Kawasaki Motors

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kawasaki Motors Corporation, U.S.A. and Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of Amer- ica (UAW). Cases 17-CA-8737, 17-CA-8854, 17-CA-8936, and 17-RC-8473 August 3, 1981 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION On January 29, 1981, Administrative Law Judge Frederick C. Herzog issued the attached Decision in this proceeding. Thereafter, the General Counsel and Respondent filed exceptions and supporting briefs, the Union filed cross-exceptions, and the General Counsel and the Union filed answering briefs to Respondent's exceptions. The National Labor Relations Board has consid- ered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recom- mended Order. 3 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. The General Counsel has excepted to the Administrative Law Judge's finding that counsels for the General Counsel knowingly offered as an exhibit a document which was not a true copy. The General Counsel contends that, at the time the document in question was offered, counsels for the General Counsel had no knowledge that it was not a true copy. We find merit in the General Counsel's exception. The record reveals that, during the Union's second election campaign, Respondent posted a notice dated April 10, 1979, regarding bomb threats. The General Counsel alleged that this notice violated Sec. 8(a)(l) of the National Labor Relations Act, as amended. During the hearing counsels for the General Counsel introduced and offered as an exhibit a copy of the notice through the testimony of Bruce Berg, who identified the copy as "the posting that went up." However, during wir dir examination by Respondent's counsel, Berg testified that the notice which Respondent had posted differed from the document he had identified in size, type, and heading. The Administrative Law Judge thereupon rejected the offer of the exhibit. Counsel for the General Counsel subpenaed from Re- spondent a true copy of the notice, which was subsequently offered and received into evidence. Nothing in the record indicates that counsels for the General Counsel had any knowledge prior to the voir dire examination of Berg that the copy of the notice which they offered into evidence was not a true copy. Further, upon discovery of this fact, counsels for the General Counsel acted promptly in obtaining and introducing into evidence a true copy of the notice, which differed only in collateral respects from the copy first offered. Under these circumstances, we find. contrary to the Administra- tive Law Judge, that counsels for the General Counsel did not knowingly offer an untrue copy of the notice into evidence. 2 The Administrative Law Judge indicated in dicta that a discharge was unlawful if it were shown that the discharge was, in part, discrimina- torily motivated. We expressly disavow this statement. See Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980). 3 We find that the extraordinary remedies requested by the Union in its cross-exceptions are not warranted to remedy the unfair labor practices found herein. Chairman Fanning agrees with his colleagues that the ex- traordinary remedies requested by the Union in its cross-exceptions, i- cluding imposition of a bargaining order, are not warranted here. In so finding. Chairman Fanning continues to adhere to his position in United 257 NLRB No. 69 Respondent has excepted to the Administrative Law Judge's refusal to grant Respondent's motions for a mistrial based on the conduct of counsels for the General Counsel during the hearing. Specifical- ly, Respondent objects to the use by counsels for the General Counsel of a tape recorder; their ri- fling through Respondent's papers; their knowingly offering as an exhibit a document which was not a true copy; their failure to pay their share of the cost of transcribing certain tapes offered into evi- dence; their failure to tender witnesses' affidavits to Respondent prior to Respondent's cross-examina- tion; and their refusal to obtain affidavits given by two witnesses to the Department of Labor. We find no merit in Respondent's exception. As discussed below, none of the conduct of counsels for the General Counsel resulted in prejudice to Respondent, and thus their conduct does not war- rant a mistrial. With regard to the use of a tape recorder, the record reveals that, prior to the calling of the first witness, counsels for the General Counsel placed a tape recorder on the table in front of them. Notic- ing the tape recorder, the Administrative Law Judge instructed counsels for the General Counsel to remove it. Counsels for the General Counsel re- quested permission to record the testimony of the first witness, but the Administrative Law Judge re- fused permission. There is no evidence that coun- sels for the General Counsel operated the tape re- corder subsequently during the hearing in disregard of the Administrative Law Judge's instructions. Nor is there any evidence that counsels for the General Counsel intended to use the tape recorder for any purpose other than to record the testimony of the first witness. Under these circumstances, al- though counsels for the General Counsel injudi- ciously failed to seek permission from the Adminis- trative Law Judge prior to commencement of the hearing for use of the tape recorder, we find that no prejudice resulted from this brief incident. With regard to the rifling of Respondent's papers, the record reveals that at one point in the proceeding one of the counsels for the General Counsel walked behind Respondent's counsel's table, allegedly to examine an exhibit that had been offered into evidence by Respondent. Respondent's Dairy arner Cpcruriv e .lioiuron. 242 NLR 1026 (1979), wherein he stated that in certain extraordinary circumstanlces a bargaining order should be given een absent a card majorit Chairman Fanning believes however, that he unfair labor practlices found herein are nlot sufficiently extensive to support imposition of this extraolrdinary remedy Member Zimmerman agrees wilh Chairman Faninrg hatll. o anlly view of the ap- plicable law, imposition of a bargaining order absent a card majority is not appropriate in the present case Therefore Member Zimmerman finds it unnecessar t express a iew on the bargaiing order issue presented in Untited Dairy, inll which he (lid nlot participatle 502 KAWASAKI MOTORS counsel, who was at the entrance to the hearing room, immediately objected to this conduct. The Administrative Law Judge instructed counsel for the General Counsel to leave Respondent's coun- sel's table, and counsel for the General Counsel complied. There was no evidence that counsel for the General Counsel's conduct was motivated by a desire to examine any of Respondent's trial notes or other internal memoranda nor that counsel for the General Counsel in fact examined such docu- ments. Thus, although counsel for the General Counsel displayed injudicious conduct, we find that this conduct did not result in prejudice to Re- spondent. With regard to the offer of a document as an ex- hibit which was not a true copy, we find, as dis- cussed in footnote 1, that counsels for the General Counsel had no knowledge prior to the offer of the document that it was not a true copy. Accordingly, as there was no misconduct on the part of counsels for the General Counsel in this regard, no preju- dice resulted to Respondent. With regard to the failure of the General Coun- sel to pay his share of the cost of transcribing cer- tain tapes, the record reveals that on the third day of the hearing, during a colloquy between the par- ties and the Administrative Law Judge, the Admin- istrative Law Judge learned for the first time that counsels for the General Counsel had in their pos- session tape recordings of speeches of various members of Respondent's management taped by employees. In view of the fact that there had been extensive prior testimony in the hearing regarding what Respondent's officials had said in those speeches, the Administrative Law Judge instructed counsels for the General Counsel that, if this cor- roborative evidence were not offered into evi- dence, the Administrative Law Judge might draw adverse inferences to the General Counsel's posi- tion. After a recess, counsels for the General Coun- sel offered into evidence eight of the nine tapes in their possession. The ninth tape was not offered by counsels for the General Counsel because it did not relate to the unfair labor practices alleged; howev- er, this tape was offered into evidence by the Union in support of its election objections. Noting that the tapes had to be authenticated before he could receive them into evidence, the Administra- tive Law Judge inquired as to whether counsels for the General Counsel intended to call witnesses for such purpose. Counsels for the General Counsel stated that they had no witnesses who could testify to the authenticity of the tapes. Thereupon, in an off-the-record discussion, the parties decided to have duplicates of the tapes made, to send the originals to a sound studio to filter out the extraneous noises, and then to have transcripts made of the tapes. Counsels for the General Counsel indicated that the expense entailed in this procedure might prevent the General Coun- sel's agreement to it and called their superiors at the Regional Office to discuss the matter. When the hearing resumed, counsels for the General Counsel indicated that the General Coun- sel would agree only to share in the expense of transcribing three of the eight tapes offered as General Counsel's exhibits because two of the re- maining tapes did not relate to the unfair labor practices alleged and the other tapes, containing a speech the transcript of which had already been re- ceived into evidence, were unnecessary to tran- scribe. The Administrative Law Judge asked coun- sels for the General Counsel if their present posi- tion meant that they wished to withdraw their offer of certain tapes as General Counsel's exhibits, and counsels for the General Counsel responded that they were maintaining their offer of all eight tapes. The Administrative Law Judge thereupon directed the parties to proceed with the authentica- tion of the tapes and adjourned the proceedings to allow the parties the time necessary for such proce- dure. During the adjournment, the Regional Direc- tor withdrew an allegation of the complaint, ren- dering, from the viewpoint of counsels for the General Counsel, all of the tapes irrelevant as evi- dence. Consequently, counsels for the General Counsel notified Respondent and the Union that the General Counsel was unwilling to share in the costs of transcribing any of the tapes unless the parties had relied on his previous position. Howev- er, counsels for the General Counsel made no at- tempt to withdraw their offer of any of the tapes as General Counsel's exhibits. It appears that the Gen- eral Counsel has refused to date to pay any portion of the transcription costs of the tapes. In view of the fact that certain discussions be- tween the parties regarding the tapes and the pay- ment of transcription costs occurred off the record, we are unable to determine whether the General Counsel at any point expressly agreed to pay a por- tion of the transcription costs of all tapes and sub- sequently reneged on this agreement. However, in our opinion, such resolution is unnecessary. We find that, since the tapes were General Counsel's exhibits, the General Counsel was obligated to share in the transcription costs necessary for their authentication. The General Counsel voluntarily chose to offer the tapes into evidence rather than risk any adverse inferences drawn by the Adminis- trative Law Judge, and he chose not to withdraw any or all of the tapes after a review of them con- vinced him that none of the tapes was relevant as 503 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence. Thus, it appears that the General Coun- sel took the inconsistent position of wanting the tapes in evidence but not wanting to pay for their transcription, without which the tapes were useless and could not be received into evidence. We do not approve of the General Counsel's position in this matter. However, Respondent has failed to es- tablish any prejudice resulting from this matter. Respondent also wanted the tapes in evidence and subpenaed the tapes from the General Counsel, presumably for the purpose of introducing them into evidence if the General Counsel had not done so. Thus, the General Counsel's position in regard to the tapes in no way thwarted Respondent's desire to have the Administrative Law Judge con- sider this evidence or prevented a complete record. In any event, although the Administrative Law Judge did consider this evidence, he did not rely on anything contained in the tapes in making any of his findings and conclusions. Under these cir- cumstances, the General Counsel's failure to pay his share of the transcription costs of the tapes did not result in any prejudice to Respondent's case. With respect to the failure of counsels for the General Counsel to tender witnesses' affidavits to Respondent, the record reveals that, upon conclu- sion of the direct examination of each witness called by counsels for the General Counsel, Re- spondent's counsel requested all prior statements of the witness. On each occasion counsels for the General Counsel complied with this request but, as to six witnesses, it was discovered, after Respond- ent's cross-examination had begun or had been completed, that counsels for the General Counsel had additional statements in their possession. These additional statements were promptly furnished to Respondent. These actions constitute undisputed errors on the part of counsels for the General Counsel. Howev- er, Respondent failed to establish that the errors were prejudicial. The record reveals that the addi- tional statements of two of the witnesses were dis- covered and furnished to Respondent while the