Tendico, Inc.

TENDICO, INC. Tendico, Inc., a subsidiary of Ripley Industries, Inc., and Ripley Industries, Inc. and Retail Clerks Union, Local 1557, Retail Clerks International Association, AFL-CIO. Case 26-CA6302 September 30, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On May 6, 1977, Administrative Law Judge Thomas R. Wilks issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge, to modify his remedy, 3 and to adopt his recommended Order. 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, Tendico, Inc., a subsidiary of Ripley Industries, Inc., and Ripley Industries, Inc., Nashville, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act not herein found. I The 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 Dray Wall Products. Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and lind no basis for reversing his findings. 2 Chairman Fanning would find that. under the circumstances present in this case. Respondent's obligation to bargain with the Union commenced on September I. 1976, the date it refused to bargain. I In accordance with our decision in Florida Steel (orporarion, 231 NLRB 651 (1977). we shall apply the current 7-percent rate for periods prior to August 25, 1977. in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. DECISION STATEMENT OF THE CASE THOMAS R. WILKS, Administrative Law Judge: A hearing in this proceeding was held on December 7, 8, 9. 1976, at Nashville, Tennessee, based on a charge filed against Tendico Inc., a subsidiary of Ripley Industries, Inc., and Ripley Industries, Inc., by Retail Clerks Union, Local 1557, Retail Clerks International Association, AFL- CIO, herein called the Union, as subsequently amended and a complaint issued by the Acting Regional Director on October 15, 1976, and subsequently amended by the Regional Director on October 29 and November 22, 1976. which alleges that Respondent violated Section 8(a)( ), (3), and (5) of the National Labor Relations Act, as amended, by engaging in a course of coercive conduct including, inter alia, the layoff of employees Terry Brewer and Gerald Sears and the discharge of employee Gary Bentley, Steve Dunn, and Glen Greer; and by refusing to recognize and bargain with the Union. Respondent denied the substantive allegations of the complaint, but admitted the jurisdictional and labor organizational status and supervisory status allegations of the complaint with the exception of the allegation of supervisory status of Joe Lindsey. At the hearing Respon- dent conceded the appropriateness of the unit as alleged in the amended complaint. On the entire record in this case, including my observa- tion of the witnesses, their demeanor, and consideration of briefs which were submitted by the parties on December 31, 1976, 1 make the following: ' FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Ripley Industries, Inc., herein called Respondent Ripley. is a corporation licensed to do business in the State of Missouri, with an office and place of business located in St. Louis, Missouri, where it is engaged in the manufacture of shoe heels, marking dies, and related products. Tendico. Inc., herein called Respondent Tendico, is a wholly-owned subsidiary of Ripley Industries, Inc., and is a corporation and licensed to do business in the State of Tennessee with an office and place of business located in Nashville, Tennessee, where it is engaged in the manufacture of cutting dies. During the 12-month period preceding the issuance of the complaint, Respondent Ripley in the course and conduct of its business operations purchased and received within the State of Missouri goods valued in excess of I Par. II of the complaint which alleged an unlawful interrogation of employees by Joe Lindsey was withdrawn at the hearing. The complaint set forth no further coercive conduct by Lindsey. Respondent's and General Counsel's unopposed motion to correct the transcript is granted. 232 NLRB No. 118 735 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $50,000 directly from points located outside the State of Missouri, and, during the same period of time, it sold and shipped from locations within the State of Missouri goods valued in excess of $50,000 directly to points located outside of the State of Missouri. Respondent Tendico, during the 12-month period preceding the issuance of the complaint, in the course and conduct of its business operations, sold and shipped from its Nashville, Tennessee, location, goods valued in excess of $50,000 to each of certain customers within the State of Tennessee, each of whom, in turn, during the same period of time, in the course and conduct of its business operations, purchased and received within the State of Tennessee goods valued in excess of $50,000 directly from points located outside the State of Tennessee, and each of whom has, during the same period of time, sold and shipped from its location within the State of Tennessee goods valued in excess of $50,000 directly to points located outside the State of Tennessee. Respondent Ripley and Tendico is now, and has been at all times material herein, an employer engaged in commerce within the meaning of the Act, and it will effectuate the policies of the Act to assert jurisdiction herein. The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background Respondent Tendico is a wholly-owned subsidiary of Ripley Industries, Inc., which as a parent corporation maintains an office and place of business in St. Louis, Missouri, where it is engaged in the manufacture of shoe heels, marking dies, and related products. Respondent Tendico has a plant located in Nashville, Tennessee, where it is engaged in the manufacture of cutting dies. In this process Respondent's employees manufacture cutting dies for use primarily in the shoe and clothing industry. In this process pieces of steel are bent, filed, ground, polished, nicked, plated, and painted. From June 1975 until December 1976, Respondent Tendico has employed at one time or another a total of 90 employees. The full complement of production employees at any given point in time averages less than 20 persons. Thus, during the period from August 21, 1976, to October 16, 1976, the employment total varied from a high of 22 to a low of 17. Within the Nashville plant these employees are distribut- ed to work in two departments; i.e., a "beverly depart- ment," and an "open department." Essentially, the job functions are the same in the two departments except that a different type of block and a different type of steel is utilized in performing the work in the respective depart- ments. The number of employees employed in the "beverly department" has ranged from 5 to 10 while the number in the open department has ranged from a minimum of 5 to 6 or a maximum of 8 or 9. Doug Johnson holds the position of plant manager. Carl Gilley is the plant superintendent. Bob Riley serves as a foreman in the open department while Joe Lindsey serves as a "leadmen" in the beverly department. As noted earlier, Respondent denies the allegation in the complaint that Joe Lindsey is a supervisor within the meaning of the Act. On August 24, 1976, an initial contact was made by employee Glen Greer with a representative of the Union at Nashville, Tennessee, at which time he executed a union authorization card and received 25 blank cards. Subse- quently, union authorization cards were executed by other employees and the demand for recognition was served on Respondent on or about August 30. On that date, two employees were laid off and three were terminated. Thereafter, Respondent, according to General Counsel, engaged in a course of conduct calculated to dissipate the alleged majority status of the union and recognition was subsequently denied by Respondent. Respondent contends that it is entitled to a Board-conducted election of which no request was made nor a petition filed with the Board, and that the two employees were laid off as a result of a disciplinary measure in punishment for misconduct origi- nating prior to union activity; that employee Bentley was terminated because of poor work and excessive absentee- ism; that employee Dunn was terminated because of misconduct; and that employee Greer voluntarily quit his employment. Respondent further denied that it engaged in the numerous acts of coercive conduct alleged in the complaint. 1. The union organizing campaign On August 25 a meeting was arranged by Greer with about eight of his fellow employees at the parking lot of the We-Sack-It Market, a small grocery store located approxi- mately 200 yards from Respondent's plant. The meeting took place at or about 3:35 p.m. after work. At this meeting, Greer solicited and obtained eight executed cards from employees: Guynn, Cates, Tinsley, Harbin, Sears, Bentley, Bass, and Dickinson. Greer, also on the same day, visited the home of employee Terry Brewer and successful- ly solicited his signature on a card. On August 26 employee Steve Dunn visited Local Union Representative Don Norwood at his office and signed a card for him. On August 26, during the employees' lunch break, Greer successfully solicited the signature of employ- ee Johnny Pentecost in the parking lot of the plant. During lunch break, Sears discussed with Craddock the signing of a card. During the lunch break, Craddock and Sears left the plant to drive to the parking lot of the We-Sack-It- Market. There Craddock executed a card for Sears. In the afternoon of August 27, the Union caused a mailgram to the be sent to Respondent Tendico at the Nashville plant wherein recognition was requested for "all employees employed by the employer . . . excluding supervisors, office clerical, guards and watchmen as defined in the Act." Therein the Union asserted that it represented a majority of employees in the unit and offered to submit to the employer, or to an impartial third party the union authorization cards for verification. Request was made to meet with Respondent Tendico "anytime during the week of August 30, 1976." Plant Superintendent Doug Johnson testified that he received a telephone call on Saturday, August 28, concern- ing a mailgram in which the calling party stated that the call was for Carl "Gillbey." Johnson testified that he 736 TENDICO, INC. assumed that the caller meant Carl Gilley the plant manager and responded that Gilley would be in on Monday morning and to call back Monday morning. Johnson testified that he received the mailgram message through a telephone call at or about 8:45 a.m. on Monday, August 30; i.e., the demand of recognition. Respondent Tendico received a written telegram on Monday, August 30, at approximately 2:30 p.m., wherein recognition was requested, and thereafter a second written copy of the same message was received on Wednesday, September 1, 1976. Respondent by letter of counsel sent on September 1, 1976, declined to recognize the Union until certified by the Board. No petition for election was filed by the Union. The initial charge in this matter was filed with the Regional Office on September 1, 1976. 