Beaird-Poulan Division,

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Beaird-Poulan Division, Emerson Electric Company and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW. Cases 15-CA-6038 and 15-CA- 6114-2 November 22, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On July 21, 1977, Administrative Law Judge Stanley N. Ohlbaum issued the attached Decision in this proceeding. Thereafter, Respondent and General Counsel filed exceptions and supporting briefs.' 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 conclusions of the Administrative Law Judge and to adopt his recommended Order, except that the remedy is modified so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). 3 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 and hereby orders that the Respondent, Beaird-Poulan Division, Emerson Electric Company, Shreveport, Louisiana, its officers, agents, successors, and as- signs, shall take the action set forth in the said recommended Order. I Respondent also filed a motion to strike the General Counsel's bnef in support of exceptions arguing that a drawing contained in the General Counsel's brief was improperly before the Board. The General Counsel responded to the motion contending that the drawing was merely reflective of factual statements in the record. The disputed drawing, however, is demonstrative evidence that was not introduced at the hearing and therefore is outside the record. Thus, since briefs before the Board in this proceeding are limited to evidence in the record, we grant Respondent's motion to the extent of striking the drawing and disregarding it in our deliberations. 2 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 credibility 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. 3 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). DECISION I. PRELIMINARY STATEMENT; ISSUES STANLEY N. OHLBAUM, Administrative Law Judge: This consolidated proceeding' under the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.; The Act) was heard before me in Shreveport, Louisiana, on August 17-20, with all parties participating throughout by counsel, who were afforded full opportunity to present evidence and argument, and from whom posttrial briefs were received during the subsequent October after exten- sion of time upon unopposed application of Respondent's counsel. Testimony from 24 witnesses and 2 rebuttal witnesses was heard, and the voluminous record and briefs (totaling over 1,000 pages) have been carefully considered. The principal issues presented are whether Respondent violated Section 8(aX3) and (1) of the Act in a variety of 22 separate respects including coercive interrogation; threats of reprisals including job transfer, shift changes, forced resignation, plant closure, and discharge, for union activity or in the event of unionization; issuance of coercive warnings to discourage protected concerted activities; prohibition of all union talk; creation of the impression of Employer surveillance over union activities; soliciting and remedying an employee grievance to induce abandonment of the Union; and denial of overtime work and scheduled pay increase to selected union member employees to discourage union activities. Upon the entire record and my observation of the testimonial demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 11. JURISDICTION At all material times, Respondent Beaird - Poulan Division, Emerson Electric Company has been and is a Missouri corporation with principal offices and place of business in St. Louis County, Missouri, engaged in the manufacture and nonretail sale of power chain saws at its Shreveport, Louisiana, location and facility. 2 In the course of its business operations at that Shreveport facility during the representative 12-month period immediately preceding issuance of the complaint, Respondent purchased and received goods and materials directly in interstate com- merce, from places outside of Louisiana, valued at over $50,000; and during the same period Respondent sold and shipped goods and materials valued at over $50,000, ' In Case 15-CA-6038, complaint issued June 2 growing out of charge filed May 12; in Case 15-CA-6114-2, complaint issued August 6 growing out of charge filed August 5. The cases were consolidated by the Board's Regional Director for Region 15 on August 6. Unless otherwise specified, dates throughout are in 1976. 2 As amended and admitted at heanng. 233 NLRB No. 112 736 BEAIRD-POULAN DIVISION directly in interstate commerce to places outside of Louisiana. I find that at all material times Respondent has been and is an employer within the meaning of Section 2(2), (6), and (7) of the Act; and that at all those times the Charging Party Union (UAW) has been and is a labor organization as defined by Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent manufactures power chain saws at its factory in Shreveport, Louisiana, the facility involved here, where, according to the charges, it employs some 800 employees. UAW has been attempting to unionize the plant since at least 1974. Without attempting to rehash possibly older history, based on unfair labor practice charges filed in September and complaint issued in November 1974, a hearing was held in Shreveport in January-February 1975 before my esteemed colleague Administrative Law Judge Jennie M. Sarrica, who in her decision (JD-177-75; Case 15-CA-5432)3 on March 31, 1975, determined that Respondent had violated Section 8(a)(1) and (3) of the Act in various respects, including unlawful solicitation of grievances, granting wage increas- es, threatening job loss in the event of unionization, and discharge of employees for engaging in union and protect- ed concerted activities; and ordered Respondent to cease and desist from such and similar unlawful acts, as well as to reinstate into its employ its unlawfully discharged employ- ee Jason Williams with backpay. No exceptions were filed to Administrative Law Judge Sarrica's Decision and recommended Order, which were adopted and made the Order of the Board on May 6, 1975. Meanwhile, pursuant to a UAW petition filed in March, a statutory representation election under the Act was conducted on April 30 under Board auspices (Case 15- RC-5892) in which a majority of the Shreveport plant unit employees selected that Union as their bargaining repre- sentative. On November 23, 1976, UAW was duly certified by the Board as the employees' bargaining representative. When, notwithstanding that certification, Respondent nevertheless continued to refuse to bargain with that Union, an unfair labor practices charge of violation of Section 8(aX5) and (I) of the Act was filed against Respondent on November 23. On May 25, 1977, the Board granted summary judgment against Respondent upon the complaint issued on that charge. Beaird-Poulan Division, Emerson Electric Company, 229 NLRB 988 (1977). The instant case involves allegations of unfair labor practices said to have occurred during or in conjunction with the organizational activities and campaign preceding and following the foregoing April 30 statutory election. We proceed to a consideration of these allegations, grouped by subject. 3 Respondent's objection, on which ruling was reserved at the heanng, to taking official notice of that case is hereby overruled, and Administrative Law Judge Sarrica's decision as well as that of the Board on May 6, 1975, adopting it are received (G.C. Exh. 2). 4 Throughout, Cl refers to the (earlier) complaint in Case 15CA-6038, and C2 refers to the (later) complaint in Case 15 CA-1 14-2. Although B. Coercive Interrogation It is alleged (C 4 par. 12; C2 pars. 10, 8[b], and 9[b ) that Respondent interrogated employees in violation of the Act. Four different supervisors are said to have been involved. 1. Alice Williams The earliest of the alleged interrogations (Cl par. 12) is placed in mid-February, when Respondent's first-shift general foreman, Estel W. Kirkley (then assigned to second shift), is said to have interrogated second-shift drill and tapline machine shopworker Alice M. Williams (who was discharged by Respondent the month before this hearing). General Counsel's proof regarding this consists of testimo- ny by Alice Williams, whose union proclivities were dramatically advertised throughout the plant, that in February she was called to the office where General Foreman Kirkley accused her of making another employee sign a union card based on the employee's signed complaint to the effect that she (Williams) had "tried to . . . force her to sign a UAW card." After Williams denied she had done so, Kirkley directed her to return to work. According to Kirkley, Personnel and Safety Director Hibberts, who was also there, "pointed out that this type of conduct would not be permitted." Kirkley denied ever asking Williams or anybody else about her union senti- ments or voting intentions. Hibberts, a most credible witness, strongly corroborated Kirkley. Upon the record presented, I do not regard the described incident as constituting interrogation in violation of the Act, and I so find.5 2. Timothy Rodrigues The next alleged incident of unlawful interrogation is alleged to have occurred on or about February 20, involving second-shift machine shop setup man Timothy Lynn Rodrigues and Machine Shop Foreman Walter Grey (C2 par. 10). According to Rodrigues (who was still in Respondent's employ at the time of hearing), on the occasion in question, while he was wearing an "UAW- Organizing Department" pocket pencil holder, Grey approached him at work at the entrance to the machine shop cleanup room and asked him in an earnest manner if he was "serious about that little pencil holder in [your] pocket." Rodrigues replied that he was. Grey rejoined that if he ever caught him soliciting for the Union on company time6 he would "take corrective action" against him. When Rodrigues thereupon asked Grey whether it was not contrary to company policy for Grey to be standing there talking to Rodrigues about the Union, Grey left; but thereafter Rodrigues also wore a UAW shirt and button. Grey, a subordinate of General Foreman Kirkley, in general terms, denies the incident, thus presenting a stark issue of credibility. I was far more impressed by Rodrigues' testimony, which to me had the ring of truth and was these cases were consolidated for hearing, the complaints in each continued to maintain their separate identity. 5 Nor do I regard Kirkley's concession on cross examination that he asked Williams if she had indeed done as she was being accused by the other employee as unlawful interrogation. 6 There is no suggestion here that Rodrigues ever had or did. 737 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strongly firmed up on cross-examination, than by Grey's; and, weighing comparative testimonial demeanor as ob- served, I am persuaded that Rodrigues' testimony was truthful and accordingly credit it and find this incident of interrogation established. 3. James Brown The third alleged (C2 par. 8[b]) incident of interrogation is said to have occurred on or about March 24, and to have involved third-shift machine shop employee James M. Brown and the third-shift foreman, Thurman Alford. Brown, who was also discharged shortly before this hearing, testified that while at work on the drill press on the occasion in question he was approached by Foreman Alford, who asked him, "Brown, what do you think about the union?" Brown, who was aware of the pending union preelection campaign, was not wearing any union button at the time, but was friendly with some of the union supporters among his fellow workers. To Alford's question Brown replied that he thought a union was needed. Alford then indicated-still according to Brown-that although he (Alford) did not care whether Brown was for or against a union, he (Alford) did not think a union was needed and that the "company [is] doing fine just the way it [is]." Foreman Alford simply denied the conversation. He also went further and swore that he never "even [had] the slightest curiosity" about who was for the Union among the employees under his supervision-somewhat hard to believe, all circumstances considered. Again, as in a previous situation, I was entirely favorably impressed with the testimonial demeanor of Brown, a plain-spoken and candid witness who was not dislodged on cross-examina- tion; but not favorably impressed with that of Alford, who hedged about during his testimony on other subjects, and whose denial that he "even had the slightest curiosity" about his subordinates' union sentiments taxes my creduli- ty. Accordingly, preferring Brown's account to that of Alford, I find this allegation of interrogation has been established by substantial credible evidence. 