Champion Road Machinery International Corporation

CHAMPION ROAD MACHINERY Champion Road Machinery International Corpora- tion and International Association of Machin- ists and Aerospace Workers, AFL-CIO. Cases I -CA-9637 and 11-CA-9699 September 30, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND ZIMMERMAN On February 25, 1982, Administrative Law Judge J. Pargen Robertson issued the attached De- cision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed cross-exceptions and a sup- porting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 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, Champion Road Machinery International Corporation, West Columbia, South Carolina, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph 2(d) and re- letter the subsequent paragraphs accordingly: "(e) Expunge from its records any reference to the unlawful discharge of Dennis Nipper and notify him in writing that Respondent's unlawful conduct will not be used as a basis for further personnel ac- tions." I Respondent and the General Counsel have excepted to certain credi- bility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolu- tions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings 2 In adopting substantially all of the Administrative Law Judge's find- ings, Chairman Van de Water would not find that Supervisor Charland's remark that he could not grant an early performance review because it might be deemed a bribe was violative of Sec. 8(aXI). Nor would he find that Charland's interrogation of an employee why employees wanted the Union and how the Union could help them was violative of Sec. 8(aXI) because the individual to whom the query was addressed was openly wearing a union button and was a wvell-known union adherent. 264 NLRB No. 123 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT tell our employees that we cannot grant early reviews because it would look like bribery due to the organizing cam- paign. WE WILL NOT refer to an employee as a troublemaker, and tell other employees they cannot be assigned to work with that employ- ee because of his union sentiments. WE WILL NOT interrogate our employees about our employees' union activities and feel- ings. WE WILL NOT tell our employees that their work has been changed and they are being as- signed to an area where a supervisor can keep an eye on them because they are talking to other employees about the Union. WE WILL NOT tell our employees "you know you're in trouble" in reference to our belief the employees favor the Union. WE WILL NOT threaten our employees with discharge for telling the employees "I hate to see you starve" because of the employees' union activities. WE WILL NOT threaten our employees with loss of jobs if the employees keep "messing" with the Union. WE WILL NOT threaten unspecified reprisals by our manager of employee relations threat- ening to be "a real bastard" because of our employees' efforts on behalf of the Union. WE WILL NOT threaten our employees with delays in reviews and promotions by telling them that another company delayed reviews and promotions when its employees selected the Union. WE WILL NOT threaten our employees that they are being denied a transfer to another de- partment because they are talking about some- thing they should not in reference to the Union. WE WILL NOT discharge or refuse to rein- state our employees because of their union ac- tivities. WE WIl.L NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed 927 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them by Section 7 of the National Labor Rela- tions Act, as amended. WE WILL offer immediate and full reinstate- ment to Dennis Nipper to a position in pro- duction control in view of our action in deny- ing Nipper transfer to that department because of our belief he was talking to employees about the Union or, if a job no longer exists in production control, to a substantially equiva- lent job without prejudice to his seniority or other rights and privileges. WE WILL make Dennis Nipper whole for any loss of earnings he may have suffered by reason of our discrimination against him, with interest. WE WILL expunge from our records any ref- erence to the discharge of Dennis Nipper and notify him in writing that this has been done, and that evidence of these unlawful actions will not be used as a basis for future personnel actions. CHAMPION ROAD MACHINERY IN- TERNATIONAL CORPORATION DECISION STATEMENT OF THE CASE J. PARGEN ROBERTSON, Administrative Law Judge: This case was heard in Columbia, South Carolina, on November 30 and December 1-4, 1981. The complaint issued on March 11, 1981. The charge in Case 11-CA- 9637 was filed by International Association of Machinists and Aerospace Workers, AFL-CIO (herein called the Charging Party or the Union), on January 13, 1981, first amended on January 19, 1981, and second amended on March 6, 1981. The charge in Case 11-CA-9699 was filed by the Union on February 6, 1981. The complaint alleges that Champion Road Machinery International Corporation (herein called Respondent) engaged in con- duct violative of Section 8(a)(l) and (3) during a union organizing campaign during December 1980 and January 1981. Numerous instances of independent violations of Section 8(a)(1) are alleged. The 8(a)(3) allegations in- volved the discharge of employee Joey Starnes on De- cember 9, 1980, and the discharge of some 30 other em- ployees on December 26, 1980. Respondent filed a post- hearing brief. I have considered that brief and the Gener- al Counsel's oral argument as well as the entire record in making my decision. I. BACKGROUND' Respondent, a subsidiary of a Canadian corporation, is engaged in the manufacture of motor graders at its plant I Respondent admitted the commerce allegations in the complaint. On the basis of the allegations and admissions, I find that Respondent is, and has been, at all times material herein, an employer engaged in commerce within the meaning of Sec 2(6) and (7) of the Act. Respondent also ad- in West Columbia, South Carolina. The Union recently engaged in two organizing campaigns at Respondent's West Columbia facilities. Although the Union represents employees at another of Respondent's facilities in Canada, it was unsuccessful in both of the recent orga- nizing campaigns in South Carolina. The first of those campaigns resulted in an election on September 6, 1979. As to the organizing campaign, which is most directly involved in these proceedings, the Union filed a repre- sentation petition in Case 11-RC-4951 on December 18, 1980. The allegations herein allegedly occurred during that campaign which began before December 18 and ex- tended through early 1981. As shown hereafter, the alle- gations include numerous instances of 8(a)(1) activity during December 1980 and January 1981. As to those al- legations, I shall treat them in the order in which evi- dence was received at the hearing. 11. THE 8(A)(1) ALLEGATIONS A. Pat Pinkstaff 1. January 15, 19812 Pinkstaff testified that he asked Supervisor Glen Char- land if his "interview was still in effect." Pinkstaff testi- fied that Charland told him that he could not give one at this time, that "it would look like bribery" to the other employees. Supervisor Glen Charland admitted that he had a con- versation similar to the one alleged by Pinkstaff. Char- land testified that what was involved was an early per- formance review which had been requested by Pinkstaff. Charland admitted telling not only Pinkstaff but two other employees that he could not grant early perform- ance reviews during the union campaign. Charland ad- mitted that he told Pinkstaff "that it would look like a bribe." Conclusions No rebuttal testimony was offered to Charland's testi- mony that the January 15, 1981, conversation involved Pinkstaff's request for an early review. Therefore, I find that the evidence indicates that in response to Pinkstaff's request for an early performance review on January 15, 1981, he was told by Supervisor Charland that he could not receive one at that time because it would look like a bribe. Charland admits, and I find, that he was referring to the union campaign in denying Pinkstaffs request for an early review. Although the question of granting increased benefits may present the employer with a dilemma, it is not always necessary to confront the dilemma head on. Em- ployers have frequently complained that the Board finds an unfair labor practice regardless of whether the normal mitted, and I find, that the Charging Party is a labor organization within the meaning of Sec. 2(5) of the Act. 2 Pinkstaff was asked about January 15. 1980. However, it appears that the relevant date was actually January 1981. Pinkstaff was testifying about incidents which allegedly occurred during the 1980-81 campaign. and Supervisor Charland testified that the conversation occurred in mid to late January 1981. Therefore, I find that the conversation occurred in January 1981 rather than January 1980. 928 CHAMPION ROAD MACHINERY practice of granting increases is continued or whether the practice is discontinued because of a union campaign. (See Planters Peanuts, A Division of Standard Brands, Inc., 230 NLRB 1205 (1977); Big G Supermarkets, Inc., d/b/a Town and Country Family Center, 219 NLRB 1098 (1975); Diamond Motors, Inc., 212 NLRB 820 (1974); Domino of California, Inc., 205 NLRB 1083 (1973).) Here, however, Respondent was not faced squarely with the dilemma of whether to grant or deny increased bene- fits-the question here is whether the supervisor should have told the employees that the practice of granting early reviews was being discontinued because of the Union. In my opinion, a statement such as Charland's is without purpose other than to coerce employees to the detriment of their Section 7 rights. Charland's problem was not the question of granting or denying a raise, but simply how to respond to Pinkstaffs inquiry. Charland could have denied or granted Pinkstaffs request for an early review without justifying his position by reference to the union campaign. Perhaps he would have eventual- ly faced the wage increase dilemma, but his action was, at best, premature. I find the comment violates Section 8(a)(l). 2. January 20, 1981 Pinkstaff testified that Supervisor Charland asked him to perform a new job, and Pinkstaff replied that he did not understand the job fully and requested someone in the area to demonstrate the job for him. Pinkstaff testi- fied that the only person in the area was employee James Sturkie, but that Charland told him that he could not put Pinkstaff and Sturkie together because "that wouldn't look very well." Pinkstaff testified that he asked Char- land what he meant, and Charland replied that "James Sturkie was just a trouble maker." Charland admitted having the conversation as testified to by Pinkstaff. When asked what he meant by his com- ments, Charland testified that he "believe[d] at that time when we were talking about the union and Mr. Sturkie and Pinkstaff spent a lot of time together, and I didn't want on company time for people to be talking all the time, and so I told Pat to stay away from Sturkie." Conclusion On the basis of the testimony of Pinkstaff and Char- land, I find that Charland informed employee Pinkstaff that he could not work with Sturkie on the occasion be- cause Sturkie was a "trouble maker." In view of Char- land's admissions, I find that he was referring to Sturkie and Pinkstaff spending time together in relation to the union discussions. I find this constitutes an 8(a)(l) viola- tion. 3. January 28, 1981 Pinkstaff testified that he had another conversation with Charland on January 28 in which Charland asked him "why the employees 'out there' wanted a union, how the union could help them." Pinkstaff testified that he replied, "More benefits and a little bit of job secu- rity." Charland admitted that on the occasion testified to by Pinkstaff, Pinkstaff had called him over and that during the course of the ensuing conversation he asked Pinkstaff why the employees wanted the Union, how the Union could help the employees, and why Pinkstaff wanted the Union. Charland testified that there was no doubt in his mind at the time that Pinkstaff favored the Union, and in fact Pinkstaff was wearing a hat with the union insignia and a union button. Conclusion In view of the uncontested testimony, I find that on or about January 28, 1981, Supervisor Charland asked em- ployee Pinkstaff why he and the other employees wanted a union and how the Union could help. Regardless of an employee's position regarding a union, comments such as these have a tendency to inhibit employees in the exer- cise of Section 7 rights and are violative of Section 8(a)(1). Against the background of other 8(a)(1) viola- tions, and particularly other 8(a)(l) conduct by Charland, his comments to Pinkstaff constitute interrogation in vio- lation of Section 8(a)(1). (See Colson Equipment, Inc., 257 NLRB 78 (1981).) 