Wabash Magnetics, Inc.

546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wabash Transformer Corp ., Subsidiary of Wabash Magnetics, Inc. and Communications Workers of America, AFL-CIO. Cases 14-CA-7420-1, 14-CA-7420-2, and 14-CA-7548 December 13, 1974 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On July 23, 1974, Administrative Law Judge Fannie M. Boyls issued the attached Supplemental Decision in this proceeding.' Thereafter, the General Counsel and Respondent filed exceptions, supporting briefs, and an- swering briefs.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in, this proceeding to a three-member panel. The Board has considered the record and the at- tached Supplemental Decision in light of the exceptions and briefs and has decided to affirm the rulings,3 findings,' and conclusions' of the Administrative Law i As set forth in the attached Supplemental Decision, on February 11, 1974, the Administrative Law Judge issued a Summary Decision and Recommended Bargaining Order limited to the 8(a)(5) aspect of this case, which was subsequently adopted by the Board Wabash Transformer Corp. 210 NLRB 462 (1974) Her Supplemental Decision disposes of the remain- ing aspects of the case 2 Respondent's request for oral argument is hereby denied, as the record, including the briefs, adequately presents the issues and the positions of the parties 3 We find no merit in Respondent's exception to the Administrative Law Judge's denial of its motion to strike Boyer's testimony, in accordance with Sec 102 118 of the National Labor Relations Board's Rules and Regula- tions, Series 8, as amended, due to the General Counsel's failure to produce certain notes which the witness had passed to him during the course of the hearing The General Counsel produced those notes which were in his possession and stated on the record that he had probably discarded the others, because he did not consider them to be "statements" and because the Respondent, although aware of the notes during 15 days of the hearing, exhibited no interest in them during that entire period Accordingly, assum- ing, arguendo, that the notes were "statements" within the meaning of Sec 102 118(d) of the Board's Rules and Regulations, we find that they were lost or destroyed in good faith, and the Respondent's motion to strike the tes- timony was properly denied NLR B v Seine and Line Fishermen's Union of San Pedro, 374 F 2d 974, 979 (C A 9, 1967), cert denied 389 U S 913 (1967), holding that "[w]here statements have been lost or destroyed in good faith the testimony of the witness concerned need not be struck " 4 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge, and the General Counsel in his brief attacks other such findings It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 N LRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing her findings 5 The General Counsel has excepted to the Administrative Law Judge's failure to find and conclude and to report the evidence showing that Re- spondent committed certain alleged additional violations of Sec 8(a)(1) We find it unnecessary to pass on these allegations, as they would be essentially cumulative Judge and to adopt her recommended Order, except as modified herein.' 1. Although we agree with the Administrative Law Judge's conclusion that Margaret Clinton was dis- charged in violation of Section 8(a)(3) and (1) of the Act, we do not rely on her finding that Clinton's effi- ciency at the time of her discharge had shown substan- tial improvement over that of the day before when she was reprimanded and given a week to improve or be terminated. Respondent argues in its brief that that finding is contrary to the preponderance of the evi- dence. However, even assuming that Clinton's effi- ciency had not improved at the time of her discharge, we nevertheless conclude that she was not discharged for that reason. There is no apparent reason for Re- spondent's rechecking of her rate of performance the day after promising her a week to improve except the coincidence of her first display of her change of sympa- thies from antiunion to prounion by wearing a union button on her blouse during these last 2 days of her employment. Thus, the inference is fully warranted that it was this show of union sympathies that led Respondent to reevaluate Clinton's performance and terminate her employment and that Respondent's con- tention that her discharge was motivated by her failure to improve her productivity is pretextual in the absence of any explanation for the hasty rechecking of her effi- ciency. We further agree with the Administrative Law Judge in finding no merit in Respondent's contention that Clinton's vulgar language was the motivating fac- tor, as that reason was neither mentioned to Clinton at the time of discharge nor asserted at the hearing. Ac- cordingly, we adopt the conclusion that Clinton's dis- charge was unlawfully motivated and violated Section 8(a)(3) and (1) of the Act. 2. The Administrative Law Judge found that Re- spondent's imposition of the penalty of discharge for failure to meet its efficiency standards constituted a unilateral change in working conditions in violation of Section 8(a)(5) and (1) of the Act. We disagree.' It is clear that Respondent did not promulgate new productivity rules or standards, as the existence of the efficiency standards predated the Union's campaign 6 Although we find merit in the General Counsel's contention that the Administrative Law Judge erred in implying that the burden was on him to introduce Respondent's records to disprove its affirmative defense of Alma Powers' defective work (part 11,C,2,c, of the attached Supplemental Deci- sion), we conclude that, in the circumstances of this case, this error was not prejudicial because the Administrative Law Judge's findings as to the exces- sive amount of defective work produced by Powers are supported by the record and clearly warrant the conclusion that Powers' discharge was moti- vated by her poor workmanship, not her union sympathies 7 Chairman Miller concurs in the reversal of the conclusion that Respond- ent violated Sec 8(a)(5) because he finds that Respondent was under no bargaining obligation For the reasons set forth in his dissent in the underly- ing representation case, Wabash Transformer Corp , 205 NLRB 148 (1973), he is of the view that the Union's certification was improvidently granted and that the election should, instead, have been set aside 215 NLRB No. 101. WABASH TRANSFORMER CORP and certification.' Furthermore, this is not a case where work rules have been abandoned and subse- quently revived and invoked. Finally, the record dis- closes that from the time the plant commenced opera- tions Respondent had actively enforced its rules by personally interviewing individuals in default, by post- ing notices on the bulletin board, and by delivering speeches to assembled employees. Under the above circumstances, we conclude that the discharge sanction was merely one means of enforc- ing the preexisting efficiency standards which was im- plicit in the existence of any such standard. The empha- sizing of this means did not constitute unlawful unilateral action in violation of Section 8(a)(5) and (1) of the Act. Accordingly, we also reject the finding that Rose Conrad's quitting because of the enforcement of Respondent's efficiency policy constituted a construc- tive discharge and an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act. There- fore, we shall dismiss the complaint insofar as it alleges violations in these respects. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent, Wabash Transformer Corp., Subsidiary of Wabash Magnetics,' Inc., Farm- ington, Missouri , its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order as herein modified: 1. Delete the name "Rose Conrad" from paragraph 2(a). 2. Delete paragraphs 1(j) and 2(b) and reletter re- maining paragraphs accordingly. 3. Substitute the attached notice for the Administra- tive Law Judge's notice. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges viola- tions not found herein. S For this reason, the Administrative Law Judge's reliance on cases such as The DalfCorporation, d/b/a Hoffman Bros., 188 NLRB 319, 324 (1971), involving the unilateral institution of new rules, is clearly misplaced APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer Becky Boyer and Margaret Clin- ton full reinstatement and pay each for her earn- 547 ings lost as a result of her discharge, plus 6-percent interest. WE WILL NOT coercively interrogate our em- ployees regarding their knowledge of union activi- ties, regarding the union sympathies or activities of fellow employees, or regarding what goes on at union meetings. WE WILL NOT solicit or request employees to find out and report back to us the union or company sympathies of fellow employees and/or document the information obtained to categorize our em- ployees as prounion or procompany. WE WILL NOT request any employee to attend a union meeting and ask questions which we have posed. WE WILL NOT solicit employees to report the identity of employees making derogatory remarks about management representatives. WE WILL NOT request any employee to assist in the circulation of a petition to obtain employee withdrawal of their union cards. WE WILL NOT threaten plant closure or removal, the discharge of union supporters , or other forms of reprisal against employees should they select the Union to represent them. WE WILL NOT threaten that any employee will not be rehired unless such employee withdraws from Communications Workers of America, AFL- CIO, or promises to vote against said labor organization in any election. WE WILL NOT seek to create the impression that the plant is in the process of closing down because our employees have selected the Union to repre- sent them. WE WILL NOT discharge or otherwise discriminate in regard to the hire or tenure of employment of our employees because of their union sympathies or activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed under Section 7 of the Act. WABASH TRANSFORMER CORP., SUBSIDIARY OF WABASH MAGNETICS, INC. SUPPLEMENTAL DECISION STATEMENT OF THE CASE FANNIE M. BOYLS, Administrative Law Judge These con- solidated cases, initiated by charges filed on May 29, July 10, August 23 and 31, and October 4, 1973, and a consolidated amended complaint issued on October 11, 1973, were heard before me at Farmington, Missouri , on 16 hearing days be- tween November 5 and December 12, 1973. The amended complaint, as further amended at the hearing, alleges that Respondent, both before and after an election conducted un- 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD der the Board's auspices on March 16, 1973, engaged in numerous acts of interference , restraint , and coercion in vio- lation of Section 8(a)(1) of the Act; discriminatorily dis- charged or otherwise discriminated in regard to the terms and conditions of employment of seven employees because of their union membership and activities , in violation of Section 8(a)(3) and (1) of the Act; and refused to bargain with Com- munications Workers of America, AFL-CIO, following the Board's certification , on July 31, 1973, of that labor organiza- tion as the bargaining representative of Respondent 's produc- tion and maintenance employees, in violation of Section 8(a)(5) and (1) of the Act. Respondent' s answers deny that it engaged in any of the unfair labor practices alleged. With respect to the alleged 8(a)(5) violations, Respondent conceded at the hearing that it had refused to bargain with the Union but contended that its refusals were justified and not in violation of the statute because the Board in the under- lying representation proceeding (Case 14-RC-7260) had im- properly overruled its objections to the election and improp- erly certified the Union. Since all allegations of the complaint pertaining to an unlawful refusal to bargain (such as a unilat- eral change in working conditions , a refusal to furnish data and a refusal to confer with the Union) stemmed from Re- spondent's position that the certification was invalid and that it could not, consistently with that position , recognize or bargain with the Union while continuing to assert that posi- tion, I, following an order to show cause, on February 11, 1974, issued a Summary Decision and Recommended Bar- gaining Order, requiring Respondent, upon request, to bar- gain with the Union The Board, thereafter, on April 30, 1974, issued its Decision and Order, adopting the Recom- mended Bargaining Order (210 NLRB 462). That order is now pending before the U.S. Court of Appeals for the Eighth Circuit on the Board 's petition for enforcement. Subsequent to the hearing, on or about February 18, 1974, the General Counsel and Respondent each filed an excellent brief and on March 29, 1974 Respondent, in addition, filed a reply brief. (Also subsequent to the hearing I received a letter purportedly written by Barbara Marler, Ethel Brown and Rhema Mullins, a copy of which I transmitted to each of the parties, with a request for their views regarding the significance of the letter and the disposition to be made of it. Neither the General Counsel nor Respondent have pointed to any relevance of the allegations in the letter to any issue before me and I see none. I have given the letter no weight I find it inappropriate under Sec . 102.134 of the Board's Rules and Regulations, Series 8, as amended, to deny relief to alleged discriminatees Brown and Mullins because of their part in sending the letter to me, as Respondent requests, and shall decide on their merits the allegations as to them.) Upon the entire record in this case, upon my observation of the demeanor of the witnesses, and after a careful consider- ation of the briefs, I make the following: FINDINGS OF FACT I JURISDICTIONAL FINDINGS, THE LABOR ORGANIZATION INVOLVED On the basis of facts set forth in the Board's prior decision, 210 NLRB 462 (1974), it was found, and Respondent does not dispute, that it is an employer engaged in commerce within the meaning of Section 2 (2), (6) and (7) of the Act and that Communications Workers of America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. 11 THE UNFAIR LABOR PRACTICES ALLEGED A. Setting and Issues The Farmington, Missouri , operation here involved is one of a number of plants operated by Respondent . It started at a store front in Farmington in June 1972 as a training pro- gram for winders and was moved to its current plant location in early August 1972 The plant was established to manufac- ture power transformers, one of the two types of transformers formerly manufactured at Respondent's McHenry, Illinois operation, before the latter plant was closed down The Union commenced organizing efforts among Respondent's em- ployees in about mid-December 1972 and held its first union meeting in late January or early February 1973. Respondent learned of these organizational efforts almost immediately. The General Counsel contends that Respondent countered the Union's organizational efforts with unlawful interroga- tion , threats and other unlawful conduct , including discrimi- nation against employees active or believed to be active in the Union's behalf. It is alleged that this unlawful conduct con- tinued even after the Union won an election on March 16 and was certified on July 31 , 1973 and while Respondent has been refusing to furnish the Union requested information and bar- gain with it. Respondent, while denying that it has engaged in any un- fair labor practices , specifically defends its action taken against the seven employees alleged to have been unlawfully discriminated against by contending, early in the hearing, that Ethel Brown was discharged for insubordination; that Alma Powers was first given a 3-day disciplinary layoff, then discharged, because of the poor quality of her work over a substantial period of time; that Rhema Mullins, who at the time of the hearing was on leave of absence because of an industrial accident , was not discharged but was merely trans- ferred from one job to another in order to meet Respondent's business requirements ; that Ruby McDonald was discharged for taking an unauthorized leave of absence; that Becky Boyer and Margaret Clinton were discharged because of their poor efficiency in production; and that Rose Conrad volun- tarily quit during the course of an interview where her effi- ciency , was being discussed. B. Acts of Interference, Restraint, and Coercion 1. The evidentiary facts The record is replete with evidence that Respondent, from the very inception of the Union 's organizational drive in December 1972 up to the date of the representation election on March 16, 1973, and to a more limited extent even beyond that date, engaged in an extensive course of interrogation regarding the union sympathies and activities of its em- ployees, made veiled as well as overt threats of reprisal against union adherents and of plant closure in the event of union success in the election and coercively encouraged em- WABASH TRANSFORMER CORP 549 ployees who had signed union cards to seek withdrawal of their cards from the Union. Although most of the unlawful conduct is attributed to Don Nelson , the general foreman in charge of the second or night shift , other higher-ranking management officials, including Vice President Leonard Trinkle, former Plant Manager Doug Dunker (who was ter- minated by Respondent on March 7, 1973), and Manager of Manufacturing Roger Liston (who voluntarily left Respon- dent's employ about June 1) were also involved Some credibility issues are presented but much of the evi- dence regarding the alleged 8(a)(1) violations was not denied at all or, if denied, the denials were so broad or in such general terms as to make it doubtful whether the witness had in mind certain specific interrogation or statements attributed to him. Where the General Counsel and Respondent's wit- nesses have testified regarding the same conversations or events, I have carefully weighed their differing versions in the light of the self-interest of each witness , the apparent consist- ency and reliability of their testimony as a whole, and their demeanor while testifying , as well as the plausibility of their testimony in the context of admitted facts, in resolving what- ever inconsistency or conflict which may appear in the tes- timony. Special mention at this point will be made of two of the witnesses, Pat Fischer, the quality control girl on the second shift, who was a principal witness against Respondent in connection with the alleged 8(a)(1) violations, and second shift General Foreman Nelson , who is alleged to have played a major role in Respondent 's antiunion campaign. Fischer, by reason of the nature of her work , had frequent contacts with Nelson and other management representatives She was, throughout the preelection period , openly and, I believe, genuinely antiunion and procompany in her sentiments, will- ingly cooperating with management in its effort to defeat unionization of the plant, and even , on her own initiative, thinking up ways to combat the Union She left Respondent's employ, angry with all management representatives, on May 21, 1973, as a result of Respondent 's denial of her request for a transfer to the day shift but she does not appear to have remained angry long, for only a few days after her departure, she assisted General Foreman Nelson 's wife in the purchase of a surprise birthday gift for him and attended the party in his honor on May 24. She served as a company observer at the representation election on March 16 and on the same day, after the election, she wrote and, with lead girl Eaton's help, circulated among other employees for their signatures a glow- ing endorsement of local management representatives, which was later mailed to Respondent 's president, Boyd. She, never- theless, claims that she had become "disillusioned " for about a week or two before the election when she realized that management was "harassing people." On the day after she quit her job , she got in touch with the Union and soon there- after gave statements to the Union or to Board agents in support of unfair labor practice charges which had been filed. Respondent contends that Fischer had a retributive motive in testifying. Even if it be assumed that her motive in testifying