4. Linnie Campbell It is further alleged (C2 par. 9[b]) that on or about April 7 Respondent's foreman, Alvin Lee, unlawfully interrogat- ed its employee Linnie M. Campbell. As to this, while Respondent's then first-shift machine shop drill and tap operator (later transferred to the testing and development 7 Although not reflected in either complaint, Campbell did testify that on February 9 Foreman Lee asked him where his union button-which he had apparently been regularly wearing-"was that particular day" and why he was "for the union," to which Campbell responded that he had left his button at home and favored the Union because he was miffed over the Company's handling of an insurance claim. Whether or not I would regard the second part of Lee's question (not the first concerning the button) as coercive under all of the circumstances, this alleged February 9 episode is nowhere alleged in the complaint and appears to be too far removed in time from the alleged April 7 (C2 par. 9[b]) instance of interrogation to regard them as one and the same, even on a liberal interpretation of "on or about." General Counsel made no application to conform pleadings to proof (although that would not necessarily be conclusive on this issue, had it been effectively litigated-which it was not, without fault on Respondent's part since no proof as to any interrogation of Campbell on or about April 7, as alleged in the complaint (C2 par. 91b]), as amended, had been adduced in General Counsel's case). Lee, however, denied even the February 7 incident department) Campbell testified to an assortment of other episodes, he did not testify to any interrogation on or about April 7 as alleged in the complaint, as amended (C2 par. 9[b]). 7 For this reason, as amplified and further explicated in footnote 7, supra, I find this allegation not fairly sustained under a fair construction of the pleadings, nor in any event by the necessary preponderating quantum of proof. C. Creation of Impression of Employer Surveillance over Employees' Union Activities It is also alleged (C2 pars. 11 and 7[a]) that on two occasions Respondent unlawfully created the impression that it was maintaining surveillance over its employees' union and protected concerted activities. I. Jason Williams The first alleged instance (C2 par. II), on or about February 25, is said to have involved second-shift drill and tapline machine shop worker Jason Williams and Respon- dent's first-shift foreman, William E. Crouse (Bill Cross). As to this, Respondent's machine shop rod (raw) area employee (primarily borematic machine operator), Jason Williams, who also figured in the aforementioned case heard before Administrative Law Judge Sarrica and who had been in Respondent's employ for almost 4 years at the date of this hearing, testified that he was one of the prime leaders of the unionization movement in the plant and that this was unconcealed and well known. On the occasion in question, in late February, according to his testimony, he was soliciting union card signers during the morning break period in the rod or raw area. After the break, he was approached by Foreman Crouse, who had observed him soliciting the card signatures during the break. Crouse expressed surprise (although Williams concedes Crouse knew of Williams' union activity) and told him that if he was ever caught soliciting or talking for the Union "during working time" he "could get in serious trouble." Williams replied that he understood the law and would comply with it. Denying the incident as recounted by Williams, Crouse also testified that he never saw Williams soliciting union card signatures during worktime either. I found Jason Williams to be a most impressive witness, who testified with self-assurance and persuasive conviction, and whose testimony able cross-examination and recross-examination served only to strengthen. While I credit his testimony, I as described by Campbell. Under Lee's version, Campbell volunteered certain information to him, which could not be regarded as "interrogation" by Lee. On this specific aspect of the case, I would in any event be unable to regard the weight of Campbell's uncorroborated testimony as fairly preponderating over Lee's uncorroborated denial as to the described, unalleged February 7 incident of interrogation; and, accordingly, therefore, I would not in any event regard it as established by the necessary quantum of proof, since in this respect Lee impressed me as equally credible to Campbell, and, therefore. General Counsel could not be regarded as having sustained his burden of proof in this regard. Cf. Consolidated Edison Co. of New York, Inc. v. N.LR.B., 305 U.S. 197, 230 (1938); AAA Lapco, Inc., 197 NLRB 274 (1972). "The burden of proof is upon the General Counsel. When . . . the [Administrative Law Judge] is not persuaded by the testimony of the General Counsel's witnesses .... the General Counsel has failed to meet that burden of proof." Blue Flash Express, Inc., 109 NLRB 591, 592 (1954). 738 BEAIRD-POULAN DIVISION am unable to regard the described episode as constituting unlawful surveillance, since I believe that a foreman has the right, without running afoul of the Act, to see what his eyes can plainly see during the course of his plant duties, including activity of this nature, openly as he did here, on the plant premises, even during breaktime. Emerson Electric Company, 177 NLRB 75, 87 (1969). Crouse's later, noncoercive statement to Williams further indicates that in no way was his observation surreptitious or so intended, or otherwise restraintful or coercive (nor that he in any way faulted Williams for soliciting during breaktime). Ibid. Accordingly, it is found that under the circumstances shown, Foreman Crouse's mere observation of Williams' plant solicitational activity (which was notorious) did not constitute unlawful surveillance or the conveying of the impression thereof. Cf. South Shore Hospital, 229 NLRB 363, 364-365 (1977); Schrementi Bros.. Inc., 179 NLRB 853 (1969); Emerson Electric Company, supra, and cases cited. 2. Linda Walker The second incident of this variety is alleged to have involved Respondent's former subassembler, Linda Walk- er, and Respondent's personnel and safety director, Glenn Doyle Hibberts, on or about March 3. According to Walker, in mid or late February, while Hibberts was passing by or through her area he "laughing[ly] and joking[ly] as usual" remarked, "Linda, I hear you are for the United Armadillo Workers." She "just smiled and laughed it off." (On cross-examination she added that she said, "Yes.") Hibberts rejoined, "Well, we don't need nothing like that around here." Although she was not wearing a union button then, she later started wearing one. However, she conceded on cross-examination that she was active in the Union and that this was well known throughout the plant. Hibberts denies the incident ever occurred, pointing out that-as conceded by Walker- Walker's union sympathies were common knowledge in the plant and that as personnel director he would hardly go around the plant saying things of this nature. While I was extremely and favorably impressed by Hibberts as a witness and less so with Walker and could under no circumstances find that her testimony or credibility preponderates over his, even were I to credit Walker's account I would still not be of the view nor find that the described incident, assuming arguendo that it occurred in the offhand jocular fashion she graphically described and under the circumstances of her open, unconcealed, and well-known union activity throughout the plant, would have constituted unlawful creation of the impression of surveillance as alleged. Cf. South Shore Hospital, supra at 364-365. I accordingly find this allegation not established by substantial credible evidence on the record as a whole. a Respondent's objection to Savage's testimony setting forth this circumstance, on which ruling was reserved, is overruled. Cross-examination of Savage elicited that other employees there testified on behalf of Williams. 9 E.g.. gas caps, boxes. barrels. gloves. earplugs, aprons, hand cleaner. It had always been part of Savage's duties as leadman to obtain those supplies. D. Interdict Against Union Talk The complaint alleges (CI par. 10[b]) that on or about February 26 Respondent through its Foreman Edgar W. Homrighausen, Jr., issued an unlawful prohibition to an employee not to engage in conversation, so as to discour- age union and other permissible concerted activities of employees. At the hearing, the alleged prohibition was shown to have been issued to Respondent's first-shift motor testroom assemblyman, Lee Olen Savage, still in its employ at the time. of the hearing, but whose pay was reduced by some 21 cents per hour a few weeks before the hearing when he was demoted from his leadman job which he was told was being "eliminate[d]." Savage was not only an employee organizer on behalf of the Union, who wore union buttons and solicited openly on its behalf, but it was he and his fellow employee, Williams, who had called the Union in; and Savage had testified on Williams' behalf in the hearing of the early 1975 case before Administrative Law Judge Sarrica, referred to above.8 According to Savage, who had previously been promoted from utilityman to leadman and was then holding the latter position, while conversing with some fellow employees during the morning break on February 17 he sketched some UAW slogans on a piece of paper on a clipboard in his possession. After the break, Foreman Homrighausen summoned him out of the room (the door to which had a window). When Savage left the room in which he had had his break, he carried the clipboard behind his back. Homrighausen demanded to see what Savage had behind his back. Savage removed the top paper (on which he had sketched the UAW slogans), and handed Homrighausen the clipboard with the remainder of the pad. Homrighau- sen indicated that if Savage had written "anything to do with the union" he would be "in big trouble." Homrighau- sen then went to his desk and shaded over the indentations on the blank top page of the pad, disclosing that some "UAW slogans" had been written on the preceding page. About 10 minutes later, Savage was approached by Foreman Robert J. Ramey who told Savage to "walk a straight line because [we or they are] going to try to pin something on [you]." And about 15 minutes later Ramey handed Savage a "corrective action" slip ("green slip") dated that date (February 17; G.C. Exh. 16), which shows it was signed by Savage "under protest." It states that Savage was "spending to [sic] much time away from work station" and "not performing job as leadman." When Savage asked Ramey to explain this, pointing out that as leadman it was essential for him to obtain supplies needed by his men,9 who always knew where he had gone for that purpose, Ramey told him to send somebody else from then on and also that "any time [you go] anywhere . . . [you are] supposed to ask [me] for permission and [you] also [have] to ask permission to even go to the bathroom." To Savage's knowledge, no other leadman was similarly restricted.10 '0 The February 17 "green slip" (G.C. Exh. 16) also states that Savage had been "councelled" (sic) by Ramey on January 21. Savage credibly denied recollection of any such "counselling," while conceding he had also received 2 green slips in about I week dunng the preceding 1975 union (Continued) 739 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It has been deemed appropriate to describe the forego- ing-alleged and dealt with elsewhere herein (infra, "III, 11")-at this point, in order to provide contextual back- ground for what ensued and will now be described. About a week after the foregoing episodes-on or about February 26, as alleged in the complaint (CI par. 10b])- while Savage was in