2. The layoff of employees Sears and Brewer The shift commenced at 7 a.m. on Monday, August 30. When employees Greer, Dunn, Sears, and Brewer ap- peared for work on that morning they were wearing on their persons union buttons which read "Retail - 19 Clerk - 76 - Union - September - AFL-CIO." The button is approximately the size of a nickel coin and is printed against a black and blue background. Brewer and Sears, like employees Craddock and Taylor, had been assigned the function of bending which they performed by means of a foot-operated kick-block machine or a manually operated "hand-block" machine. In the past, when work had been slow and there was not enough work to keep one type of machine going, benders had been assigned to practice bending dies to fill out their workday. It had been known for a bender to practice for an entire day; i.e., 8 hours. Sears testified, without contradiction, that he engaged in a conversation with Foreman Riley several weeks prior to the contact with the Union. In that conversation, Sears testified that he told Riley that the employees "really needed a Union in the shop, like they got in St. Louis." He further testified that Riley responded "no, we didn't" and Riley further stated that "they always had a lot of trouble out of the Union in St. Louis and that out there they just work the men 1 day a week if they wanted to, and when they didn't have any work, they got sent home." Sears testified that on the morning of August 30, as he and Brewer were blocking, Riley approached him and stated there was no work for benders. Whereupon Sears questioned him as to the reason and Riley stated: "Well, you guys want a Union. Well, you got one, and just like the one in St. Louis, when your work is caught up, then you go home." Sears testified that he asked Riley "what about practicing?" and he, Sears, cited the history of practicing during downtime and that Riley responded: "Well, that's different now. Things have changed." Sears testified that he protested the need for work and that he had a family to support but that Riley merely responded: "Well, you should have thought about that before you brought all this matter on yourself." Sears testified that he argued: "Well, what about Jerry Taylor?" and that Riley responded "Well, Jerry Taylor has work." Sears testified that he asked for work in other areas of the shop and Riley merely responded "no" and walked away. As Sears left, he testified that he observed Riley talking to Brewer but he didn't hear what was being said. He then left the plant. Brewer testified that, like Sears, he was wearing a union button on his shirt the morning that he clocked in at or about 6:45 a.m. and wore it while he stood by the filing table. He testified that Riley came over to him and said that there was not any work for kick-block benders in the open die department "today" and that he was told to clock out. He testified that he clocked out "with nothing else said." Riley testified that on the morning of August 30, pursuant to the instructions of Plant Manager Johnson and Plant Superintendent Carl Gilley of that morning, he told Sears that there was no work that morning; i.e., no bending. He testified that Taylor was bending on the hand- block and Craddock was practicing bending with the hand- block machine. Riley testified that he had observed both Brewer and Sears in the several weeks prior to this event engaging in excessive talking and "running all over the shop" when they were supposed to be either kick-blocking or practicing kick-blocking. He was corroborated by Gilley. He testified that he warned Sears about going around talking and leaving his machine instead of practicing and that he also witnessed that Gilley warned Brewer about the same thing. Brewer and Sears admitted that they had been talked to prior to the union activity about staying on the job and excessive talking. Johnson testified that he and Gilley made the decision to take Sears and Brewer off the practicing, on the morning of August 30 at 6:45 a.m. or shortly thereafter when he arrived at the shop and "got the mail" and checked it with Gilley and observed that there was no work; i.e., no patterns came in on Saturday in the mail to necessitate the kick-bending of dies. Johnson testified that he and Gilley had discussed Brewer's and Sears' meanderings the previous Friday and then decided to take them off practicing instead of giving them work when the next occasion arose and send them home as a punishment. Therefore, Johnson testified that Gilley informed Riley to tell Sears and Brewer at or about 6:58 a.m. that they were to be sent home. Johnson testified that he was present when Mr. Gilley instructed Riley to send Brewer and Sears home. He testified that Gilley merely told Riley to send home Sears and Brewer "because there was no work." He said nothing further. Gilley did not testify as to the deliberation to send Brewer and Sears home. Although he testified as to other matters, Riley did not testify to any further conversation with Sears on August 30 other than to cryptically testify that he told both Sears and Brewer that they were being sent home because of lack of work. He did not specifically deny Sears testimony as to the conversation on August 30 nor did he deny that any further conversations with Sears took place after the announcement to send home Sears and Brewer. He did not explain whether or not he talked to them collectively or individually. Sears testified that, later in the day on August 30, he telephoned Riley and asked if there were any work and that Riley responded that there was none, but was told to check the next day, Tuesday. On Tuesday, August 31, Sears testified that he returned to work between 6:30 a.m. and 7 a.m. and talked to Riley in the shop and asked for 737 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work but was told there was none. According to Sears, he stated that if there were no work then he was either fired or laid off, but that Riley responded "no, you're neither one." Sears testified that he then responded to Riley "well, it seems strange to me that all of a sudden we got no work and we're being treated this way since we've been wearing our union buttons." Riley testified that he engaged in no telephone conversation with Sears in the afternoon of August 30, but that he saw Sears next on Tuesday in the shop at or about 6:45 a.m. and told Sears that there was no work for him. Riley conceded that Sears asked why there was no work for Brewer and himself, although Taylor and Craddock were working. It should be noted that Taylor has less seniority than Sears who had been employed since October 1975 when he was hired by Gilley. However, Riley, according to his own testimony, merely responded that there was "no bending for them." Riley further conceded that he was asked by Sears if Sears were laid off or fired and that he did respond "neither." Riley testified that he told Sears that Sears would be called back as soon as there was work and told him to call in on the telephone the next morning. Riley did confirm that Sears observed that it was strange that there was no work for Sears and Brewer since they wore the union buttons, and that he, Riley, did not respond to that comment. Brewer had also appeared that morning at the shop for the purpose of asking for a "separation slip." He observed Sears talking to Riley and heard Riley tell Sears that he was not discharged nor laid off and therefore Brewer walked away. Later that afternoon, Brewer testified that he telephoned Johnson and asked if there were any work and, upon being informed that there was work, he returned at 12:30 p.m. to commence work. Sears received a message through his wife, on August 31, to return to work on September 1. Therefore he resumed his work at 7 a.m., September 1. During the afternoon of September 1, Sears was assigned to practice bending dies. Up to this point, it is clear that neither Sears nor Brewer were ever warned, prior to August 30, that they were to be laid off as a disciplinary measure because of their excessive talking and walking around the plant nor were they told on August 30, or thereafter, that the reason for them being sent home on August 30 was for disciplinary reasons. No written warning was served on Sears nor was any notation entered into his personnel file prior to August 30. Respondent argues that Sears' testimony with respect to his conversation with Riley concerning the reasons for his being sent home on August 30 should not be credited. It is argued that Brewer did not corroborate Sears as to the account of what Riley told them. However, a careful review of the record will fail to disclose that anyone including Riley testified that Brewer and Sears were in close proximity when Riley told them of the reason they were being sent home. Sears testified that he was approached by Riley while engaged in bending work, whereas Brewer testified that he was at the filing table not at the bending machine when Riley approached him. Sears testified that he was leaving at that point in time when Riley com- menced making comments to Brewer. Riley did not 2 This is particularly revealed in the circumstances surrounding the discharge of Dunn. contradict them. Other testimony in the record reveals that the noise level is so high in the plant that normal conversations cannot be overheard even when individuals are in close proximity.2 It is also not strange that Riley should engage in a more expansive discussion with Sears than he did with Brewer. Sears had been employed since October 1975, whereas Brewer had been employed only since July 1976. Riley did not deny the preunion activity conversation to which Sears testified and which I credit. Riley's testimony as to what he told Sears on August 30 was framed in a general reference of what he told Sears and Brewer and was cryptic and conclusionary. As noted he did not specifically deny the most damaging elements of that testimony. Moreover, the thrust of that conversation is much akin to the opinion he expressed to Sears many weeks earlier, i.e., that union activity would result in a detriment because, if there were no work, employees would be sent home instead of being utilized on make-work projects. With respect to the August 31 conversation with Sears, Riley's account essentially tracks that of Sears. Even Riley conceded that he made no response in the form of a denial to Sears' observation that it was strange that there was no work available ever since he and Brewer started to wear union buttons. In view of the fact that Riley did not tell Sears that he and Brewer were being sent home for disciplinary reasons, Riley's failure to explicitly state that union activity of employees were not the reason for them being sent home within such a context constitutes an implicit statement to Sears that that was the reason for the layoff. Under these circumstances and based on my observation of demeanor, therefore, I find Sears recollec- tion of his conversations with Riley credible. 3. The discharge of Employee Dunn Steve Dunn was employed by Respondent Tendico from August 19, 1975, until he was discharged on August 30, 1976. During his employment he had performed numerous functions including filing, grinding, shearing, and layout. Dunn's entrance on duty occurred approximately 3 months after Respondent assumed operation of the plant after acquisition from a prior owner. Dunn had obtained sufficient experience such that he was charged with the training of a fellow employee. In his performance of his duty as a setup man, Dunn constructed templets and stamped the size and pattern number on templets when work was completed on a full set of templets. On occasions he turned over the function of templet making to a trainee while he performed other functions. On the morning of August 30, Dunn proceeded to his work station and engaged in templet shearing. Like the three other employees mentioned, Dunn wore the same type union button on his left shirt pocket. He testified that as he was shearing, Johnson approached him and told him to "get off the shears," and to let the trainee shear, and that he, Dunn, should stamp. Dunn then testified that he proceeded to stamp out a set and waited for the trainee to shear out a complete set. He testified further that about an 738 TENDICO, INC. hour or so later he had sheared and had constructed one or two sets which he then stamped and waited for the trainee. He testified that at or about 11:30 a.m., there was nothing for him to do, so he went to the filing table and engaged in some filing because he saw "no point standing around." He testified that he filed one die when Leadman Joe Lindsey approached him and told him that there were some templets in the rear. Dunn testified that he tried to explain to Lindsey that he had just returned from the templet area and there was not anything for him to do, but that Lindsey refused to let him explain and commenced hollering and "carrying on" stating to Dunn "I want you to go back there, I don't care." Dunn testified that he responded "well, he's loaded up with dies let me help him file something," but that Lindsey responded "you go back there now." Dunn testified that as he was about to get up, Carl Gilley who was standing behind him told him to "hit the clock." Dunn testified that he clocked out and Johnson who had come out of his office encountered him and that he asked Johnson to inquire of Gilley if he were fired. According to Dunn, Johnson returned shaking his head in an affirmative manner. Dunn explained that there were occasions when there was insufficient work for benders and on those occasions he engaged in shearing and stamping. He further testified that it is usual practice to stamp a full set, and only on occasion to split a full set when they could not fit a full set on the table. He also conceded that there were occasions when he did prepare less than a full set in order to provide some work for others. This aspect of this testimony was undenied and there is no evidence in the record as to any priority of work or rush in work assignments which would have necessitated his deviation from his usual practice. Lindsey did not testify. Gilley testified that he was standing near the filing table behind Dunn and that he "observed that Joe Lindsey and Dunn was having some words and this went on for approximately a minute. Suddenly, Mr. Dunn raised up and threw a file across the table. At that point I told Mr. Dunn he was fired and to clock out." Gilley testified that he was approximately 5 feet away from Dunn and that he saw the file hit the table a