was revenge, this does not necessarily mean that her tes- timony is untruthful Her motive , like the self-interest motive of most witnesses, is a factor to be considered and I have considered her possible motives. Nevertheless, Fischer did testify in convincing detail , stood up well under cross-exami- nation, and impressed me on the whole as a reliable witness I have credited her testimony where it is undisputed by spe- cific evidence to the contrary and where there are conflicts in the testimony, I have carefully weighed the testimony of each of the witnesses to determine which version is most accurate or whether the truth lies somewhere in between General Foreman Nelson , as already mentioned , did not specifically deny most of the alleged 8(a)(1) conduct at- tributed to him by Fischer and other witnesses . His accounts of those incidents to which he did testify were not, for the most part, necessarily inconsistent with the accounts of his accusers. Nelson, on the whole, impressed me as seeking to avoid telling an untruth. Let us turn now to the evidence regarding specific alleged acts of interference, restraint, and coercion. According to the credited testimony of employee Ethel Brown, not specifically denied, in about mid -December 1972, Don Nelson, general foreman in charge of the second shift, came to her and another employee, Pat Triplett, as they were working on the wrapping line and stated that he wished to ask them something in confidence. He then inquired whether they knew of any union activities going on . Nelson explained that several employees had told him about receiving tele- phone calls from a CWA organizer Brown informed Nelson that she knew nothing about the union activities and, having an unlisted telephone number , had not received any tele- phone call from the Union. About January 8, Respondent's president, Boyd, accom- panied by Vice President Trinkle, came to the plant and addressed the employees. He told them , among other things, that the Company had been in business for 27 years, that it had many plants, none pf which had ever been organized by a union, and that the Company and its employees had settled their own differences and had no need for a union Vice President Trinkle made a similar speech to the employees around the first of February. He told them that before open- ing a plant in Farmington , "We had searched several areas and we had picked Farmington and we had a lot of confi- dence or we wouldn 't have spent half a million dollars build- ing a plant , and we were hoping the employees would have confidence in Wabash " Soon after he had completed the speech, employee Rose Blum came to the office and asked him, "Can you tell me that if the Union gets in are you going to close the plant?" Trinkle replied, "Rose, we have an obliga- tion to our customers and we will do what we feel is best to take care of our customers." He added that "If Farmington didn't want them, they would have to go somewhere that did " Blum told Trinkle that she had a family to take care of, that she needed her job, that she liked her work and that "she certainly hoped that we stayed there."' In late January or early February , after attending the first union meeting, employees Dee and Waller went to General Foreman Nelson's office and asked him what was going to take place According to Dee's undenied and credited tes- timony, Nelson told them that , "If a union got in, we would all be out of a job, that they would probably close the factory down." I The findings in the above paragraph are a composite account of the mutually corroborative and credited testimony of Trinkle and Blum 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the Monday following the Union 's first meeting with Respondent's employees, second shift quality control girl Pat Fischer was called to Respondent 's office for an interview with Plant Manager Doug Dunker and General Foreman Nelson . Dunker asked her if she had gone to or knew about a union meeting held on the preceding Friday night. Fischer relied that a friend had told her on Saturday that there had been such a meeting but that she had not known about it before then. Dunker asked if she knew who had attended and she replied that she did not know.' About a week later (apparently on February 10), according to Fischer, when she arrived at work , Dunker met her in the plant cafeteria and said that there was something in the office that he wanted her to do, then walked off Fischer immedi- ately went to the office and asked the office girl, Pritchett, if she had any idea what Dunker was talking about. Pritchett then showed her a letter addressed to the National Labor Relations Board, stating that the employees whose names were signed below had changed their minds and wanted the union cards which they had signed returned to them The names and addresses of a number of employees on the first or day shift appeared below the body of the letter Pritchett requested Fischer to make a copy of the body of the letter and take it to the second shift employees for their signatures. Fischer did make a copy of the body of the letter' Later the same evening , according to Fischer's undenied and credited testimony, she had a conversation in the office about the letter with Manager of Manufacturing Roger Lis- ton and Nelson. She asked Nelson the significance of having card signers get their cards back and he explained that if a sufficient number of employees requested their cards back, there would be no representation election . Liston added that if there was an election and the Union won, the plant would close or would move; that the plant was not making any money and could declare bankruptcy and that sooner or later the Union people would be out of a job. Liston told Fischer that neither he nor Nelson could go out in the plant and say these things but that Fischer could because she was not an agent of the Company and would not be acting for the Com- pany. Nelson told Fischer that he knew she needed her job 2 The findings in the above paragraph are based on the credited testimony of Fischer Nelson, who was named by Fischer as being present at the interview , was not questioned and did not testify about it Dunker, who was terminated by Respondent on or about March 7, 1973, gave very rambling and general responses to most of the questions asked him about his conver- sations with Fischer While he did purport to place one of the conversations with her as occurring on February 5, it is clear that he was not testifying about the same occasion mentioned by Fischer , but, instead , about a later occasion after Fischer had attended a union meeting 3 Pritchett , though called by Respondent as a witness, was not asked about and did not testify regarding her role in the above account Dunker testified that on one occasion in February when Fischer came in and asked , "What's new'?," he told her that the girls on the first shift were circulating a petition, asking for a return of the union cards they had signed , that she responded "OhT" smiled, and said, "Good, I'm going to see what this is all about," then went to the office Dunker testified that he could not recall saying anything further about the document I believe that Fischer's version of the incident is more accurate than that of Dunker If Dunker had not told her that he had something in the office he wanted her to do, as Fischer testified, how would she have known that she should go to the office as a result of the information imparted to her Her account of her statements to Pritchett upon entering the office (which I accept as accurate since Pritchett did not dispute this testimony) discloses , moreover , that Fischer was uninformed of what Pritchett had waiting for her and was going to do everything she could to help the Company Following her talk with Nelson and Liston , Fischer started soliciting signatures on the card withdrawal letter. She first asked each employee she solicited whether that employee had signed a union card , and if the employee replied in the affirm- ative, Fischer would tell the employee that she thought the employee had made a mistake; that the plant would close if the Union got in and all the employees would be out of a job; and that the company officials had told Fischer that the plant was not making any money. Three of the employees Fischer talked to signed the withdrawal letter on the first evening Fischer solicited them and she mailed it to the National Labor Relations Board. The next week, about February 14, two more employees came to Fischer, expressing a desire to sign the letter . Fischer composed another letter, from mem- ory of the first, and those two employees signed it . Fischer then left the letter in the office on Pritchett's desk for Pritch- ett to mail. Nelson, observing it there, told Fischer that she should not place it on Pntchett 's desk but should mail it herself, for some of the union people might see it and charge the Company with the responsibility for it since Pritchett was responsible for mailing things out for the Company.' Among the employees who signed the union withdrawal letter prepared by Fischer was Cadwell . Cadwell had at- tended the first union meeting on or about February 2, 1973, signed a union card , and agreed to serve on the Union's organizing committee . Shortly thereafter Cadwell went to Nelson's office, informed him that she was going to have to leave her job because or pregnancy, and inquired about whether she could return to work after her baby came. Nel- son told her that she had not been employed long enough to be entitled to pregnancy leave or a leave of absence and that she would have to quit her job, then reapply for work later. He assured her that the Company always considered former I do not regard as inconsistent with Fischer's testimony related above certain other testimony by second shift lead girl Sharon Eaton , corroborated by Nelson , that after learning from the first shift lead girl, Bobbie Hinkle, that first shift employees were being solicited to ask for a return of their union cards , Eaton went to Nelson (accompanied , she believed, by Fischer) and asked for permission to circulate such a letter on the second shift Nelson gave his permission , explaining they had as much a right to cam- paign as the union people s Soon after the first evening on which Fischer had solicited signatures on the withdrawal letter, one of the employees told her she had heard that the Union had filed charges against her for soliciting during company time Fischer thereupon went to the office, and , according to her testimony, reported what she had heard to Personnel Director DeBonneville , Liston, and Nelson , explaining that she was frightened DeBonneville laughed and told Liston that he could not see that Fischer was doing anything she was not supposed to be doing Liston explained that unfair labor practice charges could be filed against the Company but not against her personally since she was only an employee and had a right to engage in antiunion activities He asked her what she had been telling the girls She told him that she had been telling them the plant would close if the Union got in and the union people would be out of jobs and that the plant was not making any money, and asked Liston if that was not what he had told her to say He replied , " If you say I told you to say that, I will deny it to the end " Liston contends that DeBonneville was not present at this conference I find it unnecessary to resolve this conflict for I find nothing unlawful in what DeBonneville is alleged to have said Indeed , on the basis of the findings outlined above (which are based on that part of the composite testimony of both Fischer and Liston which I credit), I do not believe that Liston's statements con- stituted an unfair labor practice either This conversation , however, does show an awareness by Liston of Fischer's activities which he had previously suggested that she engage in WABASH TRANSFORMER CORP. employees for rehire if there was an opening in their job classification.' After Respondent received a letter from the Union, dated February 6, 1973, listing members of its organizing commit- tee, Nelson, according to Fischer's credited testimony, sought out Fischer and requested her to try to persuade Cadwell to withdraw from the Union's organizing committee, explaining that he knew she was going to need her job back after her baby came and that in his opinion she did not stand a chance of getting it back so long as she was on the organizing com- mittee. Fischer relayed this information to Cadwell and, in addition, told her that the plant would close if the Union got in, that the plant was not making any money, that the Union people would be out of a job, and that she should think of herself, for she would be needing her job after her baby was born. Cadwell thereupon signed the union withdrawal letter which Fischer was circulating and, at Fischer's suggestion, went to see Nelson to tell him what she had done' According to Nelson, Cadwell told him that Fischer had talked her into signing the petition to get her union card back, "that it was her decision, that she felt her chances of getting her job back would be much better if she withdrew," and that another reason for withdrawing from the Union was that the campaign "was getting pretty dirty, pretty violent, people were mad at each other , people that used to be friends were now enemies" and that she "just wanted out of the whole mess." He further testified that he again assured her that the Company always considered people for rehire in the classifi- cation they were in when they quit. I credit Nelson's tes- timony in this respect. I also credit Cadwell's testimony, not specifically denied by Nelson, as to some other things said during this interview. Nelson told her that he had been shocked to see her name on the organizing committee list and that she would never be able to get her job back if she voted for the Union. He also stated "that he couldn't come right out and say, 'I want you to go out and tell everybody in the plant that if they vote union or if they sign organizing committee cards that they will lose their jobs, but this in effect will happen."' He told her that he would appreciate her letting people know this but cautioned her not to do it "on company time because we could all get in trouble for that." Cadwell's baby was born on February 19. Shortly there- after, on being told by Pat Fischer that Nelson wanted her to telephone him at the plant collect, from St Louis where she was then living, Cadwell did call Nelson According to her credited testimony, not specifically denied by Nelson, he told her that he would like to get her qualified to vote in the March 16 representation election and asked if she would vote against the Union if he got her qualified. She promised that she would and he assured her that if she did, she would get her job back later. He asked her to keep in touch with him. Nelson's testimony, not necessarily inconsistent and which I also credit, is that when Cadwell called, she mentioned that 6 The account of this interview is based principally on Nelson's testimony I do not believe that the Union was mentioned at that time, as Cadwell testified Cadwell appeared to have been confused as to the dates upon which certain statements were made and I have not credited all of her testimony regarding the conversations about which she testified 7 At either this or an earlier conference with Nelson, he gave Cadwell an address to which she could write to get her union card returned , but on being assured by Fischer that her signing of the withdrawal letter would accom- plish the same purpose, she never wrote to the Union 551 Pat Fischer had talked to her about the possibility of getting qualified to vote in the election, and that Nelson stated that he would talk to Respondent's counsel about this possibility and get back to her He further testified that he did check with Respondent's counsel and thereafter did try to get her qualified to vote but was unable to do so because of the closeness of the time between Cadwell's telephone call and the date of the election.' Between early February and the election on March 16, Respondent, acting chiefly through Nelson, carried on an extensive campaign to ascertain the union sympathies of the employees and to discourage their union adherence. Nelson kept a list of second shift employees on his desk or in his pocket and from time to time in February and March would ask procompany employees Fischer, Walter, Dee, and Eaton about whether certain employees were for or against the Union and would mark "C" beside the name of an employee believed to be procompany and "U" beside the name of an employee believed to be prounion. There was a blank beside the names of those concerning whose union sympathies Nel- son was uninformed Fischer was in a particularly good posi- tion to give Nelson information of this type, not only because she had attended at least two union meetings, but also be- cause, in circulating the union withdrawal letter she inter- viewed about 30 employees, asking each if she had signed a union card, then requesting signatures on the letters only if an employee admitted having signed a union card. On some occasions, Nelson discussed the list with Fischer alone and on other occasions employees Eaton, Waller, or Dee were pre- sent. On one occasion he asked Dee whether her close friends Storie and Brooks were for the Union or for the Company and when she replied that she did not know, he asked her to find out. She then talked to them and reported back to Nelson that they were not for the Union at that time. He asked Dee and Waller about several other employees and whether they would find out who was for and who was against the Union. He also asked Dee whether employee Carr had asked her to sign a union card and she replied that he had not.' In similar vein, Nelson requested Fischer, before the elec- tion, to report to him about any employees making deroga- tory statements about Respondent, about him or about mem- bers of management or about the quality of work being produced. He told her that whenever she saw prounion em- ployees Brewer and Carr talking; she should go over to them, inspect their work, and break up their conversation. He told her that he was "building a case against them." Thereafter when Fischer found some defective work and erroneously attributed it to Brewer, the latter accused Fischer of planting the bad work on her. Fischer reported the incident to Nelson 8 Subsequent to the election, Cadwell sought reemployment with Re- spondent, informing Nelson that her doctor was releasing her to return to work on March 19 She had not been rehired by the date of the hearing, according to Nelson, because Respondent had no need for more line testers, the work which she had formerly done 9 The above findings are based on the credited testimony of Fischer and Dee Nelson did not deny the matters to which they testified Waller did not testify Eaton, a lead girl, still working for and very loyal to Respondent, testified that she did not hear management ask Fischer about the union sympathies of other employees Eaton did not impress me as a frank witness in this and in some other respects and I do not credit her testimony insofar as it conflicts with that of Fischer or Dee 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Liston. The latter remarked: "Well, it may not be such a bad idea, after all." About a week before the election Nelson told Fischer that if the Union became the employees' bargaining representa- tive, he would no longer ask people to do things but, instead, would tell them; that employees would see a complete change in him and that he was "no longer going to be a nice guy." Liston also warned Fischer of adverse working conditions with which employees would be faced under a union. He told her that the employees were taking too much for granted. As an example, he stated that if the Union won and obtained a contract, the employees would not have the air conditioning and heat they were then enjoying if such matters were not included in contract terms. As another example, he stated that at present if a girl hurt her foot and needed the use of her foot to do her regualr work, Respondent would transfer her to another job which would not require the use of her foot, but if there were a union in the plant, the girl would be sent home instead of being transferred.1° According to Fischer, on the Friday before the first union meeting which she attended, Liston came to her and asked whether she was going to the union meeting on the following day and Fischer replied that she had not planned to go. Liston then told her, "Well, I want you to go and ask a couple of questions for me." One of the questions concerned who would pay the employees' salaries when they were out on strike. Fischer did go and ask that question." According to Eaton, Fischer came to her on the day before the union meeting and stated that they had been instructed by manage- ment to go to the meeting. Eaton expressed skepticism as to whether they had been expressly instructed to go and went to the office to verify Fischer's statement . She asked Plant Manager Dunker, in Liston's presence, if she and Fischer were instructed to attend the meeting. Dunker stated that he had given no such instructions. Liston stated that if she wanted to go to the meeting, it was her privilege, but cau- tioned her to be careful if she went because it was well known that she and Fischer were procompany. Eaton then reported back to Fischer that they had not been instructed to go. Fischer replied that she had the impression that they had to go and that if they did not, they would be taken off their jobs as quality control and lead girl, respectively, and "be put back on the lines." Liston testified that he never "instructed" any employee to attend a union meeting but that Eaton o one occasion asked if she and other employees "could" attend and that he had assured her of her right to do so but had cau- 10 The findings in the above paragraph are based on Fischer 's credited testimony. Liston conceded that he had compared the favorable working conditions, including air conditioning, which Respondent had at its Farm- ington plant, as compared with less favorable working conditions in union- ized plants with which he was familiar, and that someone else in the coversa- tion may have said the things attributed to him, but that he did not say what would happen to those benefits if there was a union at Farmington. I am satisfied, however, that the point he was making was that present benefits might be taken away unless expressly provided for in a union contract and that Fischer's account is substantially accurate. 