4. January 28, 1981 Pinkstaff testified that as he was concluding the above conversation with Supervisor Charland, Manager of Em- ployee Relations Heywood Hornsby walked up. Pink- staff testified that he asked Hornsby about the shutdown in August. Pinkstaff testified that they had had a shut- down during the previous August. He testified that he asked Hornsby about the upcoming August because his wife was planning a vacation in August and he wanted to know if the shutdown would still apply for the coming year. Pinkstaff testified that Hornsby told him that he did not know "if we would be here in August," and "that some of us would be here and some of us would not be here." Heywood Hornsby admitted having the conversation as related by Pinkstaff. In explanation, Hornsby testified that Pinkstaff had asked him who would be working in July. Hornsby admitted telling Pinkstaff that he did not know. Hornsby testified that Respondent had had a shut- down the previous year and that it had announced that everyone was going to be gone during that shutdown, but that it then had to turn around and ask certain people to stay because of some production problems. Hornsby testified that he did not want to make the same mistake again and, therefore, he told Pinkstaff that they were going to have a shutdown, but that he did not know who was going to be there-that somebody would be there and someone would not, that he did not know. Hornsby testified that he did not hear any comments about the Union between Pinkstaff and Charland prior to the above conversation he had with Pinkstaff. Conclusion In view of the uncontested testimony, I find that the above conversation did in fact occur. However, there was no evidence to indicate that the above conversation had any connection whatsoever with the Union, and in fact the only evidence demonstrated that the conversa- tion related to incidents which occurred during the 929 DECISIONS OF NATIONAL LABOR RELATIONS BOARD summer of 1980 and incidents which were planned for the summer of 1981 without regard to any union activity. Moreover, the evidence fails to show that Hornsby was doing anything other than responding directly to ques- tions from employee Pinkstaff and that Hornsby's com- ments did not contain threats. In view of the occurrences during the past summer, it appears that Hornsby was doing nothing more than advising Pinkstaff as to what he felt may be the situation during the shutdown in the coming summer. That was precisely what Pinkstaff had asked. Therefore, I find that the evidence demonstrates no threat to Pinkstaff because of the employee's union activities. B. James Sturkie 1. January 1981 James Sturkie testified that during January 1981 he asked Supervisor Glen Charland why he was being treat- ed the way he was. Sturkie testified that there had been a change in his work habits and that he was placed in the pinion mount area away from other employees. Stur- kie testified that Charland told him that they had put him in that particular area in order "to keep an eye on me, to isolate me." Supervisor Charland admitted that he did in fact place James Sturkie so that he could keep an eye on Sturkie. Charland testified that it was impossible to isolate any- body in the weld shop, but that he had moved Sturkie so that "I could keep an eye on him, yes." In explaining his position, Charland testified that Sturkie was the type who likes to "talk to people a lot." Charland testified that he wanted to keep an eye on him and keep Sturkie in his work area because Sturkie would hold other people up from talking. As to the allegation of isolation, Charland testified that Sturkie was not isolated, that he had a guy working right beside him maybe 6 to 8 feet. Conclusions As indicated above, in response to testimony regarding the allegation that Charland had identified Sturkie as a troublemaker, Charland testified, "I believe at that time when we were talking about the union and Mr. Sturkie and Pinkstaff spent a lot of time together, and I didn't want on company time for people to be talking all the time, and so I told Pat to stay away from Sturkie." In view of this testimony and Charland's admissions regard- ing keeping an eye on Sturkie, Charland was apparently associating Sturkie's activities with the union campaign. The evidence supports, and I find, that Sturkie was placed in the position where Charland could keep an eye on him because of Charland's concern that Sturkie was talking about the Union with other employees. Other evidence indicates that Sturkie created difficul- ties for Respondent of another nature. Several weeks before the incidents complained of above, Sturkie and former employee Joey Starnes built a wood stove on company time. Because of that activity, Sturkie and Starnes were removed from an area where they had little direct supervision. Certainly that activity on the part of Respondent appears to be justified without regard to Sturkie's union activity. However, in view of the lapse of' time and in view of the testimony of Charland connect- ing Sturkie's talking with the union campaign, it is appar- ent, and I find, that Charland's comments to Sturkie during January 1981 were directly related to Sturkie's activities in talking to other employees about the Union rather than to Sturkie's earlier activities regarding the wood stove. I find that Sturkie was told by Supervisor Charland that he was being placed so that Charland could keep an eye on him because of Sturkie's activities with other employees regarding the Union in violation of Section 8(a)(l). 2. January 15, 1981 Sturkie testified that on January 15 he was approached by Jerry Roberts. Roberts asked Sturkie what good Stur- kie thought a union could be and also asked Sturkie if he did not know that South Carolina was a right-to-work State and that the Union could not possibly do any good there. Sturkie testified that he told Roberts two or three times that he did not want to talk to him. Sturkie testi- fied he asked Roberts what position Roberts had with the Company, and Roberts replied that he was a supervi- sor. Sturkie testified that he told Roberts that he did not have any right to come up to him like that. Jerry Roberts admitted having a conversation as relat- ed by Sturkie. Roberts testified that he had no doubt at that time that Sturkie was very much in favor of the Union. Conclusion In view of Sturkie's testimony and admissions by Rob- erts, I find that Roberts did question Sturkie as related by Sturkie on or about January 15, 1981. Respondent contends that Roberts was not a supervisor at the time of this conversation. During Roberts' testimony he identi- fied his position as that of "Supervisor, Analyst." Rob- erts testified that he supervised one clerk-type person whom he shared with different people in the department. When asked if he had authority to hire or fire employ- ees, Roberts responded that he did not have authority "entirely on my own." Roberts explained that, in the event of a vacancy or other situation, he would go to his immediate supervisor and make a decision "in conjunc- tion with (my supervisor)." Roberts also testified that he was eligible to vote in both union elections and that he did in fact vote during the 1981 election. Roberts testi- fied that the work of the clerk under him is more or less routine and that she works independently. Roberts testi- fied that it is very seldom that he would give her some- thing brand new that he wanted her to accomplish. Rob- erts allows the employee to take off at her request only after he clears the request with his supervisor. Frank Shealy testified that he must authorize Roberts' alleged supervisory actions and that he makes decisions on all those matters independently of Roberts' recommenda- tions. I find that the General Counsel failed to prove that Roberts qualified as a supervisor. (The Washington Post Company, 254 NLRB 168 (1981); Hydro Conduit Corpora- tion, 254 NLRB 433 (1981).) Therefore, I find that the 930 CHAMPION ROAD MACHINERY evidence does not demonstrate that Respondent is ac- countable for Roberts' comments to James Sturkie. 3. December 1980 Sturkie testified that during early December 1980 he had a conversation with Manager of Employee Relations Heywood Hornsby regarding the Union. Sturkie testified that he had that conversation with Hornsby in the per- sonnel office because he wanted to find out what the Company's views were on the Union. Sturkie testified that he had a "down-to-earth talk" with Hornsby and, as he started to leave after talking for some 30 minutes or so, Hornsby asked him if he would be able to support them in their cause. Sturkie testified that he responded that he did not know, but that he would think about it. Hornsby admitted that following a request by Sturkie that he would like to discuss his and Hornsby's views on the union situation, he and Sturkie did have a conversa- tion about the Union. Hornsby testified that at the end of the discussion when Sturkie was leaving, "I indicated to him and said, 'James, I hope that you will be able to sup- port the company's cause."' Conclusions It appears from the testimony of both Sturkie and Hornsby that the conversation did occur in early De- cember 1980. Their versions do not vary significantly re- garding the substance of this conversation. The only dif- ference appears to be in Sturkie's appreciation that he was being asked a question at the conclusion of the meet- ing when Hornsby commented that he hoped Sturkie would be able to support the ('ompany's cause. In view of the overall tenor of that conversation as testified to by both Sturkie and Hornsby to the effect that it was a down-to-earth conversation which was called at the request of Sturkie, I have determined that Hornsby's comments do not constitute a violation of the Act. Athough neither Sturkie nor Hornsby testified as to the substance of the meeting, it appears from their over- all testimony that the meeting included candid comments from both men as to their views. Against that back- ground, it appears more probable, and I find, that Hornsby's comments at the conclusion of the meeting were in the nature of closing his summation and to the effect "I hope my comments have convinced you to sup- port the Company's cause." Moreover, even if the con- struction placed upon the comments by Sturkie is found to be correct, I tend to think that a question of that nature in that context would not be a violation of the Act. Hornsby's comment in the context of the meeting requested by Sturkie does not appear to be of the type which the Board has consistently found violative, i.e., in- terrogating an employee as to his union beliefs. There- fore, I find that comments by Heywood Hornsby on this occasion do not constitute a violation of Section 8(a)(1). 4. The Christmas party a. Joy Avery James Sturkie testified that on December 20, 1980, he attended a Christmas party at the home of Supervisor Clarence Atkins. While there, he saw Joy Avery near the bar. Sturkie testified that Avery said to him, "You know that you are in trouble, don't you?" Sturkie testi- fied that he replied, "Maybe I am," and turned and walked off. Joy Avery, who testified that she is Respondent's af- firmative action officer and benefits coordinator, 3 ad- mitted attending the Christmas party at the home of Clarence Atkins, but denied that she had even had a con- versation with James Sturkie. Conclusion James Sturkie admitted that he was under the influ- ence of alcohol at the December 20 Christmas party. However, his testimony demonstrated a clear recollec- tion. I was generally impressed with Sturkie's demeanor. In other aspects his testimony was either corroborated or not disputed by adverse witnesses called by Respondent. As to Joy Avery, I find her a witness who demonstrat- ed competent recollection. However, as to her denial of the conversation with Sturkie, I was less than impressed. Avery testified that the type of comment alleged by Sturkie was precisely what she had been cautioned against by Respondent's labor attorney. In observation of the demeanor of Avery and Sturkie, I am convinced and find that Sturkie was truthfill in regard to their Decem- ber 20 conversation. I find that Avery was correct in her assessment that comments of that type are precisely what an employer's agent should avoid. Both Avery and Stur- kie knew full well that he was being warned because of his union activity. That comment constitutes an 8(a)(l) violation. b. Russ Floyd Sturkie testified that he also had a conversation with Supervisor Russ Floyd during the December 20 Christ- mas party. Sturkie testified that Floyd told him that he did not think the Company needed a union; and, after Floyd listened to some of Sturkie's views, Floyd told Sturkie that he could possibly help Sturkie out, that he had a couple of strings that he