couple of times and bounce off on the floor. Gilley did not testify that he heard the substance of the conversation between Dunn and Lindsey and from the tenor of his testimony, I conclude that he did not hear it. Respondent does not contend that Lindsey has any authority with respect to the reprimanding or disciplin- ing of employees, and Johnson testified that Lindsey does not use any discretion in the assignment of work other than in situations when Johnson was absent. The sole reason advanced by Respondent for the discharge of Dunn is the act of throwing the file on the table in such a manner as to cause it to bounce and fall on the floor which, it is argued in Respondent's brief, constituted a safety hazard. There is no argument or contention that Dunn was insubordinate to a supervisor. Johnson, who was 35 feet away, testified that he observed the incident but could not hear what was said because of the noise level in the shop. But, he testified that he observed Lindsey and Dunn "having words" and that Dunn got up and threw his file which bounced on the top of a table and fell on the floor, whereupon, Dunn turned around and faced Gilley, and Gilley spoke some words to Dunn and thereafter Gilley told Johnson that Dunn was fired and to pull his timecards which Johnson did. He stated that he wrote "fired" on the timecard, and afterward picked up the file and started filing the dies. Uncontradict- ed testimony indicated that the file in question is a small 7- inch file with a pointed edge. Dunn admitted on cross- examination that he threw the file on the table but that it did not fall on the floor, and that he threw the file after he was told that he was discharged. Greer testified that he was present at Dunn's discharge which he fixed at a point 3 hours in advance of Dunn's testimony and as indicated by the timecards. Greer testified that Dunn was asked by Lindsey to go to his table and stamp out a die whereupon he was asked if he could wait until two or three more dies were assembled because Greer was stacked up at the time. Greer testified that after about 45 minutes when Gilley had stepped up and said "get out of here and that he was fired," and at that point Dunn pitched his file over on the table and left but as he was leaving asked: "Is it because I'm doing my job or because of these union pins?" Thereupon, Dunn left the plant. Greer's testimony in this regard is thus not very reliable since it deviates from Dunn's in several respects. However, with respect to the comment of the union pins, Dunn testified that he did return to the plant on August 31 prior to 7 a.m. and spoke with Johnson in the plant wherein he asked for a separation slip and received in response just a shake of the head and a smile without a spoken comment. Dunn testified that, at that point, he asked Johnson if he were discharged because he wore a union button and that Johnson still refused to respond. At that point, he turned and walked out and Gilley followed him to his car and then told him to stay off the Company's property. Dunn testified that he told Gilley that he merely came for a separation slip and when he answered Gilley as to whether he received one by saying "no," Gilley responded "okay." Johnson testified that he did not see Dunn on August 31, but that the next occasion on which he saw him was Friday, when Dunn came in to pick up a check. He did not testify as to whether or not he had a conversation with Dunn on that day. However, Gilley did not deny encountering Dunn on Tuesday, August 31. Danny Bass, an employee who was hired on March 29, 1976, by Johnson, testified that between 8 a.m. and 9 a.m. on August 30, he was in the offices of Gilley and Johnson and was present with Johnson when Gilley came into the office and told Johnson "Doug, I'm going to let you go up there and get on Steve since you been on him." Johnson responded "okay." Gillie denied making any such state- ment on any occasion. In any event, the statements are ambiguous and Dunn is not the only "Steve" in the plant; i.e., Steven Craddock was employed also on that date. 4. The discharge of Employee Greer Glen Greer had been hired in May 1976 by Johnson and assigned to file and sharpen dies. Thereafter, he also worked as a grinder helper and a rough filer. He testified that on August 30, after Dunn's discharge, Johnson came over to his table and helped him file and catch up on his dies; that is, he was filing dies and he had to sharpen them 739 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and take out the nicks. Greer testified that he had been feeling nauseous that morning and therefore asked John- son if he could leave the plant early but he received no response. Thereafter, he went to the toilet for 10 minutes and returned and again asked Johnson if he could leave early. After receiving no response he testified that he left his work station, clocked out, and as he left the plant he vomited on the sidewalk. He testified that it occurred to him that he better go back into the plant and tell someone that he was going home. As he entered the plant, he encountered Gilley at the door, and, at that point, Gilley told him "to get out of here." Thereupon, Greer testified that he went home. Greer testified that, on August 31, he returned to the plant at 6:45 a.m. and found that there was no timecard in his rack and that, accordingly, he approached Johnson and asked him where his timecard was and Johnson responded "you quit." At that point, Greer testified that after denying that he quit he stepped up on a case of steel and started talking to the employees who were sitting at the filing table and that he commenced talking to them prior to the beginning of the 7 a.m. shift. In his talk, he stated that he had in his possession a pamphlet issued by the Board and that he read employees their rights under the Act. He testified that, as he was reading employees their rights, Gilley stepped up beside him and told him "get the hell out before I put you out." Greer testified that he protested that he was not reading a union pamphlet but a government pamphlet and that Gilley responded "I don't give a damn about that, just get out of here." Thereupon Greer left. A copy of the government pamphlet was shown to Greer on the witness stand, but he was unable to identify it. Dunn testified that he was wearing seven union buttons on the morning of August 30: five on his hat and two on his shirt. Other employees who testified were unable to verify that he wore seven buttons, although one witness testified that he observed Greer wearing two buttons. Johnson testified that, after Dunn was discharged and at the point that he picked up Dunn's file and started filing at the filing table across from Greer got up and spoke to a welder and spoke to employee Scarborough. Johnson did not hear what was said. Johnson testified further that Greer proceeded from there back to the beverly area and talked to employee Cates and then went from there to the timeclock directly without stopping at the bathroom and, having punched out, went out the side door. Johnson testified that the total time between Dunn's punching out and Greer's punching out was 9 minutes, according to the timecards record. Johnson testified that Greer said nothing to him during that period of time. However, Gilley testified that on August 30, within a period of 9 minutes after Dunn was discharged and clocked out, Greer walked passed him, clocked out, and left. Gilley testified that Greer did not speak to him or to anyone else. Gilley testified that at that time he was standing inside the main building just beyond the timeclock, about 10 or 15 feet inside the main building. Gilley testified that on August 31, at "approximately 7 a.m. in the morning" he observed Greer standing on a box of steel holding "some type of material that he was reading :I Gilley did not deny Greer's testimony that this occurred prior to the commencement of the shift. to the employees." Gilley testified that he did not know what material was being read, but that he walked up beside Greer and asked him to leave the building, and that he had to repeat his request because Greer did not respond for approximately 30 seconds. Gilley testified that he told Greer to leave because he was no longer employed. Respondent has taken a position that Greer voluntarily quit on August 30. Greer testified on cross-examination that he did not go back to the beverly area and talk to Cates. However, he conceded that he did talk to Scarbor- ough prior to his statement to Johnson that he was feeling ill and that he talked to Scarborough about matters extraneous to the events of that morning. Gilley did not deny Greer's testimony that Gilley told Greer "to get out of here" as Greer left the plant. Thus, Gilley corroborates Greer that he did not engage in conversation with other employees in the interlude between Dunn's clocking out and Greer's clocking out. I find Gilley's testimony that he was unaware of what Greer was reading to the employees and his account of the incident to be less credible than that of Greer. If Gilley is to be believed, he was acting on an assumption that Greer had quit his employment when there was no evidence to the effect that such was the case. According to him, Greer did not speak to him or to anyone else as he left the plant the day before. Johnson testified that Greer did not speak to him about leaving and therefore Johnson had no basis on which to conclude that Greer quit except for the fact that he walked out. If Gilley is to be believed, he assumed that Greer had quit his employment because he walked out early during the previous day, despite the fact that Greer appeared in the plant the following morning and was observed by him standing on a box talking to fellow employees prior to commencement of work.3 Gilley then, according to his testimony, ordered Greer out without paying attention to what Greer was telling the employees, or without even inquiring from Greer what Greer was telling the employees. Thus, although Greer had a tendency to telescope events in his recollection and did not present the image of the most reliable witness, I find his testimony essentially more reliable than that of Gilley and conclude that Gilley was well aware of what Greer was reading to employees as he stood on the box and that the substance of the message being read to employees was their rights as set forth in Section 7 of the Act. Furthermore, I conclude that Greer did not, as Johnson testified, go around talking to employees immediately prior to clocking out. Respondent's work rules provide for a progressive system of discipline. Infractions falling within Group A provide for the penalty of immediate discharge and delineate six areas of misconduct including, inter alia, use of alcoholic beverages in the plant, use of illegal drugs, insubordination or failure to obey orders, commission of unlawful acts, destruction of company property, and ringing out time- cards other than ones' own. Group B provides for a disciplinary layoff of 3 working days for the first infraction and a discharge for two separate fractions for the following: (1) Fighting on company premises; (2) leaving 740 TENDICO, INC. prior to end of shift without permission of supervisor; and (3) unauthorized absence. The third group, Group C, provides for a written warning for a first infraction, a layoff of 3 working days for the second infraction, and a discharge for the third infraction of various types of minor misconduct including, inter alia, failure to call before 9 a.m. on day of absence, carelessness or defective or improper work, visiting during worktime, washup before first buzzer, unauthorized tardiness, etc. There are no rules against soliciting or talking to employees on nonworktime or in nonwork areas. 