the subsequent paragraphs accordingly: "(a) Expunge from the personnel records of Corri- na Taylor and Donna Terry the written warnings which were issued to them on June 3 and July 13, 1976, respectively." 234 NLRB No. 86 3. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the election held on July 30, 1976, in Case 9-RC-1 1568 be, and it hereby is, set aside, and that said case be remanded to the Regional Director for Region 9 for the purpose of conducting a new election in the appropriate unit at such time as he deems that circumstances permit the free choice of a bargaining representative. [Direction of Second Election and Excelsior foot- note omitted from publication.] I The name of Respondent appears as amended at the hearing. ' Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. We hereby correct the following inadvertent errors of the Administrative Law Judge: In sec. III, A, of his Decision, he states that employee Taylor received a second attendance warning on June 13, 1976, whereas the record discloses that the correct reference is to a third warning issued to her on July 13. In sec. III, B, he refers to the third warnings to Taylor and Terry as having been issued on June 10, rather than July 13. Additionally, in sec. III, A, he states that Taylor was absent for several days prior to her discharge due to her son's illness, whereas it is clear that she was absent due to her own illness. 3 Respondent excepts to the Administrative Law Judge's conclusion that Taylor was discharged on March 10, 1977, in violation of Sec. 8(aX3) on the grounds, inter alia, that she failed to report her absence from work on March 7, 8, and 9. In this regard, the record discloses that Taylor left work on March I, with Supervisor Aldenderfer's permission, due to her own illness and that she remained off work for that reason until her discharge. According to Taylor's undisputed testimony, she notified Respondent on each of the following 3 workdays that she would be absent due to her illness and that on one of these occasions she specifically spoke to Aldenderfer who excused her absence. Additionally, Taylor testified without contradiction that on March 7 she attempted to report her continuing illness to a supervisor but, upon being informed by a security guard that the supervisor had not as yet arrived, she asked him to convey a message to the supervisor. as the guards customarily did, that she would be absent for the next several days. Accordingly, we find no merit in Respondent's exception. 4 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 5 In view of the Administrative Law Judge's conclusion, with which we agree, that Respondent violated Sec. 8(aXI) by issuing written warnings to employees Taylor and Terry, we shall modify his recommended Order to provide that Respondent expunge such warnings from their personnel files. We further shall modify par. I(d) of his recommended Order to indicate that nothing herein shall be construed as requiring Respondent to revoke any wage increases or other benefits previously granted. See Strayer's Johnson- ville Meats Inc., 174 NLRB 693, fn. 4(1969). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employ- ees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through represen- tatives of their own choosing 539 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To act together for purposes of collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT interrogate employees concern- ing their interest in or activity on behalf of International Union, United Automobile, Aero- space and Agricultural Implement Workers of America, (UAW), or any other labor organiza- tion. WE WILL NOT threaten employees with dis- charge should they exercise their right to be represented by the above-named or any other labor organization. WE WILL NOT grant wage increases in order to influence employees to vote against the above- named or any other labor organization in a representation election. Nothing contained in the Board's Order shall be construed as requiring the Company to revoke any wage increases or other benefits previously granted. WE WILL NOT issue warnings to employees concerning their attendance in order to restrain and coerce them in the exercise of their right to self-organization. WE WILL NOT discharge employees because of their interest in or activity on behalf of the above- named or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights that are guaranteed them by Section 7 of the Act. WE WILL expunge from the personnel records of Corrina Taylor and Donna Terry the written warnings which were issued to them on June 3 and July 13, 1976, respectively. WE WILL offer Corrina Taylor and Donna Terry full and immediate reinstatement to their former jobs or, if those jobs no longer exist, to equivalent positions of employment without prej- udice to their seniority or other rights and benefits, and WE WILL make them whole for any losses they may have suffered as a result of the discrimination