the assembly area for a barrel for some mufflers, no sooner had a fellow employee greeted him with, "How are you doing," than Foreman Homrighausen cropped up behind him (Savage) and directed him "not to talk about anything to anybody any time anywhere." Savage returned to his motor testroom. When he shortly thereafter emerged for some needed gas caps, as soon as a female worker greeted him with "Hi," Homrighausen again surfaced right behind Savage and said, "What did I tell you? I told you you couldn't talk about anything to anybody any time anywhere." Apparently regarding this injunction as intolerable ("I [Savage] thought Ed [Homri- ghausen] didn't know what he was talking about"), Savage went to see Foreman Ramey, whom he asked, "Is it true that I'm not supposed to talk about anything to anybody any time anywhere?" Ramey confirmed, "Yes, it is." There was concurrently in operation a counter-UAW organiza- tion, known as "Employees for Employees," campaigning against UAW, and Savage's credited testimony establishes that its members carried on conversations openly in work areas at this time, and that, although Savage pointed that out to his supervisors, seemingly nothing was done about it.'' The clipboard episode is not substantially disputed by Foreman Homrighausen, who admits tracing over the "UAW" slogans, as described by Savage, after he took the clipboard from him-which Homrighausen. claims he did because it was company property and because he was "curious." Homrighausen conceded, on cross-examination, that he does not know when the UAW "slogans" were written by Savage, nor whether it was or was not on company time. Homrighausen claims there is no company prohibition against talking, but that he imposed one against Savage because he was talking too much, thereby interfering with other employees' work. Homrighausen conceded that Savage's duties included obtaining necessary campaign. It is nevertheless noted that the February 17 (G.C. Exh. 16) "green slip" indicates it is the "Ist notice" to Savage and that it was indeed "Signed [by Savage under Protest." " Although Savage even identified some employees by name at the hearing, they were without explanation not produced by Respondent. Savage's testimony on this point thus stands in part uncontradicted. 12 On cross-examination, Ramey conceded that the February 17 admonition signed by Savage "under protest" was Savage's first "green slip," the previous episodes admittedly not being considered "senous enough" by Ramey to warrant issuance of a "green slip." Ramey conceded that he directed Savage (in January) not to even go to the toilet without advance supervisory permission. 13 For example. Ramey testified that "if I had wrote a slip on Mr. Savage for every time that he has been away from his work station or hadn't performed his job it would probably fill this court room." He then acknowledged this "may be an exaggeration" and modified it to "quite a few sheets of paper," but again at once characteristically hyperbolized this to "a couple hundred sheets of paper." Ramey's explanation for never issuing a "green sheet" to Savage before February 17 was that he "was busy in other areas"-an unlikely and incredible story, as was his insistence under oath that he "didn't" know Savage was "for the union." even though he saw him wearing UAW "T" shirts. supplies such as gas caps. He also acknowledged knowing that Savage was for the UAW. Insofar as Foreman Ramey, first-shift supervisor of final assembly, Core Center 42, is concerned, he claims that after four apparently unilateral previous notations made by him and placed in Savage's file, from November 1975 to January (Resp. Exhs. 5-8)-of which Savage disclaims knowledge, and none of which is signed or acknowledged by him (one of these states, "Savage cannot display leadership because he mixes with his workers" [Resp. Exh. 7])12-since he observed Savage to be away from his work area too long on February 17, he issued him a "green slip" (as he had to other employees) for this reason. I found Ramey to be an unprepossessing witness, given to hyperbole and exaggeration; 13 indeed, he himself conceded on cross-examination that he had exaggerated in his testimony. Also, his testimony seemed at odds with some of his written notations, and his attempted explana- tions were unpersuasive. Upon the basis of my observations of the testimonial demeanor of Savage, I found him to be a credible witness. Although Foreman Homrighausen also impressed me favorably, in material essence as to the critical allegation with which we are here concerned, his testimony did not wholly contradict that of Savage. I have already comment- ed on my impressions of Ramey, who conceded he exaggerates and whom I believe in that respect. Weighing comparative testimonial demeanor within the frame of reference of the record as a whole, I prefer and credit the testimony of Savage, and accordingly find that, substan- tially as alleged in the complaint (CI par. 10b]), he was indeed directed by Respondent through its Supervisor Homrighausen not to engage in conversation with other employees in the plant. That such a sweeping directive is unduly broad-as well as under the credited circumstances described by Savage, discriminatory against the UAW1 4 - forbidding, as it does, talk even on his own free time, and therefore violative of Section 8(a)(1) of the Act, is not reasonably open to question.15 14, Without contradiction of Savage's testimony in this regard. Respon- dent also failed to establish similar prohibitions upon employees openly advocating the counter-UAW "Employees for Employees" committee who carried on conversations comparable to those of which Savage was accused and which resulted in the sweeping prohibition against all talking by him. Cf.. e.g., Revere Camera Company v. N.LR.B.. 304 F.2d 162. 165 (C.A. 7. 1962): N.LR.B. v. Hill & Hill Truck Line. Inc., 266 F.2d 883. 886 (C.A. 5. 1959): Wigwam Mills, Inc., 149 NLRB 1601, 1608-10 (1964), enfd. 351 F.2d 591 (C.A. 7, 1965); E.D.S. Service Corporation 187 NLRB 698. 702-703 (1971), enfd. 466 F.2d 157 (C.A. 9, 1972); Bannon Mills, Inc., 146 NLRB 611. 629 (1964); Peyton Packing Company, Inc., 49 NLRB 828, 843-847 (1943), enfd. 142 F.2d 1009 (C.A. 5, 1944). cert. denied 323 U.S. 730 (1944). L1 Cf. e.g., Republic Aviation Corporation v. N.LR.B., 324 U.S. 793 (1945); Jas. H. Matthews & Co. v. N.LR&B., 354 F.2d 432, 440441, and cases cited (C.A. 8, 1965), cert. denied 384 U.S. 1002 (1966); Waukegan- North Chicago Transit Company, 225 NLRB 833 (1976); Tupco Division of Dart Industries, Inc., 215 NLRB 424, 433 (1974); Farah Manufacturing Company, Inc., 202 NLRB 666 (1973); Aldon, Inc., 201 NLRB 579, 583-584 (1973); King Radio Corporation, Inc., 172 NLRB 1051, 1052-56 (1968), enfd. 416 F.2d 569. 571 (C.A. 10, 1969). cert. denied 397 U.S. 1007 (1970); and cases cited at fn. 14, supra. 740 BEAIRD-POULAN DIVISION E. Threats of Discharge and Attempts to Obtain Employee Resignation for Union Activity The complaint (Cl pars. 7[a], 7[b], and 8) further alleges that Respondent threatened discharge and similar job loss for union activity. Three alleged episodes, involving two employees and supervisors, are involved. I. Edwin Bachman It is alleged (CI par. 7[a]) that on or about February 8 or 9 Respondent's Foreman, James Carroll Hudson, threat- ened its employee, Edwin R. Bachman, with discharge for affixing a union sticker on another employee's clothing. As to this, third-shift machine shop former employee Bach- man testified credibly that while at work around I a.m. on the date in question, he attached an adhesive "Vote yes for UAW" sticker on the back of a cleanup man-who had previously at times indicated he was for, and at other times against, the UAW 16-as he was passing by. About an hour later, while on the way to the restroom, Bachman overheard Foreman Hudson remark to the cleanup man that if he found out who had done this he "would" fire him. Foreman Hudson testified credibly that after cleanup man Daniels annoyedly complained to him about the foregoing, he (Hudson) remarked to him that he felt it was wrong to do this to somebody against his will and that it was "kind of like horseplay" which "could lead to a termination." Hudson emphasized he had said "could" and not "would." Hudson insisted he drew no differentiation in this regard between a union sticker or any other sticker. Upon the record presented, crediting the testimony of Hudson as to his precise words on the described occasion, it is found that the allegation of the complaint has not been established by preponderant substantial credible evidence, thus rendering unnecessary a determination of whether the episode in any event constituted interference, restraint, or coercion in violation of the Act. 2. Wilbert Hadnott The other two alleged incidents involve Respondent's third-shift machine shop pickler and milling machine operator, Wilbert Hadnott. The first of these is said to have occurred on or about February 24, when it is alleged (CI par. 7[b]) that Foreman Hudson attempted to obtain Hadnott's resignation because of his union adherence; the second (CI par. 8), on or about February 26, when General Foreman Tony G. W. Nash allegedly threatened Hadnott that he could be gotten rid of because of his union activities by assigning him to work for which he was untrained and then discharging him for poor performance. According to Hadnott, who testified that he was one of the UAW employee organizers from the beginning as well as on the in-plant organizing committee (wearing its special button) and otherwise extremely active on its behalf, to management's knowledge,' 7 on or about February 24 he (Hadnott) was called into the office by Foreman Hudson, Is On cross-examination, Bachman conceded that the cleanup man was "known to be against the union"--at least sometimes. 1T According to Hadnott, he not only habitually wore numerous UAW buttons and had solicited many members, but he had also spoken up openly who, in the presence of the third-shift general foreman, Nash, notified him that he had been "timed" and found to be "spending too much time in the bathroom." Hadnott denied excessive use of the bathroom in terms of his needs. Hudson then (still according to Hadnott) accused Hadnott of "griping" about a shift transfer he was seeking (from the third shift, to which he had been transferred, back to his original first shift), adding that "the company could get tired of you griping and tell you to go to hell somewhere else if you don't like it." On the next night, February 25 (Hadnott continued), Hadnott was again called to the office by Foreman Hudson, where General Foreman Nash this time informed him that Foreman Hudson was dissatisfied with his "production" on the cam grinder and that Hadnott lacked "interest" in his job. Hadnott explained that this was the very first night he had been assigned (by Hudson) to the cam grinder, a machine which was not only novel to him but more difficult to operate than the milling machine he had been operating. He had never received a "green slip" for poor production. Continu- ing, Hadnott testified that on the following night (i.e., February 26) he was once called to the office, where Nash (in the presence of Hudson) this time told him that he had "heard through the grapevine" that Hadnott was not "satisfied" and "didn't like what [you are] doing at this time"; and that if Nash "wanted to get rid of [you]" he could assign Hadnott to the cam grinder for the 30 days allotted to learn its operation, without teaching him how to operate it, and then "get rid of [you] for not being able to operate the machine properly." Foreman Hudson conceded that he had and still has "bathroom" problems with employees other than Hadnott: that Hadnott had sought retransfer back to the first shift; and that Hudson had indeed criticized his performance on the cam grinder after he had operated that machine for only 3 days (according to Hudson), although the machine is difficult to operate and 8 to 10 days are required before it is possible to learn its operation. Hudson denies he asked Hadnott to "resign because of .... the Union"; and, as to the latter (February 26) episode, Hudson's slant is that General Foreman Nash told Hadnott that "if" the Company really desired to