5. The discharge of employee Bentley Employee Gary Bentley commenced his employment at Respondent Tendico's plant on or about August 2, 1976, and was assigned the duties involved in the final produc- tion process; i.e., plating and painting. Bentley had signed a union authorization card on Wednesday, August 25, at the meeting at We-Sack-It Market. He testified that he was ill on Friday and did not report to work, having had his mother call in for him. He returned to his employment on Monday, August 30, at 6:50 a.m., to find his timecard missing from the rack. Bentley. who did wear a union button, waited to talk to Johnson at 7:15 a.m. They talked in Johnson's office alone. Bentley was questioned as to his absence on Friday and he said he was sick. Bentley testified that he was told by Johnson that he missed too many days and would have to be let go and that Johnson already had a man on the job to replace him that same day. Bentley inquired of an opportunity to improve and Johnson said it was too late. Bentley testified that he had received no prior warnings of discharge and that Johnson further stated in the exit interview that he needed somebody with a little more "responsibility" to work more often. Bentley testified that he was given no advance notice of his termination. Bentley conceded on cross-examination that he was talked to on several occasions by Johnson about sloppy work and painting dies with the wrong color. He also was spoken to about missing work too often. He was advised to be sure to call in on occasions when he was to be absent. However, Bentley testified that he never informed Johnson that he was under a doctor's care and never reported the specific nature of his illness. Johnson testified that Bentley was discharged pursuant to a joint decision with Gilley which was reached the preceding Friday when Bentley failed to report to work. The basis of the decision was that Bentley had a record of excessive absenteeism, e.g., a total of 40 hours in a 4-week period of time, and that he could not do the job well enough. Johnson testified generally that Bentley was slow and his job was "kind of messy" and that he was told he ought to keep his work smooth and clean but Johnson could not recall any particular job that occasioned this remark. He testified that he warned Bentley on several occasions of absenteeism and that he would have to improve. Johnson conceded that Respondent does not 4 This incident was not alleged in the complaint, nor at the heanng as a violation of Sec. 8(a)l1) of the Act Upon resting his case, counsel for the General Counsel explicitly declined to make any substantive amendments to the complaint. require a doctor's statement except for excessive absentee- ism, i.e., when an employee is out 3 to 4 weeks, and that he never asked to see a doctor's statement from Bentley. Johnson testified during the last week of Bentley's employment that he had talked to him about his absentee- ism and warned him that he would have to be replaced if he did not improve. Thus, Bentley was absent on Friday without an explanation, although he conceded that he asked for no explanation because he already knew that Bentley was ill, he decided to replace the man. Johnson did not deny Bentley's testimony that Bentley was advised on the morning of August 30 that he had been replaced. His replacement, Danny Vaughn, testified that, when he applied for a job at Tendico, for whom he had worked previously, he was interviewed by Johnson. He testified that that occurred in the afternoon of August 30 and during the interview Johnson told him that he might be out of work by Friday, "or something like that, because the Union was coming in." He testified that Johnson made no explanation and he asked for no explanation. Johnson did not contradict this testimony. 4 The record reveals that Bentley did manifest a poor attendance record. During the first week of his employ- ment, he worked less than 37 hours. The second week of his employment, he missed an entire day. The third week he missed another entire day. During his fourth and final week he missed the entire day on Monday and also the entire day on Friday. Thus, of 20 scheduled workdays, he missed 4-1/2 days. Johnson testified on cross-examination that there were several other employees who had equal if not poorer attendance records. Respondent argues in brief that Johnson was in error in so testifying because examination of the evidence in the record reveals that these other employees' attendance records were not quite that bad. However, the important thing is not what actual atten- dance record was manifested by other employees, but that Johnson's impression of them was that they had equal if not worse attendance records. They are, however. compa- rable. In any event, Johnson testified that the reason for Bentley's termination was not his attendance but was rather the combination of poor attendance plus inadequate work performance. Indeed, of eight employees whom Johnson testified were discharged during the period from June 1975, when Respondent assumed ownership of the Nashville plant, and August 30, 1976, none were laid off or terminated because of absenteeism. 5 Johnson testified that, because he had talked to Bentley about Bentley's work performance, he had issued no written warnings to Bentley. When asked in cross-examination specifically as to his reason about not issuing written warnings to Bentley prior to Bentley's discharge despite Respondent's past policy and practice of issuing written warnings he testified: I had no reason to give him a written warning because it was not a disciplinary action. It was not just to try to get him to come to work more often. In other words, I 5 In fact. Johnson was significantly obscure as to the reasons for those discharges. 741 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was not trying to discipline the man on what he was doing. I was trying to get him to straighten himself up. When asked why Johnson did not issue a written warning to Bentley, as he did to employee David Johnson who had failed to call in during an absence, Johnson responded on cross-examination: "Evidently, I didn't feel it was worth making a notation on him." Johnson testified that David Johnson was a good worker. According to Respondent's progressive disciplinary system, carelessness or defective or improper work is among the category in Group C of infractions which call for issuance of a written warning on the first occasion. Johnson was asked on cross-examination if there were any reasons why he failed to give Bentley a written warning for deficiencies in work. Johnson replied "no." Furthermore, Johnson did not deny Bentley's testimony that the only reason given to Bentley during the discharge interview was his record of absenteeism. B. Other Acts of Interference I. Brewer's conversation of August 31 with Johnson Brewer testified that after he had returned to work on August 31, that afternoon, he was called to the office by Riley where he met Johnson and engaged in a conversation with Johnson and Riley. Riley denies that he was present at any such meeting. Brewer testified that Johnson stated to him: "I want to talk to you about this Union mess." Brewer testified that he responded "sure" and that Johnson stated: "If the employees of Tendico were to go out on strike, that the - if the Union fails to get into the plant, that the company didn't have to let the strikers back into the plant." Brewer testified that he just "stood in a gaze [sic]" and that at that point Riley spoke up and stated something which Brewer testified that he could not recall. Having had his recollection refreshed by a leading question, Brewer testified further that Riley stated that both Sears and Greer had been recommended for a 20-cent-per-hour wage increase but that "since the Union tried to get into the plant they lost the raise." Johnson also denied that any such meeting ever took place. Respondent periodically reviews its employees work and institutes wage increases. Subsequently, on September 26, Sears was recommended for a wage increase. This was done by Johnson who normally makes recommendations as to wage increases. There is no evidence that Riley participates in recommen- dations for wage increases. Brewer impressed me as being very uncertain and confused in his demeanor. On cross- examination, he was extremely evasive when questioned as to whether he had ever been spoken to about excessive talking and visiting. The question had to be put to him several times before he finally conceded that at one time he had been warned to spend more time practicing "and a little less mouthing." He was also confused as to whether or not he was told by Riley that he had been discharged. Also, s Par. 7C of the complaint alleges that Bob Riley, on August 31, 1976, told an employee that if he went on strike and the union campaign failed to succeed Respondent would not permit striking employees to return to work. There is no allegation in the complaint that Johnson made such statement I find it improbable that Riley would have stated to Brewer that both Sears and Greer had lost a 20-cent-per-hour raise because of union activity. At that point in time, Greer had either, according to the employer, quit his employment or, according to the General Counsel, was discharged. Thus he would have lost far more than a 20-cent wage increase. He was not even an employee. I thus find Brewer to be a most unreliable witness and am unable to credit his testimony as to the conversation of August 31, with Johnson and Riley. I conclude that no such conversation took place.6 2. September I conversation between Sears and Gilley Sears testified that, on the afternoon of September 1, he was called to the office and engaged in a conversation with Gilley, in the presence of Riley. Sears had filed a claim with the Tennessee department of employment security on August 31, 1976, wherein he stated that he had been discharged by Respondent because of union activity. On the afternoon of September I, Gilley had received a copy of that claim. Therefore, he summoned Sears to his office and, according to Sears, asked him what was meant by that claim. Sears testified that he responded that he acted upon the advice of his union representative, whereupon, Gilley told him not to listen to "no bone headed union representatives because I get myself in trouble plus the union also." Sears testified that he told Gilley that he was only following the advice of the union agent and that Gilley told him that it was okay and that he would be given another chance, and that, he should go back on the blocking machine and not to talk to any of the employees. Sears testified that Gilley further specifically told him that he was not fired, but that if Sears desired that Gilley would "let this statement [the unemployment claim] stand like it is and then I will fire you and I'll just deny it." Gilley who did not specifically deny any portion of the conversation, as narrated by Sears, testified that in the meeting, he told Sears that although he was not discharged "if he was going to hold the Company to a discharge, then I would not allow him to go back to work unless he got it straightened out with Unemployment which he promised to do." Riley testified again in a very cryptic and conclusionary fashion, that Gilley referred to the unemployment compensation claim characterizing it as false and that if Sears did not straighten it out he could not come back to work. Riley did not deny the balance of the conversation as set forth by Sears. Sears added on his direct-examination, after repeated questioning, that during the course of the conversation Gilley stated to him that Tendico never had a Union and never would have one "as far as he was concerned." Both Gilley and Riley denied that such a statement was made. With respect to this aspect of the conversation, Sears' demeanor was that of a witness unsure of his recollection and hesitant in his narration. He gave the impression that he had to add to his recollection to satisfy the prodding of counsel. I therefore conclude that with the exception of and no other evidence that Riley made such statement. Upon resting his case, counsel for the General Counsel argued that par. 7C sufficiently covered both agents, Riley and Johnson. 742 TENDICO, INC. that last statement which I discredit essentially the parties are in agreement that Sears was told he was not discharged but if he so desired he could put himself in a discharge status and that the employer would deny that it was because of union activities, but also that he was told he was given "another chance," without any explanation as to why he was laid off in the first place. Also he was instructed not to talk to other employees. Under such circumstances, I conclude that Sears was, in effect, informed that he was not discharged permanently for union activities but unless he ceased talking to fellow employees completely he might be subject to further discipline, including permanent dis- charge. The implication was clear that he should inhibit his union activities. Sears testified that following this conversation, the next day, on September 2, he returned to practicing bending dies and, about 2:30 p.m.. engaged in a conversation with Riley. His recollection was quite graphic even to a description of the strips of metal that he was "fixing to practice bending" which were unusually dirty. He stated that because of the condition of the metal, he went into the rear part of the shop to clean off the items and, while he was doing this, employee Cates (nickname Dino) passed him and made a remark. Sears testified that at that point he observed Gilley watching him from the entrance to the open-die department. Sears testified that as he returned to his work station, a few minutes elapsed and then Riley approached him and told him that he had been warned about talking to other employees and that he "was going to start giving out warning slips and if I got one more, then I'd be fired." 