against them, plus interest. THE GOODYEAR AEROSPACE CORPORATION DECISION STATEMENT OF THE CASE JAMES L. ROSE, Administrative Law Judge: These conso- lidated cases were heard before me on May 10 and II, 1977, at Berea, Kentucky. In Case 9-CA-10525 it is alleged that during June 19761 the Respondent, The Goodyear Aerospace Corporation,2 interrogated employees, and on July 28 threatened them with reprisals in violation of Section 8(aX I) of the National Labor Relations Act, as amended, 29 U.S.C. Section 151, et seq. In Case 9-CA-10840 it is alleged that the Respondent granted a wage increase on June 23, a supervisor told an employee to quit work because the representation election had been lost, and two employees were discriminated against with regard to application of attendance policy, all in violation of Section 8(aX1) of the Act. It is further alleged that Corrina Taylor and Donna Terry were dis- charged, on November 12 and 16 respectively, in violation of Section 8(aX3) of the Act. In Case 9-CA-11244 it is alleged that Taylor, who had been reinstated on November 16, was again discharged on March 10, 1977, in violation of Section 8(aX3) of the Act. Objections to conduct affecting the results of the election were filed in Case 9-RC-11568. All objections but number three were overruled, number three being the threats of reprisal alleged in Case 9-CA-10525. On the basis of the record as a whole, including my observation of the witnesses, briefs, and arguments of counsel, I hereby make the following: FINDINGs OF FACT AND CONCLUSIONS OF LAW 1. JURISDICTION The Respondent is an Ohio corporation engaged in the manufacture of brake assemblies and brake linings at its Berea, Kentucky, facility. The Respondent annually pur- chases and receives at its Berea facility goods, products, and materials valued in excess of $50,000 directly from points outside the State of Kentucky. The Respondent admits, and I find, that at all times material hereto it was an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America (UAW) (herein the Union), is a labor organization within the meaning of Section 2(5) of the Act. mn. THE ALLEGED UNFAIR LABOR PRACTICES A. Factual Background The Respondent's Berea facility was opened in 1973, and since that time the Union has conducted three organiza- I All dates are in 1976 unless otherwise indicated. 2 At the hearing, the complaint was amended to reflect the name of Goodyear Aerospace Corporation as it appears above. 540 THE GOODYEAR AEROSPACE CORPORATION tional campaigns. The most recent, and one involved in this matter, commenced in late May 1976. The two principal inplant organizers during this campaign were Donna Terry and Corrina Taylor. Terry had been active in previous campaigns. Taylor had not. On June I or 2, Taylor and Terry commenced passing out authorization cards at the plant. On June 3 their supervisor, C. B. (Pete) Aldenderfer, gave each a warning for excess absenteeism. Taylor got a second attendance warning on June 13. On June 9, Aldenderfer told employee Linda Bowman that he had heard rumors there was a card signing campaign going on. He asked her why the employees thought they needed a union and the like. In early June, A. E. Fye, the production manager, approached Terry and stated, "I heard a rumor that you were working for the Union." He then began a conversa- tion concerning the Union, asking why the employees felt they needed it. Similarly, on or about June 10 Fye approached Taylor and asked her why it was "that I was for the Union and why the people in the plant was for the Union and wanted one." There followed a general conver- sation concerning the union activity. On June 21, August Kettler, the Union's international representative, sent a registered letter to the Respondent's Berea facility, the essence of which was that the Union had been designated by a majority of the employees and demanded that the Company recognize and bargain it. A receipt shows that this letter was received at the Respon- dent's Berea facility on June 22. On Wednesday, June 23, Plant Manager Lee Turner returned to Berea from Townsend, Tennessee, a distance of approximately 200 miles3 where he had been vacationing with his family. The purpose of this I day return to the plant was to announce, pursuant to instructions from the Akron headquarters he received that morning, a wage increase retroactive to June 21. The petition for an election was filed by the Union on June 25 and the election was held on July 30. The tally of the ballots shows that 37 votes were cast for and 47 votes against the Union. On July 28, Turner talked to the four or five employees in the inspection department, including Taylor and Terry, concerning why they should vote against the Union. During this meeting, Turner stated "We don't get mad we just get even" and then he told both Taylor and Terry, who were wearing union buttons, to "put your X in the no box, Donna baby and Corrina baby." Following the election, on or about August 