get rid of an employee it "could" do so by shifting him to a task he was incapable of performing and then firing him. In other words, Hudson's version of the latter incident does not vary significantly from that of Hadnott except that, according to Hudson, Nash put the matter hypothetically or suppositiously rather than by applying it perhaps more directly or suggestively to Hadnott. Hudson leaves unexplained why Nash said it at all if he did not mean it to be taken seriously by or at least to be suggestive to Hadnott. According to the third-shift general foreman, Nash,- who testified only concerning the February 26 office episode-when Hadnott indicated unhappiness because of his frequent shift and job transfers by the Company after 6 (and perhaps provocatively on the subject of wages) at company-assembled convocations of employees, at which Respondent's personnel and safety director, Hibberts, not only referred to him by name but once silenced him. 741 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or 7 years on the job, and that "he [Hadnott] felt that maybe we were trying to get rid of him," 18 in order to reassure Hadnott that this was not so Nash "told him that if we had been wanting to get rid of him it would have been simple enough to just put him on a machine that he couldn't run and 30 days later we could let him go." Nash concedes that Hadnott was a "known union supporter" and a "strong union adherent." I was very favorably impressed by the testimonial demeanor of Hadnott, while also well impressed with that of the other witnesses on this subject, whose testimony in material essence did not involve major discrepancies. There is, rather, presented a question of the reasonable effect upon an employee of the words used. In this situation, I incline toward the view that the reasonable thrust and effect of the words used, in the situation described, within the background of the previous history and surrounding events, was, indeed, as taken by Hadnott and alleged in the complaint. Thus, I am persuaded and find that under all of the circumstances the first episode (February 24) could, indeed, reasonably be and was regarded as an invitation to Hadnott to leave Respondent's employ, in relationship to his preeminence in the ongoing union activities; and that the second episode (February 26) on the heels of the first (with a summons to the office on the intervening night, February 25) could reasonably be and was in fact regarded as a veiled threat that Respondent could rid itself of Hadnott-concededly a known, preemi- nent union activist-by transferring him around in the manner described. Although, in the frame of reference of the long factual congeries preceding and surrounding the February 26 episode, I would have difficulty in accepting Nash's explanation (which impresses me as somewhat thin) that he said what he did as a reassurance rather than as a threat to Nash, in any event I am persuaded that Hadnott not unreasonably regarded it as a threat and that the reasonable effect thereof on an employee would be and was threatening, restraintful, and coercive rather than reassuring. It has frequently been pointed out that it is the reasonable effect of words upon the listener, rather than the alleged subjective intent of the speaker, which is controlling in this type of situation. Cf., e.g., N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 617-620 (1969); N.LR.B. v. Exchange Parts Company, 375 U.S. 405, 409 (1964); Henry I. Siegel Company, Inc. v. N. L.R.B., 417 F.2d 1206, 1208, 1214 (C.A. 6, 1969), cert. denied 398 U.S. 959 (1970). "[W]hile purporting to discuss possibilities, it was the Employer alone who could translate these possibilities into realities." Oak Manufacturing Company, 141 NLRB 1323, 1325 (1963). "Language may serve to enlighten a hearer, though it also betrays the speaker's feelings and desires; but the light it sheds will be in some degree clouded, if the hearer is in his power." Circuit Judge Learned Hand, in N.LR.B. v. The Federbush Co., Inc., 121 F.2d 954, 957 (C.A. 2, 1941). See also Justice Holmes, in Towne v. Eisner, 245 U.S. 418, 425 (1918). It is accordingly found that although the first of these allegations (CI par. 7[a]) has not been established, the Is Respondent heavily suggests, in its posttrial brief, that Hadnott's reactions to these episodes indicate a "paranoid outlook." I cannot agree. unless it has been a condition understandably induced in Hadnott by other two (Cl pars. 7[b] and 8) have been established by a fair preponderance of substantial credible evidence within the context of the record as a whole. F. Offer or Inducement of Beneficial Change Tied to Union Abandonment The complaint (CI par. 9) further alleges that on or about March 8 Respondent's foreman, Thurman Alford, offered an employee a better shift assignment if he would remove his union button and cease advocating the Union. The employee involved was Wilbert Hadnott, who has been in Respondent's employ since 1969 and who, as already indicated, was-to management's knowledge- preeminent in the UAW organizational drive in Respon- dent's Shreveport factory. After a number of changes in his assignments, in or around November 1975 Hadnott was transferred from the first (i.e., daytime) shift to the third (i.e., night) shift, over his protest. Although he has since been consistently requesting retransfer to the first shift- among other reasons, because his home has been burglar- ized six times in his absence during the night-as of the time of the hearing he had not been transferred back to the first shift. According to Hadnott's testimony, while he was at work on the milling machine between 3 and 4 a.m. on March 8, he was approached by Foreman Thurman Alford, who asked him if he would be "happier" back on the day shift. When Hadnott said "yes.. . I would be happy on days," Alford asked him if he "would pull off [your] union buttons and stop advocating [or "quit pushing"] the union if [you] could go on days," and that if so Alford would attempt to arrange it. Conceding that Hadnott had repeatedly asked to be retransferred to his former first shift, the third-shift foreman, Alford, simply denies the conversation testified to by Hadnott, insisting it is "pure fabrication" on Hadnott's part. I have already had occasion to comment about my entirely favorable impressions of Hadnott as a witness. His described testimony in the aspect of the case now under consideration was reiterated and persuasively reenforced under cross-examination. By contrast, I found Alford to be overglib and unconvincing, in addition to given to incredible responses; for example, he blandly denied that he had even the "slightest curiosity" about "who was for the union" among the employees under his supervision- hardly likely, and he also blandly testified that he had timed Hadnott in the bathroom and required that he furnish a doctor's statement about his urination require- ments only because he was "concerned" about him and "didn't want him to . . . get sick"-also hardly likely. Alford also shifted ground rapidly, breezily changing answers. Unhesitatingly preferring and crediting the testimony of Hadnott to that of Alford, after comparing testimonial quality and demeanor within the context of the record as a whole, I find the allegation of the complaint under Respondent's described summonses of him to the office-that sometimes awesome seat of authority-and its statements to him for 3 nights running, as described. 742 BEAIRD-POULAN DIVISION consideration (CI par. 9) established by substantial credible evidence. G. Discriminatory Denials of Overtime The complaints also allege that Respondent unlawfully denied overtime work to employees Alice Williams (Cl pars. 13 and 14) and Jason Williams (C2 par. 15). i. Alice Williams Respondent's former19 second-shift drill and tapline operator, Alice M. Williams, testified that in February she worked under Foreman Walter Grey, who in turn was under the first-shift general foreman, Estel W. (Sonny) Kirkley. One day during that month (according to her testimony), in the absence of Grey, Kirkley inquired of her whether she was interested in working overtime on Saturday. She said yes. She was working on Part 11203 at the time and concedes that she had been employed on the drill and tapline for only about a month and was low in seniority; and, specifically, that fellow employee Kirken- dall was senior to her and that, according to her, fellow employee Bell was hired around the same time as she. According to Williams' further testimony, after she indicated her interest to Kirkley in Saturday overtime, she turned around and started to walk away, whereupon Kirkley remarked that he would not be needing or using her since her name was not on a list which Grey had prepared.2 0 Since Williams was wearing a UAW button on her posterior at the time, the inference is invited that this was the reason Kirkley changed his mind about using her for overtime. This, however, assumes that Kirkley had made up his mind about assigning her to overtime, instead of-according to her own testimony-merely asking her if she was willing or interested in such possible assignment. Williams conceded on cross-examination that this was not the first occasion on which she had worn UAW buttons, and that she had even worn them earlier that week to Kirkley's observation; that she was a member of the union organizing committee; and that she had failed to show up for assigned and agreed overtime in the past. Foreman Grey testified that he was away on vacation that week, that he left no overtime employees' list, and that Kirkley took over in his absence. Grey also testified credibly and without contradiction that Williams had been advanced from cleanup woman to drill-press operator; that Williams is junior to no less than 40 employees on the seniority list which he maintains; and that in December (1975) Williams had declined offers of or had not shown up for Saturday overtime on two occasions, and had shown up late on one of the two Saturdays on which she worked in January. General Foreman Kirkley's credited testimony establish- es that he assumed control of Foreman Grey's drill and tap area (Cost Center 23) during the latter's absence on vacation from February 16-21; and that, there being 19 As has been indicated in a previous connection, Alice Williams' employment with Respondent terminated in July. 20 According to Williams, Grey denied to her on the following Monday that he had prepared such a list. Although Grey also denies preparing such a list and Kirkley acknowledges never receiving such a list. Kirkley also insists occasion for overtime during that period, he himself (Kirkley) made up an overtime schedule (Resp. Exh. 24) for Saturday, February 21, which is altogether in his own handwriting. That list does not contain Alice Williams' name under drill and tap (Cost Center 23) or anywhere else; nor does any of the work listed call for Part 11203, on which, as shown above, Alice Williams concededly was working at the time. As credibly explained by Kirkley, the Company's policy on overtime is to assign it to the person doing the particular job at the particular time, and, in the absence of such, on the basis of seniority, to the senior employee; also, not to cross cost centers or shifts unless essential. As further explained by Kirkley, Alice Williams met none of these criteria; and, of the five employees assigned to overtime on drill and tap (Cost Center 23), all five were senior to Williams, three of the five (Lazarus, Glover, and Bell) continued on particular jobs they were already doing, and the remaining two (Kirkendall and Wood, each of whose seniority far exceeded that of Williams) were assigned on the basis not only of seniority but also specific prior qualifying experience for the tasks required. Kirkley credibly disputes that he ever indicated to Williams that she could work overtime and that he later indicated she could not. But, as will be recalled, not even Williams testified that Kirkley assigned her to overtime or did more than inquire as to her willingness to do so if called upon. In this state of the record, it has not been established that Alice Williams was assigned to overtime, or even asked to work overtime, or discriminatorily or otherwise in violation of the Act denied overtime. According to her testimony, on the occasion she described (but which Kirkley disputes) she was displaying a UAW button on a lower curvature of her posterior. It would be a matter of speculation which was intended to attract attention to the other. Moreover, such a positioning of the button would not necessarily indicate support of the Union; indeed, it would not be unreason- able to suppose the opposite. The contention that General Foreman Kirkley changed his mind about offering her overtime when he observed the union button thus dis- played is thrown into further doubt by Williams' conces- sion that her union sympathies and activities were well known throughout the plant, since under these circum- stances if (under her theory) Kirkley was opposed to giving her overtime because she was a union adherent he would presumably not have offered it to her (according to her account) in the first place. Furthermore, Kirkley's credited testimony and the Company's records establish that overtime on the day in question was in fact assigned on a rational and nondiscriminatory basis; nor has any demon- stration been made that Alice Williams was at any other time unlawfully denied overtime. Finally, since Kirkiey's testimony impressed me as being at least as credible, considering comparative demeanor as observed, as that of Alice Williams', his account and explanation is not only plausible but persuasive enough not to warrant rejection in favor of that of Alice Williams'. It is accordingly found that he never told Williams that Grey had given him such a list (adding that Grey could not have known that overtime would be required). Since there is no reason for me to prefer Williams' testimony in this aspect over Kirkley's denial, General Counsel has not met his burden of proof in this regard. 