witnesses were still on the stand, allowing Re- spondent to utilize the additional statements in its cross-examination. Further, the testimony of an- other witness whose additional statement was fur- nished to Respondent after his cross-examination had been concluded was totally discredited by the Administrative Law Judge. Moreover, there was no evidence of bad faith on the part of counsels for the General Counsel. In any event, pursuant to an order of the Administrative Law Judge, counsels for the General Counsel returned to the hearing for further cross-examination all witnesses who had testified subsequent to the first witness whose state- ments had not been timely furnished to Respond- ent. However, Respondent chose not to engage in any further cross-examination of any of these wit- nesses regarding their prior testimony. Under these circumstances, we find that the errors of counsels for the General Counsel in this regard were not prejudicial to Respondent. See Carlisle Paper Box Company, 168 NLRB 706 (1967), enfd. 398 F.2d 1 (3d Cir. 1968). Finally, with respect to the General Counsel's refusal to obtain from the Department of Labor the affidavits of two witnesses, the record reveals that on December 17 or 18, 1979, during an adjourn- ment of the hearing, Respondent's counsel learned that some employees had given statements to a De- partment of Labor investigator at some time after November 29, 1979, the date of the last adjourn- ment of the hearing. Respondent made no attempt to obtain these affadivits from the Department of Labor. Further, Respondent did not request the General Counsel to obtain these affidavits until the hearing resumed on January 23, 1980. Pursuant to agreement of the parties, the Union's counsel and counsels for the General Counsel questioned all employee witnesses to ascertain if they had given statements to other Federal agencies. Only Bruce Berg and Greg Harm, who had testified on August 14 and 15, 1979, indicated that they had given statements to a Department of Labor investigator at some time after the hearing adjourned in No- vember 1979. Respondent thereupon requested the Administrative Law Judge to direct the General Counsel to contact the Department of Labor and obtain these statements. The Administrative Law Judge denied this request. We find no error in the Administrative Law Judge's ruling. The require- ment that a witness' statements be furnished upon request to opposing counsel prior to cross-examina- tion applies only to statements in existence at the time of the witness' testimony which relate to the subject matter of the testimony. National Labor Relations Board Rules and Regulations, Series 8, as amended, Section 102.118(b)(1). As the statements of Berg and Harm were given to the Department of Labor subsequent to their testimony at the hear- ing, the General Counsel was under no obligation to furnish these statements to Respondent. Under these circumstances, we find that the Administra- tive Law Judge correctly denied Respondent's re- quest that the General Counsel be directed to obtain these statements. In sum, we find that Respondent was accorded a fair hearing and that the Administrative Law Judge correctly denied Respondent's motions for a mis- trial. 504 KAWASAKI MOTORS ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Kawasaki Motors Corporation, U.S.A., Lincoln, Nebraska, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order,4 except that the attached notice is substitut- ed for that of the Administrative Law Judge. [Direction of Second Election and Excelsior foot- note omitted from publication.] In accordance with his partial dissent in Olympic Medical Corporation, 250 NLRB 146 (1980), Member Jenkins would award interest on backpay due based on the formula set forth therein. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to give evidence, the National Labor Relations Board has found that we have violated the Nation- al Labor Relations Act, as amended, and has or- dered us to post this notice to assure you of your rights under the law and to advise you of the ac- tions we are required to take to remedy our viola- tions of the Act. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT fire, lay off, or otherwise dis- criminate against any employee for engaging in union activities or giving aid or support to any labor organization. WE WILL NOT threaten employees by advis- ing them -that they or others may be discharged -that we might impose more onerous job duties -that we might close or move our plant or any of its work -that we may withhold promotions, job reviews, or benefits -that selection of a union would be futile. WE WILL NOT promise benefits to employ- ees in order to persuade them to stop their union activities or support. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your rights set forth above, which are among those protected by the National Labor Relations Act. WE WILL offer Dan Bennett immediate and full reinstatement to his former position of em- ployment or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed. WE WILL make Dan Bennett whole for any loss of pay he may have suffered as a result of our discrimination against him, with interest. KAWASAKI MOTORS CORPORATION, U.S.A. DECISION STATEMENT OF THE CASE FREDERICK C. HERZOG, Administrative Law Judge: This case had its inception when the International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America (UAW)' filed a petition for an election to be conducted by the National Labor Rela- tions Board in a unit of production and maintenance em- ployees at the Lincoln, Nebraska, plant of Kawasaki Motors Corporation, U.S.A.2 Pursuant to that petition in Case 17-RC-8473 and the ensuing Decision and Direc- tion of Election by the Regional Director for Region 17 of the National Labor Relations Board, an election by secret ballot was conducted on June 2, 1978. However, on September 29, 1978, Respondent agreed with the Re- gional Director to void and set aside the results of that election. Pursuant thereto and a supplemental decision on objections and order setting aside the election, which issued October 18, 1978, a rerun election by secret ballot was conducted on April 19, 1979. The tally of ballots showed that there were approximately 516 eligible voters, 207 of whom cast their votes in favor of, and 257 of whom cast their ballots against, representation by the Union. There were no void ballots and 28 ballots were challenged. Thereafter, on April 24, 1979, the Union filed timely objections to the conduct of the election. The Regional Director subsequently determined that cer- tain complaint allegations, set forth below, encompassed, in part, acts and conduct set forth in the Union's Objec- tions 2, 3, 4, 8, 12, 14, and 15; accordingly, he consoli- Hereinafter referred to as the Union. 2 Hereinafter referred to as Respondent 505 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dated said complaints with these objections to the elec- tion. On July 13, 1979, the Board denied the request for review of the Regional Director's decision in this matter. The complaints issued by the Regional Director which relate to this case are summarized, as follows: Case 17-CA-8491 On August 30, 1978, the Union filed a charge alleging that Respondent violated Section 8(a)(1) and (2) of the National Labor Relations Act, as amended, herein called the Act, by conduct preceding the June 2, 1978, election. On October 2, 1978, a complaint issued thereon, but al- leging only violations of Section 8(a)(1). Respondent's timely answer denied all wrongdoing. On October 17, 1978, Respondent and the Regional Director entered into a unilateral informal settlement agreement, providing re- medial action on the part of Respondent for the alleged violations of Section 8(a)(1) of the Act, though further expressly providing that Respondent did not admit having engaged in any violative conduct. On July 25, 1979, the Regional Director withdrew his approval for the settlement agreement, noting the pendency of the complaints in Cases 17-CA-8854 and 17-CA-8936, and his determination that there had not been substantial compliance with the terms of the settlement agreement. (While the settlement agreement was subsequently rein- stated by the Regional Director, the circumstances of its reinstatement are best explained below.) Case 17-CA-8737 On January 22, 1979, the Union filed the charge in Case 17-CA-8737, alleging that Respondent violated Section 8(a)(1) and (3) of the Act by discharging its em- ployee, Connie Clare, on August 24, 1978. On July 26, 1979, the Regional Director issued an order consolidat- ing Cases 17-CA-8737 and 17-CA-8491 in a complaint alleging violations of Section 8(a)(1) and (3) of the Act, including the discharge of Connie Clare on or about August 24, 1978, and the violation of the settlement agreement in Case 17-CA-8491 by conduct complained of in Cases 17-CA-8854 and 17-CA-8936. Also on July 26, the Regional Director further ordered the consolida- tion for hearing of the allegations and objections in Cases 17-CA-8491, 17-CA-8737, 17-CA-8854, 17-CA-8936, and 17-RC-8473. On August 7, 1979, the Regional Director reconsid- ered his earlier withdrawal of his approval of the settle- ment agreement in Case 17-CA-8491, reinstated the set- tlement agreement, and ordered that Case 17-CA-8491 be severed from Cases 17-CA-8737, 17-CA-8854, 17- CA-8936, and 17-RC-8473. On August 8, 1979, the Re- gional Director amended his consolidated complaint in Case 17-CA-8737. Respondent's answer to the complaint in Case 17-CA-8737 denied all wrongdoing. Case 17-CA-8854 On March 26, 1979, the Union filed the charge in Case 17-CA-8854, alleging violations of Section 8(a)(1) of the Act by Respondent in the course of the preelection cam- paign for the rerun election. On April 26, 1979, the Re- gional Director issued a complaint based thereon. Re- spondent's timely answer denied all wrongdoing. Case 17-CA-8936 On April 26, 1979, the Union filed the charge in Case 17-CA-8936, alleging violations of Section 8(a)(l) and (3) of the Act, including the April 11, 1979, termination of employee Dan Bennett and the April 17, 1979, termi- nation or refusal of full-time employment to employee Richard Hawkins. On June 7, 1979, the Regional Direc- tor issued a complaint in Case 17-CA-8936 alleging vio- lations of Section 8(a)(1) and (3) of the Act, including the April 11, 1979, termination of the employment of Bennett. As previously noted, at that same time the Re- gional Director ordered that Cases 17-CA-8936 and 17- CA-8854 be consolidated and heard beginning August 14, 1979. On June 12, 1979, Respondent filed its answer denying all wrongdoing. Summary Pursuant to notice, the hearing herein began before me in Lincoln, Nebraska, on August 14, 1979, and continued on August 15 and 16, at which time it was adjourned until September 25, 1979, to allow the parties to have certain evidentiary material prepared for use during the hearing of this case. The adjournment was requested by both counsel for Respondent and counsel for the Union, and was not opposed by counsel for the General Coun- sel. The hearing was resumed on September 25, 1979, and continued on September 26, 27, and 28, 1979. It was then adjourned. The hearing resumed on November 27 and continued through November 28 and 29, 1979. At that time it was adjourned to allow consideration of questions relating to the conduct of counsel for the General Counsel. On December 5, 1979, I issued an order allowing counsel for the General Counsel to participate further in the hearing and scheduling the case's resumption for Jan- uary 22, 1980. Pursuant thereto, the hearing resumed on January 22, and was concluded on January 23 and 24. All parties filed briefs on or before March 31, and each such brief has been carefully considered. Thereafter, on June 16, the General Counsel moved to correct the record in approximately 150 specific in- stances as well as in other general respects. My ruling on this motion, which was opposed in part by Respondent, is set forth below. All parties appeared at the hearing and were given full opportunity to participate, to adduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Based upon the record thus compiled, I make the following findings. FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The pleadings herein demonstrate that there is no dis- pute that Respondent is a corporation and that it is en- gaged in the design, production, distribution, and nonre- 506 KAWASAKI MOTORS tail sale of motorcycles and other diversified recreational products at various facilities, including a facility located in Lincoln, Nebraska, with which this case is concerned. In the course and conduct of its operations within the State of Nebraska, Respondent annually purchases goods and services having a value in excess of $50,000 directly from sources located outside the State of Nebraska. Ac- cordingly, I find and conclude that Respondent is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION The pleadings further demonstrate that no dispute ex- isted, at any time material herein, with respect to the Union's status as a labor organization. Accordingly, I find and conclude that the Union is now and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. RESPONDENT'S AGENTS AND SUPERVISORS By its various answers to the several complaints herein, Respondent has admitted that the following named persons are supervisors and agents of Respondent, acting on its behalf, within the meaning of Section 2(11) and (13) of the Act:3 Dale Barkhurst Dennis Butt Jack Calendar Roger DeBaere Steve Eicher Gene Fisher Woody Guthrie Max Hosack Chris Lloyd Harold Long Howard Lyons Mario Mendez Tina Parmly Ron Polivka Allan Priest Robbie Robbins Robert G. Summers Don Van De Walker Arnie Weiss Dick Weyers Cliff Whisenhunt Production Foreman Vice President Gas Tank Paint and Decal Foreman Supervisor General Foreman Warehouse Manager Foreman, Jet Ski Department Maintenance Foreman, 2d Shift Assistant