2, in a conversation with Terry, Aldenderfer stated that inasmuch as "the Union did not get in I take it you are not satisfied and I suggest you quit." Terry told Aldenderfer at that time that she had no intentions of quitting. On November 12 Taylor, Personnel Manager Thomas P. Robertson and Aldenderfer got into an extended discus- sion concerning whether or not Taylor had quit, as Aldenderfer had determined, or not. Taylor first left the premises, then came back, stated that she had not quit, and demanded to be reinstated. Finally, the Respondent did 3 Notice is taken that the highway map shows the distance to be approximately 200 miles. agree to take her back and she was in fact reinstated on Monday, November 16. Also, on November 16, Terry was discharged on grounds of continued excessive absences in violation of the compa- ny policy. On March 10, 1977, Taylor was also discharged for allegedly excessive absenteeism. She had been off for several days before, with company knowledge and approv- al, taking care of her sick son. This outline of the chronology of facts here is based upon the uncontested and generally credible testimony of wit- nesses from the General Counsel. Aldenderfer and Fye were not called. Turner did not deny the statements attributed to him. B. Analysis and Concluding Findings 1. Interrogation Taylor, Terry, and Bowman all testified to interrogation concerning their union activity by Aldenderfer and Fye in early June, shortly following the beginning of the Union's organizational campaign. Not only is their testimony generally credible with regard to the interrogation, but it stands undenied on the record. Asking employees about their involvement in union activity at the beginning of an organizational campaign is not benign, as the Respondent suggests, nor is it the sort of thing permissible under Section 8(c) of the Act. I find that the interrogation by Fye and Aldenderfer was violative of Section 8(aX )). 2. The wage increase The Respondent's contention that the announcement of the wage increase on June 23 was not related to the union activity is totally incredulous. It may very well have been that Turner had asked for a wage survey prior to the advent of the union activity. Nevertheless, the timing of the approval of the increase and the manner in which it was announced to employees suggests clearly that it was done in reaction to the known organizational activity, in an attempt to influence employees against the Union. The timing suggests that the increase was approved and announced specifically prior to the filing of the petition herein, so it would not itself be a cause to have the election set aside. On its face, the approval of the wage increase is dated June 16. June 16 is a Friday, and on that day presumably Turner was at the plant working, inasmuch as his vacation did not start until June 18. If upon approval of the wage increase the people at Akron had wanted Turner to make the announcement, it stands to reason that they would have called him that day and he would have made the announcement then. However, such was not the case. What happened was that on June 21 Kettler sent a registered letter to the Respondent which was received on June 22. While there is no testimony that this letter was opened and read, I must infer that it was. During Turner's absence Fye was in charge of the plant and surely, as acting plant manager, 541 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would have opened any mail, particularly registered mail. Fye was not called by the Respondent, thus I must infer that any testimony he would have given on this subject would have been adverse to the Respondent's interest, namely, that Fye opened the letter. Further, Turner testified that he found the letter on his desk on June 23 but he did not say it had not been opened. Early on the morning of June 23, the day after the Respondent received the letter, Turner was called by his boss in Akron to return to the plant and announce the wage increase. Unexplained is why the Respondent would order its plant manager away from a I week vacation, asking him to drive 200 miles one way to advise employees that they were to receive a wage increase. Turner testified that he always announces wage in- creases. But documentary shows that he never announced one to be retroactively effective. The usual pattern is for him to announce the increase 2 to 6 weeks after approval. In this regard it is also noted that Turner did not really testify to the facts in this matter. What he testified to was what his notes said about receiving the call. He was not asked to fill in the detail nor did he testify that his notes were true, complete, or accurate. Given this approach to his recitation of the facts, and the basic unreasonableness of the story Turner sought to convey, I discount it. Rather, I conclude that after receiving the Union's demand for recognition the Respon- dent's officials in Akron were notified, and knowing that a petition