11 Fischer testified that she believe the date of the meeting was February 24, but I am satisfied from the testimony of Sharon Eaton, who went with her to the meeting, and from the testimony of Liston that he was not at the plant on February 23, that the correct date was on or before February 10, the date placed by Eaton. Eaton recalled that Fischer did ask a question and that the Union's organizing committee list, including Cadwell's name was read off at the meeting. Cadwell left Respondent's employ on February 16. tioned that they should be careful if they went . Upon a careful consideration of all the evidence, I am satisfied that Fischer's account of what Liston asked her to do is accurate , except as to her estimated date, that she not unreasonably interpreted Liston's request as an instruction and that Eaton 's account of her conversation with Dunker and Liston is accurate. Liston, I believe, was not as frank with Eaton as he had been with Fischer and, in addition, may have been reluctant , in bun- ker's presence, to acknowledge having done something he knew he could not lawfully do. On the Monday morning following her first attendance at a union meeting and of her asking at least one of the questions posed by Liston, Nelson and Dunker followed her to the office. Dunker asked her whether she had attended the meet- ing, who was there and what promises had been made. Fischer told them what had taken place. A few days before the election, at the end of the second shift, Liston joined four of the employees, Fischer, Probst, Eaton, and Francis, at the Shell-Chateau Cafe, where these employees customarily had coffee or food when they finished their work. All of these employees at that time were antiunion in their sentiments . On this occasion the Union and the elec- tion were discussed. According to Fischer's credited tes- timony, Liston told the employees, among other things, that Respondent's president, Boyd, when hiring him as manager of manufacturing, told him that if a union ever got into any one of Respondent's plants, Liston would be out of a job; that he, Liston was worried about his job; that the plant was not making any money and he would be out of a job if the Union got in; that it would be easy to shut the plant down and move it and that Respondent would get rid of the union people. Liston did not specifically deny making these statements at- tributed to him by Fischer and professed not to recall the specific statements he made . He conceded, however, that the subject of plant closure undoubtdly came up because "This was the general concern of the people down here" and that over 50 times during the preelection period, he had been asked, "If the Union gets in, will the plant close?" His stand- ard reply, according to Liston, was: "Frankly, I am not in a position to make that decision . I don't decide whether the plants are open or whether the plants are closed . I just try to run them and make money at it."12 A majority of Respondent's employees voted for the Union in the March 16 election but due to challenges to some of the ballots and objections filed by Respondent and an appeal to the Board from the Regional Director 's rulings on the objec- tions, the Union was not certified until July 31 , 1973. The record shows that during the pendency of the investigation of the challenges and objections and the appeal to the Board, Respondent continued its coercive course of conduct. 12 Eaton, one of the employees in the group at the cafe, purported not to recall the details of the matters discussed. She testified, however, that Liston joined the group at Fischer's invitation and not, as Fischer testified, that he asked if he could join them. Eaton also testified that Liston paid their check for the food and drinks consumed over their protest because, as Fischer stated, if the antiunion people learned about it, they might interpret it as bribe. Fischer, on the other hand, testified that when Liston paid their checks, he asked them not to tell anyone he had been with them and paid their checks because his action might be interpreted as a bribe. I do not consider these details improtant and shall not attempt to resolve the credi- bility issues presented by these conflicts in testimony. WABASH TRANSFORMER CORP. According to the undenied and credited testimony of em- ployee Dee, about 2 days after the election , Nelson told her that he had very hard feelings against those employees who were for the Union and that "he was out to get the Union people, all of them." This statement was made to Dee in the presence of employees Waller, Fischer, and Eaton. Shortly after the election , in about April, according to the undenied and credited testimony of Fischer , Nelson and Lis- ton asked Fischer her opinion as to whether the Union would win if a rerun election were held. Fischer expressed the view that the Union would win Thereafter in April or early May when work on Respondent 's 3520 Model transformer was slowing down, Fischer reported to Nelson that some of the girls on the night shift were asking why there was no work on those transformers coming in . She inquired of Nelson as to what explanation she should give the girls . He told her to tell them that the 3520 transformer would no longer be in production , adding that if they were told that , some might start looking for other jobs and that Respondent , in that way, would get rid of some of the union people. He told her that in order to lead the employees to believe the plant was clos- ing, she could also tell the girls, that he, Nelson , had his house up for sale and was looking for another job. Fischer later learned that Quality Control Manager Yaukovitz was nego- tiating with Zenith for a new type of transformer to supplant the 3520 Model but did not know on May 21 , 1973, when she left Respondent's employ, whether Respondent had a con- tract with Zenith for the new type of transformer." 2. Conclusions regarding Respondent 's acts of interference, restraint, and coercion The facts outlined above demonstrate a flagrantly coercive attempt by Respondent to defeat attempts by the Union to organize its employees and a further attempt to insure a defeat of the Union in the event Respondent should prevail in its objections to the election and a rerun election should be held The interrogation of employees by General Foreman Nel- son and Plant Manager Dunker as to the union sympathies and activities of fellow employees and as to what took place at union meetings and the documentation by Nelson of infor- mation gathered from such employees as to the union or company sympathies of night shift employees ; the solicitation by Corporate Manager of Manufacturing Liston of an em- ployee to attend a union meeting and ask questions for him, clearly constituted coercive interrogation and solicitation of employees in violation of Section 8(a)(1) of the Act. " The above findings are based on the credited testimony of Fischer, not specifically denied by Nelson He did testify that several different people, including Fischer, on different occasions expressed concern over the slow down of work on the 3520's and that he told them the transformer was being phased out and that Respondent had another job coming behind it I do not regard this testimony as a denial of the testimony of Fischer described above I think it more likely that, on reflection, he decided to give employees inquiring about the matter a frank explanation Nelson also credibly testified that on another occasion when he explained to Fischer that Respondent was having difficulty getting transformer covers from Dryco because of Dryco's labor problems, she said "Well, wouldn't it be nice if the Union people thought we were making transformers some place else9" On the latter occa- sion it would seem that Fischer was only continuing to cooperate with Respondent, as she had done throughout the preelection period, in Respon- dent's antiunion drive 553 Likewise manifestly unlawful were the overt as well as covert threats by Liston and Nelson of plant closure, of dis- charge of union supporters, and other forms of reprisal against employees should they select the Union to represent them; Liston's statement to close employee friends, before the election, that he would lose his own job if the Union won, the covert threats by Vice President Trinkle to lead employees to believe the plant would close in the event of a union victory, the request by Dunker that an employee circulate the union withdrawal letter among night shift employees; and the threat by Nelson, subsequent to the election, that he was "out to get the Union people." Nor can there by any question about the unlawfulness of the use by Liston and Nelson of employees as Respondent's agents in the dissemination of threats of plant closure and other reprisals, causing employees to fear that they would lose theirjobs or not be reemployed should the Union win the election or if they continued their adherence to the Union, or in the use by Nelson (while Respondent was in hopes that its objections to the election would result in a rerun election) of an employee to disseminate a rumor that Respondent was discontinuing the manufacture of certain transformers at Farmington and that Nelson had his house up for sale and was looking for another job-in order to lead the employees to believe that the plant was closing because of the Union's success. Respondent seeks to avoid responsibility for some of its coercive conduct, such as threats of plant closure and other reprisals communicated to employees by Fischer by claiming that she had a right to express her views and that Respondent had no affirmative obligation to assure the employees, in response to their questions, that no employer reprisals would result from their union activities I need not decide what Respondent's obligation would have been in this regard had its management representatives refrained from making coer- cive threats themselves As I have found, early in the Union's campaign , Corporate Manager of Manufacturing Liston told employee Fischer, in Nelson's presence, that the Farmington plant was not making any money and that if the Union won, the plant would close and the Union people would be out of jobs He also told Fischer that he and Nelson could not lawfully go out into the plant and say these things but she could because she was not an agent of the Company and would not be acting for the Company Nelson later made similar representations to employee Cadwell, and he told employee Dee early in the union campaign that if the Union got in , the employees would be out of a job and the plant would probably close. Liston having made the threats of plant closure to an employee he knew was strongly procompany and antiunion, and suggested that she broadcast this threat to other employees, he was in effect making Fischer Respon- dent's agent in disseminating the threat and Respondent is responsible for the spread of the rumor of plant closure It is against this background that one must view the re- sponses Trinkle, Liston, and Nelson to questions asked them by employees as to whether the plant would close in the event of a union victory. When employee Blum asked Vice Presi- dent Trinkle this question, he gave the equivocal reply that Respondent had an obligation to its customers and that Re- spondent would do its best to take care of its customers, adding that if Farmington did not want Respondent, Re- 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent would go somewhere else. This statement, I find, was intended to convey the message that if the Farmington employees voted the Union in, Respondent would interpret their action as a decision that Respondent was not wanted and that Respondent would then move its plant. Trinkle did not reassure Blum even when she told Trinkle that she needed her job, liked it and hoped that Respondent would stay in Farmington. Liston testified that on about 50 occasions dur- ing the preelection period employees asked him: "If the Union gets in, will the plant close?" and that his standard reply was: "Frankly, I'm not in a position to make the deci- sion. I don't decide whether the plants are opened or whether the plants are closed. I just try to run them and make money at them." Nelson similarly testified that on several occasions employees had asked him if the plant would close if the Union got in and that he would reply that he was only the general foreman and did not make such decisions. Since Respon- dent's management representatives had initially stated that th6 plant would close in the -event of the Union's success and had suggested that Fischer spread the word to this effect, Respondent not only ratified and adopted Fischer's actions in his behalf, but compounded the coercive impact of its threats by giving the equivocal answers to which its representatives testified and in failing to reassure its apprehensive employees against employer reprisals in the event of a union victory. Dal-Tex Optical Company, Inc., 152 NLRB 1317, 1322 (1965), enfd. 378 F.2d 443 (C.A. 5 1967); Litho Press of San Antonio, 211 NLRB 843 (1974). Respondent's conduct in the respects outlined above clearly constitutes violations of Section 8(a)(1) of the Act. C. The Alleged Discrimination Against Employees 1. General considerations pertinent to most of the alleged discriminatees In appraising Respondent's conduct alleged to be unlawful discrimination against the seven employees named in the complaint and determining Respondent's motivation for the actions which it took against them, due regard must be given to the production and quality problems under which Respon- dent's new plant was operating as well as to Respondent's coercive and threatening conduct already described and all other circumstances shown in the record which may fairly be considered to shed light on Respondent's true motives. !4 Since most of Respondent's conduct alleged to be dis- criminatory arose from its asserted attempts to improve the efficiency of its operations, it is appropriate at the outside to describe briefly the situation with which Respondent was faced in the operation of its newly established plant. Respondent is engaged in the manufacture of power trans- formers for Zenith Radio Corporation for use in television sets. After first starting a training course on June 6, 1972, for winders in a store front in Farmington, it began operating its manufacturing plant in early August, recruiting its work force from employees in the area who were inexperienced in 14 Insofar as Respondent in its reply brief appears to argue that the entire record must not be considered in determining Respondent 's motiviation for taking actions alleged to be in violation of Sec. 8(a)(3) and (1) of the Act, such argument is rejected as being without merit and not supported by the authorities Respondent cites. transformer manufacturing operations. Respondent adopted at the Farmington plant efficiency standards for its various job operations which had been established and applied at its McHenry, Illinois, plant where the Zenith power transform- ers had formerly been manufactured. It did not, of course, expect its new untrained employees to operate at 100-percent efficiency immediately. During the first few months of its operations, Respondent's overall plant efficiency was only about 20, 30, or 40 percent of its standard. For the month of October 1972, the overall plant efficiency was only 44.9 per- cent. In early November 1972, Jim Calvin, then Corporate Per- sonnel Manager for three of Respondent' s plants with head- quarters in Wabash, Indiana, conferred with Doug Dunker, then plant manager at Farmington, about the necessity of improving the efficiency and attendance at the plant. In a letter from Calvin to Dunker, dated November 7, 1972, Cal- vin referred to the matters they had discussed and mentioned that in order to improve efficiency and attendance, "it might become necessary to replace some operators who are not performing at a satisfactory level and/or whose attendance is poor" and suggested that Dunker talk with employees in- dividually about their deficiencies and how they might be helped, that a note be put in the file of each employee so interviewed and that some time should thereafter be allowed for some improvement before taking further action. This was the pattern, in general, which was thereafter followed before disciplining employees not performing to Respondent's satis- faction. Pursuant to this policy Dunker, in November and early December, called to his office and talked to a number of the employees about their efficiency and/or their attend- ance in an attempt to find out the reason for their deficiencies and try to help them. Although Respondent does not appear to have informed the employees of the policy stated by Calvin to Dunker, or to have informed employees interviewed of any notes placed in their personnel files, Dunker in fact followed that policy and made such notations. The overall plant efficiency increased from 20, 30, and 40 percent in the early days of the plant's operation to 61.1 percent for the month of December 1972 and to 70.6 percent for January 1973. It dropped to 58.8 percent for the months of February and March 1973. For April it was 71.9 percent, for May 68.8 percent, for June 72.3 percent, for July 50.3 percent, for August 54.9 percent, for September 65.8 percent, for October 68.4 percent, and for November 75.7 percent. In May and June Zenith was in the process of changing its transformer models and during the lull caused by this change, layoffs in June and July of the newer employees in some job groups occurred. Production of the new models commenced about mid-June. Calvin explained that there was a period of low production when the old models ran out and the new models had not yet started. There is also evidence that a drop in efficiency resulted from employees having to become ad- justed