743 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as to this allegation of the complaint (Ci pars. 13 and 14) General Counsel has failed to sustain the burden of proof and persuasion which are his. 21 2. Jason Williams The second allegation of like character (C2 par. 14) involves employee Jason Williams and Foreman William E. Crouse (Bill Cross) (as well as Foreman Ronnie H. Hinson) in the timeframe commencing February 28. Respondent's borematic machine operator, Jason Wil- liams (still in its employ at the time of the hearing), testified that he was one of the original as well as a continuingly preeminent active union proponent. He was also ordered reinstated to his job by the Board after Respondent had unlawfully discharged him on August 27, 1974, in violation of Section 8(a)(3) and (I) of the Act (JD-177-75, adopted by the Board May 6, 1975; G.C. Exh. 2). Although Williams conceded he is unaware of whether or not the borematic2 2 has been operated overtime by anybody else, he has occasionally worked overtime on equipment other than the borematic; and he has for weeks on end operated equipment other than the borematic, on his regular shift, in the course of his 4 years' tenure in Respondent's Shreve- port factory. Of around 30-35 employees in his work area, only 4 (Pettaway, Jefferson, Thomas and Brooks), aside from leadman DeYoung, were senior to him. It will be recalled that, as described, supra, in a previous connection, on or about February 25 Williams was observed by Foreman Crouse soliciting union member- ships during his breaktime, and warned by Crouse of "serious trouble" if he did that during working time, drawing from Williams the perhaps tart retort that he understood the law and would comply with it. Also, shortly preceding this, in mid-February, Crouse had told Williams that he (Crouse) had timed him for 15 minutes in the bathroom 23; Williams denies this long a stay. There was no specific plant limitation on toilet activities. Later in February, Crouse accused Williams of 2 visits to the toilet in 3 hours, adding, "You can't be .... giving lectures [there].... I am not going to tolerate this." Williams insisted his trips there had been on toilet routine but concedes that while there thus engaged he would not refrain from answering a question (even on the Union) if asked. In this context of preeminence in union organizational activity and perhaps a suggestion of a collision course with Foreman Crouse over it, Williams was not assigned overtime for the ensuing Saturday, February 28, contrary to previous practice and notwithstanding that leadman DeYoung had asked Williams to work overtime that day.2 4 During the following week, Williams approached leadman DeYoung to "make sure" to be on overtime the following 21 Cf. cases cited in "I,B14," fn. 7. supra. 22 The borematic is a machine which bores holes, at the ends of rods, to a precise measurement. 23 Crouse claims he also warned others about excessive time in the bathroom. 24 This is undisputed by DeYoung, who without explanation was not produced by Respondent to testify. Williams also testified that it was after DeYoung went to Crouse's office that he (DeYoung) emerged and informed Williams he could not work overtime that Saturday (February 28). 25 Again, this is undisputed by DeYoung. Saturday (i.e., March 6); but, once again after checking in Crouse's office, DeYoung again reported to Williams that the answer was no.25 Williams ascertained later in the day that his fellow employee Mary Pettaway (senior to Williams) had been asked but declined to work overtime. 26 When Williams thereupon asked to work overtime in Pettaway's place, he was refused by Crouse who (with DeYoung) finally prevailed upon Pettaway to work 1/2- day overtime that Saturday.27 And from then on until at least April 30, seemingly contrary to the previous practice and pattern, Jason Williams has been denied overtime on every Saturday with a single exception-April 3, when his work was "needed badly" and he worked for the usual full 8-hour overtime day.28 In the interval between February 20 and the hearing, according to Williams, employees-but not he (except for April 3, as indicated above)-worked overtime on or about 6 Saturdays, on which around 5 to 10 employees junior to him 29 were so employed in work which Williams could have done. Concerning the foregoing, Foreman Crouse testified (corroborating General Foreman Kirkley in the instance of Alice Williams just recounted) that employees are assigned to Saturday overtime on the basis of continuing them on specific jobs upon which they are actually engaged, or, if not thus required, then upon the basis of seniority. Crouse explained without contradiction that as to the overtime on Saturday, February 28, all of the overtime employees without exception were simply continued on specific jobs upon which they had been engaged, with no borematic work done that day. It would thus appear that the overtime work on that particular day (February 28) was assigned on a nondiscriminatory basis and in accordance with Respon- dent's usual scheduling practice. However, Respondent has failed to make a similar showing with regard to the other, succeeding dates in question, other than April 10, concern- ing which Foreman Hinson's uncontradicted testimony established that all overtime employment on that Saturday (April 10) was likewise in extension or continuation of specific jobs in progress but incompleted by the same individuals during the previous week. I do not credit Crouse's statement, over Williams' denial, that he sched- uled Williams to work overtime on March 6 (G.C. Exh. 31) but that Williams declined it and claimed he had something else to do. Upon the basis of comparative testimonial demeanor as observed, I credit the testimony of Jason Williams-a most impressive witness-in this re- gard; furthermore, it hardly seems likely that Williams would offhandedly have rejected the very opportunity he was seeking to work overtime, and I do not believe he fabricated the described testimony concerning Mary Pettaway-who (as also leadman DeYoung) was unex- plainedly not produced by Respondent to controvert 26 Pettaway normally operates a honer. which Williams has also operated, including on Saturday overtime. 27 Undisputed by Pettaway or DeYoung, neither of whom-without explanation -was produced by Respondent to testify. 2s Williams also worked overtime on inventory on one Sunday in late June. 29 February 28 (G.C. Exh. 30): Mead. Martin, Hill, Beck; March 6 (G.C. Exh. 31): Diebner, Pinkney, Jones, Hill, Taylor, Beck, Martin, Wood; April 3 (G.C. Exh. 32): Beck, Diebner, Parks, Hill, Martin, Taylor; April 10 (G.C. Exh. 33): Beck, Mead. 744 BEAIRD-POULAN DIVISION Williams' testimony concerning the assignment for March 6. Accordingly, upon the record as a whole I find the allegation of the complaint (C2 par. 14) concerning the denial of overtime to Jason Williams, by reason of his preeminence in union affairs and activities, sustained, but only as to the period from and subsequent to March 6, but excluding April 3 and 10. H. Threats of Factory Shutdown in Event of Unionization It is further alleged (C2 pars. 9[a] (Feb. 16), 8[a] (Feb. 18), and 7[b] (Apr. 7)) that Respondent threatened to shut down its Shreveport factory in the event it became unionized. All of these alleged threats of factory shutdown are said to have occurred within about the 2-month period preceding the Board-conducted statutory election of April 30. Three separate such threats are involved and they will be separately considered. i. Factory shutdown threat on or about February 16, Lee to Campbell (C2 par. 9[a]) Respondent's testing and development department em- ployee, Linnie M. Campbell, a clean-cut, personable young man whose testimony bristled with sincerity and truth, testified that, in the context of questioning by Foreman Lee as to where his union button was and why he was for the Union (supra, fn. 7), during his periodic evaluation resulting in a 10-cent hourly increase (G.C. Exh. 22[d]), Lee stated to him that "if the union got in Beaird-Poulan that Emerson Electric wouldn't tolerate it and within a year and a half that the plant would close down, that they would start moving one saw . . . out one at a time to Nashville . . .Arkansas." Foreman Lee's version of the foregoing is at odds with that of Campbell. According to Lee, Campbell asked Lee, "Is it true that Beaird-Poulan is going to move to Arkansas," and, in response, Lee called attention to a bulletin board announcement of the opening of a new company plant in Arkansas but at the same time he reassured Campbell that it would have no effect on the Shreveport plant. Lee conceded, on cross-examination, that it was indeed one of the themes of the Company's counterunion campaign, that other company plants had shut down. In the described testimonial conflict, weighing testimoni- al demeanor observations within the context of the record as a whole, I prefer and credit the described testimony of Campbell, who I do not believe fabricated the incident he described. It is accordingly found that this allegation of the complaint (C2 par. 9[a]) has been established by substan- tial credible evidence. 2. Factory shutdown threat on or about February 18, Alford to Hadnott (C2 par. 8[a]) Respondent's machine shop employee, Hadnott, whom I have already had occasion to characterize as an impressive and credible witness, testified that around mid-February his foreman, Alford, approached him during his third shift and remarked, "You guys had better think about what you are doing because the company could close this plant down or move somewhere else before letting a union come in ... and . . we'll all be out of ajob." I have also had occasion to comment, adversely in this case, on the testimonial quality of Foreman Alford, who again flatly denies the episode altogether. Alford's slant, which I discredit, is, rather, that in February, Hadnott "called me over to his machine" and threatened him (Alford) "to get even with your boy. I'm going to fix him.... You are a company man . . . the next time I want a transfer he'll [Personnel and Safety Director Hibberts] give me one." On cross-examination, after repeatedly denying that he ever discussed the Company's proposed new Nashville, Arkansas, facility, he then cautiously modified this to state that "if it was it wasn't related to the company was moving there if the union got in," and he then made a seemingly complete about-face by conceding that he did indeed "discuss the Nashville, Arkansas facility with the employees . . . if they asked a question, yes," but then, characteristically, rapidly drew back by adding that "I don't remember any of them asking me, no" (emphasis supplied) and as rapidly embellished this to "Yes, I remember they did not ask me anything about it, because they had a bulletin board up to that effect"-although the nonsequitur character of this gloss on his prior answer remained unexplained. Resolving credibility upon the basis of testimonial demeanor as observed and compared, within the context of the record as a whole, I unhesitatingly prefer and credit Hadnott's testimony over that of Alford, and accordingly find that this allegation of the complaint (C2 par. 8[a]) has been established by substantial credible evidence. 