may be able to pull. Later, on redirect, Sturkie testified at more length as to the extent of their conversation. Sturkie testified that Floyd told him that he knew that Sturkie really was not a union man: He felt that I was a company man more or less, that they needed to start listening to the employees out there because it was not only going on in my behalf but other employees, it was just common confu- sion. .... He told me that he knew that he had one string that he could pull, that he was going to try and get me a meeting with the President. Sturkie testified that he had been told before that talking to the president would not do any good. Sturkie testified that Floyd felt like he had been abused, and he said that he would see what he could do for Sturkie. ' Respondent admitted the complaint allegations that Joy Avery was at material times an agent of Respondent 931 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Supervisor Floyd was called by Respondent. Floyd testified that he had only a vague recollection of the dis- cussion that night with James Sturkie because he was too drunk. Conclusion The testimony of both Floyd and Sturkie reveals that both men had a good bit to drink at the December 20 Christmas party. The conversation as recalled by Sturkie reveals as much. However, there is nothing in his testi- mony that reflects anything other than an exchange of strong feelings for and against the Union. His testimony reflects nothing of the nature alleged in the complaint. The complaint alleges that the Act was violated by Russ Floyd interrogating an employee on December 20. I see nothing in the testimony of James Sturkie to support that allegation. C. Joseph Lawson 1. Early December 1980 Joseph Lawson testified that as he was passing through the weld shop in early December with employ- ee Herb Betzhold, Heywood Hornsby said to him, "I hate to see you starve." Lawson turned around and asked Hornsby if he was speaking to him, and Hornsby replied yes. Lawson asked what Hornsby meant, and Hornsby replied, "Keep messing with the third party, you and your family might starve." Lawson testified that he replied, "No, sir, I wouldn't," and turned and walked away. Heywood Hornsby denied that he ever had a conver- sation like the one related by Lawson above. He further testified that he never said to Lawson that he would hate to see him starve or that if Lawson kept messing with the third party, that he would starve. Conclusion Joseph Lawson did not impress me as a witness who would fabricate an incident out of whole cloth. His other alleged 8(a)(i) incident was corroborated by Supervisor Glen Charland. Although Heywood Hornsby occasional- ly admitted conversations which were alleged as viola- tions, he did so only when he also testified as to nonvio- lative bases for those conversations. I am more inclined to find, and I do find, that the conversation occurred as related by Lawson. The absence of corroboration by em- ployee Betzhold is bothersome. However, I note that neither the General Counsel nor Respondent offered evi- dence in explanation of Betzhold's absence. Betzhold was not shown to have been terminated. Therefore, I shall not determine that Betzhold's absence reflects detrimen- tally on Lawson's credibility. Hornsby's comments are clearly coercive, and I so find. 2. Late November/early December 1980 Lawson testified that at the end of November or the beginning of December he was approached in the weld shop by Supervisor Glen Charland. According to Lawson, Charland said that "he wouldn't have to worry about me much longer because if I kept messing with the union that I would be fired." In his pretrial affidavit and on cross-examination Lawson testified that he felt certain at the time Charland made the above comment to him that Charland was joking. Supervisor Glen Charland admitted having the con- versation as related above by Joe Lawson; however, Charland testified that he was pretty sure that Lawson understood that he was making the above-mentioned comments in a joking manner. Charland testified that he frequently joked with Lawson and the other employees and that he was "just picking on him." Conclusion The Board has frequently held that even though com- ments like those made by Supervisor Charland on this occasion were made in a joking manner, it is nevertheless reasonable to expect that such comments have an inhibit- ing effect. (Ethyl Corporation, 231 NLRB 431, 434 (1977).) Here, the comments were made to Lawson early in the 1980 union organizing campaign. The words clear- ly demonstrated to Lawson that his union activities were well known by management. Even though made in a joking manner, the comment "that I would be fired" demonstrates accepted belief that this is what may occur to employees who engage in union activity. Therefore, I find that the likely effect of Charland's comments was coercive and violates Section 8(a)(1). D. Christopher Spires Former employee Christopher Spires testified to the following alleged 8(a)(1) violation: December 23, 1980 Christopher Spires testified that on the above date, which was the last day before the Christmas holidays, he asked Heywood Hornsby if Hornsby was ready for the vacation. Hornsby replied that he was ready for the holi- days so that he could go home and kick his shoes off and forget about the place for 2 weeks. But, when he came back, he was going to be "a real bastard." Spires asked why, and Hornsby replied, "You-all are trying to put something in." Spires testified that Hornsby then paused for a second, and then he said, "in." Spires asked what he was talking about, and Hornsby allegedly replied, "You know what I'm talking about." Spires then asked, "What are you talking about?" and Hornsby would not reply. Heywood Hornsby admitted having a conversation on December 23 similar to the one related by Spires. How- ever, Hornsby testified that he did not make a comment in the nature of "when you guys try to bring in some- thing like." Hornsby testified that he was referring to the difficulties he had had at the plant during the time imme- diately preceding this conversation. Conclusion I was impressed with Spires' demeanor. Again, I note Hornsby's tendency to only admit those conversations where he alleges a nonviolative motive behind his com- ments. Spires' testimony does not reflect comments of a 932 CHAMPION ROAD MACHINERY type which would lend themselves to fabrication. I have concluded that Spires' version should be credited. His testimony reflects coercive comments by Hornsby which are violative of Section 8(a)(1). E. Cecil Dupree Early December 1980 Former employee Dupree testified that he had a con- versation with Heywood Hornsby in early December concerning a pay raise. Dupree testified that he asked Hornsby, "how an employee, two employees who are doing the same job, and one got an 18 cent raise and one got a 51 cent raise, and he told me that he was checking into it." Dupree testified that Hornsby told him and em- ployee Ernie Russell, who was present, that "we should learn to bend with the wind." Dupree replied, "I was tired of bending and I was tired of being screwed." Dupree testified that Hornsby then said "that he had done me a favor before and that I should watch my step." Hornsby admitted that he had the conversation sub- stantially as testified to by Dupree. Hornsby testified that the favor he made reference to was an incident in mid- summer regarding overtime when he took a stand which prevented the discharge of Dupree. As to the alleged threat that Hornsby told the employees that they should watch their step or be careful, Hornsby said he was simply telling them to back off. Apparently from the tenor of his testimony, Hornsby was contending that he was telling the employees to back off and not make strong comments to him in the nature of the Company screwing them. Conclusion Both the testimony of Dupree and Hornsby demon- strates that Hornsby's comments were directly related to the conversation itself. Only through a contorted inter- pretation of Hornsby's comments could there be a deter- mination that they had reference to union activity. I have determined that such an interpretation would be unreasonable under the circumstances. Moreover, I find that Hornsby was not referring to the Union or protect- ed activity when he told the employees to watch their step. It is apparent, and I find, that he was simply refer- ring to their strong comments about the Company. Therefore, I find no violation in this instance. F. Tommy Wadford December 10, 1980 Former employee Wadford testified that he had a con- versation with Supervisor McDaniels regarding the Union on the above date in his work area on the assem- bly line. Wadford's most detailed testimony of this con- versation occurred during cross-examination where he testified as follows: I was between stations 5 and 6 on the Assembly Line hooking up the intake system on a GM-471 on a 710 and Louis walked by; and I just happened to glance over and see him walking by, and I said, "What is going on," or something like that; and he climbed upon the tandem and got up in the grader with me. There wasn't nobody but me and him standing on the grader. I was on one side and he was on the other side, and as far as I know, there wasn't nobody around that could hear, that was within hearing range, you know; and he asked me "Had I made up my mind about that other thing" and I told him, "No, that I didn't know but I knew that they had done pissed so many people off on the Assembly Line, that I knew that they had done pissed too many people off on the Assembly Line, that it was coming in, and that there wasn't no way that he could stop it; and he told me that his son, who worked at Nassau Research Cycling Plant in Gaston, that the union had just come in there, and that they froze all of their (wages) and cost-of- living raise"; and he said "the same thing would happen here if it came in here," and that just about ended the conversation because it was getting close to 2:30; whatever, whenever they take a break around there in the afternoon. Louis McDaniels, Respondent's personnel assistant, testified that he did have a conversation with Tommy Wadford regarding the Union in early December. McDaniels testified: I told him, or I started giving him an example of some other union activities that I have known of. I told him that I had a son that was working in a plant that the union was brought in to, and that their reviews and their promotions had slowed, and that I wouldn't like to see this happen to our em- ployees there at Champion. McDaniels testified that he was referring to the Nassau Recycling Corporation in Gaston. McDaniels testified that he did have a son working at Nassau and that the facts he related to Wadford regarding that plant were true. McDaniels denied that he asked Wadford if he had made up his mind which way he was going to go. Conclusion In view of the testimony of McDaniels and Wadford, it appears clear that McDaniels' message to Wadford on December 10 was a warning that selection of the Union may result in a detrimental change in the wage increase procedure. I see no way of interpreting such a conversa- tion other than to determine that McDaniels was threat- ening Wadford as to a harmful consequence which would likely flow from employees selecting the Union. This evidence supports the General Counsel's allegations in its complaint that Respondent would deny employees wage increases because of their union activities. Addi- tionally, I note Wadford refers to interrogation by McDaniel early in the above conversation. I find an 8(a)(l) violation as alleged. 