7 According to Sears, Riley told him to stay on the blocking machine and "not to be talking to any of the employees anymore." Although both Sears and Brewer, as noted above, had been cautioned about excessive visiting in the past, Respondent does not have any rules absolutely prohibiting talking of any kind by employees while engaged in work tasks. According to Sears, Riley added that "he didn't really have to tell me what this was all about, that I should already know." Subsequently, on or about September 10 on Friday, shortly after breaktime when Sears was at his work station before the other employees had returned to theirs, he and Riley were alone. Riley came up, patted him on the back and stated that he "appreciated the way I'd been staying away from the other employees and staying on the block and keeping my mouth shut and everything, and that as long as I did this, then Mr. Gilley would stay off his back and he, in turn, would stay off mine." He said, "of course, you know it's all over this union matter." Sears testified that he responded that the employees were only trying to better themselves by trying to get a union in but that Riley responded that "we shouldn't stir up such a ruckus about it." Sears testified that in the course of the conversation, Riley told him to "stay on my block and keep my mouth shut and everything would be okay." Riley, who did not deny the September 2 conversation, admitted that on September 10 he had complimented Sears, telling him that his work station had improved and explained that he was proud because Sears was "not going 7 Sears had not as yet received any written reprimands. A discharge upon one written reprimand would contravene Respondent's progressive disci- pline policy. around talking like he'd been, now he stayed at his work station." Riley had not specifically denied the balance of these conversations as narrated by Sears. When questioned by me, after completion of direct and cross-examination, Riley denied that he said anything to Sears about "keeping his mouth shut," and further denied that he said anything about a union. Riley's demeanor in testifying with respect to the September 10 conversation struck me as most unconvincing. In trying to explain the basis for compli- menting Sears, Riley seemed to be torn between compli- menting Sears because his work had improved or compli- menting him because he had not been "going all over the shop" and finally ended up testifying "well, his work - he was staying at his work area and working it was picking up." I credit Sears that, on this occasion, Riley again, as he had on August 30, volunteered to Sears that the union organizational activity was a motivating factor behind his instruction to Sears that he not talk to "anyone" on the job. I further credit the testimony of Sears as to the balance of these conversations. Peter Guynn, who testified in a very generalized fashion that he recalled a conversation between Sears and Riley in early September wherein Riley told Sears that they should stop talking union - and if he would stop talking union "everything would be all right" and Mr. Gilley was "upset of all the activities that was going on." I do not rely entirely on this testimony in my resolution of credibility between Riley and Sears. Guynn's testimony appeared to be the most generalized impression rather than a specific narra- tion of a conversation overheard. However, in substance he corroborates the thrust of the conversation as testified to by Sears. 3. Johnson's speech of September 7 Guynn also testified to a speech given by Johnson to a group of approximately 20 employees in the shop at the filing table on or about April 7. Guynn prefaced his recollection of the speech by testifying: "Well, I can't quite remember anything." However, he went on to testify in a generalized, reticent, and uncertain manner that he recalled Johnson stating to the employees "- well, it was mainly about the union; that if a union did get in, he was telling us that there would be fines to pay and dues to pay and things of that nature, and that he would rather for us to talk with the Company and settle with the Company than with the Union." Other witnesses called to testify as to this meeting did not testify as to any such comments made by Johnson. In any event, Guynn, who was asked specifically by counsel for General Counsel whether anything was discussed "about grievances during this meeting" responded that Johnson stated "that a list would be passed around and if we had any grievances to put them on this list, and that he would make sure that they would go to some man that was to come down from St. Louis." Subsequently, according to Guynn, he was contacted by employee Danny Vaughn about an hour later during worktime and asked if he would sign "a grievance list." Guynn did not sign the document. 743 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employee Danny Bass, who was hired on March 29, 1976, testified that he was among that group of 20 employees. His recollection of the meeting consisted of cryptic and generalized testimony that Johnson stated "he told us that the Company had rather deal with us than the union, and for us to get together and write up our grievances, and he would be in tomorrow." Bass could not recall whom Johnson was talking about, or whether he identified that person. He further testified that Johnson stated: "He told us to take one man and go around and get everybody's and take them home and type them up and have it there in the morning." Subsequently, Bass was contacted by employee Vaughn in the plating department. He and other employees were asked by Vaughn what they thought their salary should be. Bass responded and then Vaughn disappeared with a piece of paper which he had typed up and brought back to the plant the next morning. Employee Vaughn also testified as to what occurred at the September 7 meeting. This is the same individual who was hired by Johnson on August 30 as a replacement for Bentley. He was called as a witness on behalf of the General Counsel. Vaughn testified in somewhat of a vacant, absent-minded manner and gave little if no assurance of certainty of recollection in his demeanor. Thus he testified: Q. Mr. Levy) Would you tell us what you recall Mr. Johnson saying to the employees at that time? A. Not really, because I wasn't paying any atten- tion. Q. (Judge Wilks) You mean when you say you don't really remember - do you remember anything? A. Yes, I remember that he was talking about the union, but not anything in particular, you know. Q. (Judge Wilks) You don't remember anything he said about the union? A. No, because I wasn't - like I said, I wasn't paying any attention. All I remember is that, you know, he spoke out saying something on the union's behalf, and what the Company wanted to do. Q. (Judge Wilks) Well, how did the subject of union come about? Do you remember? A. No. Q. (Judge Wilks) How did he start the meeting? A. He just walked out and said, you know, called the meeting, you know, called everyone together in the shop. He said all you all know what this is about and everyone mumbled, you know, yes, it's about the union. That's how the meeting took place. Q. (By Judge Wilks) Do you remember anything that he said? A. No, except for the part that, you know, where he got down to saying that the Company had rather deal with the employees. Overall what he said from the first point up to that time, I wasn't even listening. Q. (By Mr. Levy) Do you recall whether Mr. Johnson mentioned anything about grievances? A. Yes. Q. Would you tell us what he said about griev- ances? A. That the Company had rather deal with us in that, you know, if we would like to, we could, you know, submit, you know, our grievances to the Company, you know, as to what we want, you know, want to change. Q. (By Mr. Levy) Did he say what he intended to do with the grievances if you turned them in to him? A. No, he said that the company official would be in the next day after, you know, after meeting with the employees. Q. He said that a company official would be in the next day? A. Uh huh. Q. Is that what he said? A. Yes. Q. (By Mr. Levy) Did he say anything about taking up the grievances with the company official? A. No, if he did, I didn't interpret it that way. Q. (By Mr. Levy) Do you recall what, if anything else, Mr. Johnson said at that time? A. No. Q. (By Judge Wilks) Did he say anything else? A. That was just it. Q. (By Judge Wilks) Now there's a difference between saying that he didn't say anything else, and that he said something else but you can't recall it. A. Well, if he said anything else, I didn't hear him. Q. (By Judge Wilks) You don't even recall whether he said anything else? A. If he said anything else, I didn't hear him. Q. (By Judge Wilks) I see, not that you just don't recall? A. Yes. Subsequently, Vaughn inquired of the employees "what they wanted" and jotted it down on a sheet of paper which he wrote out as a list of grievances. Vaughn testified that he turned it in to Johnson the next morning and that when he did so Johnson told him "that we probably were asking for too much, but he would turn it in anyway, and that the company official would make the decision." Johnson took the document and never returned it. On cross-examination, Vaughn testified that Johnson made no promise to him and that Respondent has not acted on any of the grievances set forth in the list of grievances which he submitted to Johnson. Johnson testified that at the meeting he read from a list of supervisory "do's and dont's"; i.e., a list of instructions to supervisors of what they may or may not do during an election campaign in printed form. Johnson testified that he read the portion of that document, which was received into evidence, which commences on page 3 and starts with item I and continues to item 17. Included, inter alia, are the following instructions of what they may say: I. Tell employees that the company prefers to deal with them directly, rather than through an outside organization. 2. Tell employees that if they have any gripes or problems you are willing to discuss them. 3. Tell employees about the benefits presently in effect. 744 TENDICO, INC. Johnson did not deny the conversation with Vaughn as testified to by Vaughn which took place when Vaughn submitted a list of grievances. Based on my observation of the demeanor of Guynn, Bass, and Vaughn and a review of their record testimony, which is not mutually corroborative, I credit Johnson and conclude that he read verbatim a portion of the supervisory "do's and don'ts" in the meeting of September 7. Since Johnson did not deny the subsequent conversation with Vaughn, I credit Vaughn's testimony in that regard only. Johnson testified that Respondent maintained a written statment of policies since October 1975 and that a copy thereof had been posted on the plant's bulletin board on said date and remained posted thereafter. Furthermore, he testified that a copy of these policies were shown to each employee that he subsequently hired. In article IV of that document it is stated: The grievance procedure is established to call to the company's attention any problems as to the company procedures, work rules, work conditions, or work rates you may have. It is the intent of this procedure to give all employees the opportunity to express their views on any such policy and also, to enable the company to explain the reason for the policy. It is hoped by the use of this procedure to bring a better understanding to any problems as they arise and to give the company an opportunity to correct problems that do arise. Thereafter a grievance procedure of five steps is set forth. There is no evidence that any grievances were ever processed under this article of the company policies, nor is their any evidence of an employer practice of soliciting grievances in employee meetings. Sears testified that the first time that he saw this document was when it was posted between September I and September 10, 1976. Dunn, who was discharged on August 30, testified that he never saw the statement of policies posted on the bulletin board. Brewer similarly testified. None of these employees were ever shown a copy of the statement of policies upon their hiring according to their testimony. I do not credit Johnson's testimony in this regard. Had such a grievance procedure been posted surely there would have been some evidence of at least one grievance that was processed thereunder in the period of time subsequent to October 1975. Furthermore, had the document been posted and had employees been informed of its existence upon hire it would have been unlikely that Vaughn would have propelled into action only upon hearing Johnson's remarks at the September 7 meeting. Thus, I find not only is there an absence of a grievance processing practice, but also I find as not credible evidence that any such grievance was promulgated prior to September 1976. 