3. Factory shutdown threat on or about April 7: Hibberts to Campbell (C2 par. 7[b]) The third instance of alleged threat of factory shutdown in the event of unionization is said to have occurred around April 7, to employee Campbell from Personnel and Safety Director Hibberts. Campbell testified that about 2 weeks before the election of April 30, while he was in the company cafeteria discussing the Union, Hibberts chimed in that the UAW was "holding money out of employees' wages and sending it up north to support the strike fund, and that in the past Emerson has closed down small plants because of union activity and that they couldn't meet union demands." Testifying on this subject, Respondent's personnel and safety director, Hibberts, acknowledged that during the cafeteria conversation in question, which "s s]omehow I wound up in . . . the discussion came up about the plant closure and I repeated to Mr. Campbell the statement that we have made later in the bulletin board announcement, and it goes like this: 'Thirteen of the last 15 Emerson plants that were closed because they were uneconomical had unions in them.' " Hibberts professed to be unable to 745 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recall how "the subject of plant closure . . . came up," other than that he allegedly did not initiate it.30 Hibberts acknowledged holding no less than "76 employee meet- ings" as part of the Company's antiunion campaign. I have already had occasion to observe (supra, "III,E2") that it is the reasonable effect of employer words upon employees, rather than the alleged subjective intent of the Employer in uttering them, that are determinative as to whether they intrude upon the intended protections of the Act. Furthermore, lest the potently lethal nature of employer threats or suggestions-"direct" or cloaked in "big" words or ambiguous language-of factory shutdown be minimized, we must be ever mindful of applicable instructions to the contrary that we have repeatedly received from the highest authority. As recently as 1969 the Supreme Court instructed in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 at 619-620, that "[T]he Board has often found that employees, who are particularly sensitive to rumors of plant closings, take such hints as coercive threats rather than honest forecasts." Such threats are expressly excepted from the "free speech" proviso of Section 8(c) of the Act, and have long been held to be unlawful. Cf., e.g., N.L.R.B. v. Virginia Electric & Power Company, 314 U.S. 469, 477, 478 (1941); Holly Hill Lumber Co. v. N.L.R.B., 380 F.2d 838, 841 (C.A. 4, 1967); N.L.R.B. v. Eastern Die Co., 340 F.2d 607, 608 (C.A. 1, 1965), cert. denied 381 U.S. 951 (1965); Florence Printing Co. v. N.L.R.B., 333 F.2d 289, 290-291 (C.A. 4, 1964); N.L.R.B. v. Tru-Line Metal Products Company and Tru-Line Screw Products, Incorporated, 324 F.2d 614, 616 (C.A. 6, 1963), cert. denied 377 U.S. 906 (1964); "notwithstanding [the employer's] sincere belief that such result would follow," United Fireworks Mfg. Co., Inc. v. N.L.R.B., 252 F.2d 428, 430 (C.A. 6, 1958). Highly material in this regard, also, is the fact that Respondent's words were beamed at factory hands-not at labor lawyers. Cf., e.g., N.L.R.B. v. Gissel Packing Company, supra at 617-620 (1969); Henry 1. Siegel Company, Inc. v. N.L.R.B., 417 F.2d 1206, 1208, 1214 (C.A. 6, 1969), cert. denied 398 U.S. 959 (1970); Components, Inc., 197 NLRB 163 (1972); Wigwam Mills, Inc., 149 NLRB 1601, 1611, 1618 (1964), enfd. 351 F.2d 591 (C.A. 7, 1965). It may be presumed that these timely reminders of such dire eventualities, involving the end of the employees' jobs in the event of unionization, served as most dramatic, direct, and potent signals and warnings to employees to desist, at their economic peril to their jobs and incomes, from exercising rights federally guaranteed under the Act-a true "fist inside the velvet glove" (Justice Harlan, in N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, 409 (1964)). These are serious violations of the Act, suborning its most basic essentials. 30 I do not regard the question of who brought up the matter of factory shutdown as significant in the context described. It is the nature of the statement made, whether spontaneous or responsive, rather than who raised the matter, that counts. 31 I credit Savage's testimony that he restricted his union activities to his own time, including breaktime. 32 Unless it be a complaint verbalized in early or mid-February by employee Campbell covering a delay or "mix-up" in reimbursement of his workmen's compensation. hospitalization, or medical claim since the previous November (1975)., which was routinely handled and taken care of All circumstances considered, it is accordingly found that this allegation of the complaint (C2 par. 7[b]) has likewise been fairly established by substantial credible evidence within the context of the record as a whole. 1. Miscellaneous Threats, Warnings and Other Actions 1. February 17: Threat of reprisal and issuance' of disciplinary warning to employee for union activities: Homrighausen and Ramey to Savage It is alleged (CI pars. 10[a] and 11) that on or about February 17 Respondent's foreman, Homrighausen, threat- ened an employee with reprisals, and around the same time its Foreman Ramey issued a written reprimand to the employee, because of his union activities and to discourage further such activities. The employee involved was Respondent's first-shift motor testroom assembler, Lee Olen Savage, and the episodes have already been described in conjunction with and as background preceding the no-talking interdict placed upon Savage shortly thereafter, on or about February 26 ("III,D," supra). As will be recalled, the February 17 episode involving Foreman Homrighausen (Cl par. 10[a]) centered around the latter's confiscation of Savage's clipboard on which the latter had sketched UAW symbols during his breaktime, in the course of which Homrighausen warned him of "big trouble" if Savage had written "anything to do with the union." And, as will also be recalled, it was right after this that Foreman Ramey issued to Savage the disciplinary warning "green slip" about "spending too much time away from work station"31 which Savage "signed under protest." In the context of the immediate situation as described above, and the overall situation as elsewhere herein described, there can be no doubt that the threat by Homrighausen, followed by the reprimand from Ramey, was because of and designed to interfere with, restrain, and coerce Savage as well as other employees in the exercise of their Section 7 rights, and I so find. 2. April 7: Solicitation and remediation of employee grievance to discourage union support: Lee to Campbell The complaint (C2 par. 9[c]) alleges that on or about April 7, in order to discourage union support, Respondent through its Foreman Alvin Lee, Jr., solicited and remedied an employee's grievance. Since I am unable to discover any clear evidence in the record to this effect or which would lend it substantial support, 32 I find there is a failure of proof in this regard. on "the same day" (i.e.. early or mid-February). Although, again, this is too far removed from the complaint allegation ("Apnl 7'-C2 par. 9[c I) to identify with it (see supra, fn. 7). in any event, under the circumstances described by Campbell, I would not regard this as an unlawful or improper solicitation by an employer of an employee grievance in order to remedy it for the purpose of discouraging union activity or support, since it is apparent that Campbell merely expressed interest in collecting his claim, which he conceded had been the victim of a "mix-up," which was thereupon promptly remedied in the regular course-without regard for or connection with union activity nor with intent thereby to derail or discourage it. Cf., e.g.. ITT 746 BEAIRD-POULAN DIVISION 3. May 5 and May 6: Issuance of disciplinary warning slips to employees Harrison and Whitworth to discourage union membership and support a. May 5: Lucille Harrison The complaint further alleges (C2 par. 12) that on or about May 5 Respondent through its Foreman Albert Theus issued a written disciplinary warning to its employ- ee, Lucille Y. Harrison, because of her union membership and to discourage further such support or activity. Concerning this, Respondent's second-shift rod section machine operator, Harrison, who continues in its employ after 6 years, and who has been a UAW activist since 1974 (including serving as its observer at the 1975 election), testified that after the union victory in the election of April 30 she issued a cheer and raised her hand in a clenched fist salute, under the eye of her Foreman Theus,3 3 whose face wore a "solemn expression." Still according to Harrison, in the week after the election while she was at the bulletin board near the water fountain where she had been taking a pill, 3 4 fellow employee Howard asked her about something on the bulletin board and she explained to him that it referred to company objections to the election. She further testified that while she was still looking at the bulletin board, Foreman Theus called her into his office and issued her a "green slip" for "excessive talking away from work station" for 4 timed minutes, which she disputed, estimat- ing it at "about two and a half minutes." She then "jumped up and got mad with him" and crumpled up and tossed the "green slip" into a trash can, but returned from her work later-still according to her testimony-to retrieve the "green slip." According to her, Theus refused to permit her to retrieve it, but instead later took her to General Foreman Kirkley's office, who cautioned her that "all this excessive talking and walking off the job will be cut out," drawing from her (Harrison) the retort that, "Well, Sonny [Kirkley, plant general foreman], you've been doing it all the time." Harrison concedes that all of this occurred during working time. Harrison also claims that she was where she was because she had gone to punch out from one task to another task; but apparently this also involved or led to the fountain/pill conversation with Howard/bulletin board episode. Although Harrison first testified that the Union figured in the conversation in Kirkley's office, when confronted with her pretrial affidavit she conceded that neither Kirkley nor Theus so much as mentioned the Union. As to the foregoing, the second-shift supervisor, Theus, an impressively solid witness, testified credibly that on the occasion in question, when he heard talk outside his office (which is near the water fountain). he looked out through the glass of the door and saw it was Harrison talking, and Telecommunicahions, Division of International Telephone d Telegraph Corpo. ration. 183 NLRB i 129 (1970); Georgia Highway Express, Inc., 170 NLRB 1335, 1339-40 (1968); Bryant Chucking Grinder Company, 160 NLRB 1526, 1548-49 (1966), enfd. 389 F.2d 565 (C.A. 2, 1967). cert. denied 392 U.S. 908 (1968). 33 Theus and Harrimson are both black persons. 