would be forthcoming they hastened to announce the wage increase before the filing of the petition, so as to dissuade employees from the Union but not within the critical period so that such could not be used as a basis for setting aside the election even if granting the wage increase were found to be violative of Section 8(a)(l). The sequence of events demonstrated by this record makes sense only in this way. I therefore do not credit the story inferred by Turner that he was called back to the plant on June 23 before anyone from the Company knew that the Union had demanded recognition, in order to announce the wage increase which had been approved the week before. It may be that before the organizational activity Turner had ordered a wage survey. Nevertheless, from all the facts I conclude that it was approved only after the Respondent learned of the campaign and would not have been implemented otherwise. In its history, employees had been granted wage increases at about yearly intervals. This one came less than 5 months after the increase before it. I find and conclude that the wage increase and the timing of its announcement was meant to discourage union activity and necessarily interfered with employees' Section 7 rights. Respondent therefore violated Section 8(aXl). Montgomery Ward & Co., Incorporated, 220 NLRB 373 (1975), enfd. 554 F.2d 996 (C.A. 10, 1977). 3. Threats by Lee Turner and Aldenderfer The Respondent contends that Turner's statement "We don't get mad, we just get even" said to employees 2 days before the election contained no threat. It was meant to be humorous and was taken as such. The Respondent argues not only that the statement was not a violation of Section 8(a)(1), but that in any event it was so isolated as not to justify a remedial order or to require setting aside the election. The fact that a threat is only uttered one time does not mean that it is isolated. It must be viewed from the total factual situation, particularly including the fact that here there were only about 93 eligible voters and at the time Turner was talking to at least 6 of them, including the 2 principal union activists. And the statement occurred shortly prior to the election. The context in which the statement was made was that of a plant manager talking to a small group of employees (not just two sophisticates as the Respondent contends) shortly prior to an election in an effort to dissuade them from voting for the Union. The statement must be considered part and parcel of the Respondent's basic antiunion campaign. Further, plant managers do not joke with subordinates in a vacuum. What a plant manager says necessarily carries the full force and weight of management. He may have thought it funny, and perhaps the employees did so as well. Still the statement was a put-down of employees and contained a direct and unambiguous threat by the man who could deliver on it. I therefore find that the statement by Turner was a threat in violation of Section 8(aXl1) of the Act and did, in this context, interfere with the employees' freedom of choice. Hence the Union's objection should be sustained. Monroe Manufacturing Company, Inc., 200 NLRB 62 (1972). Also alleged to be a threat, apparently, is the allegation that on August 2 Aldenderfer told Terry that since the Union had lost the election she might as well quit. While such a statement might generally be considered isolated, indeed ambiguous, I conclude that here, particularly since it was directed at one of the leading union organizers, such amounted to an implicit threat. Accordingly, Aldenderfer violated Section 8(a)(1). 4. The discharges The Respondent contends that its discharges of Taylor and Terry were not motivated by their union activity or to discourage union activity but were a natural result of implementation of its absenteeism policy. The Respondent contends, and the record tends to establish, that both Taylor and Terry had relatively high absenteeism rates from the beginning of their employment or at least from 1974 on. The Respondent's absenteeism policy states in essence that any employee whose absenteeism rate exceeds 4 1/2 percent first would be counseled, then given two warnings, with the third warning would be given a day off with pay to contemplate his or her future, and finally, if the absentee- ism rate did not improve, would be discharged. The Respondent contends that, consistent with this policy, it ultimately had to discharge Terry on November 16, and Taylor on March 10, 1977. Critical to a determination of an 8(a)(3) allegation is the employer's motive. An employer has the right to discipline or discharge its employees for good reason, bad reason, or no reason at all except for that employee having engaged in union or other protected activity. Motive can be, indeed usually must be, inferred from the surrounding facts of the 542 THE GOODYEAR AEROSPACE CORPORATION case. E.g., Iowa Beef Processors, Inc., 226 NLRB 1372 (1976). Basically the inquiry in