to work on the new models. There is further evidence that production was affected by a shortage of materials caused by materials lost in transit to the Farmington plant. In partial explanation for the low efficiency level of the plant for sometime after the plant opened, Calvin testified that it takes longer to train a group of new employees when a plant opens than it would take to train a single new em- ployee in a well-established plant since management repre- WABASH TRANSFORMER CORP sentatives at a new plant do not have time to give each opera- tor the individual attention needed to train him. Even the lead girls at the Farmington plant, whose duties included assisting and training new operators, were hired initially as operators and had to learn their jobs from scratch Although Respond- ent maintained on its bulletin boards a chart showing the efficiency progression standards for each job so that in- dividual employees could judge whether their production effi- ciency was meeting Respondent's standards for the length of their experience on the job, Respondent did not attempt to enforce these standards at first because there were an insuffi- cient number of people available to train the new employees so that they could meet the standards As time went on, however, Respondent did attempt to devote more time to training and to point out to individual operators certain un- necessary steps they were taking which slowed down their production. I have no doubt that Respondent's officials were genuinely concerned about the failure of the new plant to meet the efficiency standards brought to it from the McHenry plant as quickly as they had expected On March 7, 1973, Respondent asked for the resignation of its them plant manager, Dunker, because, as he explained, he had failed to get things done as fast as higher management desired. He was replaced tem- porarily by Corporate Personnel Manager Calvin from cor- porate heaquarters in Wabash, Indiana, until the present plant manager, Henry Kinkaid, was employed on June 18, 1973 While acting plant manager, Calvin, about May 10, delivered a speech to the employees on the subject of plant efficiency and attendance. He also posted in the plant weekly dunng the month of May a daily operations report showing the efficiency plantwise and by departments for the last day of each week, and wrote on the reports appropriate comments to spur the employees to make greater efforts to improve their efficiency On August 17, Vice President Tnnkle came to the plant and addressed the employees on the subject of the plant's low production He told the employees that Respondent was be- hind schedule, that its sole customer, Zenith, was beginning to cancel orders and warned that Respondent would have to cease operating if it lost its customer. He stated that Respond- ent was starting an active program of policing the efficiency of each department and that, starting with the employee in each department having the lowest efficiency, Respondent would review the employee's past and present performances He warned that if the employees did not bring their efficiency up, they would be replaced Tnnkle's speech was followed on August 23, by a letter from Respondent's corporate president, William F Boyd, to each employee, repeating, in substance, much of what Tnnkle had told them. Boyd stated, inter alia. I would like to say initially and emphatically that this letter has nothing to do with the union or the union organizing activities. What I have to say is something that must be said about a problem which must be re- solved irrespective of whether we have a union in Farm- ington or we don't have a union, whether you will be represented or you will not be represented by a union. He also told them: 555 Beginning within the week, we will began a program to do what we can to assist employees in reaching accepta- ble levels of productivity The employees not able to achieve acceptable levels of productivity with this assist- ance and who are not available for work on a regular and consistent basis will have to be replaced. On the same date Vice President Trinkle returned to the Farmington plant and began interviewing some of the in- dividual employees whose production was low and warned them that they would be replaced if they did not improve. Also in August, Respondent brought in its industrial engi- neer, Wayne VanNess, to timestudy work on the new model transformers and he passed on to the plant manager his obser- vations as to unnecessary steps being taken by some operators which tended to slow down their production. Management representatives or the lead girls instructed the employees how to eliminate unnecessary movements or steps and thereby increase their production and new employees thereafter hired were trained to work without taking the extra steps some of the older employees had been taking. It is against this background of Respondent's production problems as well as Respondent's strong opposition to the Union that the charges regarding each of the seven alleged discriminatees will now be considered. 2 The individual alleged discriminatees a. Rhema Mullins Mullins, the Union's chief steward, whose union activities were well know to Respondent, was never discharged. The General Counsel contends that Respondent discriminated against her to discourage union membership by twice trans- ferring her to the job of wrapping where she was required to work under lead girl Bobbie Hinkle, with whom Respondent knew that she did not get along personally. Mullins was hired as a winder on September 25, 1972, but following breast surgery, a few weeks later, was transferred to the job of wrapping. This transfer was prior to the com- mencement of any union activities at the plant and was for the purpose of accommodating Mullins so that she would not have to lift her arms while recuperating from her surgery. During the first few months of the plant's operation Re- spondent found it necessary to concentrate on production to supply Zenith's requirements and dunng this period it per- mitted a large number of defective transformers to accumu- late, without interrupting production to repair them In November Respondent set up a repair department to repair these scrap transformers in order that they might be sold. Four employees-Brewer and Waller on the night shift and Williamson and Mullins on the day shift-were assigned to the repair department By February 12, the pile of scrap transformers had been substantially reduced and Respondent no longer needed four employees to do that work. At that time Respondent had need for two additional wrappers, one on the day shift and one on the night shift, and it transferred two of the repair girls who had previous wrapping experience back to the wrapping operation-Mullins on the day shift and Waller on the night shift. Shortly thereafter the remaining night shift repair girl, Brewer, was also transferred from re- 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pairs, leaving only Williamson on the day shift continuing to do repair work . By the date of the hearing even Williamson was needed only part time at repair work and rotated between that and her former assembly line job Mullins joined the Union in late January 1973 and became very active in its behalf, personally signing up about 58 other employees in the Union She liked the repair work job which she was doing and strongly protested being transferred back to wrapping, accusing Respondent of transferring her from the repair job because of her prominence in the union move- ment Personnel Manager Calvin explained to her that the reason for her transfer was that there was a slackening of repair work to be done and that he needed her at wrapping work. Mullins told Calvin , "You know I don't want to work under Bobbie Hinkle," the lead girl over the pick, connect, and wrap line . Mullins had previously complained to Plant Manager Dunker and to Calvin that four of the girls had reported to her that Hinkle had made uncomplimentary and vulgar remarks about her, but Dunker and Calvin did noth- ing about Mullins' complaint because, as Calvin explained, Mullins refused to divulge the names of her informers and Respondent could not check on the accuracy of the reports After about a week at wrapping , Mullins was transferred back to repairs but on the same day injured her left index finger and went to a doctor When she returned the next day, she was put to work at wrapping for 1 day, then on the solder pot, which is next to the wrapping operation , for 1 day. Her injured finger became worse and she was thereafter off from work for a month or more. When she returned , she was placed on the solder pot, work which she liked, despite the fact that it, like wrapping , was under lead girl Hinkle's jurisdiction 11 On May 5, Hinkle put her back on wrapping work which she continued to perform until she was granted a leave of absence on October 1 , for an operation on her injured finger . She was still on a leave of absence at the time of the hearing in this case The General Counsel's contention that Mullins' transfer from the repair job to wrapping , over her protest , and her later transfer from the solder pot to wrapping , was dis- criminatonly motivated appears to be based principally upon the undenied and credited testimony of employee Fischer regarding a conversation she had with Respondent 's quality control manager , Yaukovitz, in early February . Yaukovitz told Fischer that he was going to have Mullins transferred from the repair job to lead girl Hinkle's line because he knew that Hinkle and Mullins did not get along and hated each other. Yaukovitz predicted that Mullins would quit her job rather than work under Hinkle but that if she did not, she would probably have difficulty meeting Respondent 's effi- ciency standards because of her newness on the job and would probably be fired for that reason. He added "that he would get rid of that son-of-a-bitch one way or ther other." Re- spondent contends that Yaukovitz is not a supervisor within the meaning of the Act and that it should not be held respon- sible for statements made by him I am convinced , however, from all the evidence that he responsibly directs the work of 15 Mullins testified that although the solder pot job was also under Hink- ie's jurisdiction , that job did not require as much communication with or dependence on Hinkle as did the wrapping job Mullins complained that there were times when Hinkle would not bring her sufficient supplies for Mullins to work with on the wrapping jog both the day and night shift quality control girls as well as that of testers and repair girls, and is therefore a statutory supervisor and also that he is a responsible management representative . 16 Nevertheless, Yaukovitz did not himself have the authority to decide what job Mullins was to be transferred to and I am convinced that his remarks to Fischer constituted idle chatter and speculation , or perhaps wishful thinking . Moreover, although Yaukovitz' remarks did indi- cate personal animosity toward Mullins, there is no evidence that this animosity and his desire to get rid of her had any- thing to do with her union activities. There is also undenied and credited testimony by employee Pinson that before Mullins was transferred form repairs to wrapping, she overheard lead girl Hinkle tell Liston : "We are going to have to move Rhema [Mullins] She is talking to the packers" (who worked near the repair line), and that Liston nodded his head . The implication which Pinson apparently sought to draw was that Hinkle, a nonsupervisory employee, wanted Mullins moved because Mullins was probably trying to promote the Union among the packers and that Liston agreed . This is not the only inference which can reasonably be drawn from what Pinson overheard and saw . Hinkle might merely have been concerned that Mullins was interfering with the work of the packers by talking to them and Liston, by nodding his head , could have been agreeing with this thesis or he could merely have been indicating that he heard or understood what Hinkle said. Regardless of whether Yaukovitz or other company repre- sentatives might have liked to retaliate against Mullins be- cause of her aggressive support of the Union , I am not per- suaded that they in fact did so. It is undisputed that the repair girls were catching up on repairing the accumulation of defec- tive transformers, that management was under pressure to reduce indirect labor costs such as that on repairs , and that Respondent needed two wrappers , one on each shift, and no longer needed four repair girls by February 12. It was only logical for Respondent to transfer back to wrapping , repair girls who had previous experience at wrapping . The repair girl on Mullins' shift who was retained on repairs , William- son, had no previous wrapping experience Moreover, she, like Mullins, was a member of the Union 's organizing com- mittee and Respondent had been apprised of this fact in the Union's letter of February 6, informing Respondent of the identities of employees on the organizing committee. I find no basis for concluding that Respondent was discriminatorily motivated in effecting Mullins' transfer to wrapping on Feb- ruary 12. Nor do I find any basis for concluding that her later return from the solder pot back to wrapping was motivated by considerations other than Respondent's need for her ser- vices at the various jobs from time to time. Indeed , although Mullins testified that she considered the solder pot job "the best job in the plant," she concededly did not tell manage- 16 As quality control manager , Yaukovitz was not answerable to local plant management representatives but only to higher corporate manage- ment He is responsible for the quality of the transformers produced by the Farmington plant He has an office, builds and maintains test boards and his own test gear , keeps records of bad work produced by employees and puts hold tags on their work when it does not meet Respondent's standards He transmits to the plant manager or general foreman his reports on the defec- tive work of the various employees and is consulted by the plant manager and general foreman regarding decisions to discharge employees with whose work he is familiar WABASH TRANSFORMER CORP 557 ment that she liked that type of work. Under all the circum- stances, I find that Respondent did not violate Section 8(a)(3) and (1) of the Act by transferring Mullins to wrapping work. The General Counsel further contends that in late August when Respondent was engaged in trying to improve plant efficiency, it harassed and engaged in discriminatory treat- ment of Mullins, because of her prominence in the Union, by having her work timestudied upon three occasions, and that it required her as well as another union adherent, Rose Con- rad, to use their fingers, instead of needle nose pliers-as they had formerly done-to bend lead wires and instructed them to use less tape in protecting their fingers from hot solder. I am convinced that the union activities of Mullins and Conrad had nothing to do with these work instructions. As Plant Manager Kinkaid explained, the use of pliers had been cus- tomary in wrapping the old model of transformers having heavy gauge leadwires but on the CVT (Constant Control Transformer) models being produced in August, the heavy gauge leadwire was no longer being used, and the use of pliers to bend the wires merely slowed down production. It is true that Respondent's industrial engineer, VanNess, came on three occasions to study the wrapping job on CVT transform- ers which Mullins was performing, but this, as VanNess ex- plained, was because on the first occasion he found Mullins performing a number of unnecessary operations and had to request Kinkaid to instruct her how to Wrap the coils, and that on the second occasion about a week later, Mullins became upset and ill and went home before he could complete the study. On the third occasion, after Mullins had been properly instructed, she worked at a level of 100-percent efficiency. I am convinced that Respondent was not attempt- ing to impose more arduous working conditions on Mullins than on other employees and that Mullins was unduly sensi- tive and suspicious in believing that she was being dis- criminatonly treated. b. Ethel Brown Respondent contends that it discharged Ethel Brown on April 4, 1973, for insubordination in refusing to come to the office for a talk when requested first by Nelson, then by Liston to do so." It is the General Counsel's contention that Respondent's defense of discharge for insubordination might reasonably be sustained if only Brown's conduct al- leged as insubordination be considered but that an examina- tion of the course of treatment of Brown from the time she joined and became active in the Union will sustain a finding that Respondent provoked Brown's apparent insubordinate conduct and that her discharge for refusing to go to the office was pretextual. Brown was employed on September 8, 1972, on the night shift as a picker but after a month was transferred to, the 17 Respondent also contends , with respect to Brown as well as to Alma Powers, that the original charges regarding them having been previously dismissed, the General Counsel could not properly reinstitute those charges and include their names in the amended complaint I find, in view of addi- tional evidence which allegedly came to light subsequent to the dismissal of the original charges, that it was within the permissible discretion of the General Counsel to include their names in the amended complaint Cf Swift Service Stores, Inc, 169 NLRB 359, 361 (1968) wrapping operation on one of the pick, connect, and wrap lines (The operations were performed in that order) Although she was not aware of any union activities at the plant in December 1972 when General Foreman Nelson asked her confidentially whether she had heard of such activi- ties, she signed a union card on February 4, 1973, and became a member of the Union's organizing committee on February 10. About March 1, she started wearing two union buttons, one on each lapel of her blouse, and did so during the remain- der of her tenure with Respondent After Brown's union sympathies became known, there developed an antipathy be- tween Brown and Pat Fischer, the second shift quality control girl, whose antiunion and procompany activities have already been described. According to Brown, Fischer began checking her work more carefully than theretofore and started harass- ing her by asking her questions about the Union as Brown was working. In March, before the election, Brown went to the office, complained to Nelson that Fischer was harassing her by asking her why she joined the Union and wore a union button and by inspecting her barrels and commenting on her work. She asked Nelson to keep Fischer "off [her] back." Nelson then called Fischer to his office and instructed her not to harass anyone. Lead girl Eaton reported to Nelson later that evening that Fischer, angry about the reprimand, had threatened that she would "get even with that bitch," Brown. For a few days thereafter, according to Brown, Fischer stayed away from her, then again started checking her barrels "with a fine tooth comb " On one occasion in March, subsequent to the election, Nelson and lead girl Eaton brought some coils to her and mistakenly accused her of having failed to size them. When Brown pointed out that the markings, though similar to hers, were not in fact hers, Nelson accepted her explanation. Brown, however, seemed to feel that there had been an at- tempt to frame her Brown appears to have been working under considerable strain or nervous tension for some time prior to her termina- tion. According to Brown, shortly after she started wearing her union button, her helper or fellow wrapper on her line, Doss, quit and Brown was required to wrap alone, except on a few occasions when a wrapper from another line was as- signed to help her temporarily. This, Brown testified, slowed her down because she had to wrap as well as pull an arbor off each coil, whereas, when she had a helper, the helper took off every other arbor To make matters worse, most of the pick and connect operators on the night shift were new em- ployees and they were sending an unusual amount of defec- tive work down the line to her. On the night of April 4, the new pickers and connectors were switched from the No. 20 Models on which they had been working to a No 14 Model on which they had not worked before. Quality Control Manager Yaukovitz had asked Brown to watch the coils carefully for wrong connec- tions which the new connectors may have made and Brown found a lot of wrong connections that night This situation slowed down Brown's production and coils which she had no time to wrap were piling high in the trough She described herself as a "nervous wreck" when she noticed Nelson and Liston watching her performance. After the supper break at 7.30 that night, a wrapper, Brewer, from another line was assigned to help Brown. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shortly after Brewer began helping Brown, Nelson asked Brown to come to the office. She replied, "No, sir, I won't go to the office, I'll speak with you here at my machine or up at the eating area at the table but I won't go into the office " Nelson, told her, "I said in the office." Brown repeated that she would not go to the office and added that "if he had ass chewing to do, to do it right there " Nelson left and a few minutes later Liston came to Brown and said , "Ethel, I hear that you were asked to come to the office and you refused." When she affirmed that this was true, he told her, "Well, then I suggest that you clock out " Brown did so Brown explained at the hearing that she refused to go to the office because it was glass enclosed, that the production workers could see what was taking place inside and that she had seen other employees who had been called into the office emerge either crying or looking disturbed. She did not, how- ever, explain to Nelson or Liston her reason for refusing to go to the office, claiming that she did not have an opportunity to explain . She assumed that Nelson intended to reprimand her about her production, not only because she was aware of the fact that on that particular night her production was low but also because Nelson had theretofore told her in March that she had not been putting out her quota since Doss had left. Nelson, at the hearing, confirmed Brown's assumption that he had intended to talk to her about her production. He testified that he had noticed a drop in Brown's efficiency about 2 weeks before her termination and had discussed with Liston the efficiency problem on the pick, connect, and wrap line. At that time the efficiency for the pickers and connectors was determined by the productivity of the wrappers, that is, the production efficiency of each picker and connector could only be as high as the average efficiency of the wrappers on their line. Nelson and Liston decided that Nelson should talk to each of the two wrappers on the line-Brown , who worked on the line regularly, and Brewer, who was assigned to the line from time to time Nelson did call Brewer to his office and talk to her after he had sought unsuccessfully to have Brown come to his office. He testified that it was not his intention to discharge either wrapper when asking them to come to the office. I have no doubt that Brown was genuinely upset and be- lieved she was being unjustly treated at the time she was summoned to the office on April 4, but I find no basis in the record for inferring that Respondent was discriminating against her or attempting to provoke her for union reasons. Her conduct in refusing to obey the summons to the office was clearly insubordination and good cause for discharge. I find that Respondent did not violate Section 8(a)(3) or (1) of the Act in terminating her employment. c. Alma Powers Powers was hired on August 14, 1972, as a winder. She was given a 3-day suspension on April 4, 1973, allegedly because of an excessive amount of defective work produced After returning to work and, pursuant to her request, she was transferred from the night to the day shift, where she was placed on a type of winding machine which Respondent con- sidered more simple than that on which she had formerly worked. Respondent contends that the quality of her work did not improve after her return from the layoff and that she was therefore discharged on April 27 The General Counsel contends that Powers was first laid off, then discharged, be- cause Respondent believed that she was a supporter of the Union. Actually, Powers did not join the Union until after her discharge. Prior thereto she had collected and read both union and company handbills in an attempt to decide which way to vote in the March 16 election, and on one occasion she had obtained a copy of a sample union contract from one of the employees when Nelson was only about 20 feet away and facing in such a way that he could have seen the passing of the document to Powers. Powers was one of the employees questioned by Fischer as to whether she had signed a union card when Fischer was soliciting signatures to the union with- drawal and Powers at that time told Fischer she had not signed a union card When Nelson questioned Fischer, how- ever, as to whether Powers' sympathies were procompany or prounion, Fischer stated that she believed Powers was proun- ion. It is upon these slender threads that the General Counsel bases his argument that subsequent to the election, in which a majority of the votes cast were for the Union, Respondent, guessing that Powers was probably prounion, decided to get rid of her, first by suspending, then discharging her, for sus- pected union sympathies, with poor workmanship as a mere pretext I cannot accept this thesis Even Fischer, one of the Gen- eral Counsel's principal witnesses in the case against Re- spondent, testified that the quality of Powers' work was "poor" on several occasions when Fischer inspected her work and that "she did make mistakes often "18 Dunker, who was plant manager until March 7, testified that he not only had problems with Powers because of the quality of her work but also because of her inability to get along with other em- ployees, especially after Andrea Pritchett, who had less seni- ority than Powers, was selected over Powers to be lead girl on the night shift when the former lead girl left.19 He and Nelson had discussed these problems with Powers and Pritchett in January Dunker had discussed with Quality Control Manager Yaukovitz the fact that Powers had more defective work tickets than any other winder on the night shift and on one occasion Yaukovitz had suggested firing Powers, but Dunker had rejected the suggestion. Dunker had also talked to Nelson on several occasions about Powers' work. About a week before Powers' layoff, Nelson and Yaukovitz had talked to her about one of her defective coils and consid- erable time was spent attempting to discover the reason for the defect On April 3, Yaukovitz cautioned Powers to watch 18 Respondent has not asserted low production efficiency as figuring in the decision to discipline, then discharge Powers Although her first step progression increase in pay (accompanied by a silver dollar signifying she had reached 100 percent efficiency for the first time) was held up for 10 weeks, she does not appear to have had any serious production problems 19 Powers testified that Nelson told her when Pritchett was made lead girl that she, Powers, had been his first choice and Powers had said that she did not want the added responsibility of the lead girl job Nelson 's statement to Powers at that time, whether to assuage any hurt feelings at being passed over for the promotion or because he had not yet become aware of any inordinate amount of defective work being produced by her, is not inconsist- ent with later disciplinary action taken against Powers when her defective work came to light WABASH TRANSFORMER CORP her work because he did not want to have to call her into the office. On the same day Yaukovitz showed Nelson two write- ups on Powers' defective work which he had just discovered. Nelson then pulled her file and found a stack of "hold" tickets reflecting defective windings by Powers He thereupon discussed with Calvin the fact that she had more writeups than any other winder. He proposed and Calvin approved a disciplinary layoff for her. He then called Powers to the office and, in the presence of Yaukovitz, showed her the two write- ups just discovered and told her there were a dozen more in her file and that he was giving her a 3-day layoff because of her defective work. He stated that if she did not improve when she returned, she would be terminated. He also told her that he was cracking down on bad workmanship and was starting with her as an example to the other employees Prior to her layoff Powers had requested a transfer to the day shift, complaining that lead girl Pritchett had not treated her as fairly as she had the other winders and had not given her the help or instructions given to the others. After Powers returned from her layoff, Respondent granted her request for a transfer to the day shift. The quality of her work did not improve, however, and on April 27, after one of the other winders called lead girl Cox' attention to a bad wind made by Powers, Cox found six sticks (with 12 coils on each stick) which Powers had over wound and took them to Yaukovitz. He in turn took them to Calvin Powers was then called to the office and in a conference with Calvin, Liston, and Yaukovitz, was discharged. Liston explained to her how much her mistakes were costing Respondent-$48 for each defective stick. She asked if she could not repair the defective coils and Calvin told her that he did not want time spent on nonproductive work. She then asked if she could not be trans- ferred to some other job and Calvin replied that Respondent was not hiring any employees at that time but that he would be glad to give her "a reference for dependability and effort." The General Counsel suggests that evidence by Respon- dent's representatives about Powers' defective work should be discounted because no records regarding such defects as compared with defects produced by other winders was intro- duced. However, Respondent offered during the hearing to make available to the General Counsel any pertinent records and the General Counsel did not choose to introduce any such records himself I have no doubt, in view of all the evidence, including that of Powers herself, that she was first laid off, then discharged, as Respondent's representatives told her, because of the excessive amount of defective work which she was producing and that her union sympathies, even if Respondent was aware of them, had nothing to do with its decision. The complaint, as to her, will therefore be dismissed.20 d Ruby McDonald McDonald was hired by Respondent on October 4, 1972, and worked as a tester and packer until August 7, 1973, when she left work because of illness. She was discharged on Au- 20 The findings summarized above are based for the most part upon mutually corrobative testimony of Powers, Fischer, Calvin, Dunker, Nelson, and Cox I do not credit that part of the testimony of Powers and the testimony of employees Helms and Walbert about the comparative amounts of defective work produced which is inconsistent with my findings above 559 gust 20 for the asserted reason that she took an unauthorized leave of absence, in violation of a company rule which re- quires an employee to inform Respondent of the reason for an absence by the end of each third day of absence. The General Counsel contends that Respondent had no clearly defined rule which it had imparted to its employees and that McDonald's discharge assertedly for violating Respondent's absentee rule was a pretext to hide Respondent's true motive, which was to rid the plant of a union advocate. McDonald had experienced ill health of one kind or another since early in the year 1973. She was ill between February 1 and 28, and in a hospital for 9 days. It was while in the hospital that she signed a union card. The extent of her union activities thereafter appears to have been the wearing of a union pin on election day. On the second day of her February absence, she had brought from her doctor a statement requesting that she be excused from work until further notice. It was her under- standing at that time that bringing in this type of note would make it unnecessary to call in every 3 days to report the reason for her absence. McDonald was again absent during early June because of illness. On the second or third day of her illness she called the office and reported to Pritchett that she was ill. Pritchett informed her that she would have to have a doctor's certifi- cate before she could return to work and McDonald protested that she had never heard of such a rule. At that point, Pntch- ett turned the call over to Calvin, who was then acting plant manager. When McDonald returned to work after a week's absence on that occasion, Calvin summoned her to the office to discuss her attendance record, including her long absence in February, to explain Respondent's procedure for reporting absences and furnishing doctor's certificates, to discuss her efficiency and to inquire as to the reason for her frequent trips to the restroom. According to Calvin, he told her that if she was off 3 days, she should call in by the end of the third day and let Respondent know when she expected to return to work and that if she expected to be absent "for any period of time over 3 days" she should get a doctor's statement.21 In response to Calvin's inquiry as to the reason for her frequent trips to the restroom, she explained that she had a colon problem Calvin told her that she would have to have this corrected. She thereafter consulted her doctor and took medi- cation which alleviated the ailment but.did not cure it, for even during the hearing the problem persisted. On Tuesday, August 7, McDonald became sick while at work and was granted permission by then Plant Manager Kinkaid to go home, stopping on the way to see her doctor. Kinkaid asked her to let him know what the doctor's diagno- sis was. She called Kinkaid the next day and told him, accord- ing to her testimony, that the doctor had instructed her to stay off from work for several days because of the pressure on her neck from a displaced vertebra and inflamed liga- ments. According to Kinkaid, she reported in this telephone call that she would be back on Friday, August 10. She re- 21 Calvin testified that Respondent has several rules and policies regarding absences and that he could not remember their exact wording The only rule posted at the plant and produced at the hearing was one in a pamphlet entitled "Rules ) Rules' Rules )" and the one relating to absences reads "Absence Without Notifying Company (If for 3 days or more, considered automatic quit) " 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD turned to her doctor on August 10 and on the same day again called the plant and reported to a person whom she believed to be Pritchett that she was still ill and unable to return to work. On Tuesday, August 14, she had laryngitis and could not talk. At her request, her husband called the plant and reported to Pritchett that McDonald was still ill and would be unable to report for work for the rest of the week. Pritch- ett, pursuant to prior instructions from Kinkaid, told Mr. McDonald to hold the phone while she summoned Kinkaid. Mr. McDonald held the phone for a short time but hung up before Kinkaid arrived at the other end Mr. McDonald re- ported to his wife that the phone had apparently gone dead. It was not until almost a week later, on Monday, August 20, that McDonald again called the plant to report that she was on the way to see her doctor and would report back to work when he released her. Kinkaid told her that she had already been terminated on August 14. She offered to bring in a doctor's certificate but he stated that he did not need it for she had already been terminated. According to Kinkaid he told her she had been terminated : "because she told me on Friday the 10th that she would be in, she did not come in, she did not call " He testified that company rules require that any one absent 3 days should at least call in and should have a doctor's statement after the third day There can be no question but that McDonald had a very bad absentee record due to her health problems and that at least her failure to call the plant to report on her absences between August 14 and 20 was a violation of Respondent's reporting rules about which she had previously been apprised in June . I am convinced , moreover, that Kinkaid understood McDonald in her telephone call on August 8, to say that she would be back at work on Friday, August 10; that he did not receive the telephone message taken by someone in the office that day when McDonald called and left word that she was still ill and unable to report to work;22 that he was upset and inconvenienced by her failure to report to work and that, as he testified, he decided to terminate McDonald on August 14 for failing to report to work on August 10 as he understood her to say she would and for failing to comply with company rules regarding the reporting of absences It is immaterial whether his recollection or McDonald 's is the more accurate as to what McDonald told him on August 8. The question before me is whether Kinkaid in discharging McDonald was motivated by antiunion considerations and I am persuaded from all of the evidence that he was not. Indeed, the record does not show that Kinkaid, who was employed by Respond- ent subsequent to the election, or any other representative of Respondent, even knew of her union sympathies. The com- plaint insofar as it alleges McDonald 's discharge to be in violation of Section 8(a)(3) and (1) of the Act must therefore be dismissed. 22 McDonald had to make toll calls from her residence to Respondent's plant and her telephone bill introduced in evidence shows that a telephone call from her residence to the plant was, indeed, made on August 10 Pritch- ett, on the other hand , credibly testified that she was in a hospital and not at the plant on that date and I must conclude that someone substituting for her talked to McDonald but neglected to convey McDonald 's message to Kinkaid e. The discharges of Boyer, Clinton, and Conrad The discharges ' of Becky Boyer, Margaret Clinton, and, Rose Conrad occurred in late August 1973 in connection with a course of action instituted by Respondent to improve the overall efficiency of the plant's operations. Each of these employees had overtly evidenced their support of the Union subsequent to the Union 's certification on July 31 , and it is a fair inference that Respondent knew of their loyalties to the Union prior to terminating them The General Counsel as- serts that each was discriminatorily terminated because of her union sympathies and support , in violation of Section 8(a)(3) and (1) of the Act, and also that the terminations were a result of unilaterally established more stringent standards and poli- cies instituted by Respondent in violation of its duty to bar- gain with the Union and were therefore in violation of Section 8(a)(5) and (1) of the Act. It is the General Counsel's conten- tion that whether the terminations be viewed as violations of Section 8(a)(3) or (5) of the Act, an appropriate remedy would be reinstatement , with backpay. (1) Becky Boyer Boyer was hired on April 2, 1973, and was discharged on August 23, allegedly because of inefficiency in her produc- tion . This was the reason asserted by Respondent's counsel early in the hearing Later in the hearing Respondent added as another reason for discharging her its asserted belief that she had engaged in a work slow down Still later in the hearing Respondent asserted as another reason that her at- tendance was chronically poor. Although hired as a picker, she was transferred after 2 or 3 weeks to the job of connecting. 