Personnel Director Supervisor, Wheels Department Supervisor Supervisor Paint & Black Line Depts. Foreman Production Superintendent Crating Foreman Foreman Personnel Director Production Foreman, Wheels Dept. Supervisor Foreman, Finishing Department Foreman, Bonding Department a Respondent's various answers did not specifically deny or admit the allegations respecting: Barkhurst. DeBaere, Fisher, Guthrie, Lloyd, Long, Lyons, Mondez, and Summers. Accordingly. I deem their status to have been admitted, as alleged. IV. THE MOTION TO CORRECT THE RECORD As noted, the General Counsel has filed a motion re- questing that I order the transcript to be corrected in more than 150 instances. Respondent has stated its oppo- sition to portions of the General Counsel's motion. I have reviewed the transcript and the requested cor- rections. The great majority of requested corrections relate to transcript errors which are plain and evident to any reader. Many other similar errors have been noted by me in this transcript but, since no motion has request- ed their correction, I make no findings with respect thereto. However, I find merit in the General Counsel's motion in each instance where he has requested a correction, other than those set forth below. Even though a number of the requested corrections were opposed by Respond- ent, I have granted the General Counsel's motion where the sense, spelling, or usage of the word or phrase in question seems evident from the context in which it was used. And in any instance where Respondent's opposi- tion has been unsuccessful, I note my reason therefor below. Finally, in the several instances where no party has requested, or opposed, a correction, but which I have made sua sponte, I set forth my reason(s) below. [Listing of corrections omitted from publication.] V. THE ALLEGED VIOLATIONS OF SECTION 8(A)( I )4 Allegations: It is alleged that on March 23, 1979, Dick Weyers threatened an employee with plant closure if em- ployees selected the Union as their representative (G.C. Exh. I(i), par. 5(a)), and threatened to impose more ardu- ous work duties upon an employee because of that em- ployee's union activities (G.C. Exh. I(i), par. 5(b)). Facts: In mid- or late March 1979, according to em- ployee Clover, Weyers held a meeting with the employ- ees in his department. Clover recalled Weyers saying that, if the Union got in at Kawasaki and if the Union tried to get a contract like the General Motors' contract, Respondent would not be able to afford it and would probably have to close the plant. She also recalled Weyers pointing at her, as she wore a button indicating allegiance to the Union, and saying that if he wished he could require her to sand mufflers, which she described as a "dirty job" and that he could give her a hard time for smoking a cigarette or for going to the bathroom too often. Weyers recalled the meeting, stating that he called it to tell employees of the election and to answer their questions to the extent permitted by law. However, he denied saying anything to Clover. He denied telling em- ployees of possible closure of the plant, or that he said anything about employees' usage of the bathroom. He went on to recite his own personal preference for the job of sanding mufflers. Conclusion: Clover was a more convincing witness than Weyers, who was nervous and vague. Clover's tes- timony is credited over that of Weyers in any instance of conflict, despite the failure of the General Counsel to ' During the course of the hearing, the General Counsel withdrew a portion of par. 5(a) and all of par. 5(f in Case 17-CA-8936. 507 DECISIONS OF NATIONAL LABOR RELATIONS BOARD corroborate Clover's testimony. It is concluded that Weyers' comments extended beyond the protections af- forded free speech commentaries upon economic necessi- ty and, as such, violated Section 8(a)(1) of the Act. Allegations: It is alleged that Tina Parmly, on or about March 23, 1979, threatened an employee with plant clo- sure (G.C. Exh. (i), par. 5(a)), and threatened to with- hold a promotion from an employee because of the em- ployee's union activities (G.C. Exh. (i), par. 5(c)), and threatened employees with the loss of their job reviews because of the employees' union activities (G.C. Exh. l(i), par. 5(d)), and on both March 18 and 23, 1979, threatened employees with the loss of unspecified bene- fits because of their union activities (G.C. Exh. I(i), par. 5(e)). Facts: Employee Thiellen testified that on March 23, 1979, Parmly told him and other employees meeting in the cafeteria that the requests to upgrade their depart- ment's labor grade(s) were "hung up" because of the union election, that their plant was a "very severable arm" of Respondent's company, and that Respondent would take better care of the people than the Union. Further, according to employee Leuty, Parmly con- ducted a meeting for employees at her desk in the finish- ing department early one morning in mid- to late March 1979. Leuty recalled Parmly stating that if the Union got in employees would have no voice regarding anything to do with their jobs, that they could either gain or lose benefits, and that there could be strikes which get "pretty ugly." Conclusion: Thiellen demonstrated good and precise recollection while testifying, giving a strong impression of credibility. Leuty, while giving a good impression for veracity, seemed unsure of details and prone to testify in conclusionary terms. However, Parmly was not called as a witness by Respondent to rebut any of the testimony of either Thiellen or Leuty. Accordingly, I conclude and find that both Thiellen and Leuty are to be credited, and thereby establish the accuracy of the allegations. Allegation: It is alleged that, on or about March 26 and 28, 1979, Hosack threatened employees by stating that their efforts to select the Union as their collective-bar- gaining representative would prove to be a futility, and by telling them that Respondent would close the plant if the Union were selected by the employees (G.C. Exh. l(n), par. 5(a) and (e), respectively). Facts: According to employee Bennett, Respondent held meetings of employees to introduce Butt,5 the new vice president, sometime during the time period of 2 months preceding the April 19, 1979, election. Later during the day of the meeting which Bennett attended Hosack walked up to him while he was working and told him that he was showing how little he cared about Respondent Company by wearing a button indicating support for the Union. Bennett testified that Hosack told him that the plant was a mere "drop in the bucket" com- pared to Respondent's facility in Japan, and that, if the ' That Butt met with employees, to be introduced and speak in general terms about the efforts then underway to unionize the plant, is not in dis- pute. Nor is the fact that such meetings occurred around the end of March. thereby establishing the general time of the events described by Bennett. Union got in, the Lincoln, Nebraska, plant would be closed, in his opinion. Bennett recounted Hosack's state- ment that there would definitely be a strike if the Union secured representational rights. Bennett also recalled that he and Hosack argued the matter for some 2 to 3 hours. Bennett next testified to a meeting conducted by Hosack approximately 2 weeks prior to the April 19 election, attended by himself, Hosack, and four others. Bennett testified that Hosack told this small assemblage in his office that Butt, with whom he had just met, would refuse to sign any contract with the Union, that Respondent was losing money and that if the Union got in Respondent would have to close down the plant. Hosack was said to have told them they would definitely have to go on strike if the Union should get in, and to have advised them to go out and buy walking shoes, evi- dently to be used by them while picketing. Bennett testi- fied that Hosack went on to say that Respondent would probably just fire all of them because he understood that the Union would desire that apprentice mechanics pos- sess better qualifications than theirs. Bennett's testimony regarding this latter meeting with Hosack has not, in my opinion, been corroborated by Slossen, who testified that "approximately in the last half of March 1979" Hosack walked into the cafeteria one night around 7 p.m. and reminded Slossen and other em- ployees that they had better have good shoes because they were destined to do a lot of walking, that Respond- ent would not accept the Union, that Respondent was losing money and might close the Lincoln, Nebraska, fa- cility, and that, even if the plant were not closed, Re- spondent would operate with supervisory personnel and hire a new complement of workers. I have difficulty accepting such testimony as corrobo- rative of Bennett's inasmuch as it places the meeting on a different date, at a different time of day, at a different lo- cation in the plant, and with different people present. And, if that were not sufficient to cause me to reject Slossen's "corroboration," I note that the testimony as to the substance of what was supposedly said by Hosack does not bear close analysis in an attempt to dovetail, or even reconcile, the two accounts. However, I find that, even absent corroboration, Ben- nett's version of these statements by Hosack must be credited. First of all, Bennett was candid and forthright in demeanor while testifying. While he manifested some inability to recall each detail, such as dates, with preci- sion, he was apparently testifying truthfully, without any attempt to mislead or enlarge. And, secondly, Hosack was not called by Respondent to refute Bennett's testi- mony. Respondent's counsel represented at the hearing that Hosack became ill during one of the hearing's adjourn- ments and, generally speaking, that the nature of Ho- sack's illness prevented him from testifying accurately. Additionally, Respondent's counsel placed certain medi- cal records into evidence purporting to show that Ho- sack's failure to testify was caused by his illness, rather than any reluctance of Respondent to call him as a wit- ness. 508 KAWASAKI MOTORS The records, which are clearly hearsay, purport to demonstrate that Hosack suffered an acute illness, start- ing in early October 1979, that Hosack was hospitalized for approximately 2 weeks, and that his illness manifested itself as a neurological problem resulting in seizures. In my opinion, Respondent has thereby satisfied its ob- ligation to demonstrate why I should not draw an unfa- vorable inference from its failure to call Hosack as a wit- ness. And I draw no such inference here, despite the fail- ure of Respondent to produce expert medical testimony concerning Hosack's condition at the time of the hearing. However, no matter how one may sympathize with Respondent's resultant inability to refute some of the tes- timony of the General Counsel's witnesses, neither is there any warrant for shifting the onus for the failure to produce Hosack to the General Counsel. Nor, I believe, is there any basis for failing to credit Bennett's testimo- ny, which, for whatever reason, stands unrefuted and ap- parently worthy of belief. Thus, I find that Hosack made the statements attribut- ed to him by Bennett and that a number of such state- ments were violative of Section 8(a)(1) of the Act, de- spite Bennett's admission that he and Hosack "had an un- derstanding" to tell one another exactly what they be- lieved concerning the subject of unionism. Allegation: It is alleged that Hosack threatened em- ployees with adverse action, plant relocation, or closure if they selected the Union (G.C. Exh. I(n), par. 5(c)). Facts: Around April 4, 1979, Bennett happened to mention to three fellow employees that he had purchased a motorcycle. Hosack was present and stated words to the effect that he did not understand how some people could undertake financial obligations, such as would be involved in purchasing a motorcycle, when they did not know where their income was coming from. Conclusion: For the reasons just stated, I have deter- mined that Bennett's testimony must be credited. And, it needs much imagination to view Hosack's words as any- thing other than a thinly veiled threat to the economic welfare of Bennett, particularly when it is recalled that Bennett was soon thereafter illegally discharged. Allegation: It is alleged that Calendar in mid-March and on March 27, 1979, threatened employees with plant closure if they selected the Union (G.C. Exh. I(i), par. 5(a)). Facts: Thiellen testified that on Monday, March 26, 1979, around 6:05, near the supervisor's desk, and with employees Hicks and Stick within earshot, Calendar came up to him and said he had heard through employee Haverkamp that Thiellen had been saying that it was il- legal for a plant to close because employees selected a union. Thiellen responded that it was illegal for a plant to close because of a union election and that it was also illegal to threaten to do so. Thiellen testified that Calen- dar loudly rejoined, "This plant can close at any time for any reason. You don't know what you are talking about." This led them to begin arguing as to which knew more about the law governing such conduct. So, on the following day Thiellen brought a copy of a judicial opin- ion to work with him. He spoke to Calendar around noon near the black line section, with employee Schwarz nearby. According to Thiellen, upon being shown the opinion, Calendar stated that he had no quarrel with what it said, but that he was bothered by the fact that the Japanese could take over the entire Lincoln, Nebras- ka, operation merely by using two unused production lines already in existence in Japan. When Schwarz asked why they did not, and Calendar said that the Lincoln plant was an experiment. Conclusion: As previously noted, I found Thiellen's tes- timony to be quite credible. Thus I have no hesitance in finding and concluding that the facts occurred as he tes- tified in the face of Respondent's failure to