this case must focus on determin- ing whether, but for the union activity, would Taylor and Terry have been discharged. That is, is there a causal connection between their union activity and their ultimate discharges. The existence, or lack of it, of such a causal connection must be found from an analysis of all the facts and circumstances. To say it in another way, had there been no union activity, even given their absenteeism rate, would the Respondent have discharged them. I think not. As a starting point is the fact that Taylor and Terry were the two principal organizers on behalf of the Union. Secondly, it is noted that the Respondent has had the absenteeism policy since its inception, yet it has apparently had some difficulty enforcing it with any degree of consistency. Thus it was that in July 1976 the Respondent issued guidelines concerning how the policy would be enforced. The point is that while the Respondent legiti- mately has had concern about absenteeism among its employees, and justifiably had reason to take steps to curb it, absenteeism has still been a problem. But only Taylor and Terry have ever been discharged for violation of of the absenteeism policy.4 Superimposed on this is the clear fact that the absentee- ism policy has been enforced at best in a lackadaisical matter. Thus just 2 days after the Respondent became aware of the organizational activity, Aldenderfer reviewed the attendance records of Taylor, Terry, and one other employee and gave them negative reports. According to the Respondent's personnel manager, supervisors are supposed to review employees' attendance every 3 months. But Aldenderfer had neglected to evaluate attendance of Taylor and Terry for at least I year. It is reasonably apparent from documents submitted by the Respondent concerning Aldenderfer's evaluation of their attendance in 1975 that the same person who wrote Aldenderfer's name signed Corrina Taylor and Donna Roberts (Terry). It may well be that these evaluations were in fact made by Adlenderfer on June 23, 1975, as indicated. On the other hand, given that the documents purport to be signed by Roberts and Taylor, but were clearly not, raises the suspicion that Aldenderfer made them up sometime later, say in June 1976. Inasmuch as the Respondent did not bring forth Aldenderfer to explain this or his other actions I am constrained to infer that his testimony would have been adverse to Respondent's interest on this point. Interstates Circuit, Inc., et al. v. U.S., 306 U.S. 208 (1939). In any event, it is clear that the absenteeism policy, which forms the basis of the Respondent's justification for discharging these two employees, was at best loose. In fact the Respondent did not begin to apply it with any degree of rigor until after the organizational campaign commenced. From these facts I must conclude that enforcement of this clearly valid company rule was nevertheless caused by the union activity and to that extent necessarily was meant to inhibit union activity. Thus, I conclude that the warnings given to Taylor and Terry on June 3 and 10 were violative of Section 8(a)(1). 4 Two other employees who had relatively high absenteeism rates resigned, but it is unknown what the bases for their resignations were or if indeed the resignations had anything at all to do with absenteeism. But for the union activity, there would have been no review of Taylor and Terry's attendance records and there would have been no warnings. Since the review and warnings form the basis of the discharges, it follows that absent the union activity they would not have been discharged. Furthermore, the Respondent's explanation of the kinds of absences which count against an employee and those which do not is dubious. Thus Robertson testified and a document shows, that absences for military leave, funeral leave, and jury duty will not count against employees. Absences for sickness, even if excused and even if accom- panied by a doctor's certificate, do count against an employee. On this point, however, Robertson testified that an additional cause which would not count against an employee is being absent due to a work related injury. Unexplained is the policy basis for differentiating between an industrial accident and sickness otherwise. In either case the employee is not at fault. Beyond this is the fact that the Respondent's written rule was changed, but when or how, if at all, the industrial accident exception was added is unknown. Undenied was Alenderfer's statement to Bowman when he was reviewing her attendance record, that how long absences would be held against employees depended upon management. There was no set policy. Robertson testified that if one had a less than 3-percent rate for a period of 6 months such would justify "wiping the record clean." Finally, with regard to the discharges of Taylor and Terry, there is no question but what their absences were excused in the sense that they reported in sick and they had doctor's statements