4. September 10 conversation between Bass and Johnson Employee Bass testified that 2-1/2 weeks after his execution of an authorization card on August 25, 1976, he engaged in a conversation with Johnson at the filing table. The conversation therefore occurred on or about Septem- ber 10, 1976. Bass testified that while the two of them were engaged in a conversation "that he [Johnson] had been in the Union before and he started telling me how they were. He said that its hard to get them in without a strike ... that there was no way we could get in. He said that the Company in St. Louis, all they had to do was keep the work up there. That's all." Bass also testified that Johnson stated that the employees would obtain more money but that "only the top man in the Union would get it." Thereafter, counsel for General Counsel refreshed Bass' recollection by referring him to the pretrial affidavit he gave during the investigation of the case. Bass then added that Johnson also stated that "Glenn Greer would have been getting paid by the Union to organize." And "also there was no way we could get more money out of the Company." This testimony was not contradicted or denied by Johnson. Accordingly, it is credited. I conclude that the thrust of Johnson's remarks were that employees efforts to better their rates of pay through union representation were futile because Respondent would frustrate their efforts by diverting work to the St. Louis plant and would in any event, take an adamant, unalterable position in collective bargaining which would foreclose any wage increases. 5. The water fountain conversation Employee Guynn testified that about I or 2 weeks after he signed his union authorization card on August 25, he overheard a conversation between Gilley and Johnson at the water fountain in the shop. Guynn was very hesitant and uncertain in this testimony and very vague as to the date. He testified that as he approached the water fountain he observed Gilley and Johnson in a conversation. He testified that when he arrived at the water fountain those two individuals were standing 2 feet away and although they glanced up at him as he approached the fountain they did not look at him as they continued in their conversation. Gilley and Johnson stood in a doorway next to the water fountain. He testified that he heard Gilley say to Johnson "that everyone could try all they wanted to get was a union in, and if they did, they'd - if it came down to that point, they would go back to St. Louis." He testified upon further questioning that Gilley stated: "if it looked like a union was going to come in, they would pack up and go back to St. Louis." Both Gilley and Johnson denied that any such conversa- tion took place. That is all of the conversation that Guynn overheard. Guynn did not strike me as a very persuasive witness. Although the General Counsel attempted to refresh his recollection as to the date of the conversation, it became clear that he had no independent recollection of when that date transpired. Furthermore, although Guynn was offered as a witness to corroborate the early September conversation between Riley and Sears, as noted above, his recollection differs significantly from that of Sears and appeared to be a summary of the conversation as he gathered it. I therefore do not feel that his recollection of overhearing a brief segment of a conversation without context is very reliable. Accordingly, I credit the denial of Gilley and Johnson. 745 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 111. ANALYSIS AND CONCLUSIONS Respondent contends that Sears and Brewer were temporarily laid off on August 30 because of lack of work on the kick-block blender and because of excessive visiting away from their work stations instead of practicing bending dyes. Respondent contends that it had no knowledge of union activity on the morning of August 30, when Johnson arrived at the plant and discovered that there existed a lack of work and a decision was made between him and Gilley to send home Sears and Brewer for disciplinary reasons. Thus, Taylor continued to work on hand-block bending dies for which there was work and Craddock was retained on the hand-block practicing bending dies. Respondent further argues that when work became available immediately, thereafter Brewer was recalled to work on August 31 and Sears on September 1. There is no explanation as to why Sears was permitted to resume the practicing of bending dies. The credible evidence in the record reveals, however, that Respondent did have knowledge of its employees' union activity prior to the communication to Respondent of the Union's demand for recognition via the mailgram call-in. This is revealed by Riley's statement to Sears that his earlier prophesy had been fulfilled; i.e., that if the employees wanted the Union they would get one just like the employees in St. Louis and when the employees work was caught up they would be sent home. Respondent's contention that its conduct towards Sears and Brewer was disciplinary in nature is incomprehensible. Although the two employees were orally cautioned to stay closer to their work station in the 2- or 3-week period prior to union activity they were never warned orally or in writing that their visiting had become so severe as to possibly bring about a disciplinary layoff. Indeed, no one, neither Sears, Brewer, nor even Riley, was informed by Gilley or Johnson that the nature of the layoff was disciplinary, which under the employer's progressive disciplinary system would have called for a formal written warning. Moreover, it was abundantly clear that Riley confirmed in his conversation with Sears that Respondent's motivation was the union activity of the employees. Thus, I conclude that the discipline which Respondent meted out to Sears and Brewer, which was unprecedented both as to substance and form, was indeed, as General Counsel argues, pretextuous in nature. Accordingly, I conclude that Respondent, who had exhibited animosity toward the union activity of some employees particularly to these two employees through the statements of Riley was motivated by a desire to punish Riley and Brewer because they had engaged in union activity. In view of Riley's early morning statements to Sears, it is apparent that Respondent had become aware of the union activity of its employees. Furthermore, in view of the testimony discussed above, which revealed that Respon- dent had suspected that Greer was the prime organizer for the Union, Respondent apparently had also become apprised of some definitive information that certain employees had signed cards. Thus, on the morning of August 30, Sears and Brewer had engaged in union activity having executed union authorization cards and having worn union insignia on their person. In any event, Respondent's motivation to retaliate against its employees union activities by setting an example of what would happen upon successful organization of its plant by fulfilling the prophesy of Riley uttered several weeks earlier precludes any necessity that Respondent actually knew of the specific and definitive activities of Sears and Brewer on the morning of August 30. Sears and Brewer having been warned about visiting away from their work stations in previous weeks were in somewhat of a vulnerable position. Sears had become the recipient of Riley's prophesy. They both thus served as an apt vehicle for a warning to other employees of what will happen if union activity prevails. The message having been promulgated, the two individuals were shortly returned to work again without any education as to the nature of their temporary layoff by Respondent; i.e., the supposed disciplinary measure. Sears was almost immediately returned to practice bending. Thereafter, Sears kept his silence and was complimented by Riley, and on September 26 was granted a wage increase. Thus, Respondent engaged in the classic example of carrot and stick employee relations in reverse order. Accordingly, I conclude that Respondent violated Section 8(a)(3) of the Act by the temporary layoff of Sears and Brewer on August 30, 1976. A. The Discharge of Steven Dunn Steven Dunn had been employed by Respondent approximately I year and had performed numerous functions and therefore had obtained sufficient experience to be in charge of the training of at least one employee. Respondent contends that the only reason that Dunn was discharged was because he threw a file on the table which bounced off and hit the floor. There is no contention by Respondent that Dunn was discharged because of insubor- dination to the leadman, Joe Lindsey, whom Respondent contends is not a supervisor. Gilley, who fired Dunn, merely testified that he "saw" Dunn having "words" with Lindsey. Obviously, he could or did not hear what those words were but merely observed, according to his own testimony, that Lindsey threw a file on the table. Respon- dent contends that "it didn't matter what Mr. Lindsey's status was nor whether the request being made of Mr. Dunn was a reasonable one, but that the action took simply cannot be justified in an industrial setting because of the paramount safety of employees." There is no evidence adduced in this record to indicate that anyone was endangered by the action of Dunn, assuming that Dunn did throw the 7-inch file on the table, and assuming that it did bounce on the floor. Gilley made no effort whatsoever to ascertain what provoked Dunn into throwing the file; i.e., exactly what Lindsey had told Dunn before Gilley made the snap decision to discharge Dunn. The so-called violation of safety conditions is a breach of rule 4, in Group B of Respondent's rules of employee conduct. Johnson testified that such rules are generally with some minor exceptions followed and applied. An infraction of a rule Group B provides for a disciplinary layoff of 3 working days. According to the rules, only two separate violations will result in discharge. There is no evidence that Respondent had the slightest problem in the past with respect to Dunn's attention to safety rules and 746 TENDICO, INC. regulations. Nor is there any evidence that Dunn had been given to temper tantrums or other similar acts of miscon- duct. Thus, the discharge for an incident such as testified to by Gilley and Johnson was surely an extraordinary action by Respondent. In view of Respondent's earlier action toward Sears and Brewer and its expressions of hostility toward unionization the only credible explanation for Respon- dent's resort to this extraordinary punishment is its union animus. Accordingly, I conclude that by discharging Steven Dunn on August 30, 1976, Respondent violated Section 8(a)(3) of the Act. B. The Discharge of Glen Greer Respondent contends that Greer, following Dunn's discharge, became enraged and walked out and voluntarily quit his employment. Respondent further argues that thereafter he changed his mind and reported to work the following day "as though nothing had happened." Respon- dent contends that there is no record of evidence that Greer was discharged. As indicated above, I did not find Gilley's testimony with respect to the so-called voluntary quitting of Greer to be credible. Also, as found earlier I did not find Johnson's testimony with respect to the events leading up to the termination to be credible. There is no basis for which either Johnson or Gilley could have concluded that Greer permanently and voluntarily quit his employment on August 30; unless of course they were well aware of his union organizational efforts on that morning, and, having been aware of that, they terminated one other prounion employee and temporarily laid off two other prounion employees, they assumed that Greer was outraged and in protest walked off the job. Even if I were to disbelieve Greer's testimony that he did not tell Johnson that he was ill and walked out telling him, there still would remain no other logic that would sustain Respondent's conclusion that Greer had voluntarily quit. According to an infraction of the rule regarding unautho- rized absence or leaving the plant prior to the end of the shift without permission of supervisor, the commensurate discipline would be a layoff of 3 working days and a discharge for two separate violations. There is no evidence that Greer had ever walked off the shift before. Thus, even had Respondent contended it discharged Greer, it would have acted contrary to its own rules and regulations. Moreover, by the mere maintenance of such a