call Calendar in an attempt to refute Thiellen's story. And, while I can appreciate the sense of "provocation" perhaps felt by certain of Respondent's supervisors, there remains no excuse for any supervisor uttering so bald a threat as that contained in Calendar's statement that, "[t]his plant can close at any time for any reason," or in Calendar's allu- sions to the ability of Respondent to easily transfer the plant's work to Japan. Obviously, an employer may, under certain circumstances, close a plant, or relocate a production facility, but the breadth of Calendar's state- ments detracts from any attempt to color his words as lawful comments about lawful actions. Allegation: It is alleged that on or about March 27, 1979, Don Van De Walker threatened employees with plant closure if they selected the Union to represent them (G.C. Exh. (i), par. 5(a)). Facts: Employee Schofield testified that on or about March 23, 1979, while in the plant's lunchroom around 9:30 a.m., accompanied by employees Harm, Each, and Keys, he started a conversation with Van De Walker by inquiring whether he had advised employee Strough that if the Union got in the plant would move or close. Scho- field testified that Van De Walker replied by saying that in his opinion it would. Harm then protested that a fore- man had no right to tell employees the plant would close or move. At that, Supervisor Green' rejoined that if they did not like it there they could go to Russia. Schofield's testimony about this incident was substan- tially corroborated by employee Harm's testimony. Em- ployee Each, though called as a witness by the General Counsel, was not asked about this conversation. Employ- ee Keys, called as a witness by the Union, was not asked about this conversation. Van De Walker testified that he had responded to a question from Schofield about whether he had threat- ened Strough by denying that he had done so. He re- called that Harm and Green then loudly disputed a point of law before the entire group dispersed. Conclusion: Van De Walker exceeded the bounds of lawful commentary when he stated, without qualification other than the label of opinion, that the plant would move or close if the Union got in. Green's comment that employees who did not like it, apparently referring to Respondent's opposition to the employees' statutorily protected free choice, could go to Russia certainly did nothing but reinforce the coercive effect of Van De 6 Van De Walker had been seated with Supervisors Green. Janllsen, Goodwin, and Rable at the time that Schofield, Harm, and others ioined them, and Schofield put his question to Van De Walker. 509 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Walker's words, which I find to have violated Section 8(a)(1) of the Act. Allegation: It is alleged that on or about April 17 Hosack promised benefits to employees in return for the employees dropping their support for the Union (G.C. Exh. (n), par. 5(b)). Facts: I have not found evidence to support this allega- tion. And neither the General Counsel nor any other party addressed it in its brief. Conclusion: I therefore find and conclude that this alle- gation of the complaint should be dismissed as without merit. Allegation: It is alleged that on or about April 10 Dennis Butt told employees that the Union was responsi- ble for making bomb threats (G.C. Exh. I(n), par. 5(d)). Facts: Employee Berg testified that he spoke to Butt on or about April 10. This conversation began near his work station and came about at Berg's request. Berg made his request to be allowed to speak to Butt as a result of a notice posted upon the plant's bulletin boards. The notice recited that there had been two bomb threats at the plant, that such threats had caused Respondent to suspend all activity in the plant and thereby waste time. In fact, on one occasion the plant had in fact been evacu- ated. The notice stated: I do not know whether the timing of these threats is related to the upcoming election, but I do know that there is no past record of any such incident here at Kawasaki. I know also that the UAW has a record of occasionally inspiring certain individuals to take actions which are not always in the best in- terest of everyone involved. And I know lastly that the silence you hear upon returning to the plant after a bomb threat will become a permanent silence if we are to allow production to be continually in- terrupted. The notice went on to state Butt's intention not to allow such threats to go unchallenged and to seek the aid of employees in exposing whosoever was responsible for the threats in order to insure that production continued without interruption. Upon seeing such a notice, Berg asked his general foreman to arrange a meeting with Butt. This was done and at or about 2:45 in the afternoon. Butt and Summers came to Berg's work station. Butt and Berg sat down to talk. Berg told Butt that he was very unhappy about the posting since it left the implication that the UAW was responsible for the bomb threats. Berg stated that he felt this was a cheap shot and a low blow. He told Butt that he realized that the notice did not say specifically that the UAW was responsible but that he continued to feel that it implied that. Butt and Berg disagreed as to the meaning of the notice, even following a reexamination of it. Berg testified that during this reexamination Butt told him, "I do know that the UAW through past experience has inspired people to do things that they would not or- dinarily do, such as pushing baby carriages with babies in front of moving cars to stop them from going into a plant or something." Berg stated that Butt then went on to say that he did not understand how anybody could gain the impression that he was trying to blame the UAW for the bomb threat. At one point, Berg turned and asked the employees who were gathered around him and Butt whether they interpreted the notice as he did. Employee Kuntz stepped forward and responded affir- matively. At that, Berg told Butt that that was all he had to say, thanked him for his time, and left. Employee Kuntz also testified about this matter on behalf of the General Counsel. Her testimony however was quite vague and generalized, and it was quite appar- ent also that she simply had not been present to witness the events leading up to Berg's question which caused her to step forward and affirm that she believed that the notice amounted to a form of accusation. Nevertheless, I do believe that her testimony is corroborative of Berg's testimony to the extent that it indicates that she did re- spond affirmatively to the question he put to the gath- ered employees. Butt, on the other hand, was not called by Respondent to testify on this or other matters. Nor was Summers asked about this matter by Respondent, though it was unclear just how much of this may have been overheard by Summers. Conclusion: The fact that the notice was posted is not in dispute, nor is the language thereof.7 Nor is the testimony of Berg seriously contested, in the sense that any controverting testimony has been pre- sented. For Butt was not called as a witness and Sum- mers, though called, was not asked about this point. Thus, I credit Berg's testimony with respect to his con- versation with Butt. I confess that I am at a loss to understand precisely what the General Counsel is urging as a violation, that is whether he is urging that the language of the notice itself is violative or whether he is urging that the conversation with Butt contained some coercive content. In this latter respect, I note that considerable time was spent at the hearing, including this very allegation, attempting to find out what evidence related to which allegation in the var- ious complaints. On balance, from what the General Counsel had to say at the hearing as well as what he stated in his brief, I am inclined to believe that he seeks a finding of a violation based solely upon what was stated in the notice which Butt posted, and not upon what Butt had to say while conversing with Berg. ' The notice which the General Counsel originally placed in evidence (G.C. Exh. 9) differs somewhat from that which was eventually demon- strated to be a true copy of the notice which was placed on the bulletin board (G.C. Exh. 10). While the main body of the two notices is identi- cal. I believed it improper for the General Counsel to have knowingly offered into evidence any exhibit differing from the true original. This is especially so where the offer is not accompanied by any explanation. Thus, while at this point the discrepancy between the exhibit offered and that which was, in fact, the true copy of the original varies only in collat- eral respects, I think it evident that the determination as to whether or not such a variance is sufficiently important to deprive opposing counsel of cross-examination rights must not be left to the counsel for any party. Instead, I believe that that question must properly be presented to the presiding administrative law judge. For that reason, I adhere to my view expressed, during the hearing, that such conduct by the General Counsel impinges upon the hearing process. s However, I am unsure about that latter point. Among the reasons for my uncertainty I note once more that the General Counsel filed several Continued 510 KAWASAKI MOTORS And, again on balance, I find that Respondent's words reasonably conveyed the thought that the Union was re- sponsible for making bomb threats, and that further dis- ruptions of work would lead to plant closure or transfer of work from the plant to Japan or elsewhere. However, no evidence of linkage between such threats and the Union has ever been advanced. Overwrought partisans of unions and employers can and often do use the technology of telephones to hide some overzealous, cowardly, and dangerous act, such as making a bomb threat. But this can scarcely privilege an employer's threat to close or relocate its facility, at a time shortly preceding a representation election, for, pro- ceeding solely upon conjecture and speculation, as Re- spondent was doing, one might just as easily conclude that the alleged "threats" were fabricated by Respondent in order to form a basis for refusing to deal with the Union. Obviously, neither form of speculation is warrant- ed. Nor does my finding and conclusion lead to the view that bomb threats must be suffered in silence. To the contrary, I would have no difficulty in dismissing this al- legation had the unwarranted linkage of the threat to the Union not been made, or if the threat of plant closure not been woven into Respondent's notice. Accordingly, I find and conclude that Respondent vio- lated Section 8(a)(l) of the Act as alleged. Allegation: It is alleged that Van De Walker threatened employees on or about April 11 with plant closure if they selected the Union (G.C. Exh. (i), par. 5(e)). Facts: Following a mass meeting of day-shift employ- ees conducted by Butt on approximately April 11, em- ployees Schofield and Kalmbrunn testified as to state- ments made to them by Van De Walker. According to Schofield, he saw Van De Walker leave a conversation with Supervisor Robbins and employee Kalmbrunn and come to his work station. When Van De Walker got there he told Schofield that he had heard that Schofield was spreading rumors through the plant about him, Van De Walker. Schofield responded that the only thing he complaints with numerous allegations in them, that the evidence in this case was frequently difficult to tie up to the specific allegations being considered, and that the General Counsel was urged by me to issue a consolidated document so that every issue could be addressed at once, but he failed to heed the urging I gave him, and the hearing itself was quite lengthy. Thus, the possibility for error clearly exists. In this latter connection, I have read the case cited by the General Counsel, Medline Industries, Inc.. 233 NLRB 627 (1977). have failed to note any reference to either notices or bomb threats, the points for which I believe it was cited. However, I must confess my inability to state this with certainty because of the brief filed by the General Counsel which states at its con- clusion: "Counsel for the General Counsel does not abandon any theory or complaint allegation simply because it has not been specifically argued herein." The General Counsel's theory may be that I have a duty to search the record and find whatever violations may be there, regardless of whether they were argued or relied on at the hearing, or even urged in the brief. I would agree to some extent, but not to the extent apparent- ly desired here. This is especially so in a case where the hearing was drawn out from August 1979 through the end of January 1980, where the General Counsel had opportunities to amend his pleadings to conform to the evidence (since counsel had copies of much of the transcript literally months before the hearing was over) and the General Counsel failed to take advantage of those opportunities. Thus, when the General Counsel moved to conform the evidence to the pleadings, I did not hesitate to deny the motion, particularly in light of the fact that no specifics were pointed out. had "spread" was that Van De Walker had told him that he (Van De Walker) had told employee Strough that the plant would move or close. As Kalmbrunn remembered it, Van De Walker spoke to her after this meeting and then went over to Scho- field. She followed him. She recalled Van De Walker telling Schofield that he had told employee Strough that the plant could move or close but that that was just his own opinion. According to Kalmbrunn, when Schofield responded, "I understand," Van De Walker reiterated that he had just come over to make sure that Schofield understood that what he had said to Strough was just his own opinion. Van De Walker also recalled the incident. However, he stated that this occurred as a result of a request he had had from his superior to reassure Kalmbrunn that the plant