933 DECISIONS OF NATIONAL LABOR RELATIONS BOARD G. Cain Hart The Week Before Christmas 1980 Former employee Hart testified that during the week before employees were released for the Christmas holi- days, Louis McDaniels came up to him and asked him "what was wrong, did I have a problem because he had heard that I was slowing up in my work." Hart testified that he replied no. McDaniels then asked "was I for the Union." Hart testified, "I told him I am not for nothing, I don't know nothing about it." Hart then asked McDan- iels why he had asked, and McDaniels replied that he was just curious. Louis McDaniels testified that he had a conversation during December 1980 with Cain Hart. However, ac- cording to McDaniels, that conversation regarded Hart's performance and had nothing to do with the Union. McDaniels denied that he ever had a conversation with Cain Hart regarding the Union. Conclusions In view of their conflict, I have considered the credi- bility of both McDaniels and Cain Hart. In response to the General Counsel's questions, McDaniels testified that he never attended meetings where supervisors were in- structed as to their conduct with employees regarding the Union. Moreover, McDaniels testified that in Decem- ber he was unaware of the Company's position regarding the Union. I find this testimony suspect in view of McDaniels' earlier testimony that he avoided interrogat- ing Tommy Wadford concerning Wadford's union activi- ties, but that he nevertheless attempted to persuade Wad- ford that the Union had been bad for employees at Nassau Recycling-a somewhat sophisticated approach for someone unschooled in the handling of union cam- paigns. Subsequently, in response to Respondent's direct examination, McDaniels admitted that he did attend a meeting conducted by Respondent's labor attorney.4 I note that Cain Hart also related another conversation with McDaniels. On January 5, following Hart's dis- charge, Hart came into the personnel office and asked McDaniels what was going on. In his testimony, McDaniels corroborated Hart by admitting that he told Hart that he did not know why Hart had been dis- charged. Hart impressed me as a witness who was trying to tes- tify to the best of his recollection. Although on direct he only recalled receiving one written warning for absentee- ism, when confronted with other written warnings on cross-examination, Hart readily admitted receiving and signing those warnings. Against that background, I have determined that Hart's testimony should be credited. His testimony reveals that during the week before the Christ- mas holidays, he was interrogated by Supervisor McDaniels as to whether he was for the Union. In view of the total background and especially with a mind toward the other 8(a)(1) violations which I found herein, including a violation which involved Supervisor McDan- 4 Additionally, I note that Joy Avery testified that she had been ad- vised against making certain types of comments to employees by Re- spondent's labor attorney. iels, I find that the interrogation by McDaniels consti- tutes a violation of Section 8(a)(1). Hart's response dem- onstrates that he was clearly defensive in response to McDaniels' interrogation. Moreover, Hart inquired as to why McDaniels was asking about his position regarding the Union. Those comments demonstrate the coercive effect of McDaniels' interrogation. H. Dennis Nipper Mid-December 1980 Former employee Nipper testified to two conversa- tions he had with Supervisor Shealy during December. Nipper testified that, while he was working, Shealy came to him and told him that he needed to see him at his ear- liest convenience at lunch. Nipper went on to state: I went over and he told me that he had been "hear- ing things that he didn't like" and I asked him "what it was" and he said "people In the Parts De- partment were talking about things that they shouldn't be talking about," and I asked him what it was, and he said, "I can't say"; he said that it was just, they were talking about things they shouldn't be talking about and "I was the one that was doing all the talking"; and at that time, I didn't know what the rumor was; I didn't know what was going on, and I told him "other than just conversation there which we had on break and stuff like that, I really didn't know what he was referring to." In the other conversation, Nipper testified: He told me that he had been trying to get the Per- petual Counter job back and he thought "every- thing was worked out" in that meeting, he told me that "he was hearing things that he didn't like and shouldn't be talked about"; he said, toward the last of the conversation, he said "he thought that he had everything worked out for me to come back to Pro- duction Control but now he wasn't sure any more." Frank Shealy, Respondent's production control man- ager, testified that he supervised Dennis Nipper until Oc- tober 1980 when Nipper was terminated in a reduction of force. Subsequently, Nipper was reinstated in another department. Shealy testified that he tried to have Nipper transferred back under his supervision. However, accord- ing to Shealy, problems developed when Nipper's super- visor, Roger Bowles, complained that Nipper's perform- ance "in the Parts Department was not adequate." Bowles told Shealy that Nipper was talking too much to other employees. Shealy admitted that he called Nipper into his office and told him "that he was spending too much time talking, from what I heard, and this was caus- ing me some problems in having him transferred back to my department." Shealy denied saying anything to Nipper about the Union, but he admitted saying that he was "hearing something that [he] didn't like," and that "people in the parts department are talking about some- thing or doing talking that they shouldn't have been doing, and Nipper was the one doing the talking." 934 CHAMPION ROAD MACHINERY Conclusions In substantial part Nipper's testimony was corroborat- ed by Shealy. Moreover, the crucial segment of Nipper's testimony, i.e., "people in the Parts Department were talking about things that they shouldn't be talking about," and Nipper "was the one that was doing all the talking," was not denied by Shealy. I shall credit Nip- per's testimony regarding the conversations with Shealy. Those conversations reflect a threat that Nipper will be denied an opportunity to transfer back to a preferred de- partment because he was believed to be talking about things he should not talk about-an obvious referral to the Union. Shealy's comments were made during the union campaign at a time when other unlawful comments were being made to employees. I find that Nipper's testi- mony reveals a violation of Section 8(a)(1). I. Francis Proctor Former employee Francis Proctor testified about con- versations with two different supervisors regarding the Union. Proctor testified that on three or four occasions during December 1980, Heywood Hornsby came by his work area and told Proctor that he knew what was going on and that Proctor had better be careful. As shown below, Proctor along with 29 other employees was discharged on December 26, 1980. However, Proc- tor testified that on January 20, 1981, he had a conversa- tion with Supervisor Ralph Cook at a grocery store right above the plant. Proctor testified: He told me that I had better be careful, that, in other words, I had better drop this union or, he said first that "I was foolish to participate in it" and then he said, "you know they will close the plant down if you-all get it in there before ... ." During his original direct testimony Ralph Cook denied that he had a conversation with Francis Proctor following Proctor's termination. However, on cross-ex- amination, Cook admitted seeing and talking with Proc- tor at the grocery store during October, November, De- cember, or January. Subsequently, on redirect examina- tion, Cook admitted that he did talk to Proctor during January or February at the grocery store. However, Cook denied that he discussed the Union with Proctor. Heywood Hornsby admitted knowing Francis Proctor, but denied ever telling Proctor that he knew what was going on and to be careful. Conclusion In view of Ralph Cook's vacillating between denying that he had a conversation with Francis Proctor follow- ing Proctor's discharge, and finally admitting that he did in fact have such a conversation, I am unable to credit his testimony. However, I also find fault with the demea- nor and testimony of Francis Proctor. I find it strange that Ralph Cook or any other supervisor would caution Proctor to be careful regarding his participation in union activities at a time after Proctor had been discharged. Additionally, I note that Proctor admittedly had difficul- ty recalling facts. He was asked to identify anyone in the area during any of the alleged conversations with Hey- wood Hornsby regarding the Union, and he was unable to identify the coworker who was allegedly present until prompted by Respondent's attorney calling the cowork- er's name. Moreover, I note a great deal of similarity be- tween the alleged conversations Proctor had with Hey- wood Hornsby and the conversation with Ralph Cook. On both occasions, he was allegedly cautioned to be careful. It appears to be unlikely that two separate super- visors over a period of 2 months would make such simi- lar comments especially when one occurred after Proc- tor's discharge. When these difficulties are considered in light of Heywood Hornsby's direct denial that he had such conversations as alleged by Proctor, I have deter- mined to discredit Proctor's testimony in this regard. III. THE DISCHARGES A. Was the Decision to Discharge 30 Employees on December 26. 1980, Precipitated by the Employees' Union Activities in Violation of Section 8(a)(3)? 1. The General Counsel's case Counsel for the General Counsel, in his oral argument, contended that several factors demonstrated that Re- spondent's discharge of 30 employees on December 26 was motivated by its employees' union activities rather than by business considerations. In my appreciation, his argument that a violation occurred was based in the fol- lowing contentions: (1) The timing and suddenness of the December 26 action; (2) differences in the manner the December 26 action was handled in comparison with previous actions; (3) the number of employees discharged on December 26 proximates the margin which would have been necessary to make the union campaign suc- cessful; (4) Respondent's demonstrated animus; and (5) Respondent's asserted business justification was a sham. a. The timing and suddenness of the December 26 action When considered against the backdrop of the union campaign, the record shows: 1. Although the campaign began several weeks earlier, the initial campaign climaxed on December 18, 1980, when the Union filed its petition for election in Case 11- RC-4951. Respondent's letters of discharge were mailed to the 30 employees on December 26. 1980-8 days after the filing of the RC petition. 2. In support of its argument that the decision to dis- charge 30 employees was sudden, the General Counsel points to evidence that the entire supervisory hierarchy was unaware of the imminent discharges as late as the end of the workday on December 23. The record lends support to this argument. Several supervisors called by Respondent admittedly were unaware of the discharges until they heard that some employees had received letters of discharge. The manufacturing manager, Robert Taylor, addressed the employees on the last day before the Christmas holi- days. Employees testified that Taylor mentioned during the speech that he looked forward to seeing them after 935 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the holidays. Taylor admitted that he may have made such a statement. Moreover, Taylor admitted that, when he addressed the employees on the afternoon of Decem- ber 23, he did not know there was going to be a reduc- tion in force. 3. Additionally, the General Counsel argued that Re- spondent offered no justification for instituting the termi- nations on December 26 rather than waiting until after the first of 1981. This argument appears to rest on the weight of Respondent's evidence. b. Differences in the manner the December 26 action was handled in comparison with previous actions The evidence showed a prior reduction in force during October 1980. Evidence demonstrated that the October reduction involved five salaried employees. The General Counsel pointed out that the evidence proved that, unlike the December 26 procedure, those five employees were told of the action-as opposed to being written- and that two of the five were reemployed. As of the time of the hearing herein, none of the 30 employees ter- minated on December 26 had been reemployed. Moreover, according to the testimony of former em- ployee Christopher Spires, he along with former employ- ees Cecil Dupree, Ernie Russell, and Barry Lundy met with Manager of Employee Relations Heywood Hornsby on January 5, 1981, concerning their termination. Spires recalled Hornsby telling them they would not be rehired. Cecil Dupree recalled Hornsby telling them "that they would hire somebody else with no experience before they would hire us." Ernie Russell recalled that he asked Hornsby, "If they get a back log of graders would he hire us back because we had previous knowledge rather than to hire somebody off the street .... " Russell testi- fied that Hornsby replied that "he would not hire us back regardless." Lundy did not testify. Hornsby admitted meeting Spires, Russell, Lundy, and Dupree on January 5. Hornsby testified that he told the former employees they had been terminated, but he denied telling them he would hire people off the street before he would hire them back. However, Hornsby ad- mitted that Respondent has in fact hired "new employ- ees." None of the 30 dischargees has been rehired. Although the recollection of the three former employ- ees differs somewhat as to their January 5 conversation with Hornsby, all remember Hornsby saying something to the effect that they would not be rehired. I credit their testimony demonstrating that such an