in support. Nor does the Respondent contend that the absences of these individuals were unjustified. The Respondent argues only that even justified absences, if they occur often enough, must be dealt with. While such may be a legitimate enough rule, in this situation the Respondent did not enforce it, I find, until after the organizational campaign started and then when the rule was enforced it was against the two principal union activists. I conclude that the discharges of Taylor and Terry were in violation of Section 8(a)(3 ) of the Act. I further conclude that the 2 days that Taylor was off in November 1976 evolved from this situation and whether she had "quit" or not. I find that the Respondent's determination to keep her off work 2 days at this time and finally to reinstate her on November 16 was part and parcel of its discriminatory enforcement of the absenteeism policy, and was violative of Section 8(aX3). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth above, occurring in connection with its operations, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 543 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(aX1) of the Act, an appropriate order will be recommended for the Respondent to cease and desist from such activity. Further having found that on or about November 16, 1976, the Respondent discharged Donna Terry and on or about March 10, 1977, the Respondent discharged Corrina Taylor and, on or about November 12, suspended her for 2 days, I shall recommend that the Respondent be ordered to reinstate Corrina Taylor and Donna Terry to their former jobs or, if those jobs no longer exist, to equivalent positions of employment, without prejudice to their seniority or other rights and privileges and to make them whole for any loss that may have resulted from the discrimination against them in the manner set forth in F. W. Woohvorth Company, 90 NLRB 289 (1950), with interest computed in the manner described in Isis Plumbing & Heating Co., 138 NLRB 716 (1962).5 Upon the foregoing findings of facts, conclusions of law, and the entire record in this proceeding, and pursuant to the provisions of Section 10(c) of the Act, I hereby make the following recommended: ORDER 6 The Respondent, The Goodyear Aerospace Corporation, Berea, Kentucky, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, suspending, or otherwise discriminating against employees because of their support for and assis- tance to the Union or because they engage in union or other activities protected by the Act. (b) Interrogating employees concerning their interest in or activity on behalf of the Union or any other labor organization. (c) Threatening employees with discharge if they vote for the Union or otherwise engage in union activity. (d) Granting wage increases calculated to interfere with employees' free choice to be represented by the Union or any other labor organization. s The General Counsel has also argued that the interest be set at 9 percent and has submitted brief in support of this position. Inasmuch as whether and to what extent to increase the interest rate on a backpay, and to change the basic method of computing the manner of arriving at backpay to include, for instance, an inflation factor are before the Board for determina- tion, I shall not rule on the General Counsel's position here. If the Board does decide to change the method of computing backpay and interest, which cases such will apply to will also be determined. 6 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, (e) Discriminatorily issuing warnings pursuant to the Company's absenteeism policy or otherwise discriminatori- ly enforcing plant rules in order to restrain and coerce employees in the exercise of their rights guaranteed them by Section 7 of the Act. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Corrina Taylor and Donna Terry full and complete reinstatement to their former jobs and make them whole as required by the provisions of The Remedy section above. (b) Preserve and, upon request, make available to the Board or its agents, for examination or copying, all payroll records, social security payment records, timecards, per- sonnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Berea, Kentucky, facility, the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by the Respondent's representative, shall be posted by the 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 are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the election held on July 30, 1976, in Case 9-RC-11568 be, and it hereby is, set aside and that case is hereby remanded to the Regional Director for Region 9, for the purpose of scheduling and conducting a second election at such time and place that he deems circumstances will permit a free choice on the issues of representation. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 7 In the event that 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 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." 544