34 At the heanng, Harnson descnbed the pill as "about a half an inch long," for "sinus." She later added what seemed to me the spontaneous improvisation that "The pill stopped in my throat and I walked over to the that 3 minutes later he observed Harrison was still engaged in conversation with her arms hooked through those of employee Curtis Howard. He thereupon called Harrison into his office and asked her why she was at the fountain so long. She replied she was taking a pill, but denied even seeing Howard that day. Foreman Theus, who had spoken to Harrison on more than three previous occasions about absenting herself from her work station, thereupon issued her a "green slip," which she threw into the trash can and left. Theus then went to see Curtis Howard, who confirmed that Harrison had indeed been talking to him (as well as to another employee, Glover). Theus has issued similar "green slips" to other employees (e.g., Resp. Exhs. 18 and 19; both May 17), without regard to or knowledge of any union affiliation. He did not issue Howard or Glover a "green slip" because, unlike Harrison, neither of them works under him. General Foreman Kirkley, likewise an impressively credible witness, corroborated Theus' testimony to the extent Kirkley was involved in the incident in question. Upon this state of the record, crediting Theus and Kirkley, I am persuaded that the "green slip" in question was given to Harrison because she tarried too long at or near the water fountain in connection with the series of activities which she described, and not because of her union membership, proclivities, or activities, which were well known, nor in order to squelch or discourage them. It is accordingly found that this allegation (C2 par. 12) has not been established by the required preponderance of substantial credible evidence. b. May 6. Charles Whirworth The complaint also alleges (C2 par. 13) that on or about the next day, May 6, Respondent also issued written disciplinary "warnings" to its employee, Charles R. Whitworth, because of his union membership and activities and to discourage their further exercise. Concerning the foregoing, Respondent's second-shift cleanup room and machine shop employee, Whitworth, concededly a well-known union advocate in the factory, testified that on May 6 he received a "green slip" dated April 8 35 for "Not watching what he was doing. Cut off top part of jig. Was running 22113 crankshaft." (G.C. Exh. 26).38 The "green slip" also indicates it is a "3rd Notice," and Whitworth testified that he was informed by Respon- dent's general foreman, Kirkland, or its assistant personnel manager, Moore, that since this was Whitworth's third such notice, another one could result in discharge. At the same time, according to his testimony, he was shown another foreman's written notation (not in the form of a "green slip") concerning his improper wearing of a fire- board to read it and then I felt the pill there and I went back to get more water." Harrison's pretnal affidavit concededly makes no mention of any difficulty with a pill. 35 According to Whitworth, Respondent explained the delay in terms of its withholding the delivery of "green slips" during the preelection campaign. 36 It is noted that, through apparent error of the reporting service, this "green slip" (G.C. Exh. 26) has not been incorporated into the official record filed with me. (Nor have Resp. Exhs. 2 and 3.) 747 DECISIONS OF NATIONAL LABOR RELATIONS BOARD retardant "red apron," intended only for use when working with highly flammable magnesium, in September 1975; 37 as well as a "green slip" dated March 3, involving an incident which Whitworth acknowledges but which he states he disputed, protested, and refused to "sign," for "leaving work area dirty for oncoming shift" (G.C. Exh. 27) and stating it is a "2nd Notice." 38 Concerning the April 8 (received May 6) "green slip" (G.C. Exh. 26) for "cut[ting] off top part ofjig," Whitworth insists he had seen previous similar instances involving other employees; that he was without fault; and that the jig was not ruined. On the same subject, Whitworth's foreman, Charles A. Jefferson, testified that on the occasion in question, on April 8, he observed Whitworth with his back to his machine, another employee-Moore or Jackson 39 -be- hind him, when Whitworth's Cincinnati mill machine hacked off part of a jig fixture, resulting in idling three other machines for the next shift, as well as the machine itself and its dependent operations for 3 to 4 days, with a resulting cost to Respondent not only in repairs to the jig but also in 3 to 4 days' loss of production on that machine and dependent equipment. Jefferson insists the mishap was purely Whitworth's fault in setting the table cutter too high, not tending his machine properly, and/or failing to shut it off promptly (Jefferson shut it off, not Whitworth). Jefferson has issued similar "green slips" to other employ- ees (Resp. Exhs. 14, 15, and 16-January 29 and February 3). Although General Counsel has submitted documentation showing Whitworth received periodic wage rate progres- sions between April and October 1975 (when he reached top of grade rate), the rating evaluation portions of the documentation are not singularly impressive as demon- strating exceptional or even consistently very good skill or quality or quantity of work (G.C. Exhs. 25[a] through 25[d]). Whether these evaluations are accurate or biased is impossible to determine here; but the hard fact remains that, taken at face value, they do not support General Counsel's contention that the "green slips" issued to Whitworth were unjustified or even necessarily inconsis- tent with or a reversal of or sharp and inexplicable departure from his previous evaluations. In short, upon the record here made, including testimoni- al demeanor as observed-I found Whitworth and Jeffer- son indistinguishably credible 40-I would have no rational basis for concluding that the "green slip" issued to Whitworth on May 6 (dated April 8) was, any more than 37 Whitworth acknowledged this infraction, which he corrected promptly at the time. Apparently no "green slip" was issued to him over this. 38 Since not even Respondent has produced any "Ist Notice" "green slip." its April 8 "green slip" to Whitworth (G.C. Exh. 26) was seemingly misnumbered "3rd Notice" (as was its March 3 "green slip" likewise misnumbered "2nd Notice"). 39 See fn. 40, infra. 40 In an attempt to refute the testimony of Foreman Jefferson in part, and thereby perhaps to tip the scale in Whitworth's favor, General Counsel produced Respondent's borematic operator. Jackson, as a rebuttal witness. (It will be recalled that Jefferson testified that at the time Whitworth's machine hacked off the top of the jig. he [Jefferson I observed Whitworth with his back to the machine while carrying on a conversation with fellow- employee Moore or Jackson.) But Jackson's testimony did not assist Whitworth. Jackson testified merely that he was operating a borematic at a distance of 20-22 feet from Whitworth and could not see either Whitworth any previous such slip, clearly or prima facie spurious or unwarranted, nor that it was issued because of his union membership or activities or to discourage their continued exercise. It is accordingly tound that General Counsel has failed to sustain his burden of proof in this regard,41 and that this allegation (C2 par. 13) had not been established by a fair preponderance of the substantial credible evidence as required.4 2 4. May 17: Discriminatory denial of scheduled pay increase (Linnie Campbell) Finally, the complaint (C2 par. 15) alleges that since May 17 Respondent has continued to deny its employee, Linnie M. Campbell, a scheduled pay increase because of his union membership and activities and to discourage such activities by its employees. Campbell-who, it will be recalled, has figured in other allegations herein-entered Respondent's employ on May 16, 1975, in its machine shop, where he continued until his transfer, shortly after the April 30 Board-conducted election, to the testing and development department. His personnel records (G.C. Exhs. 221a] through 22[f]) indicate the following progression from an initial hourly rate of $3.06: Date Shift Job 8-14-75 3 titlity man 11-1n-75 3 12-23-75 1 2-9-76 1 Drill & Tap Operator tlourly GC Exh. Pav N o. $3.26 2 2 (a) S3.62 22(b) " 22(c) (Shift change only) $3.72 22(d) On May 10, however, he was denied progression to a new rate of $3.83 per hour, and his "progress" ratings fell from the last previous ratings mostly in the "exceptional" range (G.C. Exh. 22[d], Feb. 9,) to the low "good" and "fair" range, with his attendance for the first time scored as "poor" (G.C. Exh. 22[e], May 10,).43 Campbell became extremely active on behalf of the UAW in 1976, including functioning as a union organiza- or his machine; that when his (Jackson's) attention was attracted by others looking in that direction, he then walked over there, at which time, although he did not observe Moore, he also could not tell and does not know whether Whitworth had been talking to Moore. Jackson also testified he was unable to tell whether or not the cutting table height was properly adjusted, and that if too high it can indeed break the jig; nor does he know who turned the machine off. since it was off when he got there. Moore was not produced as a witness (although General Counsel indicated he had been subpenaed. and declined to request a continuance to produce him, as well as another alleged potential witness in this connection). 4I See fn. 7, supra. 42 Nothing herein is intended or shall be taken to indicate that the "green slip" dated April 8, was in fact the "3rd Notice" or third such slip issued to Whitworth by Respondent. Indeed, as shown above (fn. 38), it would appear that it was misnumbered and was only the second such. 43 There is no indication in any of Campbell's records here that his 748 BEAIRD-POULAN DIVISION tional committeeman, attending meetings, soliciting mem- bers, and openly wearing union buttons-both the regular UAW campaign button (G.C. Exh. 4) and also the large UAW organizing committee button (G.C. Exh. 5). Campbell's credited testimony establishes that on or about May 10 Foreman Lee showed him his evaluation review with the extra II cent per hour, which would have increased his rate from $3.72 to $3.83, stricken out with the word "NO" written in bold print over it. When Campbell indicated to Lee that even the I l-cent-per-hour increase would have been insufficient, Lee remarked (according to Campbell) that he (Lee) would have rated Campbell higher and would attempt to have it raised. A few days later, however, Lee informed Campbell that Foreman McCoy (who, with Lee, had signed the rating, G.C. Exh. 22[e ]) and setupman Lepoint would not rate Campbell higher. Campbell indicated that he ascribed his suddenly reduced rating to his union activity. Lee told him one of the reasons had been his poor attendance (i.e., the 3-1/2 days he had missed during the preceding month, for the first time since he had been with the Company). And Campbell was still receiving only $3.72 per hour at the time of the hearing, although he credibly insists there had been no change in his previously uniformly highly rated work performance. Without explanation, neither McCoy nor Lepoint, who were apparently the controlling factors in Campbell's suddenly and rather spectacularly reduced evaluation rating, was produced to testify in explanation of their basis for this sudden change. Foreman Lee, however, who testified, rested his (share in the) May 10 denial of Campbell's wage progression squarely on his "green slip" (dated May 7, referring to a 30-day period "thru 15 May," as shown above-G.C. Exh. 23) for alleged "absenteeism," in accordance with what Lee insists is company "policy" to defer a pay increase to an employee who has been issued a "green slip" within the review period. Although this has by no means been established here-i.e., it has not been shown that no other employee with a "green slip" has received a wage progression44 -Lee's testimony in this respect is also at odds with that of Respondent's personnel and safety director and highly credible witness, Glenn Hibberts, who conceded on cross-examination that a single "green slip" (as in Campbell's case) would not "automatic[ally]" preclude a raise, even though one for attendance would be weighed "heavily." In the described state of the record, including the total congeries of surrounding facts and circumstances involving Campbell's suddenly declining fortunes in Respondent's good graces following the substantial uptake of the union