assertion was made. Such a statement squares with other evidence showing that Respondent had no plans to reemploy any of the 30 employees. However, I cannot conclude from the evidence that Hornsby was referring to anyone other than those employees present when he indicated they would not be rehired. The general tenor of the testimony demonstrates that Hornsby was responding to specific questions involving the work history of some of the four employees present. Against that background, I find that I cannot determine that Hornsby was including anyone other than those four employees when he indicated that they would not be rehired. The evidence shows that Respondent has hired 11 em- ployees since December 26, 1980.5 Additionally, the General Counsel points out that Respondent has run ads in the Columbia newspaper for employees to fill posi- tions formerly held by employees among the 30 dis- charged. c. The number of employees discharged on December 26, 1980, proximates the margin which would have been necessary to make the union campaign successful In support of this argument, the General Counsel points to the stipulation that the results of the February 5, 1981, election indicate that 51 votes were cast for and 81 votes against the Union-a margin of 30 votes. How- ever, I note there was no evidence which demonstrates, or from which I could draw an inference, that Respond- ent was aware of the necessary margin on December 26. Therefore, I find that this particular argument was not supported by substantial evidence. d. Respondent's demonstrated animus The General Counsel points to 8(a)(1) violations by both a high-level official (i.e., Manager of Employee Re- lations Hornsby) and by other supervisors to support this argument. Those matters are considered above. Clearly, as the General Counsel argues, 8(a)(1) violations do sup- port a determination of union animus. Moreover, I note that Respondent's president and chief executive officer, Robert Faulkner, voiced opposi- tion to the employees' unionization during an early De- cember 1980 speech to the employees. e. Respondent's asserted business justification was a sham In support of this argument, the General Counsel pointed out: 1. Respondent admittedly tolerated losses during the first 3 years of its operation at West Columbia, South Carolina (1978, 1979, and 1980). However, the General Counsel points out that it was not until the 1980-81 union campaign commenced when Respondent decided upon a reduction in force among its unit employees. 2. Before December 23, 1980, Respondent had not an- ticipated a reduction in force as evidenced by: a. The evidence showed consistent overtime work among various unit positions both before and after De- cember 26, 1980. b. The evidence proved that during December 1980 Respondent launched an effort to increase production to 38 graders. The General Counsel argues that effort is in- consistent with Respondent's asserted financial position since it would require an increased outlay of funds to meet the increased production costs such as overtime, and that position is inconsistent with Respondent's assert- ed decrease in orders. I Although 11 employees were hired in 1981, unrebutted evidence shows that Respondent also lost 16 employees during the same period. Thirteen of those employees were terminated and the other three trans- ferred. The effect was Respondent had a net loss of some five employees during the year after the December 26 reduction of force. 936 CHAMPION ROAD MACHINERY c. The General Counsel points out that there are dis- crepancies in the testimony of numerous supervisors called by Respondent regarding the discharge decision. Those conflicts include confusion as to whether the deci- sion was made on December 23, as Heywood Hornsby appeared to testify when originally called by the General Counsel, or on December 24, as the evidence offered by Respondent appears to indicate; and confusion as to which officials and supervisors actually attended the De- cember 24 meeting regarding the discharge. (E.g., Pur- chasing Manager William Sulser recalled that only he and Heywood Hornsby were present at the plant on De- cember 24. Manufacturing Manager Robert Taylor re- called that Respondent's attorney, Gignilliat, was present along with Hornsby, Neil Avery, and Sulser. Taylor tes- tified that President Faulkner arrived later.) d. The General Counsel points out the evidence shows that Respondent discharged the 30 employees on Decem- ber 26 without consulting the immediate supervisors, those most knowledgeable about each employee's work. The General Counsel is correct-Respondent's witnesses admitted that the immediate supervisors were not con- sulted. e. The General Counsel argues that Respondent failed to adequately explain why it elected to terminate 30 em- ployees rather than some smaller number. As to this par- ticular element, I note that the General Counsel failed to introduce any evidence showing that it would have been more logical to have terminated something less than 30 employees on or near December 26. 2. Respondent's defense Respondent argues that the December 26 mass termi- nation was motivated solely by business considerations. Therefore, Respondent argues that the General Counsel has failed to prove his case-moreover, even if a finding should be made that the evidence supports a prima facie case, Respondent's evidence demonstrates that the mass terminations would have occurred regardless. Therefore, under the theory of Wright Line, a Division of Wright Line., Inc., 251 NLRB 1083 (1980), there should be a finding of no violation. The evidence demonstrated Respondent is a subsidiary of an international corporation whose home is in Canada. The West Columbia, South Carolina, facility is relatively new, having been formed some 3 years before the 1980- 81 union campaign. During those 3 years the West Co- lumbia facility lost money. However, Respondent's defense does not appear to rest, to a substantial degree, on the fact that it lost money at West Columbia. Rather, the defense appears to rest on two points: (1) During 1980, and particularly during the last half of 1980, the parent corporation expe- rienced severe loss of orders for motor graders, with a consequent strain on its ongoing ability to satisfy its fi- nancial obligations. That factor caused alarm at the inter- national corporation's bank, prompting demands from the bank for belt-tightening measures; (2) the operation at West Columbia had for some time operated with a poor employee to order-on-hand ratio. Respondent's president had prevailed on the parent corporation's executive com- mittee lo permit him to operate with a poor ratio in an- ticipation of increased orders and the need, at that point, for the exaggerated work force in order to meet the nec- essary increase in production of motor graders. Respond- ent argues that those two factors meshed in December 1980 when it became apparent that West Columbia was not going to receive the hoped-for increase in business within the foreseeable future, at a time when the bank was demanding strong steps to correct a poor financial position under threat of forced bankruptcy. In support of those elements, Respondent points to the following evidence: Stephen Symes, accountant of the parent organization, testified that in addition to its West Columbia facility, the parent also owns a facility for the manufacture of motor graders in Canada. During the first quarter of 1980 the outlook for both West Columbia and the Cana- dian facility was optimistic. However, in the second quarter the order backlog in both motor grader facilities started dropping. Until July 1980, the Canadian facility produced at the rate of four graders per day. From January through July 1980, the daily rate at the West Columbia facility fluctu- ated between a low of 1.05 and a high of 2.1 graders per day. Due to the drop in orders, the normal 3-week shut- down each July in Canada was extended to about 6 weeks during the summer of 1980. Moreover, some 150 to 200 of the approximate 500 hourly employees at the Canadian facility were permanently laid off during the July-September 1980 shutdown. As of the time of the in- stant hearing, those employees have not been recalled. 6 In addition to the temporary and permanent layoffs of the hourly employees, everyone else up to and including the chairman of the board in Canada was laid off with- out pay for I week. Other steps were also taken to im- mediately reduce expenses; including such things as cut- ting down on research, development, and marketing projects. When the Canadian facility was reopened during the August-September period, production was initiated at a 2-1/2-grader-per-day rate. Subsequently, the rate moved up to three graders per day. Production in Canada has not returned to the four-grader-per-day rate, which it formerly maintained. The condition of the parent was emphasized in a Sep- tember 19, 1980, memorandum from Stephen Symes to the corporation's executive committee. That memo indi- cated, inter alia: (1) that planning was underway on "an organized and decisive cost reduction program": (2) the fact that the cost reduction program was tardy had re- sulted in the deferral of creditors; and (3) it may be nec- essary to seek an extension of the credit line. The memo reflects that a copy of Symes' memo was sent to the par- ent's bank, Bank of Montreal. Symes testified that they identified the cause of the "cash and the problems we were having at that time to The employees in Canada are unionized. Although the record does not provide support for comparing the December 26 reduction with the summer reduction in force in Canada, such a comparison may be inappro- priate since, apparently, a collective-bargaining agreement existed in Canada but not in South Carolina. 937 DECISIONS OF NATIONAL LABOR RELATIONS BOARD being purely producing graders at lower than capacity in both our U.S. [West Columbia] and Canadian plants." Around October 2, 1980, Dennis Haskell of the Bank of Montreal called J. C. Freeman, president of the Champion group of companies, and requested "certain information virtually forthwith." Symes testified that Haskell's unusual request was prompted by the bank's nervousness. In response to Haskell's request, the following telex was sent on October 2, 1980: Urgent delivery to: Mr. Dennis Haskell, Vice-President Bank of Montreal Toronto Confirming our conversation todays date (A) We will be in a position to hand deliver to you on Monday morning October 13 our individual company statements together with consolidations for the months of August and September. (B) We will provide you with a margin calcula- tion as at September 30. (C) Starting today, we will telex you our daily cash position which reflects our outstanding cheques. (D) On October 21, we will provide you with our revised one year projections for our individual companies and consolidations. (E) We confirm we will not utilize more than the 12 million dollars current line plus the 2 million spe- cial line reference Uruguay until after October 24 by which time we will have provided you our re- vised numbers. As expressed to you on the phone in order for us to do the above: (1) We have had remove priority for our year end audit which will result in increased cost. (2) We have ceased implementation of our newly revamped budget control systems. (3) We will delay bringing Huggard equipment on stream. (4) We have interfered with our cost reduction plan. It is our understanding you are contacting Mr. McKinly of Woods Gordon to attend our offices on Tuesday, October 7 and that Mr. McKinly will evaluate the situation and report to you according- ly. J. C. Freeman President Champion Group Symes testified that their loans from Bank of Montreal were secured by Champion groups' "margin calcula- tions," which takes the Company's "assets, notably things like its fixed assets, its accounts receivable, its in- ventories, and any other assets it may have and (calcu- lates) a security margin based on (the groups') loans." Symes went on to point out that the value of "ac- counts receivable" went to considering "margin calcula- tions." With that in mind, a great deal of pressure was applied to all the groups' locations to accelerate produc- tion in order "to turn as many items into receivables at month end as possible" even though that would involve working overtime. On October 3, Champion received the following telex response to its telex of October 2: Mr. J. C. Freeman, President Champion Road Machinery Limited Goderich, Ontario In response to your telex of October 2, 1980 we refer specifically to item (E). It is agreed that the bank has established the lines as described. Howev- er, it should also be recognized that pending de- tailed examination of the current position, we are functioning on a day to day basis consistent with the demand nature of our loans. Our principal con- cern as expressed in discussions yesterday is further erosion of the margin position in the light of the near term uncertainties. In this regard, we have in- dicated that initially we require a list of cheques outstanding dls 100,000 or more and it is agreed that until further notice you will advise us daily along this line in conforming to reinstitution of pro- cedures early this year. J. F. D. Haskell Vice President Corporate Banking Bank of Montreal First Candian Place Toronto, Ontario Symes explained Haskell's October 3 telex to mean the bank "could pull the plug at any moment and appoint a receiver." Symes also pointed to the last paragraph of Champion's October 2 telex, which refers to McKinly, in testifying that the bank was requesting Champion to deal through a consultant in the insolvency business. McKinly is vice chairman of the "Clarke and Company Limited Trustee (in) Bankruptcy." On October 21, 1980, Symes wrote the Bank of Mon- treal and advised the bank of the Company's revised schedules based on a billed rate of three graders per day in Canada and 1.5 graders per day in West Columbia. In that letter, Symes stated, "It has been decided that fur- ther action will take place in December or January if there are not sufficient firm orders locked by this period in time in order to move the billed rate up to four in Canada and two in the U.S., through the spring and early summer months." Symes testified that through fall 1980, Faulkner, Re- spondent's (West Columbia) president, continued to be optimistic about projecting orders. However, when the executive committee (which included Faulkner) met in Canada on December 16 and 17, 1980, the West Colum- 938 CHAMPION ROAD MACHINERY bia report demonstrated that the anticipated orders for graders had not been forthcoming. 