23 In late May, at the end of her first 8 weeks of employment, she received the progres- sion pay increase awarded employees who meet Respondent's efficiency standards and at that time then Acting Plant Manager Calvin told her she was being given the raise be- cause of high efficiency and that he believed that she was one of Respondent's better employees because she was not"absent and because she kept her efficiency up. He also commented that she seemed to like being a connector better than being a picker and asked her whether she would "just as soon stay and have the job classified as connector." She replied that she would Due to material shortages and a changeover in a model of transformer being produced, Boyer was laid off during the last week of June and for all of July (Layoffs were on the basis of seniority). Although she was called back to work for 3 or 4 days in July, she did not return to work on a regular basis until August 1. When called back for the 3 or 4 days in July, she was assigned to picking on a line other than the one on which she later worked at the time of her discharge.24 23 Employee Pinson , who worked with Boyer as a connector , estimated that Boyer was transferred to connecting about 2 weeks after she was hired Vice President Trinkle estimated that Boyer had worked at picking for "about a month or more" after she was hired Respondent offered no records to support Trinkle's testimony I am satisfied that the testimony of Boyer and Pinson is more accurate in this regard 24 The parties stipulated at the hearing to the accuracy of the dates to which she testified she was laid off Her attendance card, identified as Respondent's Exhibit 77 and received in evidence as G C Exh 26, does (Continued) WABASH TRANSFORMER CORP Shortly after she returned to work on a regular basis about August 1, she was assigned to various types of work but principally to picking.25 When assigning Boyer to work other than her regular connecting job after she returned from the layoffs, Plant Manager Kinkaid told her that the pickers on the new line could not keep up with the connectors and that as soon as the pickers got used to picking the new type of coil, he would transfer her back to her connecting job. Respondent had two picking lines on the first shift In the line to which Boyer was assigned she worked with Lee (who had been a picker since August 21, 1972), Belleville (a picker since September 11, 1972) and Ball (a picker since November 8, 1972) on a new model transformer called the CVT. All of these pickers were producing way below Respondent's effi- ciency standard before Boyer was assigned to help them and on her first day as a picker when her production efficiency was only 18 percent, their's was only 23 percent each. All gradually improved however .21 As already noted, Vice President Trinkle on August 17, in a talk to all the production employees, told them that Re- spondent was starting a program to police the efficiency of each department, starting with a review of the present and past performances of the employee in each department hav- ing the lowest efficiency, in an attempt to get the employees to bring up their efficiency and that he would replace those who failed to do so. On that occasion, Trinkle also told the employees that he would return to the plant in about a week. He did return on August 23, and at that time called in the day shift pickers on the CVT line on which Boyer had been working for a conference with himself and Kinkaid. Boyer was absent because of illness on that day and only Lee, Ball and Belleville were present. According to Trinkle, he re- viewed with them their past and present performances, telling them that he could not understand how their efficiency could drop from the 70 percent area a month or a month and a half before to about 35 percent He also told them that he could not understand how two of them (referring to Lee and Ball) had turned in exactly the same production during the period between August 1 and 18, as was shown on the record he had before him. None of those present volunteered any explana- tion. On the same day, according to Trinkle, he reviewed with Kinkaid the efficiency and absentee record of Boyer not only for the period of August 1 through 18, which he had Kinkaid prepare for the pickers but also Boyer's efficiency and absen- tee record during the beginning period of her employment when she was also working as a picker, and found that her attendance was chronically poor. Trinkle further testified that Kinkaid had informed him that he, Kinkaid, had talked not show any layoff for July and the "8['s]" appearing in four of the columns for that month apparently reflect the days on which she worked rather than her absences 25 Thus, for a day or two after she returned, she did assembly work, building and gunning the transformers She later was taken off picking temporarily and assigned for a few days to her old connecting work and on another occasion to wrapping and to work on the solder pot 26 In the 9 days Boyer worked at picking between August 1 and 20, the last day she worked, her average efficiency was 32 6 percent, with a high of 46 percent, in the 14 days Lee worked as a picker during the same period, she averaged 41 1 percent, with a high of 45 percent, in the 12 days Ball worked as a picker during this period, she averaged 37 8 percent, with a high of 46 percent, and in the 15 days Belleville worked as a picker during this period, she averaged 35 1 percent, with a high of 47 percent 561 to Boyer about her attendance and warned her that it would have to improve.27 On the basis of these facts, her poor effi- ciency and poor attendance records, Trinkle testified he di- rected Kinkaid to discharge Boyer. Kinkaid corroborated Trinkle's testimony only in part. He testified that he and Tnnkle had examined only his own tabulation of the efficiency and absences of the four pickers for the period of August 1 through 18. He acknowledged that he had not checked Boyer's timecard to ascertain the number of absences which he recorded on his tabulation but had instead interpreted the "A['s]" appearing in an efficiency record book kept by Pritchett to mean absences and had counted as absences between August 1 through 18, the four "A['s]" found in Pritchett's efficiency record book. Pritchett explained that "A" merely means that no production card was turned in and it could result from an employee doing nonproductive work (which is not unusual) as well as from an absence. Boyer's timecard shows that she was absent only 1 1/2 days between August 1 and 18. This was the occasion when she left work and went to her doctor because of an eye injury Kinkaid, in an apparent attempt to support Trinkle's tes- timony that he had talke 3 to Boyer about her absenteeism, stated that on August 1 (which would have been the day she returned from her layoff of over a month and was assigned to work on the new CVT transformer) he called the four pickers into his office and talked to them about their effi- ciency and excessive absenteeism Since this was Boyer's first day on the job as a picker on the CVT's, anything he may have said to the group could hardly have been considered a criticism of Boyer's production or attendance record. After she had been working on the CVT's for about a week Kinkaid did tell Boyer individually and also the other pickers to slap the adhesive insulating tape on the coils instead of pressing and rubbing tape on or "making love to it" as he expressed it, but this appears to have been a mere instruction as to how they could improve their efficiency rather than a reprimand. Kinkaid further testified that, on August 21, he admonished the four pickers against talking when he noticed them talking and neglecting their work and that about an hour later, he noticed Boyer still talking to the others and he again told her to stop talking Respondent's records, however, show that Boyer was working in another department that day and was not on the picking operation. If any such incident occurred, it could not have been on that day. Kinkaid called Boyer at her home on August 23, while she was at her doctor's office and when she later returned the call, he told her, according to Boyer's credited testimony, that she was being terminated because of her inefficiency She dis- puted this accusation and told Kinkaid that she was a connec- tor and not a picker, but that even as a picker, she had kept up with the other girls. Her statement that she kept up with the other girls was undoubtedly a reference to the fact, to which she and Lee freely testified at the hearing, that the four pickers had been helping each other out and that when one picker fell behind in production, another would give part of 27 1 do not credit Trinkle's testimony regarding Boyer's alleged poor attendance record, for Boyer had a perfect attendance record in April when she first worked as a picker and between August 1 and 18, the period covered by the record before Trinkle, Boyer had been absent for only 1 1/2 days when she left work because of an eye injury-as Kinkaid knew 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her production to the one needing it, so that all would have substantially the same production at the end of the day. The purpose of this practice-which had been in effect long before Boyer joined the group-was to insure that if one of them got into trouble because of production, all would be in trouble. Boyer and Ball, whose production was substantially the same any way after Boyer gained a little experience on the new model of transformer, helped each other out. It is after Boyer testified about this practice that Respondent amended its answer to allege that another reason for Boyer's discharge was its belief that she had engaged in a slow down in produc- tion. Boyer denied that she or any of her fellow pickers were engaging in a slow down and the evidence does not support such an inference.28 A careful analysis of the evidence raises many questions concerning Respondent 's motivation in assigning inefficiency as a reason for discharging Boyer . It should not be forgotten that Boyer had spent most of her time with Respondent-part of April, all of May, and until her layoff in the last week of June-working as a connector, a job which she liked and at which she appears to have been highly effi- cient, and that there is no evidence of any inefficiency by Boyer during the first 2 or 3 weeks of her employment when she worked as a picker on a model of transformer which preceded the CVT.29 Since Respondent did not know at the time of discharging her that since August 9 the other pickers on her line had accepted her into their production sharing practice, it must have been relying on her production efficiency records as accurately reflecting solely her own production when analyz- ing them A careful evaluation of all the evidence available to Respondent does not show that Boyer's production at the time of her discharge was out of line with that of other pickers on the CVT transformer. Boyer had worked for only 9 days on that model of transformer and in that period, despite the interruptions caused by frequent temporary transfers to work in other departments and her assignments to nonproduction work, as well as her absences of 3-1/2 days because of illness, she had improved her efficiency from 18 percent on her first day on the job to 43 and 40 percent on her last 2 days-an improvement of over 50 percent after only working 9 days. The other pickers working with her had been picking on the new CVT model transformer since the beginning of its production in June and none of them had improved their 28 Lead girl Hinkle credibly testified that as early as May, June and July, she had talked to Calvin and then to Kinkaid about the fact that some of the pickers were turning in identical production counts and that "they pretty well admitted that they were helping each other out on the line The girl that would do more would help the girl that wasn't getting as many " Management did not appear to be sufficiently concerned to investigate and put a stop to this practice at that time indeed, prior to the making of certain time studies on the pick, connect, and wrap jobs in about May, it had been Respondent's practice to divide the total production on each of those jobs by the number of employees on the job to arrive at their production effi- ciency 29 Following her raise in pay in late May and the high praise of her work by Calvin, Boyer continued to perform her connecting job in a highly effi- cient manner, according to two coworkers, Pinson and Barnhouse And while performing the gunning and building operation in August, she per- formed at over 100 percent efficiency Subsequent to Boyer's discharge, Respondent tried out a number of employees as a third connector to join the team of Pinson and Barnhouse before finding one that was satisfactory, but it did not recall Boyer efficiency percentage at the rate Boyer had improved hers. Two new pickers on the night shift-Sedebottom and Spencer-who, like Boyer, started picking on the CVT's on August 1 had average efficiencies of only 26.6 and 22 7 per- cent, as compared with Boyer's average of 32.6 by the date of her discharge, though Sedebottom and Spencer had worked 16 and 14 days respectively , as compared with Boyer's 9 days at the picking operation . If Boyer had not been discharged and had continued to improve at the same rate she had been progressing, it would not have taken her long to reach 100-percent efficiency. Calvin testified that a picker should be able to meet Respondent's standards in 12 to 14 weeks. There was no reason to believe that Boyer could not have done so, even if her early experience on the old model transformer on which she worked for 2 or 3 weeks in April is added to her 9 days in August . It would not seem fair, however, to count her brief picking experience months earlier on another model of transformer in measuring her expected efficiency progression on the CVT, for, as former Manager of Manufacturing Liston testified , after a break of even so much as a month, a picker has to start learning all over again Respondent's official publication entitled "Viewpoint," dated August 7, 1973, states with respect to the Farmington plant: This operation is presently in the process of changing its lines over to the 1974 models This necessitates new setups on the winding machines, pick-connect and as- sembly lines and final test . When employees get oriented to the new models, production will begin to flow smoothly again. Calvin, though not the author of these statements, agreed with their accuracy except to the extent that the second sen- tence might imply that new equipment was being used. He explained that the same equipment and tools are used and that "we adjust it for wire length and that sort of thing." He conceded the accuracy of the statement that when the em- ployees become oriented to the new models , their production would begin to flow smoothly again . When Boyer joined the three more experienced pickers on the CVT line on August 1, production obviously had not yet begun to flow smoothly again but it did improve steadily and at an even more rapid pace after Boyer's discharge and after some changes were instituted to make the picking operation more simple. For example, not only did the flow of work to the line become more steady but the lead girl or material handlers started stacking the pickers work for them, the amount of tape re- quired to be used on the coils was greatly reduced, the wrap- pers took over the sizing job which the pickers had formerly done; and Respondent started using colored nongdhesive pa- per or ribbons to help the pickers more easily locate anchor tape where the wire they pick comes out A circumstance which Respondent has not sought to ex- plain and which points as much as anything else to a conclu- sion that the reasons assigned by Respondent for discharging Boyer were not the true reasons is Respondent 's departure from its standard operating procedures in effecting Boyer's discharge As already noted, Calvin , when corporate person- nel manager, had clearly spelled out for the plant manager orally as well as in writing the procedures to be followed before any employee was to be fired for inefficiency or poor WABASH TRANSFORMER CORP. attendance. The plant manager.was first to talk to -the em- ployee individually about her deficiency and how she might be helped, a note regarding such action was to be placed in the employee's personnel file, and then only after the em- ployee had been given sufficient time for improvement should any further disciplinary action or discharge occur Trinkle's speech to the employees on August 17, too, makes clear that he contemplated talking to the low producers individually, then giving them a chance to improve before taking any disciplinary action This had been the policy which Respond- ent, in general , actually did follow both before and after Trinkle's August 17 speech. Respondent did not talk to Boyer individually about her efficiency or her absen- teeism-except to praise her in both respects when giv- ing her a wage increase in May. If it had, it would have had to face an explanation of the fact that she was not even properly classified as a picker but was instead a connector;30 that she had improved her production effi- ciency by more than 50 percent during the 9 days in August when she worked on the new model of transformer despite the frequent transfers to other jobs which tended to interfere with production efficiency progress; that during the 2 days she worked as a picker subsequent to Trinkle's speech, her production was substantially above her average; that in view of her lack of experience at picking in general and on the new model in particular, her production was perhaps not properly subject to criticism; and that her attendance record in general was good. The only plausible explanation in the record for Respon- dent's discharge of Boyer under the circumstances described above is its desire to rid the plant of a strong and active union supporter who could influence the vote of other employees should a rerun election ever be ordered. Boyer joined the Union about June 1, and became a union steward shortly before being fired. On June 18, the day Kinkaid became plant manager, she, along with Union Steward Mullins, two other employees and a few ex-employees, picketed Respondent's plant and distributed union circulars, in the clear view of Kinkaid and Calvin, for the purpose, as she testified, of let- ting the new manager know that the Union was the em- ployees' representative. Following Trinkle's speech on Au- gust 17 in which he told the employees, inter aka, that he was going to interview the individual employees in each depart- ment who had the lowest production efficiency and thereafter replace those who failed to improve, Boyer told her fellow pickers while working with them that she was convinced that Trinkle's speech was prompted by the Union's attempts to bargain , pointing out that Respondent had been requested to respond by August 15, to the Union's request for information for bargaining purposes. As she made this statement, she became aware that Calvin was behind her, explaining to a new employee how the picking operation worked. When Boyer looked at him, the expression on his face led her to believe that he had overheard her. (He did not deny that he had overheard her.) Thereafter, on August 23, Respondent's 30 Kinkaid conceded at the hearing that an employee working as a connec- tor as long as she had been working, should have been classified on Respon- dent's records as a connector Moreover, he did not deny telling her on August 1, when asking her to work with the pickers, that she would be transferred back to connecting as soon as the regular pickeis had become accustomed to picking the new type of coil 563 president, Boyd, sent the Farmington employees a letter, tell- ing them at the outset that what he was about to say had nothing to do with the Union, then proceeding to reiterate what Trinkle had-told the employees on August 17. I am convinced and find on the basis of the entire record, including Respondent's coercive and threatening antiunion conduct both -before and after the election, that all of the asserted reasons given toward the beginning of the hearing and those added later during the hearing for Boyer's dis- charge were pretextual in nature and that the true reason was her union support and activities. The discharge was therefore in violation of Section 8(a)(3) and (1) of the Act. (2) Margaret Clinton Clinton was hired by Respondent on June 22, 1972, as a winder, Respondent's most skilled and highest paid produc- tion job, and was discharged on August 29, 1973, for the alleged reason that her production efficiency was