rule against leaving the shift prior to the end of the shift the Respondent recognizes that in the course of events employees do at times leave the shift prior to its end and that such conduct does not constitute a voluntary quitting nor does it constitute grounds for discharge. The credible evidence in the record reveals that when Greer returned to the plant he was told that he was being considered as a quit, constructively discharged, and thereafter ordered off the premises after he addressed the employees in regard to their rights guaranteed them under the Act. If by some stretch of the imagination Respondent actually concluded that Greer had quit on August 30, it offered no explanation as to why it did not accept what in effect would have constituted Greer's request for reinstate- ment either in the form of his statement to Johnson that he did not quit, or by virtue of his presence on the job in the morning on August 31. If Respondent had not discharged Greer on August 30, it is fairly clear that he was discharged and his continued reinstatement refused on August 31, particularly after he had addressed the employees concern- ing their rights. As indicated above, through the testimony of Bass, Respondent had acknowledged that Greer was in fact the chief employee organizer for the Union. It is not clear at what point in time Respondent acquired that knowledge or how far in advance it had acquired that knowledge prior to revealing it to Bass. Regardless of how many buttons Greer wore on his person on August 30, it is fairly clear that Respondent was aware of the general effort to organize the plant and aware that Greer was a supporter of that effort at that point in time. Again, even if the record did not establish specific knowledge of Greer's union activity on August 30, the record sufficiently establishes that Respon- dent was engaged in a pattern of conduct whereby it would implement sterner disciplinary measures upon its employ- ees which were clearly contrary to its pronounced rules and practice previous thereto because of the onset of union activity. Accordingly, I conclude that Respondent did discharge Glen Greer on or about August 30, 1976, because of union activities. C. The Discharge of Gary Bentley Respondent contends that Gary Bentley, an employee of 4 weeks tenure, was discharged because of poor attendance and because he was "not properly handling the job." Respondent argues that Bentley was not wearing a union button like Sears, Brewer, Dunn, and Greer on the morning of August 30, and there is no evidence upon which to base an inference that Respondent had any knowledge that Bentley had executed a union authorization card. It is clear that a discharge for absenteeism would be a wholly untenable position for Respondent as a defense in this aspect of the case. No employee had ever been discharged for absenteeism. Johnson's impression while testifying which obviously would have been his impression at the time he meted out discipline to Bentley was that other employees had equal if not worse attendance records. Yet Bentley's testimony that he was apprised by Johnson on August 30 that the basis for his discharge was solely attendance was never controverted by Johnson. Further- more, Johnson's own testimony, when he was first called to testify by the General Counsel as an adverse witness, indicated that, during the last week of Bentley's employ- ment, Bentley was warned that his attendance would have to improve or he would be discharged. That warning was not coupled with a reference to the adequacy of his work performance. I find Johnson's testimony that the reason for Bentley's dismissal was poor workmanship and poor attendance to be unconvincing. When examined by the General Counsel he was vague and hesitant when asked to specify on what occasions Bentley's work was found to be wanting. When asked to identify a particular job he responded that he was unable to do so. On cross-examina- tion, however, he eluded to an occasion when he stayed overnight to assist Bentley in redoing some work. He 747 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified that was the first occasion in which he assisted any other employee in correcting their work. Bentley, however, testified that Johnson did indeed stay after work on one occasion to help them because of the large number of dies that he had to get out on that day, and conceded that earlier in the day, Johnson had indicated to him that he painted some dies with the wrong color and fixed the date as the second week of his employment. However, it is clear from Johnson's own testimony that on no occasion did he feel that Bentley's attendance nor his defective workman- ship was so severe that it required the issuance of a written warning or reprimand pursuant to Respondent's progres- sive system of discipline. As Johnson testified, "[E]vidently, I didn't feel it was worth making a notation on him" and "I had no reason to give him a written warning because it was not a disciplinary action." In light of such testimony, Johnson's sudden decision to discipline Bentley with the ultimate discipline of discharge without prior written warning and a disciplinary layoff of 3 working days as prescribed by its normal practice became inexplica- ble unless one considers some other reason or motivation. As stated by the Court of Appeals for the Eighth Circuit: Illegal motive has been held supported by a combina- tion of factors, such as "coincidence in union activity and discharge" . . . "general bias or hostility toward the Union" . ..variance from the employer's "normal employment routine" ... and an implausible explana- tion by the employer for its action . . .. [McGraw- Edison Company v. N.L.R.B., 419 F.2d 67, 75 (C.A. 8, 1969). See also W. T. Grant Company, 210 NLRB 622 (1974).] Therefore, although Bentley was not among that small group of employees who wore union pins on the morning of August 30, 1 am constrained to conclude that the only plausible explanation for Respondent's sudden decision to terminate him must be attributed to the employees organizational activities which occurred during the week prior to his termination. Respondent was aware of such activities as revealed by Riley's discussions with Sears on the morning of August 30. During that same conversation, Respondent's course of conduct on the day of August 30, and shortly thereafter, fully revealed Respondent's animos- ity towards such activity. Indeed, Respondent's conduct indicates and reveals that it engaged in a series of actions designed to signal to its employees that they could expect a more stringent circumstance under which to work now that they had decided to seek union representation. Thus, Brewer and Sears, employees whose visiting had been tolerated previously with a mere verbal reproach, were suddenly taken off the usual make-work assignment of practice bending. Dunn was discharged purportedly for tossing a file on the table. 8 Finally, Respondent contrived the so-called voluntary quitting of Greer, which in effect, constituted a new policy of discharge whenever an employee prematurely left the premises before a shift ended. Accordingly, I find that Bentley's termination was 8 Although I feel the credibility finding is not necessary as to whether Dunn was discharged before or after he tossed the file inasmuch as I find a violation in either event, I discredit the testimony of Gilley and Johnson and credit Greer and Dunn that the discharge occurred befbre the tossing of the motivated as part of a general pattern of retaliation against employees because of their sudden attempts to organize on behalf of the Union. IV. ANALYSIS AND CONCLUSIONS A. The 8(a)(1) Allegations In light of the findings of fact above I conclude that Respondent violated Section 8(a)(1) of the Act by: (1) The statements of Foreman Robert Riley to an employee on August 30, 1976, that because employees had sought union representation they were being temporarily laid off and would no longer be permitted to practice bending dies during worktime. (2) The statement of Plant Superintendent Carl Gilley to employee Sears that although he was not discharged for union activities he would be recalled from a temporary layoff on condition that he refrain from any conversation with fellow employees thus inhibiting Sears' union activi- ties. (3) The statement of Foreman Robert Riley to employee Sears on September 2 and September 10, 1976, that Sears was not to talk to any other employee during worktime nor to stir up a ruckus about the Union under penalty of written reprimands and discharge in order to discourage his union activity. (4) The September 7 solicitation of employee grievances and implicit promise to remedy same by Plant Manager Johnson, and during a meeting of assembled employees as well as Johnson's subsequent implicit promise made to employee Vaughn to correct some of if not all of the grievances submitted to him by Vaughn, in order to discourage employee support of the Union. As stated by the Board, it is not the solicitation of grievances that is itself coercive but rather the promise, expressed or implied, to remedy those grievances. Reliance Electric Company, Madison Plant Mechanical Driver Divi- sion, 191 NLRB 44 (1971), enfd. 457 F.2d 503 (C.A. 6, 1972). Respondent's reliance on Uarco Incorporated, 216 NLRB 1 (1974), as a defense of its action is misplaced. In that case, the Board observed that upon solicitation of grievances an inference arises that the employer is making a promise to correct grievances, but that such inference may be rebutted. In that case it is found that the employer's conduct thereafter effectively rebutted such inference. Furthermore, the Employer's conduct was not made in the context of other unfair labor practices. In this case, the employer, whom I have found had no policy or practice of soliciting grievances and no practice of holding group meetings to solicit grievances, did so in the face of an organizing campaign, after a demand for recognition, and in the context of other unfair labor practices. Furthermore, Respondent accepted a list of grievances thereafter with merely an admonition that it thought the employees were asking for too much. Clearly, a promise was implicit therein to consider all and probably correct some griev- ances. Thus, Respondent herein failed to effectively rebut file. This credibility resolution is made upon my overall review of the demeanor of Gilley and Johnson and their overall testimony which I have found in other areas to be unworthy of credence. 748 TENDICO, INC. the inference that employees' grievances would be correct- ed. (5) The September 10, 1976, statement by Plant Manager Johnson to employee Bass that the employees' efforts to better their rates of pay through union representation were futile because Respondent would frustrate their efforts to obtain representation by directing their work to the St. Louis plant and would, in any event, take an adamant, unalterable position in collective bargaining which would foreclose any wage increases. Although I have found that Respondent refused to permit Glen Greer to remain on the premises of the employer prior to the start of the shift in order to address employees and inform them of their rights under the Act, I do not conclude that Respondent violated Section 8(a)(I) in doing so. Greer, as I have found, was discharged in violation of Section 8(a)(l) and (3) of the Act. His appropriate remedy was to proceed with an unfair labor practice charge, and not to assume upon himself the duty of assuring other employees of the provisions of the Act. Absent evidence that Respondent permitted nonemployees to address assembled employees on its premises shortly before the shift commencement, I do not construe the Act as placing upon the employer the obligation of permitting a discharged, albeit illegally discharged, employee the oppor- tunity to engage in such a mission. With respect to other allegations of 8(a)(l) interference alleged in the complaint as discussed above, I do not find that they have been proven by credible testimony. B. Violation of Section 8(a)(5) On the date of August 30, 1976, the Union requested recognition on the basis of 13 authorization cards in the unit alleged in the complaint and stipulated by the parties as an appropriate unit. On that date there were 20 employees employed within the unit including the discrimi- natees.9 Also employed was Joseph Lindsay, whom the General Counsel contends to be a supervisor. However, based on essentially uncontradicted testimony of Respon- dent's witnesses, Lindsay is charged merely with the responsibility of training new employees and instructing other employees in a routine nondiscretionary manner because of his superior experience. Accordingly, I conclude that Lindsay is a nonsupervisory leadman and I include him within the unit. Thus of 21 employees, 13 had executed cards. Thereafter, assuming the cards were valid, the Union had a majority of employees to designate it as bargaining representative. The face of the cards read as follows: Desiring to enjoy the rights and benefits of collective bargaining, I, the undersigned employee of -- - (firm name) Store Address- Employed as- Home Address- Store No.