7 The next meeting with the Bank of Montreal was held on December 18, 1980. Symes testified that the bank was unimpressed with the Company's presentation to the point that the Champion group was directed to forthwith gather and present to the bank hardcore information along with a statement of what will occur if the market does not change. Robert Faulkner was directed to return to West Columbia. When Faulkner returned to West Columbia on De- cember 19, he immediately issued a memorandum to its high-level supervisors. That memo pointed out, inter alia, that Faulkner had just reviewed the orders, and the an- ticipated orders have failed to materialize; West Colum- bia has already exceeded the losses it had indicated it would incur; and it had failed to make the contemplated reductions. The memo directed the following: I have got to ask you again for an immediate review of the situation in your respective areas to determine where reductions can be made on short notice, and I have to say to you that we have to shift our thinking more to the immediate concerns. I fully understand that we may lose programs and people in which we have considerable investment and we have difficult decisions to make. I want to be able to discuss the whole matter with you first thing Monday morning, December 22, 1980. Despite his memorandum, above, Faulkner did not in- dicate to his personnel on Monday, December 22, that a reduction in force was imminent. Other testimony re- vealed that Faulkner had previously requested his super- visors to review their respective areas for possible reduc- tions. On that basis (i.e., since similar reviews had been requested without incurring reductions), allegedly no one concluded before December 23 or 24 that a reduction was forthcoming. According to Syrnes, the report forwarded from West Columbia the following Monday (December 22) demon- strated that Faulkner was maintaining a work force which would justify building two graders per day-a number in excess of that projected on the groups' contin- gency plan in view of the small number of orders. The record shows that Respondent did receive an influx of orders in November 1980. However. that influx of orders for 47 graders was attrib- uted to customers accelerating orders to avoid an announced increase in the price of graders. In support of that point, the record shows that Re- spondent received orders for only 9 graders in January 19R1, making the average order for November and January. 28 graders, or. calculated an- other way, the average orders for November, December, and January, 47, 22, and 9, respectively, of some 29.4 graders per month from June through October 1980 (It is noteworthy that the order average would, as Respondent's position indicates, support a production rate of less than the 1 5 graders per workday which was planned.) Although the above statis- tics appear to support Respondent on what appears to be the mos: crucial points in Respondent's case, no evidence was offered to dispute Respond- ent's contention that the November orders were generated by the an- nouncement of an imminent increase in the price of graders and that Re- spondent did not receive an increase in orders before December 2h, 1980. which would justify retaining its entire West Columbia work force On December 23, Symes issued a memorandum which was relayed to the West Columbia location by telex. Robert Faulkner testified that he continued to hold out hope that a change in circumstances would permit him to avoid a reduction until he received Symes' memo on the afternoon of December 23. Later, on December 23, Symes along with President Freeman was called into the office of the groups' chair- man and major stockholder, B. A. Sully. Symes ex- plained the December 23 memo to Sully. He pointed out that Faulkner's latest information indicated the group was going to miss the target they had guaranteed as minimum to the bank. Sully indicated that he, Group President Freeman, and Symes would talk to Faulkner later that day. That telephone call was put through around 5:30 or 6 p.m. After reviewing the situation with Symes, going over his memo of that day, Sully asked Faulkner what he was going to do. Faulkner committed himself to reduce his work force by 30 people. Subsequently, on the morning of December 24, which was a holiday for the hourly employees, several high level supervisors met and selected the 30 employees for termination. President Robert Faulkner testified that he decided to terminate those employees rather than lay them off since he had no anticipation of recalling any of them, and he saw no reason to give false hopes to those employees. Subsequently, letters of termination were pre- pared and mailed on December 26, 1980. 3 Conclusions I find that the General Counsel failed to prove that the initial decision to reduce Respondent's work force was il- legally motivated. In consideration of that issue, I recon- sidered the General Counsel's arguments in light of Re- spondent's evidence: a. Timing and suddenness Although the proximity of the discharges to the filing of the election petition creates grave suspicions, I must also consider the timing in relation to the demands of the Bank of Montreal. The December 18 meeting with the bank and the subsequent chain of events do not appear to present either a sudden, irrational reaction or an untime- ly one. Even though one could argue that that action rather than a reduction in force could have produced sat- isfactory results. that consideration is not within the scope of my authority. Respondent's evidence supporting its alleged business justification for the discharges was not rebutted. There- fore, I may only consider whether Respondent's actions have an illogical or unreasonable connection with its as- serted business bases: i.e., whether it is reasonable to dis- credit Respondent's evidence illustrating that those fac- tors contributed to the discharges. Even though consid- eration should be, and is, given to the close timing con- nection between the discharges and the December 18 pe- tition for an election, I must, and do, find a close and reasonable timing connection between actions of the Bank of Montreal and the discharges. Moreover, Re- spondent's evidence proved that the discharges were not "sudden," but were supported by logical and reasonable 939 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business-related activity. Although high-level supervisors were in fact unaware of the imminent discharges on De- cember 23, undisputed evidence proved that the final commitment to reduce the work force was not made until around 5:30 or 6 p.m. on December 23. The actual selection of employees for discharge did not occur until the morning of December 24. As to the General Counsel's argument that Respond- ent failed to prove that the discharge decision could have been delayed, Respondent proved that its action was a direct and proximate reaction to the December 18 meeting with the Bank of Montreal. Robert Faulkner ini- tiated a survey designed to establish which employees were expendable on December 19 when he arrived back from Canada. The following Tuesday, December 23, was the day of decision. I am convinced that Respondent's action was reasonable under the circumstances. More- over, I note that the General Counsel offered no evi- dence that any factor existed which would have caused Respondent, or any reasonable person, to delay the dis- charge decision. b. Differences in the manner the December 26 action was handled in comparison with previous action The evidence showed that Respondent engaged in only one other reduction in force. In October 1980, Re- spondent terminated five salaried employees. The General Counsel argued that the December termi- nation was handled differently since Respondent did not personally notify the employees of their discharge. The evidence shows that the 30 employees discharged in De- cember were not working when the decision was made. Therefore, they were not available for personal notifica- tion on either December 24 when they were selected for discharge or on December 26 when notification was mailed. Those days were holidays. A delay in notice until the employees returned to work would have been detrimental to them. The termination letters reflected that Respondent wanted to give the employees as much notice as possible. Certainly, under the circumstances, that appears to be reasonable. The General Counsel also argues that the two reduc- tions were different since two of the five October dis- chargees were reemployed. However, in support of the similarity of the two re- ductions, the evidence does show that the five salaried employees terminated in October were discharged as op- posed to being "laid off." One of the October reem- ployed dischargees, Dennis Nipper, was reemployed before his discharge was completely processed. There- fore, according to the testimony, Joy Avery changed his papers to reflect a layoff in order to prevent inconven- iences such as termination of Nipper's insurance, which would have unnecessarily resulted from a break in serv- ice. The others, including the one other employee who was reemployed, were discharged. That demonstrates consistency with Respondent's December 26 action, es- pecially in view of the fact that the union campaign had not commenced when the October reduction in salaried personnel occurred. The 30 employees terminated on December 26 were also discharged as opposed to being laid off. I do find bothersome the evidence that on January 5, 1981, Heywood Hornsby told four of the discharged em- ployees that they would not be rehired. Moreover, even though Respondent employed 11 people between De- cember 26 and the instant hearing, none of the 30 dis- chargees was reemployed. 