too' low. This was also the reason asserted by Respondent's counsel early in the hearing. The General Counsel contends that Respondent was motivated by antiunion considerations trig- gered by the fact that Clinton was wearing a union button on her blouse when called to the office on August 28, by Vice President Trinkle and Plant Manager Kinkaid for an inter- view about her efficiency. During the preelection period Clinton had been antiunion and had solicited other employees to wear procompany in- signia. She went to a union meeting and signed a card around August 1, however, and thereafter asked the winders with whom she worked to join the Union She did not wear a union pin until August 28. On that and the following day, when she was discharged, she wore it prominently displayed on her blouse. Although Clinton was considered by Blum "real good" and had produced in the high 90's to 100-percent efficiency on the primary wind, which she liked to do, she was not, in general , considered a big producer. Her production some- times vaned substantially as she was transferred from one winding machine or type of winding'to another, according to her fellow workers, Asbury and Blum and her lead girl, Cox. Their testimony indicates that she was perhaps an average producer. She had produced in accordance with Respon- dent's production requirements and received her first two progression raises after the normal periods of work. But her third raise which could have been granted about January 2, 1973, was held up until mid-May because she -had failed before then to meet the standard then required of her. She had been called to the office and admonished to improve both her efficiency and her attendance record upon several occasions during her 14 months tenure with Respondent. Former Plant Manager Dunker characterized her as a talkative person and testified that in the spring of 1973, before he left Respondent's employ, he had admonished her not to visit so much and had told her to get back to her job. Her fellow winder , Blum, also characterized her as a big talker. - About August 1, Plant Manager Kinkaid called her into his office and told her that she would have to improve her efficiency. He accused her of playing around a lot and she conceded that she might have been doing that sometime. He also told her that she talked too much and that was the reason 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD why her efficiency was down. He said that she would have to get her efficiency up or she would have to be replaced. When he told her to "get back there and work," she stated that she would " When Trinkle came to the plant on August 23, and re- viewed with Kinkaid the-efficiencies of the winders as shown on Kinkaid's compilation of the relative efficiency and ab- sences of the 16 winders on both shifts between August 1 and 18, he decided not to interview Clinton because her efficiency was shown on the compilation to be 68 percent which (ex- cluding the new ones) was higher than that of five other winders whose efficiencies were, respectively, 48, 62, 49, 40, 48, and 44 percent. He and Kinkaid did not talk to Belcher, the winder having the lowest efficiency, because she had just been transferred to the CVT transformer and had not had sufficient time to improve her productivity but did talk to Richardson, the next lowest. About August 20, Clinton was transferred to the new big CVT transformer and her efficiency, too, dropped drastically-hers perhaps even more than most of the others transferred to the new model because she was placed on a secondary wind which she had never performed before on any of the other models. On the first day, her efficiency dropped from 68 to 23 percent and although it thereafter improved, her average efficiency on the CVT was only 34 percent when she was called to the office for an interview with Trinkle and Kinkaid on August 28.32 Kinkaid credibly testified that he and Trinkle had not called her in to fire her but only to see if they could help her to improve her efficiency-as, indeed, Respondent' had successfully done with Clinton in the past and as it was doing with some of its others in its current campaign to improve efficiency During the August 28 interview, Trinkle told her that she was not putting out her share of the work and asked what she would do if she had a bag of rotten potatoes. She replied that she would salvage what she could and get -rid of the rest. Trinkle said that he had quite a few rotten potatoes and would have to start getting rid of them. He warned that if her efficiency did not improve in a week, he would have to termi- nate her." She explained that she had been working on the new CVT for only about a week and had not had time to work up speed. He replied that she was one of the oldest winders and should be able to make 100-percent efficiency on all the models 34 'T 31 The above account is Clinton's credited version of the interview Kin- kaid testified that he did not make any written memorandum of the occasion as Respondent normally does in reprimanding employees, but that he talked to her about her efficiency and her absenteeism and that she said that she was doing the best she could 32 According to lead girl Cox, the efficiencies of Respondent's best wind- ers, Hamm, Blum, and Asbury had likewise plummeted downward when they were first transferred to the CVT models, but after 2 or 3 days they had brought their efficiencies up to the 70's and 80's percent Blum, one of Respondent's best winders, who worked for 5 days on the big CVT in July and has since been working on the small CVT, testified that her efficiency dropped to about 30 or 35 percent at the beginning but she had worked up to about 50 percent at the end of 5 days 33 According to Trinkle, he'told her Respondent would review her effi- ciency again in 2 or 3 weeks to see what progress she had made "The above account is based on Clinton's credited testimony-sub- stantially undisputed insofar as it goes I also find, in accordance with Kinkaid's credited testimony, that during the interview Clinton remarked that she did not like working on the CVT model and that she was doing Since it was about quitting time, Clinton checked out and went home following the interview. On the following day, August 29, during her 11 to 11:30 luncheon break, she talked to a group of the winders with whom she worked and her lead girl, Cox, about Tnnkle and Kinkaid, who had interviewed her on the preceding day, berating them and referring to them as "s o.b.'s" and in other uncomplimentary terms. Her voice was sufficiently loud that Trinkle and Kinkaid, observing her from their glass-enclosed office 15 or 20 feet away, could hear her voice. Kinkaid testified that he could not hear what she said but Trinkle testified that he could hear part of it-that part in which she referred to management in vulgar terms. Cox testified that some of the girls complained that Clin- ton's language was bothering them while they were eating lunch but she did not name any employee who did complain. The same kind of language, according to Clinton's uncon- troverted testimony, had theretofore been used by Cox herself and by two of the other employees in the luncheon group. Cox testified, and Clinton denied, that Clinton continued to use some of this language even after she returned to her work station. I believe that Clinton probably did continue her tirade very briefly for it is undisputed that soon after the luncheon break, Cox went to Tnnkle and told him that some- thing would have to be done about Clinton's cursing because she was getting loud, was disturbing the other girls, and they did not like it. She also told him that Clinton was calling him and Kinkaid names.35 Trinkle told Cox that he and Kinkaid would "take care of the situation in a 'little bit " Trinkle thereupon discussed with Kinkaid the disturbance which Clinton had allegedly caused and asked Kinkaid to check her efficiency for that morning Kinkaid did so Trinkle then instructed Kinkaid to discharge her Kinkaid sum- moned Clinton to his office at or about 3:30 that afternoon and told her, in the presence of Trinkle and Calvin, that management had reviewed her efficiency for that morning, that she had not improved, and that management felt that in view of her statement that "she was doing the best she could do," it would be a waste of time to continue with her. Clinton protested that she had been told on the preceding day that she had a week in which to bring up her efficiency and that if she were given the time promised her, she might be able to do better. Calvin told her that a check of her efficiency at noon that day had shown that she had not improved and manage- ment believed that she was not going to put forth sufficient effort to do so. No mention was made of the report manage- ment had 'received about her verbal attack against manage- ment during her luncheon period and shortly thereafter. Actually, Clinton had improved her efficiency on the last day of her employment. Respondent's records show that her efficiency for August 29, up to the time she was fired, was 45 percent. This would seem to be a substantial improvement over the 30 percent for the preceding day when she was the best she could I do not credit Trmkle's testimony that she said she was doing all she was going to do 35 Cox also testified regarding statements made by Clinton on the day before she was fired which Clinton denied making on that date but admitted making on several occasions 2 or 3 months prior to her discharge when she would get very aggravated Since there is no evidence that these statements were ever reported to management representatives, they could not have influenced management's decision to discharge Clinton and I need not resolve the conflicts WABASH TRANSFORMER CORP. 565 reprimanded and over her average of 34 percent during the approximately 8 days prior to her discharge when she was working on the second wind of the CVT, a wind which Kin- kaid testified she had never before worked on Her 45 percent efficiency for August 29, moreover, was, according to Tnn- kle, about the same as that she had made by noon, when he had her efficiency checked. The General Counsel argues that the explanation for Re- spondent's change of heart and discharge of Clinton on the day after promising her a week in which to bring up her efficiency, and despite the fact that she had increased her production by one-third over the day before, lies in the fact that Clinton on August 28 and 29, displayed her union sym- pathies for the first time by wearing a union button on her blouse. Tnnkle, Calvin, and Kinkaid each testified that he did not notice or did not recall her wearing a union button but I think it highly unlikely that none of them would have noticed this insignia prominently displayed on her blouse during the August 28 and August 29 interviews and worn by her for the first time. 36 If Respondent was not motivated at least in part by anti- union considerations in discharging Clinton, why did it tell her that she was being discharged because she had failed to im- prove her production efficiency on August 29, when it knew that she had improved substantially on that date? And why did it continue to assert that this was the only reason even when explaining its defense early in the hearing? If the salty language used by Clinton in fact was the motivating factor, why did Respondent not tell her this and give her an oppor- tunity to present her side of the report before discharging her, and why did not Respondent assert this as a reason,at the hearing? The nearest that Respondent ever got to indicating that her language had anything to do with the discharge was Trinkle's testimony at one point that he and Kinkaid after checking her efficiency, and finding it no better than on the preceding day, decided that "due to her efficiency and her conduct," they would have to get her out of the plant." In this case, like that of Boyer, Respondent departed from its standard operating procedure in effecting Clinton's dis- charge. This procedure required that an employee be given a reasonable opportunity to improve following an interview in which Respondent seeks to ascertain the reason for low effi- ciency and to help the employee improve. Clinton had been promised a week, according to her testimony and that of Kinkaid, and 2 or 3 weeks, according to Trinkle, in which to show improvement. She had shown substantial improvement in 1 day In view of the patently false reason for her discharge as- signed to her on August 29 and later asserted at the hearing, 36 In its brief, Respondent suggests that Clinton may have purposely worn her union button on August 28, expecting to be called to the office about her production and hoping in some way that the button might protect her Her motive in wearing the union button is immaterial The display of union insignia may not cloak an employee against vulnerability to discharge for a lawful reason but it can be relevant to show employer knowledge of an employee's union sympathies where it becomes necessary to consider that element in determining motivation for employer action 37 Language such as that used by Clinton on August 29 was not uncom- mon at the plant, as Respondent's officials undoubtedly knew In addition to the three luncheon companions named by Clinton as having used similar language, there is evidence in the record that lead girl Hinkle, quality con- trol girl Fischer, and even Quality CoMrot Manager Yaukovitz had used foul language I must conclude that the true reason for her discharge was the display of her union support by the wearing of a union button on her blouse on August 28 and 29 This may have been particularly galling to Respondent since, prior to the election she had evinced procompany sympathies by wearing and soliciting others to wear procompany insignias. I find that Clinton's discharge was in violation of Section 8(a)(3) and (1) of the Act. (3) Rose Conrad Conrad was employed by Respondent as a picker on Sep- tember 15, 1972, and almost 3 months later was transferred to wrapping, which she continued to do until the end of her employment on August 30, 1973 She either quit, as Respond- ent contends, or was discharged, as she asserts, in connection with Respondent's criticism of her production The General Counsel contends that she was discharged, or constructively discharged, because of her union activities and also because of a unilateral imposition and enforcement by Respondent of more stringent production standards in late August 1973 Conrad had signed a union card in January 1973 and at- tended three or four union meetings. She wore a union button during the last week of her employment. She worked at the same wrapping table, face to face with Mullins, the Union's chief steward, during the period when Mullins was wrapping, including August, when both were assigned to the new CVT model transformer. She also normally ate lunch with Mullins. Conrad had never been a big producer On December 7, 1972, almost 3 months after she had been hired, former Plant Manager Dunker talked to her about her low production as a picker and expressed the view that she would never make a good picker. She agreed. Dunker then transferred her to the wrapping operation. She testified that most of the time while on wrapping, she was an average producer and no evidence was adduced to the contrary It is undisputed, however, that in August when she was assigned to wrap on the big CVT, her production dropped and that she was the lowest producer of all the wrappers during the first 18 days of August She and Mullins were then the only wrappers on the big CVT but other wrappers worked on the older models. When Conrad and Mullins were assigned to wrap on the large CVT transformer about August 1, they continued to perform the wrapping operations on it in the same manner they had performed the wrapping on the older type of trans- former. On this job Conrad's average efficiency for the period of August 1 through 18, was only 38 percent and Mullins' was only 44 percent.38 The efficiency of Moyers and Yancheck for the same period while wrapping on the older type model was an average of 60 and 45.5 percent, respectively On August 21, Kinkaid had a discussion with both Conrad 38 Respondent did not introduce any records showing the daily produc- tion efficiency of Conrad and other wrappers for that period, as it did for Boyer and other pickers, and it is impossible to tell from the only record it did produce-a compilation entitled "connecting" and apparently including connectors as well as wrappers-the extent, if any, which Conrad improved her production after first being placed on the CVT model transformer There is a suggestion in the record, however, from the testimony of Trinkle that he ordered a time study of the CVT wrapping job on August 29, because "the girls were running 50 and 60 percent," that the only wrappers then on the line, Conrad and Mullins, had substantially improved their 38- and 44- percent averages 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Mullins about what he believed were unnecessary steps they were taking on the CVT. He told them that they should discontinue using pliers to hammer the solder joints down and should use their fingers instead since on the CVT the wire was not as heavy as that on the older type transformers and a discontinuance of the use of pliers could double their pro- duction. He also told them on this or on other occasions that they were cutting too much off the wires, that they were soldering too much , that they were using too much tape on their fingers when they did use the solder and that it was unnecessary to have a finger 's width between wires as Quality Control Manager Yaukovitz had instructed them to have On August 28, Conrad was called to the office for an interview with Trinkle and Kinkaid . Trinkle told her that he believed that she was capable of doing her job but that she was not trying . Conrad stated that she believed that she was trying and was doing the best she could . Trinkle stated that if she did not get her production up, she would be terminated. On August 29, Respondent had its industrial engineer, VanNess, make a study of the method followed by Conrad and Mullins for the wrapping operation on the CVT model.3° He at first refused to make the study because he found that Mullins and Conrad were taking what he believed were unnecessary steps which could not properly be allocated to the job. It was only after Kinkaid stood over them and instructed them as to how the job should be done, eliminating the unnecessary steps, some of which they were apparently still taking, that VanNess made the methods test and found that each had produced at the rate of 100-percent or more efficiency. Later the same day, Conrad was called to the office for an interview with Trinkle and Kinkaid about her production. Trinkle asked if she were having any problem with the job which Respondent could help her with. He told her that during Respondent's review of her method of working while the job was being studied , she had exceeded 100-percent effi- ciency and that he thought that she could do the job She stated that she was doing the best she could and if that was not good enough, then she would have to quit . She expressed surprise when informed that she had made over 100 percent on the timestudy test . At the hearing Conrad testified that she believed she had done "sloppy" work in trying to speed up her production while being timed On the following day, August 30, after lead girl Hinkle asked Kinkaid whether she could put another wrapper on the CVT's because the assembly line was running out of work, he told her that the present wrappers would just have to get the work done . Immediately thereafter he went to Conrad's work station and inquired about how she was doing. When she informed him that she had wrapped 250, he told her that she should have wrapped 350.4° She reiterated that she was do- 39 About 6 months prior thereto he had run a test on Conrad's work on the older model of transformer and found that she was producing at 100- percent efficiency 40 Since Conrad had produced over 100 percent of Respondent's effi- ciency standard while being timestudied on the preceding day and Respond- ent was taking the position that she should be making 100 