would not be moved or closed and that he had not threatened anyone. As a consequence of this request, he approached her at work and told her that he wanted to assure her that he had never threatened anyone with closure of the plant. As Van De Walker recalled it, Schofield was working to the right of Kalmbrunn and he heard him mutter something. So he walked over to Schofield and said that he (Van De Walker) was a known quantity and that Schofield must know that he was not the type to threat- en anyone. However, he did recall that Schofield stated that what he had been stating was his own opinion, at which point he recalled that '.e thanked Schofield and then walked away. Conclusion: Schofield impressed me as a witness trying to be truthful. He had obvious difficulty in accurately re- lating the date of the conversation he had with Van De Walker, but not in a manner which would detract from his overall credibility. Kalmbrunn gave her testimony with composure, directness, and apparent accuracy. Su- pervisor Van De Walker also appeared to be a truthful and believable witness; he did however exhibit a tend- ency to become defensive and to attempt to anticipate and parry attacks upon his testimony before they had even developed. Thus, while the issue is close, I have determined to credit the testimony of Schofield and Kalmbrunn over that of Van De Walker in this instance, for the reasons set forth above. This leads me inevitably to conclude that Van De Walker had, indeed, uttered a threat of plant closure to employee Strough, and then repeated the essence of the threat to employees Schofield and Kalm- brunn. I find that this conduct violated Section 8(a)(1) of the Act. Allegation: It is alleged that, sometime during the week prior to April 11, Supervisor Robbins threatened em- ployees with closure of the plant if they selected the Union (G.C. Exh. (n), par. 5(e)). Facts: Kalmbrunn testified that in early April her su- pervisor, Robbins, spoke to her. Kalmbrunn admitted that she brought up the subject and indicated her indeci- sion about whether to be in favor of the Union or be against the Union. However, Kalmbrunn insisted that she did not ask Robbins his own opinion of unions and that Robbins simply went on and told her what he thought 511 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on his own volition. She recalled that he had told her that he once belonged to a union and felt that many times unions do more harm than good. She was specific in her recollection that he told her that the plant could close or that it might be moved if the Union were to be voted in. Conclusion: As previously noted, Kalmbrunn's testimo- ny has been found to be credible. Supervisor Robbins did not testify. Thus, I find that the conversation occurred as testified to by Kalmbrunn, and Robbins' gratuitous com- mentary was unprivileged threats of retaliation in viola- tion of Section 8(a)(1) of the Act. Allegation: It is alleged that on or about March 27 Su- pervisor Whisenhunt threatened employees with plant closure if the employees selected the Union as their col- lective-bargaining representative (G.C. Exh. (i), par. 5(a)). Facts: Employee Goebel testified that on March 23, shortly after beginning work in the morning, Supervisor Whisenhunt directed the employees in his department to go upstairs to the quality control conference room. Goebel stated that Whisenhunt talked to them, first qualifying his statements by saying that it was just his own personal opinion that he was expressing, that it would be possible that Kawasaki would close their doors. Whisenhunt told the assembled employees that they did not have to listen to him and that his statements were his personal opinion and not the opinions of the management of Kawasaki. Employee Harsh testified about attending the second meeting. However, according to Harsh, Whisenhunt started the meeting by stating that he firmly believed that if the UAW got in the plant's doors would be closed and the plant would be moved to Japan. He followed up by saying that Kawasaki could afford to move to Japan and questioning whether the individual employees could similarly afford it. However on cross-examination, she qualified her testimony by stating that he could have simply stated that he was telling the assembly his own beliefs and opinions. Conclusion: This allegation stands unrebutted since Su- pervisor Whisenhunt was not called as a witness by Re- spondent. Nevertheless, in view of the inconsistency be- tween the testimony of Goebel and Harsh, I have sub- stantial questions with respect to their credibility. Goebel possessed a rather poor recall of facts, but he did seem to recall with some certainty the disclaimers entered by Whisenhunt. Harsh, on the other hand, seemed to exhibit partisanship in favor of the Union while testifying. That she was careless with words is demonstrated by the manner in which she was forced to modify her testimony while being cross-examined. In light of the vagueness of the testimony of Goebel and my reluctance to credit Harsh, I have determined, despite the absence of rebutting testimony by Whisen- hunt, to reject the testimony of Goebel and Harsh on this point. Accordingly, this allegation of the complaint should be dismissed. Allegation: It is alleged that on at least three occasions in late March and early April with the exact dates being unknown, Butt promised benefits to Respondent's em- ployees in order to dissuade them from continuing their support for or activities on behalf of the Union (G.C. Exh. I(n), par. 5(b)). Facts: During the period preceding this election, var- ious agents of Respondent conducted numerous meetings with employees. As already noted, various supervisors and foremen conducted meetings within their own de- partments in addition to individual one-on-one discus- sions with employees. On still other occasions, employ- ees were brought together in larger groups so that higher officials within the Company could speak to them or even make slide presentations to them. Here, of course, the allegation relates to only one official of the Company, Dennis Butt. Butt was introduced to the employees at a meeting called for all first-shift employees and conducted in the plant's front wheel assembly area on approximately March 28. At that time, a visiting official from Japan, Yamada, introduced Butt as the plant's new manager. My sense of this meeting, as well as others similar to it, conducted in order to make sure that he was introduced to all of the plant's employees, is that Butt stepped up in front of each assembly, told the employees that he was anxious to do well in his new position, and exhorted em- ployees to trust him and other Kawasaki officials, giving them fair opportunity to correct whatever mistakes had been made in the past. And it is in connection with this reference to past mis- takes that the difficulty asserts itself. For Butt told em- ployees that he was aware that they were in the midst of a union election, but then went on to speak of Respond- ent's past mistakes (presumably speaking particularly of his predecessor in his job) and to state that those mis- takes would eventually be rectified. It also seems clear that he did not state specifically how those mistakes would be rectified except in one instance. According to a number of employees who testified in this case, Butt, during the course of his talk to employ- ees, held up for them to see a notice which had been posted in the plant by his predecessor in office. That notice had previously advised employees that, due to President Carter's wage and price guidelines, employees would not receive their anticipated annual wage increase and would, instead, be limited to merit increases. In this regard, Butt proceeded to tell the employees that the notice which he was holding up was one of the mistakes that he was referring to. With some apparent flair for the dramatic, Butt proceeded to tear up the notice in front of the employees, throw it into the assembled crowd before him, and declare that to be "what he thought of" the memo. Butt's presentation seemed uniformly to contain a disclaimer to the effect that he could not make employ- ees any promises, but then, inconsistently, to assure them that things were going to change. Conclusion: Butt's dramatic linkage of past mistakes to the repudiation of a policy which had the effect of pre- venting increases in wages can only be viewed as a veiled promise to increase wages, if only employees would "give him a chance." I find that the "chance" re- ferred to was synonymous with rejection of the Union. As such, Butt conditioned the repudiation of a policy preventing employees from receiving wage increases 512 KAWASAKI MOTORS upon the employees' rejection of the Union. I find and conclude that Butt thereby violated Section 8(a)(l) of the Act. VI. CASE 17-RC-8473 The Union's objections to the election closely parallel the unfair labor practice issues raised by the consolidated complaints herein. Pursuant to findings heretofore made, I shall sustain Objections 2, 3, 8, and 12 in view of my finding that during the critical preelection period Re- spondent, through its supervisors and agents, violated Section 8(a)(1) by promising benefits, by threats of plant closure, by threats to impose more arduous or onerous work duties, by threats to withhold benefits such as labor grades or job reviews or other unspecified benefits, by threatening that the employees' selection of a union would amount to no more than a futility, by threatening employees with plant closure or other adverse action in- cluding plant relocation if the Union were selected, by advising employees that the Union was responsible for making bomb threats at the plant, and by actually dis- charging a union supporter as a reprisal for having en- gaged in union activities. In my opinion, these unfair labor practices disrupted conditions enabling a free and uncoerced choice in the election. On the other hand, I shall overrule Objection 4 inas- much as the evidence fails to support the allegation of in- terrogation, even insofar as it indicates that employees were forced to wear insignia or reveal their prounion sentiments by their failure to do so. I shall overrule so much of Objection 8 as pertains to the threat to bargain from scratch in the event the Union won the election, in- asmuch as the evidence fails to convince me that such threats were made in a manner having a substantial impact upon the election. Likewise, I shall overrule Ob- jection 14, inasmuch as I do not believe that the unfair labor practices mentioned above, while serious and per- vasive, amount to a "campaign of intimidation and fear" by threats of violence, strikes, or loss of jobs and cus- tomers. Similarly, I shall overrule Objection 15 inasmuch as I believe that such a threat as was made by shutting down the plant's operations and advising employees that they should listen to the "sound of silence" created by the advent of the Union, with the implicit threat that the plant would become permanently silent, is, in fact, em- bodied within Objection 3 and will be remedied by my sustaining that objection.9 VII. THE UNION'S REQUEST FOR A BARGAINING ORDER In considering the proper remedy in this case, the im- portant question of whether or not to order that Re- spondent bargain collectively with the Union is present- ed by the Union's motion that I issue such an order. The Union argues that the unfair labor practices committed by Respondent herein are aggravated in nature, and have pervaded the election process to the extent that a fair election is unlikely to be held in the future. o No factual discussion of this threat is deemed necessary, as the C.P. Exh. I demonstrates that Butt did, in fact, have the plant shut down briefly. Of course, such a bargaining requirement may be im- posed under the authority of N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). In that case, the Supreme Court plainly emphasized the law of this land to be that an employer which deliberately clogs the machinery of the statutory Federal labor elections system cannot be heard to complain if its employees' representation desires are determined by less reliable means than a secret-ballot election, such as their signed bargaining authorization credentials. And it does seem less than fair that an em- ployer may thwart employees' free choice by engaging in unlawful conduct well calculated to coerce and intimi- date, thereby undermining and eroding the Union's base for support. Additionally, the Union's base for support at the plant is eroded by the mere passage of time. In this case, the passage of time since the petition was filed herein now exceeds 2 years. Of course in determining whether or not an employ- er's activities have so poisoned the atmosphere that the likelihood of a free and uncoerced rerun election may be held, one must take into account the seriousness of an employer's unfair labor practices. And it must be pointed out that the discharge of union adherents is among the most serious of unfair labor practices. Such unfair labor practices have been determined to form a valid basis for imposing a bargaining obligation. N.L.R.B. v. Sitton Tank Company, 467 F.2d 1371, 1372 (8th Cir. 1972); A. J. Krajewski Manufacturing Company, Inc., 180 NLRB 1071 (1970). I have found that the Employer committed such activities here. However, it must still be noted that a precondition to a Gissel bargaining order is that the union held a valid "card" majority in the bargaining unit. United Dairy Farmers Cooperative Association, 242 NLRB 1026 (1979).'