8 Those facts demand compari- son with the October reduction when Respondent reem- ployed two of the five dischargees. Nevertheless, the evi- dence does not prove unlawful action. In order to pre- vail in proving disparity, the evidence must show that all or some of the 30 dischargees were denied consideration for rehire under circumstances similar to those under which Respondent reemployed two of the five October dischargees. The evidence failed to establish that ele- ment. I reach that conclusion in view of the evidence showing that Respondent found substantial fault with the work performance of all four employees involved in the January 5, 1981, conversation with Hornsby; i.e., Dupree, Spires, Russell, and Lundy. Dupree and Russell narrowly escaped discharge in 1980 when they failed to show up for overtime work. Only through the interven- tion of Heywood Hornsby were they retained over the recommendation to discharge them by Neil Avery. Spires had been denied an increase in pay because of his work performance. As indicated earlier, Lundy did not testify, and his record was not subjected to close scruti- ny. However, Neil Avery testified that Lundy was se- lected along with several other employees because of work performance or attendance. Avery's testimony in that regard was not contested. Therefore, none of those four employees who were told by Hornsby that they would not be considered for reemployment was shown to possess credentials which would have justified the same consideration to reemploy which was extended to the two reemployed October dischargees. As to the question of reemployment of the remaining December dischargees, the record was deficient. No evi- dence was offered to show that any of the remaining 26 applied for any of the jobs filled by Respondent. There- fore, I have little basis for comparison with the October 1980 reinstatements. Respondent did offer evidence showing that most of the December dischargees were se- lected on the basis of comparison of their records with other employees in their department or classification. One employee, Sheila Steele, was discharged because of the elimination of her job. That job has not been reestab- lished. The record failed to show that any of the Octo- ber dischargees were reemployed despite inferior records. As to Sheila Steele, the record failed to illus- trate that any position has opened for which Steele has been qualified and for which she has applied. On the basis of the above and the complete record, I find that the General Counsel failed to prove that Re- spondent handled the December 26 discharges in a dis- parate manner without proper business justification. s Note that this issue differs from the question of selection of the spe- cific employees for discharge. That issue is considered infra. 940 CHAMPION ROAD MACHINERY c. Animus: The evidence, as shown above, conclusively proved that Respondent was hostile to the Union. That element is proved through both the 8(a)(1) findings and through the speech given to employees by Robert Faulkner early in December. Additionally, Faulkner admitted his hostil- ity to the Union during cross-examination. d. Respondent's asserted business justification was a sham 9 (i) The General Counsel argued that Respondent toler- ated losses at its West Columbia facility during 1978, 1979, and 1980, but that it did not engage in reduction in force until the union campaign in 1980-81. I find that Respondent adequately explained this apparent disparate activity by demonstrating that the overall financial con- dition of the Champion group of companies precipitated concern and action by the Company's banker, Bank of Montreal. Moreover, I also note that one of the years in question-1979-included another union organizing cam- paign. No evidence was offered to show illegal termina- tions by Respondent at that time. Therefore, I must ques- tion the General Counsel's claim that Respondent is simply using poor business in 1980 to justify discrimina- tory action. The question arises: Why didn't Respondent use the same antiunion tool in 1979 when West Columbia also lost money? No evidence was offered in response to that query. (ii) The General Counsel argues that an increase in production in December 1980 to 38 graders is inconsist- ent with the reduction in force. Respondent explained its efforts to increase production were necessitated in order to immediately turn production into accounts receivable in order to demonstrate a healthier "margin calculation" for the benefit of the Bank of Montreal. (iii) In further support of its argument that the business justifications were false, the General Counsel points to discrepancies in testimony from supervisors regarding the alleged December 24 meeting to select employees for discharge. As the General Counsel argues, discrepancies do exist. However, I find that those discrepancies are not so serious that I would be justified in concluding that high-level supervision did not meet and select the dis- chargees. Obviously, such a process occurred. All the other evidence clearly demonstrates, and I find, that a meeting of supervisors occurred on December 24 and that the 30 employees were selected for discharge on that date. (iv) The General Counsel further points out that the selected employees' immediate supervisors were not con- sulted about their discharges. The General Counsel is correct in this factual assessment. However, no evidence was offered to demonstrate that such consultations were necessary. To the contrary, the evidence indicated that the high-level supervisors involved in the selection proc- t In consideration of this issue, I have considered not only the fact that Respondent's evidence in support of its business considerations are unre- butted but, additionally, the point that the Charging Party represents em- ployees in the Canada facility. I have presumed against that background that the facts involving the Canada operation were subject to rapid verifi- cation by the General Counsel through the Charging Party. In that con- text, the lack of rebuttal takes on added weight. ess were adequately acquainted with their departments and employees. Moreover, the evidence demonstrated that surveys had been conducted among supervisors on earlier occasions for the purpose of determining which employees were expendable. ' (v) The General Counsel argues that Respondent failed to adequately explain why it elected to terminate 30 employees rather than some smaller number. As to this issue, the evidence indicated that the demand placed upon Respondent's president, Robert Faulkner, was to engage in a substantial reduction in force. According to unrebutted evidence, the survey of expendable employ- ees indicated Respondent could reduce by 35 to 40 em- ployees. Faulkner selected a lower figure-30-which was accepted by the chairman of the board. B. Discriminatory Selection 1. The selection evidence generally The General Counsel argues that Respondent discrimi- nated against union supporters by selecting them for dis- charge on December 26. Obviously, a violation would exist if the evidence proved that even though the overall decision to discharge 30 employees was justified on eco- nomic bases, the 30 employees were actually selected be- cause of their union activities. In order to prevail in its discriminatory selection con- tention, the General Counsel must establish, in addition to animus which has been found above, that Respondent knew of, or suspected, that particular employees either engaged in, or were believed to have engaged in, union activity and Respondent treated those employees in a disparate manner. In the absence of both those elements, the General Counsel's case must fail. The General Counsel's overall case does fail, substan- tially due to the absence of proof of disparity. Respond- ent offered testimony, primarily through William Sulser, Neil Avery, and Heywood Hornsby, that 29 of the 30 December 26 dischargees were selected for discharge be- cause a comparison of all employees indicated those 29 were the most expendable. The 30th employee was se- lected when the decision was made to abolish her job on the ground that that job was expendable. The evidence proved that Respondent has continued to operate since December 26 without reestablishing Sheila Steele's job. The dischargees were generally found to be expendable when comparison showed them to either have poor work performance records, as reflected in warnings, evaluations, or withheld wage increases and/or poor at- tendance records. One employee, Leland Price, was se- lected because he had told his supervisor that he was seeking another job. Respondent's evidence regarding the business bases for selection was not rebutted. More- over, there was no showing that a comparison of the records of any employees not known to be union advo- cates should have resulted in retention of the prounion dischargee. The General Counsel did offer proof that some of the dischargees were senior to one or more re- tained employees holding similar positions. However, un- 'O No evidence was offered to show that those earlier surveys would have resulted in different employees being selected for discharge. 941 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rebutted testimony reflected that Respondent's estab- lished practice was to not consider seniority in reduc- tions in force. More specific questions arose as to the discharges of employees Lawson, Nipper, and Jackson. Nipper will be treated below. As to Joe Lawson, Respondent showed that the only skilled maintenance employee with less ex- perience than Lawson had received special training in NC machine operation-training that Lawson had not received. LeRoy Jackson was the more senior unskilled employee in maintenance. However, Jackson had not worked in several weeks due to an injury, and his return date was uncertain. Respondent chose to retain Henry Wise, the employee who was on the job. It is not within the scope of my authority to simply substitute my judgment for Respondent's in determining which employee's record justified selection for termina- tion. It is my responsibility to determine whether specific employees were selected because of their union activity. In making a determination, I must necessarily consider whether the reasons advanced by Respondent to support the decisions are without reasonable bases. None of the bases advanced in support of Respondent's December 26 discharges appears unreasonable on its face. There is nothing apparent in the evidence which would permit me to conclude that Respondent's advanced reasons for selection are pretextual. As shown above, generally no evidence was offered to show that Respondent discrimi- nated in the selection process. There was simply no showing that some other employee(s) should have been selected ahead of any of the dischargees. As to the question of Respondent's knowledge of its employees' union activities, the record demonstrated that the most visible union advocate during the 1980-81 cam- paign was James Sturkie. Sturkie was not selected for discharge. Sixteen of the 30 discharged employees were not shown to have engaged in any union activity. Nor was it shown that Respondent had any reason to suspect that any of the 16 had engaged in union activity. Fourteen of the dischargees testified. Thirteen of those testified that they engaged in union activity. Although the 14th, Dennis Nipper, did not actually engage in union activity during the 1980 campaign, his testimony reflected that Respondent probably believed that he had. However, even if knowledge is presumed as to all 14, the law does not prohibit their discharge unless they were discriminatorily selected. Respondent proved that 29 of the dischargees were selected on the basis of nondiscri- minatory business related factors. That evidence was not rebutted. Therefore, even if I should find that the Gener- al Counsel proved a prima facie case as to the 13 who were engaged in union activity, I must and do find no violation. Respondent proved that the 13 would have been discharged in the absence of union activity (Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980)). 2. Dennis Nipper's selection However, as to Dennis Nipper, my findings above re- garding Nipper's December conversation with Produc- tion Control Manager Frank Shealy raise substantial questions. As shown above, Nipper credibly testified that Shealy told him, in effect, that his anticipated transfer back to Shealy's department was in trouble because of the belief that Nipper was talking to other employees about things the employees should not be talking about. I find that Shealy was referring to talk about the Union. Frank Shealy admitted that before the problem devel- oped with Nipper "talking too much to other employees, distracting them," he had cleared all the way through President Faulkner-with Faulkner's okay-the recrea- tion of the position of perpetual counter and for the transfer of Nipper to that position in production control. Roger Bowles testified that Nipper worked for him in the parts department until Nipper was discharged in De- cember. Bowles testified that he talked to Nipper on three occasions about the speed of his work and about leaving the department and talking to other employees. However, Bowles admitted that he never issued a warn- ing to Nipper for talking and he never issued a warning to Nipper for "anything having do with his job." Bowles was not involved in the selection of Nipper for dis- charge. Apparently, Nipper was selected for discharge by Heywood Hornsby. Hornsby testified: Mr. Bowles had indicated to me on three, two; on two or three occasions that he was unsatisfactory [sic] with his performance. Mr. Nipper we were al- ready holding to move over to Production Control. We had already offered an individual a job to re- place Mr. Nipper, and so what we did, we terminat- ed Mr. Nipper and did not fill the job in Production Control. We contacted the person that we had made the job offer to, and cancelled that offer. Conclusions The above evidence convinces me that Nipper was treated differently. Unlike other dischargees, Nipper's documentary record did not reflect that he was expend- able. To