activities contemporaneously with its success in the April 30 election, the suddenness and unpersuasive reason attendance was deficient in any way, other than a single "green slip," issued only 3 days prior to the May 10 evaluation (G.C. Exh. 22[e]), dated May 7 and marked "Ist Notice," stating that during the period "15 April through 15 May [sic]" (notwithstanding the fact that the "green slip" is dated May 7) he was absent 28-1 /2 hours (G.C. Exh. 23). The "green slip" expressly states that there has been no previous "green slip." 44 Although Lee produced only two selected other instances in which he also allegedly withheld wage rate increases for attendance reasons (Resp. Exhs. 20-23), the total circumstances in those cases were undisclosed. It is also noted that, unlike Campbell's forms (G.C. Exhs. 22[a } 221e I), none of the "employee progress" ratings are filled in on these other employees' forms (Resp. Exhs. 20 and 23), which are dated almost on the eve of this advanced for Campbell's wage progression denial in the frame of his credited (and undisputed) testimony as to no reduction in his formerly uniform, highly-rated work performance, 45 and Respondent's unexplained failure to produce Campbell's evaluators Lepoint and McCoy to confirm, explain, and justify their alleged spectacularly reduced ratings of Campbell's performance, as well as the apparent inconsistency between the testimony of Foreman Lee and that of Personnel and Safety Director Hibberts concerning the effect of a single "green slip" on a wage rate progression, I am left wholly unconvinced that that was indeed, as claimed by Lee, the real reason for the denial of Campbell's wage rate progression on and since May 10. Upon the record as a whole, I believe and find that the determinative and real reason for that action was to chill Campbell's union activism and leadership; and, according- ly, that the complaint allegation in question (C2 par. 15) has been established by a fair preponderance of the substantial credible evidence. J. Recapitulation [Chronological recapitulation of findings (chart form) omitted from publication.] Upon the foregoing findings and the entire record, I state the following: CONCLUSIONS OF LAW I. Jurisdiction is properly asserted in this proceeding. 2. Through its actions as described and to the extent found in "III," supra, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed to employees in Section 7, thereby engaging in unfair labor practices in violation of Section 8(a)(1), of the National Labor Relations Act, as amended. 3. Through its actions (1) on or about February 17, through Foreman and Supervisor Robert J. Ramey, affecting its employee Lee Olen Savage, as described and found in "III, II," supra, (2) on or about and since February 28, through Foreman and Supervisor William E. Crouse, affecting its employee, Jason Williams, as de- scribed and found in "III, G2," supra, and (3) on or about and since May 10, through Foreman and Supervisor Alvin Lee, Jr., and others, affecting its employee, Linnie M. Campbell, as described and found in "III, 14," supra, Respondent has also discriminated in regard to the hire, tenure, and terms and conditions of employment of its employees, to discourage membership in a labor organiza- tion, and Respondent continues to do so, in violation of Section 8(a)( 3) of said Act. hearing. No earlier forms have been produced. Furthermore, one of these cases involved an employee (Trotter) who according to Lee had been issued hisfourth tardiness reprimand (Resp. Exh. 21), and the other case involved an employee (Lewis) who according to Lee had been disciplined "for something that he could have been terminated for, for just walking off the job." 4' It is true that at one point in his testimony Foreman Lee opined that "correspondling] with the union campaign .... his [i.e., Campbell's] attitude changed during that period, but up until then he was fine as far as I was concerned." I think this hardly likely and do not credit it in the absence of tangible substantiation; more likely is Lee's equation of Campbell's "attitude changeld I" with his union activities. 749 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The aforesaid unfair labor practices and each of them have affected, are affecting, and unless restrained and enjoined and appropriately, affirmatively remedied will continue to affect, commerce within the meaning of Section 2(6) and (7) of said Act. 5. To the extent described and not found in "IIl," supra, it has not been established that Respondent has engaged in unfair labor practices in violation of said Act. REMEDY Having been found to have violated the Act in various respects, Respondent should be required to cease and desist from such and analogous further violations, as well as to take appropriate affirmative steps, including making whole its employees, Jason Williams, to the extent he was improperly denied overtime as herein found, and Linnie Campbell, to the extent he has been improperly denied wage rate progression(s) as herein also found; in both cases with interest, computations to be as explicated in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Respon- dent should also, as usual, be required to preserve and open its books and records to the Board's agents for backpay computation and compliance determination purposes; and to post the conventional informational notice. Upon the foregoing findings of fact, conclusions of law, and the entire record in this consolidated proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER4 6 The Respondent, Beaird - Poulan Division, Emerson Electric Company, Shreveport. Louisiana, its officers, agents, successors, and assigns, shall: i. Cease and desist from: (a) Coercively interrogating employees, in violation of the National Labor Relations Act, as amended, as to their or other employees' union or other lawful labor organiza- tional membership, affiliation, sympathies, desires, activi- ties, or support, or as to their exercise or asserted, attempted, or intended exercise of rights under said Act. (b) In violation of said Act, prohibiting, interdicting, or preventing talk or discussion by or among its employees on its premises concerning union or other lawful labor organizational membership, affiliation, activity, or support, or discriminatorily enforcing or applying such rule or requirement. (c) Threatening employees with discharge or any eco- nomic or other reprisal or action adversely affecting any term or condition of their employment (including but not limited to issuance of disciplinary warnings, written or oral), or attempting to procure or induce their resignation, by reason of their union or other lawful labor organization- al membership, affiliation, activity, or support. 46 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, 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. (d) Threatening shutdown or full or partial discontin- uance or moving of its Shreveport, Louisiana, factory in the event of its unionization. (e) Offering employees any economic or other benefit affecting any term or condition of their employment, for abstaining from or discontinuing union or other lawful labor organizational membership, affiliation, activity, or support. (f) Discriminatorily or otherwise in violation of said Act denying overtime or a wage scale progression increase to any employee by reason of his or her union or other lawful labor organizational membership, affiliation, activity, or support, or to discourage such membership, affiliation, activity, or support. (g) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization; to form, join, or assist any labor organization; to bargain collectively through representa- tives 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 actions, necessary to effectuate the policies of the Act: (a) Offer and make available overtime work to Jason Williams on the same basis as to all other employees of like seniority and qualification; and make him whole for any loss of overtime pay since on and after March 6, 1976 (but excluding April 3 and April 10, 1976), with interest, in the manner set forth in the "Remedy" portion of this Decision. (b) Make Linnie Campbell whole for any loss of pay sustained by him since on and after May 10, 1976, by reason of Respondent's unlawful denial to him since then of a wage rate progression or progressions, with interest, in the manner set forth in the "Remedy" portion of this Decision. (c) Forthwith expunge from the personnel records of Lee Olen Savage the disciplinary warning corrective action "green slip" dated February 17, 1976, issued to him in connection with Respondent's action found in this Deci- sion to have constituted an unfair labor practice in violation of the Act. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, overtime work schedules and records, seniority lists, job sheets, timecards, wage scale records and notations, social security payment records, personnel records and reports, and all other records and entries necessary or appropriate to determine the amounts of backpay and other sums due under the terms of this Order. (e) Post in its Shreveport, Louisiana, factory premises, copies of the attached notice marked "Appendix." 47 Copies of said notice, on forms provided by the Regional Director for Region 15 shall, after being duly signed by Respondent's authorized representative, be posted by Respondent immediately upon receipt thereof and main- 47 In the event 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 ol the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 750 BEAIRD-POULAN DIVISION tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that in all respects not herein found, the complaints, dated June 2 and August 6, 1976, in this consolidated proceeding be, and they are, hereby dismissed. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing before an Administrative Law Judge, at which all sides had the opportunity to be fully heard, the decision has been announced that we have violated the National Labor Relations Act, as amended, and we have therefore been ordered to post this notice and to do what it says. The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representa- tives of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. Accordingly, we assure you that: WE WILL NOT violate these rights of yours. WE WILL NOT, in violation of the Act, interrogate any employee concerning his or her or other employees' union membership, affiliation, sympathies, desires, or activities. WE WILL NOT in violation of the Act maintain, enforce, or apply any rule prohibiting talk by employ- ees on our premises about union membership, affilia- tion, or activities. WE WILL NOT threaten any employee with discharge or other economic reprisal or action adversely affecting his or her job because of his or her union membership, affiliation, or activity. WE WILL NOT threaten to shut down or move away our Shreveport, Louisiana, factory in the event of its unionization. WE WILL NOT offer any employee transfer to a better or different shift, or any other benefit if he or she abstains from or discontinues his or her union member- ship, affiliation, activity, or support. WE WILL NOT discriminatorily or otherwise in violation of the Act deny any employee overtime or any increase in wage rate because of his or her union membership, affiliation, activity or support, or to discourage the same. WE WILL NOT in any like or related manner violate any of your rights under the Act. WE WILL offer and make overtime work available to Jason Williams on the same basis as all other employ- ees, and compensate him with interest for any losses from our wrongful denial of overtime to him for the period on and after March 6 (but excluding April 3 and 10), 1976. WE WILL compensate Linnie Campbell, with interest, for losses sustained by him because of our denial to him of wage rate progressions since May 10, 1976. WE WILL remove from the personnel file of Lee Olen Savage the "green slip" issued to him on February 17, 1976, and expunge it from our records. All of our employees are free to belong or not to belong to any labor organization of their choice, without interfer- ence, restraint, or coercion from us in any way. BEAIRD - DIVISION, ELECTRIC - POULAN EMERSON COMPANY 751