° Clearly, no such showing has been made in this case. Indeed, no such showing has even been attempted. While perhaps the dual eroding effects of the passage of time and the employer's unfair labor practices have, therefore, resulted in successfully thwarting the employees' legiti- mate desires for collective representation I have no alter- native, in my opinion, but to deny the requested relief. VIII. THE DISCHARGE OF DAN BENNETT A. General Statement Dan Bennett was initially employed by Respondent on February 7, 1977, and continued working there until April 10, 1979, at which time he was fired. He worked at several jobs while there. He began his last job for Re- spondent in October 1978 when he transferred to the maintenance department, under the direction of Max ' I am mindful that the U.S. Court of Appeals for the Third Circuit recently remanded this case, after affirming the Board's findings of unfair labor practices, for reconsideration of the question of whether or not a bargaining order may be issued without a demonstration of majority sup- port for the union. United Dairy Farmers Cooperative Association v. N.L.R.B., 633 F.2d 1054 (3d Cir. 1980). However, in addition to signifi- cant differences between that case and this, I have no warrant for failing to follow the Board's precedent, even in cases where a true conflict ap- pears between the Board and one or more courts of appeal. Iowa Beef Packers. Inc.. 144 NLRB 615, 616 (1963): Peavey Company. 249 NLRB 853 (1980). 513 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hosack, working the 4:30 p.m. to 1:30 a.m. shift. Bennett was regarded as a good employee and received three pay raises in the year or so preceding his discharge. He was an adherent of the Union during both preelec- tion campaigns conducted in 1978 and 1979. He signed an authorization card on behalf of the Union and wore both T-shirts and buttons asserting his allegiance to the Union. Additionally, in the campaign preceding the second election, he talked to approximately 50 fellow workers on behalf of the Union and passed out buttons for others to wear. He served as a member of the Union's organizing committee, and the button which he wore so identified him. B. The Discharge On April 9, 1979, Hosack directed Bennett to do the job of preventive maintenance for a period of I week, as a fill-in for a vacationing fellow employee. This job re- quired, so Bennett testified, that each machine in the plant be lubricated and inspected according to a monthly schedule, but with the work essentially being done at the employee's own pace, without close supervision. Bennett began his last night of work at Respondent at 5 p.m. He worked without incident until around 1 o'clock the next morning. At that time he pushed his equipment cart over to an area nearby the next two jobs on his list. When he got there he noted a Reader's Digest magazine laying there. So he sat down on some alumi- num rafters stored nearby and began to read "Laugh- ter-The Best Medicine." Behind him was the degreaser and he was off in a corner of the plant. Bennett testified that he was not hiding or making any attempt to hide." He was about 10 to 12 feet from an aisleway, from which he could be clearly seen. Bennett says he sat there only a short time, just long enough to read half a page, when Hosack walked up. Bennett said, jokingly, "You caught me sitting down." Hosack agreed and told him to punch his timecard out for the night. Bennett asked why and Hosack responded, "You are not supposed to be sitting down on the job." Bennett rejoined that he had been working hard that night and was tired, so that he had sat down for a rest while he read one page. Hosack repeated his direction to punch out and told Bennett he would ask the personnel department to suspend Bennett for 3 days. Bennett said that he had done no more than was common practice, and said that preventive maintenance was done at the employee's own pace so long as the scheduled goals of maintenance were met. Hosack replied that he had never heard of anyone sitting down to read books. Their argu- ment continued until Hosack told Bennett he was lucky not to be fired on the spot. Bennett was told to come back the next day after first calling Hosack. Bennett urged Hosack to check the records to see how much maintenance Bennett had performed that night, but Hosack refused. Around 10 a.m., Hosack phoned Bennett and told him to report to Summers' office at 4 p.m. " Instead he vehemently asserted that such "breaks" were routine for maintenance employees; many others engaged in like conduct without ad- verse consequences, even though some might do so for lengthy periods or, even in one case, for long enough to read a complete novel. When Bennett arrived there, he was met by Hosack, Summers, and Dave Fairbanks, Hosack's superior. Sum- mers said that he had heard Hosack's story and that he wanted to also hear Bennett's. Bennett exclaimed that he did not understand what he had done that was wrong, that he had worked hard and that the records would bear him out. He also pointed out that he was a "really good employee," and had never been warned or repri- manded. Hosack interrupted to correct that he had been warned to wear his safety glasses. Bennett agreed, but argued that had never been "a problem." Hosack also noted he had been caught on a forklift truck. Bennett again agreed that he had been caught, but noted that nothing had ever been said. He went on to tell them what happened the night before, and to reiterate that he had an excellent work record, telling them that he thought a 3-day suspension was totally unfair. Bennett was then asked to wait outside the office. He did so for about 30 minutes. He was then called back and Summers told him he was being terminated because Hosack could no longer trust him. Bennett argued that he was trustworthy, and that, even if he were not, Re- spondent's own records would show that he worked hard and well. He asked to speak to Summers in pri- vate.12 When the others had left he told Summers that Hosack had been a problem, not only for him but also for others as well. He reiterated his good record for 3 years of work and asked to be reassigned anywhere in the plant. Summers refused, so Bennett gave up and left the plant, not to return. C. The Defense Respondent urges that, regardless of his reason, Ben- nett's reading break was unauthorized, and of a sort which he knew to be frowned upon by his supervisor. Additionally, Respondent contends that Bennett's break was substantially longer in duration than depicted in his testimony, that it makes no sense to suppose that Ben- nett's union activities should have so suddenly proven unbearably repugnant to his superiors, and that neither the severity of the discipline imposed nor the failure or refusal of Respondent to carefully investigate Bennett's alleged wrongdoing are of any legitimate concern to me in this decision. D. Bennett's Discharge Was Unlawful I conclude that the General Counsel has made out a prima facie showing sufficient to support the evidence that Respondent discharged Bennett because of his union activity." a Bennett's sympathies and activities in support of the Union had been open and were admittedly well known to Respondent. The timing of the discharge cannot be ignored simply because Respondent had been aware of his advocacy of the Union for a long time; in- stead, as has been shown by its activities in connection 12 At one point during the interview Bennett asserted that if it were not for the upcoming union election such drastic discipline would not have been considered. Summers responded that the Union had nothing to do with the action taken. "' See Wright Line. a Division of Wright Line. Inc., 251 NLRB 1083 (1980). 514 KAWASAKI MOTORS with the election campaign in the March-April 1979 time frame, Respondent harbored a virulent hostility toward unionization. That hostility manifested itself with illegal threats that the plant would close, that it would move, that employees' jobs would be transferred to Japan, by threats to take benefits away from employees, by promis- ing benefits to employees if they rejected unionism, and by granting benefits in order to induce them to do so. Thus, it begs the question for Respondent to simply ask whether Bennett had engaged in misconduct, or to note that he might have properly been subjected to some form of discipline for having sat down to read a page from Reader's Digest's section of "Laughter-The Best Medicine." Instead the proper question is whether or not the evidence demonstrates that were it not for his union activities he would have suffered the same fate, i.e., eco- nomic capital punishment. I find, on balance, that he would not and that his discharge was, therefore, discrim- inatory in nature. The decision to fire Bennett was made by Summers following consultation with Hosack, Fairbanks, and Butt. His decision, so he testified, was predicated solely upon Bennett's misconduct in sitting down to read a magazine the night before. Summers testified that Bennett's duties required that he perform them throughout the plant, and that he be alone, relatively "unsupervised," when doing so. But while Summers conceded that there were ma- chines in the area where Bennett was "caught" by Hosack, he hedged his answer as to whether or not Ben- nett had, in fact, been performing maintenance duties upon them. In this respect, he lacked credibility, as he did when he testified that Bennett had told him, while making a plea for his job, that he had intended to simply read a magazine for the remainder of his work shift when he was "caught" by Hosack, another 30 or 40 min- utes. In evaluating allegations of discriminatory conduct, the pivotal factor is motive. N.L.R.B. v. Lipman Broth- ers, Inc., et al., 355 F.2d 15, 20 (Ist Cir. 1966). For, while it is true that an employer may discharge for a good reason, a bad reason, or no reason at all, it is also true that an employer may not discharge when the real moti- vating factor is to do what Section 8(a)(3) forbids. Great Plains Beef Company, 241 NLRB 948 (1979). And, fur- ther, while I must be careful not to substitute my own subjective judgment of what I would have done in Re- spondent's position, Grand Auto, Inc., d/b/a Super Tire Stores, 236 NLRB 877, fn. 1 (1978), and while I must ac- knowledge that simply because discipline may seem ex- treme it does not follow that the assigned reason for dis- charge was pretextual, J. Ray McDermott & Co., Inc., 233 NLRB 946, 952 (1977), neither does it follow that simply because valid grounds for discipline may have ex- isted that the termination was lawful. N.L.R.B. v. Texas Independent Oil Company, Inc., 232 F.2d 447, 450 (9th Cir. 1956). For an employer's motives may be mixed, and the effect is the same as if the illegal reason were the only operative reason. Construction, Production & Mainte- nance Laborers' Union Local No. 383, etc. (William Pulice Concrete Construction), 236 NLRB 125 (1978); N.L.R.B. v. Ayer Lar Sanitarium, 436 F.2d 45, 50 (9th Cir. 1970), and cases cited therein. An employer may not resort to even a valid reason for discipline as a means of building a case against an employee due to his union activities, United Aircraft Corporation v. N.L.R.B., 440 F.2d 85, 92 (2d Cir. 1971), or as a result of a campaign of "watchful- ly waiting for .... union enthusiasts to give the ... slightest reason or pretext to get rid of them because of their union activities." Lipman Brothers, Inc.,, 355 F.2d at 21. Both the Board and the courts have held that "if the stated motive for a discharge is found to be false, it can be inferred that the motive is an unlawful one which the respondent desires to conceal, at least where the sur- rounding facts tend to reinforce that inference." First National Bank of Pueblo, 240 NLRB 184 (1979); Shattuck Denn Mining Corporation (Iron King Branch) v. N.L.R.B., 362 F.2d 466, 470 (9th Cir. 1966). Moreover, if a supervisor, upon whose report an action is taken, was discriminatorily motivated in making such a report, there is no question but that the report must itself be considered the cause of the action, and that any resulting action must be regarded as discriminatory. Bechtel Corporation, 195 NLRB 1013, 1020 (1972). Thus, Fairbanks' testimony4 that Hosack had assured Summers that no prior similar incidents were known cannot shield Respondent. In this case it appears that the sudden decline in the level of tolerance shown by Hosack, and the "un- trustworthiness" shown by Bennett, coincided with the peaking of both Bennett's union activities and the Em- ployer's antiunion campaign. Such circumstances give rise to an inference that an employer's stated reason for discipline was false. See, for example, All Brite Window Cleaning and Maintenance Service, Inc., 235 NLRB 596, 602 (1977); The Youngstown Osteopathic Hospital Associ- ation, 224 NLRB 574 (1976); Holiday Inn of America of San Bernardino, 212 NLRB 280 (1974), enfd. as modified 512 F.2d 1171 (9th Cir. 1975); Shasta Fiberglass, Inc., 202 NLRB 341 (1973). And while, as noted earlier, I am not free to substitute my judgment for that of Respondent, neither am I free to blind myself to the inferences which logically arise during an inquiry into Respondent's moti- vation where Respondent's actions seem atypical. The fact that the Employer failed to heed Bennett's re- peated pleas to simply look at his record to see how much he had done detracts from Respondent's credibility in its assertion of a valid reason for discharge. Compare Tama Meat Packing Corp., 230 NLRB 116 (1977). This conclusion seems doubly reasonable where a sea- soned and good employee, such as Bennett, was summa- rily discharged, thereby apparently causing Respondent to face the prospect of replacing him with someone un- seasoned; in this connection I note that Bennett was al- ready a replacement for a vacationing employee. Com- pare N.L.R.B. v. Davidson Rubber Co., 305 F.2d 166, 169 (lst Cir. 1962); N.L.R.B. v. Local 776, IATSE (Film Edi- tors), 303 F.2d 513, 519 (9th Cir. 1962), cert. denied 371 U.S. 826 (1962). " Fairbanks' testimony lacked credibility. Despite repeated attempts to have him cease testifying in vague and conclusionary terms, he persisted I am unable to believe his testimony on any point short of an admission. 515 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In sum, Bennett was apparently a vocal and active supporter of the Union. Respondent was adamantly op- posed to unionization and an election was soon to be held. When Bennett engaged in activity which arguably constituted misconduct, but which was clearly of a rather minor nature, similar to that which had been countenanced on many occasions previously, 5 he was summarily discharged while Respondent adamantly re- fused to consider or review its own records of how much work he had produced during the time in ques- tion. 6 I am persuaded that, on balance, had Bennett not been the strong union activist he was, and had the elec- tion not been imminent, Hosack's level of intolerance would not have been so substantially increased and Ben- nett would simply have been told to return to work, either when Hosack first saw him or as soon as he had completed his rest, and that, if any discipline at all had been meted out, it would have been no more than a mild rebuke. 7 For while there is no quarreling with Respond- ent's position that it must be able to maintain high stand- ards of productivity, neither can it be gainsaid that Re- spondent may not enforce such standards only against those who happen to be leading or ardent supporters of the Union. Accordingly, I find and conclude that Respondent's evidence is not sufficient to furnish an adequate defense to the General Counsel's prima facie case. Summers' tes- timony regarding the discharge of another maintenance employee, Sorrell, demonstrated the comparatively pre- cipitous nature of Respondent's action in firing Bennett, who was accused of no more than an offense against property. Sorrell, on the other hand, was accused of the much more serious conduct of threatening a supervisor. The General Counsel's documentary evidence, drawn from Respondent's own files, shows that Sorrell was issued a series of written warnings, growing out of a series of incidents over a period of several months, some of which had the potential for violence. From all that appears Respondent had and used at least a rough form of progressive discipline when dealing with Sorrell, who was evidently not known as a union activist. Bennett, on the other hand, was quickly fired for a lesser offense, previously countenanced, despite Ben- nett's good record and in the face of his unavailing ef- forts to persuade Respondent's officials to even look at ~5 Bennett's testimony to this effect was credibly delivered. It is also noted that Hosack was not called to testify to deny Bennett's testimony. And, as previously noted, I have not found Hosack's medical condition sufficient to overcome credible evidence. ' It is not even clear that what Bennett did would amount to "miscon- duct"; for I am convinced by the evidence that maintenance workers must, by the very nature of their jobs, work at a pace motivated in large part by their self-discipline, which will satisfy an employer if the results demonstrate that the machinery has, in fact, been serviced properly. I do not believe that Respondent could credibly contend that it requires each and every employee, including those working upon periodic maintenance activities, to behave in such a "nose to the grindstone" fashion that an employee may not legitimately take a short restbreak. " For example, employee Slossen credibly testified, corroborating Ben- nett, that he and others were similarly "caught" by Hosack only days before Bennett was "caught." Yet Hosack merely caused them to return to work. There is no explanation readily apparent for the differing level of tolerance extended to them and Bennett other than Bennett's leading role in the efforts to unionize. its own records which Bennett contended would demon- strate that he had been working diligently. The disparate treatment thus demonstrated seems to have little possibility of explanation other than that con- tended by the General Counsel and the Charging Party, i.e., that Bennett was subjected to summary, harsh disci- pline because of a desire by Respondent to rid itself of his union activism shortly before the election. Accordingly, I find and conclude that Respondent ille- gally discharged Bennett as alleged in violation of Sec- tion 8(a)(3) and (1) of the Act. It seems clear that, at the least, Bennett's break cannot be correctly characterized as unauthorized. Nor is it clear just how Bennett's "trust- worthiness" could be legitimately impugned based on the evidence at hand. It seems more likely that Hosack's ex- treme reaction to Bennett's alleged misconduct was predicated upon his sense of "how little" Bennett cared for the Company, as demonstrated by Bennett's wearing of a prounion badge or otherwise demonstrating a lead- ership capacity on behalf of the Union. Nor should Ho- sack's scarcely veiled warning, days before, that Bennett had been foolish to buy a motorcycle since he had no as- surance of continued employment, be disregarded when considering Hosack's motivation. I conclude, therefore, that Hosack, and others, illegally, seized upon this inci- dent in an attempt to manufacture "just cause" to dis- charge Bennett, in violation of Section 8(a)(1) and (3) of the Act. IX. THE DISCHARGE OF CONNIE CLARE A. General Statement Connie Clare began working for Respondent in April 1977, eventually being assigned to a series of departments and jobs. She received a written warning in late 1977 or early 1978, calling upon her to improve her attendance, increase her production, and be more consistent in main- taining high standards of quality. Her job review was postponed for 30 days in order to give her an opportuni- ty to improve her performance. She was specifically warned that her production should be improved by spending more time working and less in the bathroom or talking. Ultimately, however, she succeeded in earning a work review and a merit wage increase (although Re- spondent contends that such an increase bore little or no relationship to true merit). As the Union's initial organizational effort began, Clare became an open advocate of the Union. She joined the organizing committee, 18 signed an authorization card, and passed out other materials from the Union to other employees prior to the first election. Clare's union sympathies were known to her superiors and, quite obviously, did not evoke their approval. On one occasion, 9 Priest walked up to her and inquired ' Wearing a type of button which identified her as a member of the committee, as opposed to the majority of buttons which merely bespoke one's allegiance. t9 These incidents are recited to demonstrate Respondent's knowledge of and animus toward Clare's union sympathies and activities. There is no claim that violations of Sec. 8(a)(I) of the Act should be found on these bases, apparently since the evidence would be time barred for such a pur- pose. 516 KAWASAKI MOTORS about the button she was wearing. She told him that it was a button to indicate that she was a member of the Union's organizational committee. He turned and walked away. On another occasion, Priest told his employees in the crating department that they would lose their benefits if the Union were elected. Clare, though not a member of his group, was seated nearby; Priest noted her presence by pointing his finger at her and inviting her to come over and speak to his employees if she had anything to say. The bell then rang and employees returned to work. But Priest then came up to Clare and asked privately why she favored the Union, after noting that Respondent could promise better benefits if the employees voted against the Union. Priest20 then warned against any "union people fucking around with my people." 2' B. The Discharge and the Warnings Clare worked through the time of the June 2, 1978, election until June 22, 1978. At that time, so Respondent claimed in her unemployment compensation proceeding, she was fired for poor attendance and violation of com- pany policies. Her policy violations were said to include smoking in no smoking areas, leaving work early, and sitting down on the job, "after being duly warned." However, it is undenied that she was not told she had been fired until sometime in the latter part of August. Clare had gone on maternity leave on June 29, 1978, and was scheduled to return to work on August 29, 1978. Respondent contends that it determined to fire Clare in June and delayed telling her of its plan not to allow her to return from her impending maternity leave out of concern for her medical well being as the baby's birth approached.22 A few days after the election, on June 7, 1978, Clare was given a written warning by Barkhurst and Polivka. This warning mentioned a series of incidents alleged to have occurred between April 24 and May 24, three con- sisting of poor or slow workmanship, two of failure to wear safety glasses, and one of using Barkhurst's chair to sit down while working on the assembly line. The warn- ing additionally noted her frequent and extended trips to the bathroom, as well as the bad effect her performance was said to have upon the morale of fellow workers. Contrary to several assertions within the warning itself, Clare claimed never to have been warned about any of these matters, and refused to acknowledge receipt of the written warning by signing it on its face. 20 Clare's testimony about these incidents was undenied. 2 I do not credit the quavering. biased, and unlikely testimony of Moore that Summers told him, a supervisory trainee at the time, that Clare and other known union sympathizers would be "taken care of' after the election. Nor do I credit the biased and implausible testimony of Sargent, also a supervisory trainee, that Summers told him and others that union adherents were to remain emplosyed "on borrowed time." In these respects, I credit the denials hy Summers. 22 It is noted that she asked fr and secured an extension of her mater- nity leave pursuant to a telephone call of August 7 and another of August 17 to Respondent. Her August 7 call noted to Respondent that her child had been born. No mention of her termination was made to her at that time, however, or on either August 12 or 17, when she again phoned relative to the maternity leave extension. On June 26, 1978, Clare received still another written reprimand which contained a warning of termination for failure to correct the matters set forth in the reprimand or if she violated any other standards set by Respondent. This reprimand related to five incidents. Two of them related to the very day of her first warning, June 7; it was alleged in the reprimand that Priest had warned her on June 7 about the quality of her work, and that Priest had observed her failure to avoid talking and return to work promptly from the bathroom. One related to June 12 when she was alleged to have returned late from her break, and to have been smoking in a high risk area. On June 16 Clare was said to have left her shift several min- utes early, spending the time in the bathroom, before "dashing" out to have her timecard punched. And final- ly, on June 22 Clare was said to have been smoking and idling near the end of her shift. C. The Defense In response to the allegations that Clare was both warned and discharged illegally, Respondent contends that Clare's discharge was amply warranted by the inci- dents set forth above. It is further contended that the to- tality of such incidents points up Respondent's justifica- tion in concluding that Clare should be regarded as a poor worker. And finally, as with all other allegations, Respondent contends that, if violations of the Act oc- curred, they have already been remedied. D. Clare's Discharge and Warnings Were Lawful Each of the parties has exhaustively tried and briefed the issues pertaining to Clare. She was shown to be a union loyalist, though I am unconvinced that a fair read- ing of the record will demonstrate that her union activi- ties were greater, or more offensive to Respondent, than those of many other employees. And the timing of her written warnings does cause some suspicion, coming as they did so soon after the initial election campaign. Such circumstances might easily lead one to infer that Re- spondent "lay in wait" for Clare's smallest error, and amassed a record. 