the contrary, the production control manager found Nipper to be a valuable employee-so valuable that he arranged for Nipper's transfer back to production control. The sole evidence regarding Respondent's basis for se- lecting Nipper is tainted by the direct connection drawn by Shealy, between Bowles' alleged disciplinary talks with Nipper and the belief that Nipper was talking to employees about the Union. Therefore, I find that Re- spondent failed to establish that Nipper would have been discharged absent a belief that he was engaged in union activities. On the other hand, the evidence supporting the Gener- al Counsel was substantial. The conversations between Shealy and Nipper proved that Nipper was denied trans- fer to production control because of the belief that he was talking to other employees about the Union. That denial of transfer led to Nipper's discharge-a discharge which, according to Heywood Hornsby, occurred be- cause Supervisor Bowles was not satisfied with Nipper. Shealy's comments to Nipper show that the problems Bowles allegedly had with Nipper resulted in large meas- 942 CHAMPION ROAD MACHINERY ure from Respondent's belief that Nipper was talking about the Union. When viewed against the background of animus and timing, as mentioned above, it is apparent that Respond- ent denied Nipper an opportunity to transfer to produc- tion control,"' then discharged him in violation of Sec- tion 8(a)(3). C. The Discharge of Joey Starnes On December 8, 1980, Joey Starnes was asked by his supervisor, Harold Shivers, to come in 2 hours early the next morning. Starnes normally reported at 7 a.m. Pursu- ant to Shivers' request, Starnes agreed to report at 5 a.m. the next day. However, after Shivers had worked up the schedule for the next morning's overtime, Starnes returned ap- proximately I hour before the end of his shift on Decem- ber 8 and asked Shivers if there was a state law that said he had to be given 48 hours' notice before working over- time. Shivers replied that he did not know, but would check. Shivers then asked Starnes if he still wanted to come in. Starnes replied no. 2 Around 1:30 p.m. on December 9, after Starnes had reported at the normal starting time of 7 a.m., Shivers gave Starnes a written warning. The warning read: At approximately 1:30 p.m., on Monday, December 8, 1980, 1 asked Joey Starnes to work overtime the following day. He replied that he would. About an hour later, he came back and asked if it was true that, by state law, he didn't have to work overtime unless he was given a 48 hour notice. I did not comment on this because I do not know what the state law is; however, I do know what Champion's policy and practices have been. At this time, I asked him if he was going to be here, as scheduled, and he replied no. Therefore, I had to change my overtime schedule. Due to the above, this is a written warning to Mr. Starnes. This warning is issued because of his refus- al to work overtime hours assigned to him by his supervisor, Mr. Harold Shivers. A future refusal by Mr. Starnes to work assigned hours will warrant further disciplinary action that may include termina- tion. " Even though Respondent's refusal to permit Nipper to transfer to production control was not specifically alleged, I find that it was inter- twined with and inseparable from the issue of Nipper's discharge. More- over, I find that the transfer question was fully litigated. 2 The above renects the testimony of Supervisor Harold Shivers. which I credit. Shivers impressed me with his demeanor. He appeared to respond candidly to all parties. Under questioning from the General Counsel, Shivers readily admitted that he suspected Starnes favored the Union since he was close friends with employee James Sturkie, a known union advocate. Starnes also impressed me as testifying to the best of his recollection. However, Starnes admitted that his memory was affected by an automobile accident he had following his termination. Starnes testified he talked to Shivers twice on December 8 about his desire to avoid working overtime. I credit Shivers' testimony that they had only one conversation on that subject. Starnes recalled he told Shivers he did not want to work overtime, and, after asking if he had to come in. Shivers said no. In view of my credibility findings, I credit Shivers' testimony that in their one conversation Starnes said no when asked if he was coming in. Starnes returned the warning without signing it and started to leave. Shivers testified that he asked Starnes "was he going to sign it?" According to Shivers, "Starnes replied, 'Give it to me and I will show you what I think of it,' and he tore it up, threw it in a trash can." Starnes admitted that he lost his temper, tore up the warning, and threw it away. Starnes testified that he became angry because the writing was untrue. Subsequently, Starnes and Shivers went to personnel. Heywood Hornsby asked Starnes why he did not sign the warning. Starnes replied that he did not think it was right.1' Starnes was then suspended. On the following day Starnes was discharged. Conclusions Joey Starnes testified that he talked to other employ- ees at work about the Union and attended union meet- ings. Harold Shivers admittedly believed Starnes favored the Union because of Starnes' friendship with known union advocate James Sturkie. Nevertheless, it is clear that the December 8 incident which led to Starnes' discharge had nothing to do with his union activity. The credited evidence demonstrates that late in the December 8 workday, Starnes changed his mind and declined overtime after first volunteering. That resulted in Supervisor Shivers having to reschedule the next morning's overtime among the remaining volun- teers. I see no basis on which I could justify a determina- tion that the award of a warning for that action would not have occurred but for Starnes' union activities. Subsequently, Starnes first refused to sign the written warning, then tore up the warning, and threw it in the trash. Respondent's employee rules, which were, in Decem- ber 1980, contained in the employee handbook which was distributed to its employees, included the following: If an employee is warned or suspended because of misconduct, he may be required to sign a copy of the written record of the discipline. His signature will mean only that he is aware of the action taken, and not that he agrees that such action was called for. An employee who refuses to sign such a docu- ment must be suspended immediately and will be subject to discharge for insubordination. There was no showing that the above rule was illegal- ly instituted. Nor was there evidence that the rule was applied to Starnes in a discriminatory fashion. Therefore, I find that the record does not support a determination that Joey Starnes was illegally disciplined. Neither the warning nor the discharge resulted from illegal motiva- tion. I find Respondent did not violate the provisions of the Act by its discharge of Joey Starnes. CONCLUSIONS OF LAW 1. Respondent Champion Road Machinery Internation- al Corporation is an employer engaged in commerce iJ I have credited Shivers' testimony on this conversation for the rea- sons shown above. 943 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Association of Machinists and Aero- space Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By telling its employees that it could not grant early reviews because it would look like bribery due to the employees' union organizing campaign; by referring to an employee as a troublemaker, and telling other em- ployees they could not be assigned to work with that employee because of his union sentiments; by interrogat- ing its employees about its employees' union activities and feelings; by telling its employee that his work was changed and he was assigned in an area where the super- visor could keep an eye on him because he was talking to other employees about the Union; by telling its em- ployee, "you know you're in trouble," in reference to its belief that the employee favored the Union; by threaten- ing its employee with discharge by telling him, "I hate to see you starve" because of the employee's union activi- ties; by threatening an employee with a loss of job if he kept "messing" with the Union; by threatening unspeci- fied reprisals by its manager of employee relations threat- ening to be a real "bastard" because of its employees' ef- forts on behalf of the Union; by threatening its employ- ees with delays in reviews and promotions by telling its employees that another company delayed reviews and promotions when its employees selected the Union; and by threatening its employees that they are being denied transfers to another department because they were talk- ing about something they should not in reference to the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 4. Respondent, by discharging its employee Dennis Nipper and thereafter refusing to reinstate Nipper be- cause of its belief that Nipper was engaged in union ac- tivity, has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 5. Respondent did not engage in unfair labor practices as alleged in the complaint other than as found above. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative ac- tions designed to effectuate the policies of the Act. My recommended Order will require Respondent to offer Dennis Nipper immediate and full reinstatement to a po- sition in production control in view of Respondent deny- ing Nipper's transfer to that department because of its belief that he was talking to employees about the the Union or, if the position in production control no longer exists, to a substantially equivalent position, and to make Nipper whole for any loss of earnings he may have suf- fered by reason of Respondent's discrimination against him; and that it post appropriate notices. Loss of back- pay shall be computed and interest thereon shall be added in the manner prescribed in F. W. Woolworth Com- pany, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). 14 Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER' 5 The Respondent, Champion Road Machinery Interna- tional Corporation, West Columbia, South Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed to them in Section 7 of the Act in violation of Section 8(a)(l) of the Act by telling its employees that it could not grant early reviews because it would look like bribery due to the employees' union organizing campaign; by referring to an employee as a troublemaker, and telling other em- ployees they could not be assigned to work with that employee because of his union sentiments; by interrogat- ing its employees about its employees' union activities and feelings; by telling its employee that his work was changed and he was assigned in an area where the super- visor could keep an eye on him because he was talking to other employees about the Union; by telling its em- ployee, "you know you're in trouble," in reference to its belief that the employee favored the Union; by threaten- ing its employee with discharge by telling him, "I hate to see you starve" because of the employee's union activi- ties; by threatening an employee with a loss of job if he kept "messing" with the Union; by threatening unspeci- fied reprisals by its manager of employee relations threat- ening to be a real "bastard" because of its employee's ef- forts on behalf of the Union; by threatening its employ- ees with delays in reviews and promotions by telling its employees that another company delayed reviews and promotions when its employees selected the Union; and by threatening its employees that they are being denied transfers to another department because they were talk- ing about something they should not in reference to the Union. (b) Discharging and thereafter refusing to reinstate its employee because of the employee's suspected union ac- tivities. (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer immediate and full reinstatement to Dennis Nipper to a position in production control in view of Re- spondent denying Nipper's transfer to that department 14 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962). 1" In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 944 CHAMPION ROAD MACHINERY or, if a job in production control no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Make Dennis Nipper whole for any loss of pay he may have suffered as a result of the discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at its West Columbia, South Carolina, facility copies of the attached notice marked "Appendix.""' 6 Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by Re- spondent's representative, shall be posted by it immedi- ately upon receipt thereof, for 60 consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 11, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. '1 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." 945