- Dept.- Phone-- hereby authorize Retail Clerks International Associa- tion, AFL-CIO, or its chartered Local Union to 9 A 21st employee, Vaughn. Bentley's replacement. was hired in the afternoon and signed a card on September 2 or 4. represent me for the purposes of collective bargaining, respecting rates of pay, wages, hours of employment, or other conditions of employment, in accordance with applicable law. (Signature of Employee) (Date) The cards were properly authenticated either by the card signer or the card solicitor. Respondent argues that employee Vaughn testified that he did not read the card and, when he signed it, he was told by a union representa- tive for whom he signed it: "It didn't mean the Union necessarily got in." However, Vaughn testified that the union representative did not tell him that the purpose for executing the card was for union representation. Clearly, the admonition that the representation attempt might not succeed, does not vitiate the purpose for which he signed it and I find his card to be a valid authorization for union representation. iO Respondent contends that Johnnie Pentecost's card, executed on August 27, is not valid because Pentecost did not read it and could not recall what Greer told him at the time. However, Pentecost testified also that he knew that the purpose of the cards was to "organize a union or try to organize a union." Sears testified that he told Pentecost that the purpose of the card was to obtain "recognition." I therefore find his designation a valid designation of union representation. Respondent further argues that misrepresentation oc- curred with respect to the solicitation of cards by Greer with respect to Brewer's card (August 25), and by Sears with respect to Craddock's card (August 27). These individuals were told that if a majority of employees signed cards, recognition would be requested of the Respondent but "if the Company didn't recognize the Union, they could petition the Labor Relations Board for an election," (Greer), or "the union would contact the Company and ask that we be recognized as a majority and ask for an election, . . .that if the Company didn't recognize us, that the Union would, in turn, contact the National Labor Relations Board and ask for election through them" (Sears). Both Brewer and Craddock read the cards. There is no evidence that any employee was told that the only purpose of signing a card was for the purpose of an election. Cf. Cumberland Shoe Corporation, 144 NLRB at 1268, 1269 (1963). In Walgreen Company, 221 NLRB 1096 (1975), the Board stated: There is nothing inconsistent between obtaining authorization cards in order to demonstrate sufficient employee interest in representation to warrant an election and in using the cards to demonstrate a union's majority. In Levi Strauss & Co., 172 NLRB 732, 733 (1968), the Board stated: 'o Thus, on September 4, there were 14 valid designations in a unit of 24 employees. 749 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [T]hat employees are told in the course of solicitation that an election is contemplated, or that a purpose of the card is to make an election possible, provides in our view insufficient basis in itself for vitiating unambigu- ously worded authorization cards on the theory of misrepresentation. Finally the Supreme Court declared in N.L.R.B. v. Gissel Packing Co., supra at 395 U.S. 606-607: [E]mployees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature. There is nothing inconsistent in handing an employee a card that says the signer authorizes the union to represent him and then telling him that the card will probably be used first to get an election.... We cannot agree . . . that employees as a rule are too unsophisticated to be bound by what they sign unless expressly told that their act of signing represents something else. Accordingly, I conclude that on August 30 and at all times material thereafter the Union had obtained a sufficient number of valid authorization cards to demon- strate that it had been clearly designated the collective- bargaining representative of an uncoerced majority of Respondent's employees in an appropriate unit, and I so find. Where an employer has engaged in pervasive unlawful conduct which makes unlikely the probability of holding a fair election, that employer may not refuse recognition and instead insist on an election. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 610-615 (1969), Trading Port, Inc., 219 NLRB 298 (1975); W & W Tool & Die Manufacturing Co., 225 NLRB 1000 (1976). The unlawful conduct of Respondent in this case could have no other objective but to dissipate the Union's majority status and to inhibit the election process. I find that Respondent's argument to the contrary in view of a high employee turnover to be unpersuasive. The severity of its violative conduct could but only have a lingering, cumulative effect which suggests the possibility of reoccur- rence in an election campaign. Accordingly, I find that Respondent has violated Section 8(a)(5) of the Act and was therefore obliged to bargain with the Union on August 30, 1976, and all times thereafter, as the collective-bargaining agent of the employees in the unit set forth below in the recommended Order. V. THE REMEDY It having been found that Respondent engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. II 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. It having been found that Respondent discharged Gary Bentley, Steven Dunn, and Glen Greer on August 30, 1976; and laid off Terry Brewer and Gerald Sears on August 30, 1976, who were subsequently recalled, Respondent shall offer Gary Bentley, Steve Dunn, and Glen Greer immedi- ate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and shall make them, and employees Terry Brewer and Gerald Sears, whole for any loss of earnings they may have suffered by reason of the discrimination against them. Any backpay found to be due shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Inasmuch as the violations found above are so egregious in nature, Respondent is further required to cease and desist from infringing in any other manner upon the rights guaranteed by Section 7 of the Act. Upon the basis of the entire record, the findings of fact, and the conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER Ii The Respondent, Tendico, Inc., a subsidiary of Ripley Industries, Inc., and Ripley Industries Inc., and Ripley Industries, Inc., Nashville, Tennessee, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Telling employees that if they seek union representa- tion they will be laid off and will no longer be permitted to practice bending dies during worktime. (b) Telling employees that they will be recalled from layoff status on condition that they refrain from any conversations with fellow employees in order to inhibit their union activities. (c) Telling employees not to talk to fellow employees during worktime under penalty of written reprimand and discharge in order to discourage their union activities. (d) Soliciting employee grievances or complaints and in connection therewith promising employees to correct those grievances or complaints. (e) Telling employees that their efforts to better their rates of pay through union representation are futile because their efforts to obtain representation will be frustrated by diverting their work to another plant, or that in any event it will never agree to wage increases in the collective-bargaining process. (f) Discouraging membership in or activities on behalf of Retail Clerks Union, Local 1557, Retail Clerks Internation- al Association, AFL-CIO, or any other labor organization, by laying off, discharging, or otherwise discriminating against employees in any manner with regard to their rates of pay, wages, hours of employment, hire, tenure of employment, or any term or condition of their employ- ment. (g) Refusing to bargain collectively with Retail Clerks Union, Local 1557, Retail Clerks International Associa- 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. 750 TENDICO, INC. tion, AFL-CIO, as the exclusive representative of the employees in the following unit: All employees employed at Respondent's Nashville, Tennessee, location excluding office clerical employees, guards, and supervisors as defined in the Act. (h) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer to employees Gary Bentley, Steven Dunn, and Glen Greer immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges and make them, and employees Terry Brewer and Gerald Sears, whole for any loss of earnings they may have suffered by reason of Respondent's unlawful discrimina- tion against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents. for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful in analyzing the amount of backpay due under the terms of this recommended Order. (c) Upon request, recognize and bargain with the above- named Union as the exclusive representative of all employees in the aforesaid appropriate unit and, if an understanding is reached, embody such understanding in a written, signed agreement. (d) Post at its plant in Nashville, Tennessee, copies of attached notice marked "Appendix." 12 Copies of said notice on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's representative, shall be posted by the Respondent immedi- ately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed as to any alleged violations of the Act not found herein. 12 In the event that this Order is enlorced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States (Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties were represented by their attorneys and afforded the opportunity to present evidence in support of their respective positions, it has been found that we have violated the National Labor Relations Act in certain respects and we have been ordered to post this notice and to carry out its terms. The National Labor Relations Act give you, as employees, certain rights, including the right: To engage in self-organization To form, join, or help a union To bargain collectively through a representa- tive of your own choosing To act together for collective bargaining or other mutual aid or protection To refrain from all of these things. Accordingly, we give you these assurances: WE WILL NOT tell our employees that if they seek union representation they will be laid off and will no longer be permitted to practice bending dies during worktime. WE WILL NOT tell our employees that they will be recalled from layoff status on condition that they refrain from any conversations with fellow employees in order to inhibit their union activities. WE WILL NOT tell our employees not to talk to fellow employees during worktime under penalty of written reprimand and discharge in order to discourage their union activities. WE WILL NOT solicit employee grievances or com- plaints and in connection therewith promise employees to correct those complaints or grievances. WE WILL NOT tell our employees that their efforts to better their rates of pay through union representation are futile because such efforts will be frustrated by diverting their work to another plant or that in any event we will never agree to wage increases in the collective-bargaining process. WE WILL NOT discourage membership in or activities on behalf of Retail Clerks Union, Local 1557, Retail Clerks International Association, AFL-CIO, or any other labor organization by discharging, laying off, or otherwise discriminating against employees in any manner. 751 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL give back to Gary Bentley, Steve Dunn, and Glen Greer their former jobs and pay them, and employees Terry Brewer and Gerald Sears, for any loss of pay as a result of our discrimination against them. WE WILL, upon request, recognize and bargain collectively with Retail Clerks Union, Local 1557, Retail Clerks International Association, AFL-CIO, as the exclusive bargaining representative of employees in the appropriate collective-bargaining unit set forth below, and embody any understanding reached into a signed agreement. The appropriate collective-bargain- ing unit is: All employees employed at Respondent's Nash- ville, Tennessee, location excluding office clerical employees, guards and supervisors as defined in the Act. TENDICO, INC., A SUBSIDIARY OF RIPLEY INDUSTRIES, INC., AND RIPLEY INDUSTRIES, INC. 752