23 Here, however, I cannot conclude that the evidence supports the inference that Clare would not have been discharged had she not been engaged in union activities. For, despite the suspicious circumstances noted above, and despite my conclusion stemming from other evi- dence in this case that Respondent would have had little reluctance to violate the Act, I believe that Clare's work furnished Respondent with ample cause for discipline. And I am unable to conclude that she would not have been disciplined, or that the discipline would not have taken the form of warnings and discharge, had she not been a union sympathizer and, to some extent, an activ- ist. I say all of this while mindful of the failure of Re- spondent to produce such important witnesses as Priest 2:1 Clare testified that she was not warned or told that the incidents were serious. I do not credit her in this. Instead. I believe that she simply failed to comprehend the jeopardy presented to her continued employ- ment. 517 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Barkhurst. I believe that I must infer from this fail- ure that their testimony would have proven unfavorable to Respondent's position had they testified. But, having said all this, I am still unable to avoid the obvious truth that Clare's discriminatory treatment must be proven by credible evidence. For I find that Respond- ent's inconsistencies are insufficient to do more than raise suspicions, rather than convince. For Clare's testimony was itself replete with inconsis- tency or fabrication. As I watched her testify, I conclud- ed, from both her demeanor and her testimonial inconsis- tency, that she has an ability to inwardly excuse any fault, to shift the blame to others, to prevaricate, and to hedge her answers. In short, she impressed me as an un- reliable witness, whose account of past wrongs must be drastically discounted. With regard to virtually every incident mentioned in the warnings given her in June 1978, she testified that she had never been previously advised of any such defi- ciency in her work. Yet she admitted on cross-examination that she already knew that she was on worktime when she sat down to smoke in her regular department after returning from an- other area where she had been "loaned" for the day. Thus, I fail to see how any alleged failure to warn her of adverse consequences could somehow make it all right for her to sit down and smoke, despite it being near the end of the workday. She also admitted that Priest had, indeed, told her to return to work promptly, after she had been using the restroom one day, when he observed her standing out- side its door on the loading dock, either talking to or lis- tening to a forklift driver named Muffley. She also admitted that Priest had, on or about June 7, 1978, rebuked or instructed her on how to tape parts to mirrors. The fact that Priest's rebuke or instruction to her did not "register" with Clare as justified cannot de- tract from the fact that it was given, or from its evident contradiction of her testimony that she was not ever no- tified of these incidents' potential harm to her work record. Similarly she recalled being late in returning from break on June 12, 1978. She excused it as being justified by her desire to seek out Barkhurst and talk over her maternity leave. But I believe she must surely have known that she could not return late from a break with- out, at the least, making prior arrangements with her su- pervisor to be given extra time to attend to such adminis- trative matters. Regarding the reprimand for failing to wear safety glasses, Clare's affidavit of September 12, 1978, contra- dicts her testimony about never having been previously warned. But again, she excused this by noting that she had never heard of anyone being "written up" for such an offense. While I would agree with her that such an offense seems trivial, I cannot agree with the inference she seems to advance, that Respondent was not within its rights in demanding adherence to safety standards by its employees, even if they had been engaged in union activ- ities. Clare testified that she did not regularly go into the restroom to smoke before leaving work, and that she did so only on June 16, 1978. Yet in her September 12, 1978, affidavit, Clare claimed that she had been doing this almost every day that she worked there. Clare sought to excuse the various inconsistencies be- tween her testimony during the hearing and that which she had previously given in various affidavits to Board personnel and to an agent of the Charging Party. She did so by noting that she was so busy with caring for her children that she became confused while giving her affi- davits. But while Clare impressed me as a sincere and earnest person, and while I have no reason to doubt her testimony to the effect that she became confused while giving affidavits, I cannot find these inconsistencies to be adequately justified or warranted. Indeed, much of what I have set forth above seems to corroborate her asserted state of "confusion." But, having observed her attempts to testify credibly, and to rehabilitate her earlier testimo- ny, I am constrained to note that, however sympatheti- cally I may view her plight, I remain unable to attach much credence to her testimony as a whole. Instead, I can only observe that she seemed unable to testify con- sistently, or in a manner not patently self-serving. Contrary to Clare's depiction of herself as a good and steady worker, willing to accept instruction and responsi- bility, Respondent presented the testimony of a number of Clare's former coworkers. Maxine King's testimony was thoroughly credible and, in sum, depicted Clare as a worker who failed to carry her fair share of the work- load, thereby causing a morale problem to develop, which eventually resulted, in April 1978, in several em- ployees complaining about Clare's work habits to super- vision. Her testimony was supported in many respects by that of Dorothy Anderson, who, while somewhat excit- able as a witness, was also credible. Similarly, the testi- mony of Laverne Kumm, while somewhat lacking in de- tails, was nonetheless believable. I conclude that the General Counsel's evidence makes out a prima facie case that Clare's engagement in protect- ed conduct was a motivating factor in Respondent's deci- sion to discharge her.24 However, I also conclude that the General Counsel's case is quite weak and that Clare's deficiencies as a witness detract even further therefrom. While Respondent's evidence 25 regarding its motivation in withholding the notice of her discharge from Clare, and even its basis for determining to discharge, seems suspiciously contrived, I have concluded that such evi- dence, whatever its infirmities, does demonstrate that Clare would have been warned and discharged even in the absence of her union activities. I therefore find that Respondent did not violate the Act by disciplining or discharging Clare in any manner alleged. I shall, accord- ingly, dismiss each allegation of wrongdoing by Re- spondent relating to Connie Clare. 24 See Wright Line. a Division of Wright Line. Inc.. 251 NLRB 1083 (1980). 2s In this connection, I specifically note that I was not favorably im- pressed with Respondent's evidence regarding the timing of its announce- ment to Clare that a decision had been reached to terminate her; nor was I favorably impressed with Respondent's apparent inability to consistent- ly state the basis for its decision to discharge. 518 KAWASAKI MOTORS X. THE "FASHION FAIR" DEFENSE I reject Respondent's argument that no remedy is needed in this case. The essence of that argument stems from Board precedent indicating the Board's approval of an employer's efforts to halt the effects of its own il- legal activity. In the case of this particular Respondent, a panel majority of the Board, over the vigorous dissent of the Chairman, determined that a notice posted by Re- spondent was sufficient to "expunge the ill effects nor- mally incident to [illegal] activities" and, accordingly, dismissed certain allegations of a complaint. While I applaud any efforts made by Respondent to limit or halt the effects of its own wrongdoing, I must note my own doubts that the Board's pronouncements on the subject may be said to have ever risen to the level of a "doctrine," as characterized by Respondent. Instead, each case cited by Respondent, or which I have read in- dependently, leads me to conclude that the Board has carefully avoided such a conclusion. It is my opinion that the thrust of such cases is to encourage attempts to cease or remedy wrongdoing but, all the same, to reserve the vindication of public rights to the Board itself. In any event, there are substantial reasons to believe that the "doctrine" should not be applied in this case. First of all, the "doctrine" has already been applied to this same Respondent. Yet, only a year or two later, it is observed that this Respondent engaged in numerous and serious unfair labor practices, and interfered unlawfully with the employees' free choice in a representation elec- tion. Secondly, the very severity, breadth, and variety of unfair labor practices committed by this Respondent seem to fatally detract from the good impact its disclaim- ers might have had to dispel any lingering coercive ef- fects among its employees. In short, I know of no valid reason many employees, either witnesses to or victims of unlawful action by Respondent, might have for trusting the words of Respondent regarding its intentions to re- frain from illegal activities in the future. Thirdly, the "disclaimers" were very general in their language. This defect might not be viewed as being of great moment had the disclaimers not also so vigorously protested Respondent's innocence of all wrongdoing. And finally, I believe that a remedy is needed for Re- spondent's flagrant interference with the free choice of the electorate, regardless of what the assurances against future wrongdoing might have been. Similarly, I have determined that employee Bennett is entitled to reinstate- ment and backpay. Respondent's notices to employees fail to make provision for any of these needed remedies. XI. PROCEDURAL AND EVIDENTIARY MATTERS In the course of this hearing a number of motions were addressed to me. In most instances, I ruled on them at the hearing; often rulings were reserved; in still other instances, motions were renewed after my ruling. Included among the motions were those of the Gener- al Counsel that I rescind or modify the views expressed "2 Fashion Fair. Inc.. Srernberger Brothers. Inc.. and Cinbo, Inc., 159 NLRB 1435 (1966); see also. for example. Kawasaki fotors Corporation USA, 231 NLRB 1151 (1977). involving this same facility. as findings in my letter-order dated December 5, 1979 (G.C. Exh. I(ii)), that I strike the testimony of certain witnesses for having violated the rule of sequestration, and that I allow the General Counsel's pleadings to be conformed to the proof offered in this case. Also included are Respondent's motions that I strike certain testimony because of the General Counsel's fail- ure to provide Respondent with copies of affidavits, and Respondent's motion for a mistrial, essentially based on the same conduct. Having now reviewed the record, I have determined to overrule all outstanding motions by any party. I do so because of my belief that the record adequately explains and supports each ruling I made during the hearing, as well as this ruling dealing with all remaining motions. The record seems adequate to enable any party ag- grieved by my rulings to secure proper review thereof. However, I grant the General Counsel's post-trial motion to amend its brief to me by substitution of a new page which corrects the inadvertent typographical omis- sion of one line. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Respondent having discriminatorily discharged Dan Bennett, I find it necessary that Respondent be ordered to reinstate him to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, dismissing, if necessary, anyone who may have been hired to perform the work which he was per- forming at the time of his severance on April 10, 1979. Additionally, Respondent will be ordered to make Dan Bennett whole for any loss of earnings he may have suf- fered by reason of his unlawful termination. Backpay is to be computed in the manner prescribed in F. W Wool- worth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).27 THE OBJECTIONS Having found that the Employer engaged in preelec- tion misconduct interfering with the laboratory condi- tions required for a free and uncoerced choice on the question of representation, I shall recommend that the election of April 18, 1979, be set aside and that a rerun election be conducted at such time as the Regional Di- rector for Region 17 deems appropriate. CONCLUSIONS OF LAW I. Respondent is an employer within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By discharging Dan Bennett on or about April 10, 1979, because of Bennett's support for and activity on 27 See, generally. Isis Plumbing Heating Co., 138 NLRB 716 (1962). See also Olympic Medical Corporation. 250 NLRB 146 (190). 519 DECISIONS OF NATIONAL LABOR RELATIONS BOARD behalf of the Union, Respondent has violated Section 8(a)(3) and (1) of the Act. 4. By promising benefits to employees in order to per- suade them to stop supporting the Union, and by threat- ening to discharge, to impose more onerous job duties, to close or move the plant or any of its work, to withhold promotions, job reviews, or benefits, or to make employ- ees' selection of a union futile, Respondent violated Sec- tion 8(aX1) of the Act. 5. The above unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 6. Respondent has not engaged in unfair labor prac- tices other than those specifically found herein. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 2 The Respondent, Kawasaki Motors Corporation, U.S.A., Lincoln, Nebraska, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Discharging, laying off, or otherwise discriminating against employees in regard to their hire or tenure of em- ployment because of their activities on behalf of a labor organization or for engaging in any activity protected by Section 7 of the Act. (b) Threatening employees with discharge or other re- prisals because of their activities on behalf of or support for International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW) or any other labor organization. (c) Promising benefits to employees in order to per- suade them to stop their activities on behalf of or sympa- thies in favor of a labor organization. :a 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 becomes its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Dan Bennett immediate and full reinstatement to his former or substantially equivalent position of em- ployment if his former position of employment no longer exists, without prejudice to his seniority or other rights and privileges, and make him whole for lost earnings in the manner set forth in the section of this Decision enti- tled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all per- sonnel records and reports and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its Lincoln, Nebraska, facility copies of the attached notice marked "Appendix."29 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's au- thorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the representation elec- tion conducted on April 19, 1979, in Case 17-RC-8473 be, and the same hereby is, set aside, and that Case 17- RC-8473 be, and the same hereby is, remanded to the Regional Director for Region 17 for the purpose of con- ducting a new election. 29 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 520