percent, it is a fair inference that the 350 figure mentioned by Kinkaid would have been 100-percent efficiency If that be so, the 250 which she had wrapped would represent 71 percent of Respondent 's production standard-a very substan- tial improvement over her 38 -percent average during the first 18 days of August ing the best she could. Kinkaid told her that she must im- prove and that he had a line below hers that was running out of work. As Kinkaid turned and went back to the office, Conrad started crying and told lead girl Hinkle that she could not take the pressures she was feeling at the plant as well as at home any longer and that she was going to the office and tell Kinkaid that she was quitting . Hinkle tried to calm her down and dissuade her from quitting but she insisted that due to her nerves and high blood pressure she feared that working under the continued pressure would cause a stroke and that she was going to quit She followed Kinkaid to his office. She testified that Kinkaid, Trinkle, and Calvin were in the office when she arrived and gave the following account of what transpired: I told them I was doing the best I could , that I was no super woman, and I felt I had been pushed beyond my abilities, and I felt I couldn 't meet the high quota they set for me because of my nerves . I told them I wasn't quitting, that I would leave it up to them , and Roy [Kinkaid] said he had to do what he had to do, and he handed me my check and terminated me. According to Kinkaid. "She came to the office and stated that due to her high blood pressure she was extremely nerv- ous, she just couldn't do the job and she was going to quit," and that Kinkaid told her "that she would just have to do what she felt was right for her." She then left the office In view of Hinkle's uncontroverted testimony that Conrad had insisted just before following Kinkaid to the office that she was going to tell Kinkaid that she was quitting, I am per- suaded, as Kinkaid testified, that she told him that she was going to quit. It is nevertheless clear that Conrad's quitting was involuntary and occasioned by the pressures put upon her, under threat of discharge, to meet production standards which she felt were impossible for her to meet in view of the nervous strain she was under. The question before me is whether Respondent, by insist- ing Conrad immediately meet the standards which it had set for her on the new model CVT transformer on which she had been working only since about August 1, was motivated by antiunion considerations, as the General Counsel contends, or solely by business and economic considerations, as Re- spondent contends. About August 21, when Kinkaid realized that Conrad and Mullins were applying to the big CVT certain work move- ments used on the older model coils but which were unneces- sary on the new model, he could reasonably have attributed their low production efficiency to the extra work they were making for themselves He did, however, on that date give them instructions about how to eliminate at least some of the unnecessary steps they were taking. They apparently did not heed his instructions for, as he and Respondent 's industrial engineer discovered on August 29, they were then using the same methods for wrapping on the big CVT which they had used on the older models. With Kinkaid standing over them, instructing them , and seeing that they performed as in- structed, each produced at 100 percent or more of Respon- dent's standards and Kinkaid could feel assured that they were capable of meeting the standards and that the standards were correct. When checking on Conrad's efficiency on the next day, after being told that the assembly line, which de- WABASH TRANSFORMER CORP. pended on the wrappers' production, was running out of work, Kinkaid found that Conrad was producing only about two-thirds of what he expected of her and told her that she would have to improve. Conrad, of course, may have had difficulty in unlearning her old methods and consistently applying the new and less time-consuming methods so re- cently taught her. I have no doubt that she was working under a nervous strain and felt that she was approaching the breaking point. However, there is no evidence in the record that Kinkaid knew of her health condition until she told him when explaining her resignation. I am not persuaded that Respondent was discriminatorily motivated in accepting her resignation under the circumstances rather than urging her to stay at the expense of a possible health hazard. The fact that Conrad, a union member since about the beginning of the Union's organizational campaign , and a close associate of the Union's chief steward, began wearing her union button dur- ing the last week of her employment are not in and of them- selves sufficient to establish such a discriminatory motiva- tion, despite Respondent's open hostility to the Union and the fact that it was concurrently resisting its obligation to bargain pursuant to the Board's certification of the Union. Accord- ingly, I conclude that the General Counsel has not sustained his burden of proving an antiunion motivation, even if Con- rad's somewhat involuntary resignation be considered a con- structive discharge-and I do find it to be a constructive discharge. There remains to be considered the General Counsel's fur- ther contention, treated next, that even if Conrad's termina- tion is not found to be a violation of Section 8(a)(3) of the Act, that it must be found to be an element of Respondent's 8(1)(5) violation. (4) The General Counsel's contention that Respondent's unilaterally imposed program of policing its employees' efficiency, constituted an unlawful refusal to bargain, an appropriate remedy for which would be a requirement that Respondent reinstate , with backpay, the employees terminated pursuant to this program and bargain about their situations Let us now consider the General Counsel's further conten- tion that even if discriminatory motivation is not proven as to Conrad's termination, her constructive discharge was so much a part of and interwoven with Respondent's unlawful refusal to bargain with the Union, that Respondent should be required to reinstate her, with backpay, and bargain about the newly announced program of policing the efficiency of in- dividuals, in order to remedy Respondent's unlawful refusal to bargain. I find merit in this contention.41 As already pointed out, Respondent's corporate personnel manager, Calvin, had instructed then Plant Manager Dunker as early as November 1972, before the advent of the Union, to make a serious effort to improve production as well as attendance by discussing these matters with offenders in an effort to help them. He told Dunker at that time that "it might become necessary to replace some operators who were not performing at a satisfactory level and/or whose attend- ance is poor." These instructions to local plant management 41 The General Counsel makes the same argument with respect to Boyer and Clinton and the same principles are, of course , applicable to them. 567 were, however, apparently never communicated to the em- ployees and although local plant management did from time to time talk to individual employees as well as to groups of employees in an attempt to increase production, there is no evidence of overt threats of discharge for low production, and, indeed, no evidence that any employee was ever dis- charged for that reason prior to the program announced by Trinkle on August 17, to police the efficiency of individual employees. Calvin conceded that while he was acting plant manager; he never mentioned possible discharge or a discipli- nary layoff to the individuals to whom he talked about their production. Kinkaid, whom Calvin trained as the new plant manager, was, prior to Trinkle's announced Company policy, so reluctant about pursuing a tough production policy that he did not even make written notations for the files of those to whom he talked about their production problems. Vice President Trinkle admittedly had never injected him- self personally into direct contacts with individual employees prior to August 17. Any discussions about disciplining em- ployees in connection with production problems had been confined to discussions with local plant management. Trink- le's announcement to the employees on August 17, reaffirmed in President Boyd's letter of August 23 to the employees, that Respondent was starting an active program of policing the efficiency of individual employees and discharging those who did not bring their efficiency up to Respondent's satisfaction was a new policy insofar as the employees could discern and, indeed, was at least a hitherto unenforced policy insofar as management was concerned. The sudden imposition of such a stringent disciplinary procedure was clearly a change in the working conditions of Respondent's employees and was a matter concerning which the employees had a right to have their union represent them. It may well be, as President Boyd stated in his letter of August 23 to the employees, that the decision to institute this policing program had nothing to do with the union organizational activities or whether the Union represented them, but this was a subject about which Re- spondent was required to bargain with the Union. The Union had been certified on July 31, as the employees' bargaining representative and had requested certain information regard- ing the employees' conditions of employment preparatory to arranging a bargaining conference and had requested this information by August 15. Respondent had replied on Au- gust 21, that it would not furnish the requested information or otherwise recognize or bargain with the Union, whose certification it was contesting. The questions which might well have arisen and been re- solved concerning this program and Respondent's action un- der it are illustrated by certain contentions made by the Gen- eral Counsel in his brief regarding the circumstances under which Boyer, Clinton and Conrad were terminated. He as- serts, e.g., that Respondent's methods and practices for tabu- lating the employees' efficiency are unreliable but even if the records be accurate, numerous factors over which the em- ployees had no control explain a diminution in production. Among these factors were ( 1) numerous transfers of em- ployees from one job to another during the summer of 1973, with a resulting drop in productivity, both collectively and individually, while employees became adjusted to and profi- cient in their new assignments or while they readjusted to their former jobs when returned to them; (2) Respondent's 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unfamiliarity with appropriate production standards for the new big CVT model, resulting in unrealistic and unreachable standards, (3) the fact that production cards, on the basis of which Respondent determined individual productivity could be and often were inaccurate; (4) the fact that workers and machinery stood idle because lost trucks full of materials failed to arrive at the plant and the fact that at times produc- tion was slowed down by defective machinery ; and (5) the fact that there were changes in the job requirements which required older employees to unlearn older methods and learn new methods which were taught the employees more recently hired . 42 Except where necessary to consider the 8(a)(3) alle- gations of the complaint, I have not sought to analyze and draw conclusions regarding these factors pointed out by the General Counsel. Those are matters about which the Union may wish to bargain with the Respondent in connection with the information requested in its letter of August 28 to Re- spondent. Respondent having acted unilaterally and refused to bar- gain about its stringent production efficiency program, in violation of Section 8(a)(5) and (1) of the Act, Conrad, as an individual , was deprived of her right to have the Union repre- sent her. Respondent's application of its new production pro- gram to her was one of the respects in which Respondent failed and refused to bargain, in violation of Section 8(a)(5) of the Act. In order to remedy this unlawful refusal to bar- gain , Respondent must insofar as possible restore the status quo ante to1Conrad by offering her reinstatement, with back- pay, and bargain with the Union about Respondent's new efficiency program and its application to Conrad and other employees. Fibreboard Paper Products v N.L.R.B., 379 U.S. 203, 215-217 (1964), Amoco Chemicals Corporation, 211 NLRB 84 (1974); Frontier Homes Corporation, 153 NLRB 1070, 1072-73 (1965), enfd. 371 F.2d 974 (C.A. 8, 1967), Wilkinson Manufacturing Co, 187 NLRB 791, 796 (1971), modified on other grounds 456 F.2d 298 (C A. 8, 1972); The Dalf Corporation, d/b/a Hoffman Bros., 188 NLRB 319, 324 (1971). CONCLUSIONS OF LAW 1. By coercively interrogating employees regarding their knowledge of union activities , the union sympathies and ac- tivities of fellow employees, and what went on at union meet- ings; soliciting or requesting employees to find out the union or company sympathies of employees and documenting the information so obtained to categorize its employees as pro- union or procompany; by requesting an employee to attend a union meeting and ask questions posed by a management representative; by soliciting employees to report the identity of employees making derogatory remarks about management representatives; by requesting an employee to assist in the circulation of a petition to obtain employee withdrawal of their union cards; by threatening plant closure or removal, the discharge of union supporters and other forms of reprisal against employees should they select the Union to represent them ; by threatening that an employee would not be rehired 42 Respondent adduced evidence that several new employees , trained and assisted in using the most efficient methods , made phenomenal production records, far in excess of progress Respondent normally expects of new employees unless she withdrew from the Union and promised to vote against the Union in the election ; and by seeking, after the election, to create the impression that the plant was in the process of closing down because of the union victory at the polls; Respondent has interfered with , restrained, and co- erced its employees in the exercise of their rights guaranteed under Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 2. By discriminating in regard to the hire and tenure of employment of employees Becky Boyer and Margaret Clin- ton because of their union sympathies and activities , thereby discouraging membership in the Union , Respondent has en- gaged in an unfair labor practice within the meaning of Sec- tion 8(a)(3) and ( 1) of the Act. 3. By constructively discharging employee Rose Conrad in connection with the enforcement of a unilaterally promul- gated program of policing its employees' production effi- ciency, in violation of its obligation to bargain with the em- ployees' certified bargaining representative about the promulgation and enforcement of such program , Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. A preponderance of the credible evidence does not show that Respondent violated the statute by discharging or other- wise discriminating against employees Ethel Brown, Alma Powers, Rhema Mullins , or Ruby McDonald , or by engaging in any other alleged unfair labor practices not specifically found herein. THE REMEDY It having been found that Respondent has engaged in un- fair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, my recommended Order will require that Re- spondent cease and desist therefrom and take certain affirma- tive action necessary to effectuate the policies of the Act. To remedy the discriminatory discharges of Becky Boyer and Margaret Clinton , in violation of Section 8(a)(3) and (1) of the Act, and the discharge of Rose Conrad as a result of applying to her Respondent 's unilaterally promulgated pro- duction efficiency program, in violation of Section 8(a)(5) and (1) of the Act, Respondent will be required to offer each of these employees immediate and full reinstatement , without prejudice to her seniority and other rights and privileges, and make each whole for any loss of earnings she may have suf- fered by reason of her discharge, with backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Since in my initial decision in this case, issued on February 11, 1974, and adopted by the Board on April 30, 1974 (210 NLRB 462), Respondent was ordered to bargain with the Union, upon request, a broad bargaining order in this supple- mental decision will not be necessary . However, inasmuch as I have found herein that Rose Conrad 's constructive dis- charge resulted from and was a part of Respondent's unlaw- ful refusal to bargain by unilaterally promulgating and apply- ing to Conrad and other employees a stringent new WABASH TRANSFORMER CORP. 569 production efficiency program, a specific bargaining order, limited to this feature of Respondent's refusal to bargain, is appropriate as an added remedial measure Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following recommended. ORDER 41 Wabash Transformer Corp., Subsidiary of Wabash Mag- netics, Inc , its officers , agents, successors, and assigns, shall- 1 Cease and desist from: (a) Coercively interrogating employees regarding their knowledge of union activities , regarding the union sympa- thies or activities of fellow employees, or regarding what goes on at union meetings (b) Soliciting or requesting employees to find out and re- port back to management the union or company sympathies of fellow employees and/or documenting the information obtained to categorize its employees as prounion or procom- pany employees. (c) Requesting any employee to attend a union meeting and ask questions posed by management representatives (d) Soliciting employees to report the identity of employees making derogatory remarks about management representa- tives. (e) Requesting any employee to assist in the circulation of a petition to obtain employees ' withdrawal of their union cards. (f) Threatening plant closure or removal , the discharge of union supporters, or other forms of reprisal against em- ployees should they select the Union to represent them (g) Threatening not to rehire any employee unless she with- draws from Communications Workers of America, AFL-CIO, or promises to vote against said labor organiza- tion in an election. (h) Seeking to create the impression that the plant is in the process of closing down because the employees have selected the Union to represent them. (i) Discharging or otherwise discriminating in regard to the hire or tenure of employment of employees because of their union sympathies or activities (l) Unilaterally, without consultation with the Union, pro- mulgating and applying a new program of-policing the pro- duction efficiency of its employees. (k) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Offer Becky Boyer, Margaret Clinton, and Rose Con- rad reinstatement to their former jobs, or, if such jobs no longer exist, to a substantially equivalent position, without prejudice to their seniority and other nghts and privileges, and make each whole in the manner set forth in the section of this Decision entitled "The Remedy " (b) Upon request, bargain collectively with Communica- tions Workers of America, AFL-CIO, about the promulga- tion of any new program of policing the production efficiency of its employees, including the program first announced to its employees on August 17, 1973, and the application of such a program to Rose Conrad and other employees in the bar- gaining unit (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records, and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (d) Post at its Farmington, Missouri, plant copies of the attached notice marked "Appendix "44 Copies of the notice on forms provided by the Regional Director for Region 14, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reason- able steps shall be taken by Respondent to insure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps Re- spondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges unfair labor practices not herein found. 43 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes "" In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "