Ducane Heating Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ducane Heating Corporation and International Union of Electrical, Radio and Machine Work- ers, AFL-CIO. Case 11-CA-8053 and 11-CA- 8252 January 13, 1981 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On May 12, 1980, Administrative Law Judge Jo- sephine H. Klein issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting 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 brief and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt her recommended Order, as modified herein. 3 ' Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing her find- ings. Nor do we find merit in Respondent's contention that, because the Administrative Law Judge generally discredited its witnesses and cred- ited the General Counsel's witnesses, her credibility resolutions are erro- neous or attended by bias or prejudice. N.L.R.B. v. Pittsburgh Steamship Company, 337 U.S. 656 (1949). We further find without merit Respon- dent's contention that the Administrative Law Judge otherwise has evi- denced bias and prejudice which warrants ordering a hearing de novo before a different administrative law judge, or, alternatively, dismissal of the complaint. Accordingly, we hereby deny Respondent's motion for re- hearing. In adopting the Administrative Law Judge's credibility resolutions, we find it unnecessary to pass on her discussion of the applicability of United States v. Nobles, 422 U.S. 225 (1975), to proceedings before the Board. In this connection we note that the Administrative Law Judge suggested that she might draw an adverse inference from Respondent's refusal to produce a pretrial affidavit. However, it is clear from her Decision that neither her credibility resolutions nor the ultimate findings of violations turned on the drawing of such an inference. 2 The Administrative Law Judge concluded that Respondent violated Sec. 8(a)(1) of the Act by the remarks of Vice President John Ducate, Jr., during his March 21, 1979, speech to employees in which he in- formed them that unionization would deprive them of direct communica- tion with management concerning grievances and other problems. While we adopt the finding of this violation, we do so because we conclude that Ducate's remarks, rather than constituting a mere misrepresentation, reasonably could be construed by the employees as a threat, particularly in light of the other unlawful statements made by him during the March 21 speech. In this regard, we also note that the complaint specifically al- leged Ducate's remarks to be a threat and that the Administrative Law Judge found that Respondent violated the Act "as alleged" and referred to Ducate's remarks as a threat in her Conclusions of Law. We agree with the Administrative Law Judge's conclusion that Re- spondent violated Sec. 8(a)(1) of the Act at the employee meeting on March 21, 1979, when Vice President Ducate so emphasized the occur- rence of stike violence as to give the impression that such conduct would inevitably follow if the employees chose union representation. However, 254 NLRB No. 30 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, as modi- fied below, and hereby orders that the Respondent, Ducane Heating Corporation, Blackville, South Carolina, its officers, agents, successors, and as- signs, shall take the action set forth in the said rec- ommended Order, as so modified: 1. Insert the following as paragraph l(g) and re- letter the subsequent paragraphs accordingly: "(g) Representing to employees that unionization will inevitably lead to strikes and violence." 2. Substitute the attached notice for that of the Administrative Law Judge. the Administrative Law Judge inadvertently omitted from her recom- mended Order a remedy for this violation. Accordingly, we shall modify the recommended Order. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT impose any greater restriction upon employees' soliciting membership in and/ or support for International Union of Electri- cal, Radio and Machine Workers, AFL-CIO, or any other labor organization, than we impose on other solicitations by employees. WE WILL NOT threaten to stop doing favors for employees if they support the above-named Union or any other labor organization. WE WILL NOT threaten any employees with discharge or with closure or moving of our Blackville, South Carolina, facility if the em- ployees choose to be represented by the above-named Union or any other labor organi- zation. WE WILL NOT grant increased benefits to discourage employee support for the above- named Union, or any other labor organization. WE WILL NOT threate" that employees will not be permitted personally to talk to repre- sentatives of management concerning griev- ances and similar matters if the employees elect to be represented by a union. 112 DUCANE HEATING CORPORATION WE WILL NOT threaten that employees will be denied promotions or other job opportuni- ties if they choose to be represented by a union. WE WILL NOT represent to employees that unionization will eventually lead to strikes and violence. WE WILL NOT warn, suspend, discharge, or otherwise discipline any employees because they have joined or supported, now support, or will join or support International Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organization. WE WILL NOT in any like or related manner interfere with our employees' rights, guaran- teed under the law, to organize, to form, join, or assist a union, to bargain through the union they might choose, to act together for their mutual aid or protection, or to refuse to do any of these things. WE WILL offer to give Norman Wise back his job (or, if that job no longer exists, an equal job), with the same rights and privileges he would have had if we had not fired him. WE WILL remove from our files and re- cords, and will destroy any reference to, the warning we gave Randolph McCrea on De- cember 1, 1978; the disciplinary suspension we imposed on Moses Bryant on December 15, 1978; and the discharge of Norman Wise on December 8, 1978. WE WILL pay Norman Wise and Moses Bryant all pay they lost when Wise was fired and Bryant was suspended, with interest. All our employees are free to become or remain members of International Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other union, or to refrain from any such activity. DUCANE HEATING CORPORATION DECISION JOSEPHINE H. KLEIN, Administrative Law Judge: Pur- suant to a charge filed on December 22, 1978 (amended on January 8, 1979), by International Union of Electrical, Radio and Machine Workers, AFL-CIO (herein called the Union), a complaint was issued on February 7, 1979, against Ducane Heating Corporation (herein called Re- spondent or the Company). On March 28, 1979, a second charge was filed, after which, on May 10, 1979, the two cases were consolidated and a consolidated complaint was issued. The consolidated complaint alleges that on numerous occasions since early October 1978 Respon- dent has engaged in conduct which has interfered with, coerced, or restrained the production and maintenance employees at its Blackville, South Carolina, plant in the exercise of their rights guaranteed by Section 7 of the Act,' all in violation of Section 8 (aX)(1) of the Act, and that, in violation of Section 8(a)(3) of the Act, Respon- dent warned employee Randolph McCrea on December 1, 1978; discharged employee Norman Wise on Decem- ber 8, 1978; and on December 15, 1978, suspended em- ployee Moses Bryant for 5 days. Pursuant to due notice, a hearing was held before me in Aiken, South Carolina, on October 30 through No- vember 3, 1979. All parties were represented by counsel and were granted full opportunity to be heard and to present oral and written evidence and argument. Post- trial briefs have been filed on behalf of the General Counsel and the Union. Respondent has not filed a brief. Upon the entire record, together with careful observa- tion of the witnesses and consideration of the briefs, I make the following: FINDINGS OF FACT I. PRELIMINARY FINDINGS Respondent, a South Carolina corporation, with a plant at Blackville, South Carolina, is engaged in the manufacture and sale of heating equipment. During the preceding year, a representative period, Respondent re- ceived at its Blackville plant goods and materials valued in excess of $50,000 directly from points outside the State of South Carolina, and shipped products valued in excess of $50,000 from its Blackville facility directly to points outside the State of South Carolina. Respondent is now, and has been at all times material herein, an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. It. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Chronology In 1977, the Union conducted an organizing campaign among Respondent's Blackville production and mainte- nance employees. An election was held, which the Union lost. In October 1978 the Union embarked on a renewed or- ganizing campaign. Pursuant to a representation petition filed by the Union on February 8, 1979, and a Stipulation for Certification Upon Consent Election, an election was held on March 22, 1979 (Case I -RC-4655). The Union lost the election by a vote of 254 to 166, with 6 chal- lenged and 4 void ballots. Previously, on December 22, 1978, January 8, 1979, and February 7, 1979, respective- ly, a charge and an amended charge had been filed and a complaint issued. The complaint alleged several viola- tions of Section 8(a)(l), the discriminatory 5-day suspen- sion of employee Moses Bryant on December 15, and discharge of employee Norman Wise on December 8, 1978. On March 28, 1979, Respondent filed a second charge and objections to the election. On May 8, 1979, the Re- ' National Labor Relations Act. as amended, 29 U.SC. § 151, et seq. 113 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gional Director issued his report on objections. He sus- tained Respondent's first objection, based on the Compa- ny's antiunion campaign literature, posters, and captive- audience meetings, and recommended that the election be set aside on the basis of that objection. He further rec- ommended that, if the Board should reverse his recom- mendation that the election be set aside, and the Union's six remaining objections should be referred to the admin- istrative law judge who would hear the consolidated complaint, which was soon to be issued. On August 16, 1979, the Board affirmed the Regional Director's report and ordered a second election. It was unnecessary for the Board to consider any of the remaining objections. The conduct alleged in the objections is substantially that alleged in the complaint here under consideration, but the representation proceeding has not been consolidated or assigned for hearing herein. B. General Comments on Credibility The present dispute is largely factual, depending in the main on credibility. Specific credibility resolutions will be indicated where required in the course of this deci- sion. However, many of the specific resolutions will be facilitated by some preliminary general discussion. Respondent's counsel had carefully and fully prepared for the present hearing. Respondent presented some 33 witnesses, with much repetition and cumulation. 2 It was disclosed that Respondent had obtained signed pretrial statements from at least some of the witnesses. At the conclusion of Respondent's direct examination of employee Willie Ferguson, counsel for the General Counsel requested that Respondent's counsel turn over any pretrial statements he had obtained from Ferguson. Conceding that Ferguson had signed a statement, Re- spondent's counsel rejected the General Counsel's re- quest, maintaining that: "The production of statements . . . applies to the production of statements in the pos- session of the NLRB and not in the possession of the Re- spondent; and it does not apply to the Respondent." I declined to order Respondent's counsel to turn Fergu- son's statement over to the opposing counsel, but I did state that counsel's refusal to do so might be an element considered by me in making credibility resolutions.3 Re- spondent's counsel took exception to that remark. My refusal to direct Respondent to make Ferguson's statement available to the General Counsel for use in cross-examination was a discretionary ruling based pri- marily on the absence of any applicable Board regula- tion4 or, so far as I am aware, any relevant Board deci- 2 At my urging, the parties entered into one stipulation of fact, which apparently averted additional repetitive evidence. s I said: "[A]t this point, I will not direct counsel to turn over the statement. I will, however, state that the refusal to turn over a statement which is admitted to have been made may have some effect on credibility resolutions. I am not sure at this point whether it does or not." 4 The Board has adopted a regulation covering statements given by the General Counsel's witnesses in accordance with the Supreme Court's de- cision in Jencks v. United States, 353 U.S. 657 (1957), and the implement- ing Federal statute. 18 U.S.C.. Sec. 3500. See Board Rules and Regula- tions, Sec. 102.95. sion. 5 However, general principles appear to support the authority of an administrative law judge, as a factfinder, to require that respondents make available to the General Counsel (and presumably to charging parties) pretrial statements of respondent's witnesses. See, particularly, United States v. Nobles, 422 U.S. 225 (1975).6 In Nobles, the defendant's counsel sought to impeach Government witnesses by using a report written by an investigator re- tained by the defendant. Thereafter, defense counsel stated that he would not furnish the investigator's report to the prosecution for possible impeachment of the inves- tigator when he testified. The district court judge there- upon refused to permit the investigator to testify con- cerning interviews set forth in the report, which had been used by defense counsel in cross-examining prosecu- tion witnesses. The Supreme Court sustained the trial judge's action. In the course of his opinion for the court, Mr. Justice Powell said (422 U.S. at 230-231, 232): The dual aim of our criminal justice system is "that guilt shall not escape or innocence suffer," . . . To this end, we have placed our confidence in the adversary system, entrusting to it the primary responsibility for developing relevant facts on which a determination of guilt or innocence can be made .... While the adversary system depends primarily on the parties for the presentation and exploration of relevant facts, the judiciary is not limited to the role of a referee or supervisor . ... As we recently ob- served in United States v. Nixon, President of the United States, et al., [418 U.S. 683 (1974)] at 709: We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts .... .... Decisions of this Court repeatedly have recognized the federal judiciary's inherent power to require the prosecution to produce the previously recorded statements of its witnesses so that the de- fense may get the full benefit of cross-examination and the truth-finding process may be enhanced .... At issue here is whether, in a proper case, the prosecution can call upon that same power for pro- duction of witness statements that facilitate "full dis- closure of all the [relevant] facts." . . . ... The investigator's contemporaneous report might provide critical insight into the issues of credibility that the investigator's testimony would raise. It could assist the jury in determining the The Board has fully accepted the applicability of the Jencks rule to complaint proceedings. See R-Rich Manufacturing Corporation, 121 NLRB 700 (1958). 6 At the hearing, I referred to Nobles but could not at the moment pro- vide the citation. All counsel appeared to be unacquainted with Nobles and did not at any subsequent time refer to it. 114 DUCANE HEATING CORPORATION extent to which the investigator's testimony actually discredited the prosecution's witnesses .... It was therefore apparent to the trial judge that the investigator's report was highly relevant to the critical issue of credibility. In this context, produc- tion of the report might substantially enhance "the search for truth".... The Court in Nobles then proceeded to hold that neither the fifth amendment nor Rule 16 of the Federal Rules of Criminal Procedure prevented compulsory disclosure of the investigator's report. The Court further held that, by calling the investigator as a witness, the defendant waived his privilege of nondisclosure of his attorney's work product. Finally, in holding that the trial judge had acted properly in preventing the investigator from testi- fying without disclosure of the relevant portions of his report, the Court said (422 U.S at 241): The court's preclusion sanction was an entirely proper method of assuring compliance with its order . . . . The District Court did not bar the in- vestigator's testimony .. .. It merely prevented re- spondent from presenting to the jury a partial view of the credibility issue by adducing the investiga- tor's testimony and thereafter refusing to disclose the contemporaneous report that might offer further critical insights. The Sixth Amendment does not confer the right to present testimony free from the legitimate demands of the adversarial system; one cannot invoke the Sixth Amendment as a justifica- tion for presenting what might have been a half- truth. Deciding, as we do, that it was within the court's discretion to assure that the jury would hear the full testimony of the investigator rather than a truncated portion favorable to respondent, we think it would be artificial indeed to deprive the court of the power to effectuate that judgment .... The Court's approach in Nobles, a criminal case, would be a fortiori appropriate in civil litigation and ad- ministrative proceedings, where the nongovernment par- ties are not afforded the same constitutional protections as are criminal defendants. And it would appear that an administrative law judge, as factfinder, has as much need for full information as does a jury. Other portions of the present record clearly point to the advisability of maintaining a somewhat wary view of Respondent's refusal to disclose its witnesses' pretrial statements. For example, John Ducate, Jr., Respondent's vice president, was Respondent's last witness. He attrib- uted certain statements to employee Betty Geiger Robin- son. He also identified a document as a notarized state- ment signed by Robinson. The statement was not offered in evidence and Ducate's testimony concerning Robinson was excluded as hearsay. At the conclusion of Ducate's testimony, the General Counsel called Robinson as a re- buttal witness. Robinson's testimony was favorable to the General Counsel. Ducate's hearsay testimony (which, though excluded, appears in the record) was a "truncat- ed" version of Robinson's later testimony, and a mislead- ing half truth. Significantly, Respondent did not attempt to impeach Robinson by use of her pretrial affidavit. There is evidence that at least one employee, Sinclair Banks, signed a statement which had been prepared in advance. 7 Employee Alonzo Johnson testified that he signed a statement at the request of Assistant Plant Man- ager Billy Joe Stewart. However, Johnson did not read the statement before signing.8 Additionally, as will be detailed in the discussion of specific allegations of the complaint, many of Respon- dent's witnesses manifested extremely selective memo- ries. One example may be observed here: In testifying concerning a captive-audience speech given by John Ducate, Jr., the day before the election, employee John- nie Elwood Hammonds could remember only that Ducate had not said anything about women.9 He repeat- ed that testimony several times. His selective memory is interesting in view of the facts that, as he testified, he had been sitting down front, near the speaker, so he could concentrate on the speech and, according to him, the meeting lasted about 15 to 30 minutes. Ferguson, an- other witness for Respondent said it lasted 45 to 60 min- utes, and employee Katherine Garrett, also called by Re- spondent, placed the length of the meeting as 5 to 10 minutes. Willie Johnson, called by the General Counsel, said the meeting lasted from 11:15 to about 11:35 a.m. Ducate testified that the meeting was called for 11:15 a.m. on March 21 so it could be over by the lunch recess, which begins at 12. Hammonds said it began at 3 7 Banks testified: Q. Was it a one-page document that they asked you to sign, do you know, do you remember or was it more than one page? A I can't remember. Q. Do you remember if it was typewritten or handwritten? A. It was typed Q. Was there a typewriter in the room? A. I don't knoss. Q. Was it typed while you were there? A. No, it wasn't Q. Did you sign it while you were in the room? A. Yes, I did. Q. So that it was already typed when you got there. A. II was there when I got there. Q. You can't recall what it said? A. No, I can't. a The statement concerned the discipline of employee Moses Bryant, which is discussed below. Johnson testified in part: A. Well, I was asked about had I seen Moses Bryant up there. Q Who asked you, Mr. Stewart? A. Billie Joe Stewart .. . . He came to me and asked me, I wanted to know why they were asking me, and so I asked Mr. Bryant. and he told me, he said "not to get involved" I didn't know nothing about it Q. What did you tell Mr. Bryant? A. I told him, I said, well. I said, the man asked me to sign a state- ment that you were up there. Q. Did you sign a statement? A Yes, I signed it Q. That he was up there? A. Yes. Q. What time did you say on the statement that he was up there? A. Well, I didn't read the statement They asked me and so. I signed it; yes, he was out there. a Employee Marion Morgan, a witness for the General Counsel. testi- fied that, in an employee meeting the day before the election, Vice Presi- dent Ducate said that if the Union won, women would be out of jobs. Although the complaint contains no such specific allegation. Respondent presented at least seven employees who denied that Ducate had made any reference o women in the March 21 meeting 115 DECISIONS OF NATIONAL LABOR RELATIONS BOARD p.m., which apparently would have brought it within the prohibited 24-hour period. In his campaign, John Ducate, Jr., also appears to have employed misleading half truths. He emphasized strikes and violence perpetrated by unions. He also told the employees that one employee had left a union job in New York and moved to South Carolina "for the safety of his family." In context, the statement would necessar- ily be understood as referring to union violence. Howev- er, it was disclosed at the present hearing that the em- ployee referred to was McCrea, an ardent leader of both the 1977 and 1978-79 union campaigns. He credibly testi- fied that during the 1977 campaign, in answer to a ques- tion by Supervisor Billy Joe Stewart, McCrea said that he had left New York to protect his family from fires and crime, which were rampant in New York. C. Specific Allegations 1. Section 8(a)(1) The 8(a)(1) allegations will here be considered seriatim as set forth in Section 8 of the consolidated complaint. a. Prohibition of distribution The complaint alleges that on December 5, 1978, secu- rity guards Elmore Melton and Dick Hargrove, admitted agents of Respondent, ordered an employee to cease dis- tributing union literature on Respondent's premises. The undisputed evidence establishes that on December 5, 1978, just after the day shift had ended, employee Moses Bryant was standing in the road on Respondent's prem- ises, passing union literature into the cars of departing employees. Both Melton and Hargrove, separately, or- dered Bryant to move off of Respondent's premises. Har- grove then spoke to Horace Wallace, an international representative of the Union, who was handing out leaf- lets at a position off Respondent's premises. Very shortly thereafter Hargrove returned to speak to Bryant again. Hargrove said that he had previously been wrong and that Bryant was correct in his belief that he, as an em- ployee, could lawfully distribute literature in nonwork areas of Respondent's premises on nonworking time. There is no evidence that any agent of Respondent thereafter sought to interfere with employees' distribu- tion of material in the parking lots or on the road on Re- spondent's premises during nonworking time. The General Counsel contends that Hargrove's retrac- tion of his original direction does not cure the violation because "Hargrove only changed his mind after talking with Wallace"; the original order would have remained in effect if Bryant had "not remained in the same area"; and "Melton's order was never retracted." I reject the General Counsel's argument. First, there is no evidence that Hargrove would not have spoken to Bryant even if Bryant had immediately obeyed Hargrove's order to move off Respondent's premises. The fact is that Hargrove did admit his error and promptly countermanded his improper order. The fact that Melton did not personally retract his original order is of no significance in the absence of any evidence that he continued to enforce it. In my opinion, Har- grove's conferring with a union representative and then promptly retracting his erroneous order manifest a good- faith attempt by Respondent to obey the Act. The very short-lived unlawful order is insufficient to warrant a finding of violation or a remedial order. b. Discriminatory prohibition of solicitation The alleged second unfair labor practice was Respon- dent's discriminatory prohibition of union solicitation during working hours, whereas circulation of an antiun- ion petition was permitted. On December 1, 1978, em- ployee Randolph McCrea asked his supervisor, William Creech, for permission to solicit union cards during working time, "the same as the Anti-union Petition was being passed around and signed by the Anti-union Com- mittee." When Creech rejected the request, McCrea sought an opportunity to speak to Billy Joe Stewart, Creech's superior. That request was honored and McCrea spoke with Stewart. Stewart also denied McCrea's request for permission to solicit for the Union during working time.10 McCrea's ensuing request to see Assistant Plant Manager Frank Ducate was denied. Ac- cording to McCrea, Stewart at that time denied any knowledge that an antiunion petition was being circulat- ed. There is no dispute that William Carpenter, who is also a pastor, prepared and circulated an antiunion peti- tion. At the time, Carpenter was a rank-and-file employ- ee but had been raised to leadman before the present hearing. It is also undisputed that, at Carpenter's request, employee Dorothy B. Walker also solicited signatures on the antiunion petition in part of the plant. McCrea testi- fied that, around Thanksgiving, he saw Carpenter and Walker soliciting signatures during working time in the gas welding department. According to McCrea, Supervi- sor Creech was present at the time. McCrea also testified that he was shown the petition by Walker at McCrea's work station. Employee Norman Wise also testified that while he was working he was called to Stewart's desk, where Carpenter showed him the antiunion petition, which Wise refused to sign. Carpenter and Walker testi- fied that they limited the circulation of the petition to breaks and lunchtime. I credit the General Counsel's witnesses and discredit Respondent's as to this matter. Perhaps most basic to this credibility resolution are the contradictions and improb- ability in Carpenter's testimony. Carpenter testified that he wrote and circulated the petition for his own interest after he saw union supporters soliciting union cards. His testimony in this connection was, in part: "[Blecause they wanted to know how they would stand and I was conscientious enough to see how I stand on my side and I wanted to know personally for my own, nobody else, and nobody else knows but me because it wasn't nobody else's business. I didn't discuss it with anybody. "He nonetheless testified that he had enlisted employee Walk- er's assistance in obtaining signatures. He further testi- fied: 10 As discussed below, the visit to Stewart's office led to Bryant's being disciplined. 116 DUCANE HEATING CORPORATION Q. (By Ms. Somson) What did you do with the petition when you had finished passing it around the plant? A. I made a complete disposal of it to make sure that nobody got it but me. JUDGE KLEIN: You said "disposal"? THE WITNESS: Burned up, tored up .... I tore it up so nobody would get it but me because it was my doing. Q. [By Ms. Somson] When did you dispose of it? A. I don't know, afterwards, I don't know, I kept it put up in my personal locker that only I have a key to, that I keep all of my records and inputs in from orders that I order, you know, material, and finally I got rid of it to be sure that nobody got it but me. Q. How long did you keep it in the locker? A. A few days. Q. Did you take it home with you over the weekend? A. No, I didn't. Q. You left it at work? A. I tore it up and when I tore it up I flushed it. Q. At work? A. That's right. Q. In the men's room? A. That's right, I wouldn't go in the ladies' room. Thus, within a very short time Carpenter testified incon- sistently that, after tearing it up, he burned the petition and that he flushed it down a toilet. His professed con- cern for "secrecy" is incompatible with his having pre- pared the petition with lines for numerous signatures on a page. Manifestly late signers would learn the identity of prior signers. And Walker would obviously be privy to knowledge of the identity of at least some signers. Perhaps most telling is the absence of any credible expla- nation of why he circulated the petition, and why, having done so, he allegedly destroyed it. He could not state any satisfactory reason for his not having simply questioned employees orally if, as he maintained, he wanted information as to their sympathies only for his own enlightenment. It may also be noted that, so far as appears, he kept no record of employees who were asked but refused to sign the petition.'' It also appears that he had circulated a similar petition in the 1977 election cam- paign. 2 In testifying, Carpenter made it clear that he had never joined a union and never would, In addition to cir- culating the antiunion petition throughout the plant, he passed out "Vote No" stickers. In view of the strength of his antiunion sentiment and his obvious capacity for leadership, it is inconceivable that, as he testified, he re- "' Walker testified that she did not ask McCrea to sign the petition because she knew he was prounion. Carpenter, however, testified that he showed the petition to McCrea, who refused to sign it, in obscene lan- guage quoted by Carpenter. 12 The evidence also establishes that, about a year before the present union campaign began, Carpenter, apparently with other employees, cir- culated a petition for a change in holidays, i.e., to have the Friday before Christmas as a holiday instead of the day after Thanksgiving Day. This fact appears to establish discriminatory application of an unwritten prohi- bition of solicitation. N.L.R.B. v. Shepherd Laundries Ca, 440 F.2d 856 (5th Cir. 1971). frained from talking about the Union with other people.'a It would not have been unlawful or improper for Carpenter, on his own initiative, to speak to other employees and attempt to persuade them to vote against the Union. Under all the circumstances, I find Carpenter to have been an unreliable witness. His lack of credibility carries over to his testimony that he circulated the petition and handed out "Vote No" stickers only during breaks and the luncheon recess- es. He conceded that he had the petition on his clip board, which he always carried with him as he went to virtually all parts of the plant in the course of his job in inventory control. He also conceded that in moving about the plant he chatted with other employees con- cerning nonbusiness matters. It is inconceivable that, as he testified, he never talked to employees about the Union as he went through the plant, although he did talk about other nonwork matters. Further, Carpenter re- vealed that he frequently took his breaks after the gener- ally scheduled time. Indeed, he testified that he had taken his lunchbreak late on I or 2 days during the ap- proximately 3 or 4 days on which he circulated the peti- tion. Additionally, he solicited signatures to the petition in the men's room. Manifestly, in following that course he solicited other employees during their working time and/or kept them from returning to work promptly. Additionally, it should be noted that, so far as appears, management made no investigation when, on December 1, 1978, McCrea requested "equal time" to solicit union cards. In this connection, Stewart testified: Q. (By Ms. Somson) Was December 1st the first time you heard anything about an Anti-Union Peti- tion being passed around the plant? A. Yes, Ma'am. Q. Randy McCrea's telling you about it was the first time you heard about it? A. Yes. Q. Did you check into it? A. Yes, I did. I checked into it to the point of, I went to William Carpenter and told him that the ac- cusation had been made that he was circulating some sort of a petition, if he was he had better stop. And, he said okay. * * * * * Q. Did you ask him whether he had been passing around an Anti-Union Petition? A. No. As the General Counsel observes in his brief, there are conflicts in the testimony of Carpenter and Walker, both witnesses for Respondent. Carpenter testified that when 'a He testified that he never talked about the Union with anybody except himself 117 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he enlisted Walker's help in circulating the antiunion pe- tition, he did not tell Walker what times she could circu- late it. However, Walker testified that Carpenter "told [her] not to do it on company time, that [she] had to do it on [her] own time." Additionally, Carpenter testified that there was nobody else present in the immediate area when he enlisted Walker's assistance, whereas Walker testified that there were about 25 employees present when Carpenter spoke to her about it in the break area. Employee Marion Morgan testified that about 2 weeks before the election he observed Carpenter passing out "Vote No" stickers during working time in the presence of Jake Stephens, supervisor of the oil fabrication depart- ment. Morgan also testified that the day before the elec- tion he saw employee Steve Davis pass out "Vote No" stickers during working time and in the presence of Su- pervisor Stephens. Employee Ernest Washington testified that on March 20, 2 days before the election, employee Betty Felder distributed "Vote No" stickers to all the employees in Washington's work area, while they were working. The evidence was undisputed that the "Vote No" stickers had been printed in Respondent's print shop and were available at various locations in the plant, in- cluding work areas. Davis, a leadman, testified that on March 21, the day before the election, he passed out "Vote No" stickers in the gas fabrication department "at breaktime and lunchtime." Davis specifically denied having seen Carpenter passing around a petition or hand- ing out "Vote No" stickers. Stephens denied ever having seen any employees handing out "Vote No" stickers. However, Stephens acknowledged that he had seen Walker, carrying a clip board, pass through his depart- ment and stop at some machines during working time. Stephens also testified that many "Vote No" stickers were being worn in the plant for some time before the election. Despite Davis' and Stephens' denial, I credit Morgan's and Washington's testimony concerning Car- penter's and Felder's handing out "Vote No" stickers during working time. This credibility resolution is based on the demeanor of the witnesses as well as the probabil- ities. There is no evidence that any management repre- sentative ever issued or announced any general restric- tion on solicitation or distribution during the preelection campaign. 4 Since the "Vote No" stickers had been printed by an employee in Respondent's print shop, it ap- pears likely Respondent's management would at least "look the other way" while they were distributed. Accordingly, on all the evidence, I find that, as al- leged, Respondent "[p]ermitted antiunion employees to solicit support in the plant while denying prounion em- ployees permission to engage in the same activity." Such conduct interfered with the employees' exercise of their statutory rights, in violation of Section 8(a)(l) of the Act. Ridgewood Management Company, Inc. v. N.L.R.B., 14 The only possibly applicable rules appear in Respondent's safety policy, dated October 5, 1978. Among the safety rules there shown are the following: "E. Under no circumstances engage a machine operator in conversation. He needs all his attention to work safely" and "G. Do not clutter aisles or passageways, and keep your machine and immediate working area clean." There is no evidence that these rules were intended to prohibit or restrict solicitation or distribution. 410 F.2d 738, 740 (5th Cir. 1969), cert. denied 396 U.S. 832. c. Threat of discontinuance offavors Employee Russell Howard testified as follows con- cerning a conversation he had with his supervisor, Carl- ton Schumpert, at Schumpert's home in October 1978; "[Schumpert] told me that he had been doing me favors and he would just as soon that I not have nothing to do with union, because unions cause headaches." Howard said that the "favors" consisted of Schumpert's helping Howard get a bank loan and lending him small sums of money. Schumpert did not testify, so Howard's testimo- ny stands undisputed. The testimony of Vice President John Ducate, Jr., discloses that it is Respondent's policy to obtain bank loans for employees and to provide for payment thereof by checkoff from wages.' 5 In view of this, it would be impossible to conclude that because the conversation occurred at Schumpert's home his state- ment was made purely as a personal friend rather than as a representative of Respondent. There can be no doubt that the statement, as quoted by Howard, could reason- ably be construed as conditioning Respondent's further assistance in obtaining loans on Howard's abstaining from support of the Union. As such, the statement amounted to a threat violative of Section 8(a)(l) of the Act. d. Threat of discharge Employee McCrea testified that, in an employee meet- ing in November 1978, then General Manager (now Vice President) John Ducate, Jr., said that he knew who was handing out union cards and "someone around here thinks that they are very smart, but they are not as smart as they think they are, and that he won't be around here much longer." Although Ducate denied having said that some people who "think that they are very smart . . . won't be around here much longer," I credit McCrea's testimo- ny.' 6 As shown above, Ducate is skilled in the use of in- nuendo. In the statement under consideration, he did not specifically refer to the Union nor did he state that anyone would be discharged. However, in an employee meeting called by Respondent during the union cam- paign, the audience could hardly miss the message that support for the Union might entail loss of employment. Accordingly, I find that, as alleged in the complaint, in 15 This policy is not set forth in Respondent's "Employee Newhire Packet," which states that Respondent cannot grant personal loans or pay advances to employees except in specifically defined circumstances. It further provides that Respondent will check off savings, to be deposited in a bank at 5-percent interest. 18 Respondent sought to impeach McCrea by showing that he had been convicted of a crime in 1965. As maintained by the Union, permit- ting such proof was probably erroneous under Rule 609(b) of the Federal Rules of Evidence. The error is harmless because, entirely apart from Rule 609(b), 1 find that McCrea's conviction some 14 years ago has mini- mal relevance to his credibility in the present case. Cf. United Sates of America v. Albert Pco, 453 F.2d 539, 543 (2d Cir 1971)}, cert denied, 414 U.S. 844 (1973). Taking cognizance of all material factors, including de- meanor, I generally credit McCrea. 118 DUCANE HEATING CORPORATION November 1978 Respondent threatened loss of employ- ment for supporting the Union. As noted above (fn. 9), there was evidence that on March 21, 1979, John Ducate, Jr., threatened that a union victory would result in loss of jobs by women. Al- though Respondent fully litigated this matter, it was not alleged in the complaint and the General Counsel and the Union do not refer to it in their briefs. Any finding in this connection would be merely cumulative and would not affect the remedy to be recommended. Ac- cordingly, no violation is found based on Ducate's state- ment concerning female employees in his speech on March 21, 1979. e. Impression of surveillance As just stated, McCrea testified that, in his captive-au- dience speech in November 1978, John Ducate, Jr., said that he knew who was passing out union cards. Employ- ee Willie Johnson quoted Ducate as having made the same statement in an employee meeting held on March 21, 1979, the day before the election. Ducate testified that he could not recall having said that he knew who was handing out union cards. He added: "The only time I knew who was actually handing out literature was when they began coming onto Company property to hand out literature, our employees. It was very obvious then, I knew who they were." Willie Johnson testified that union cards were not openly distributed in the plant because the employees "were afraid to take them there."'7 However, there is considerable evidence that union supporters frequently passed out leaflets on plant premises. Union activists thus openly identified them- selves. Ducate could reasonably conclude that the lea- fletters were responsible for the distribution of union au- thorization cards. Thus, Ducate's saying he knew the identity of the distributors could not reasonably be taken as indicating that he had engaged in surveillance; it is not surveillance for one to notice obvious facts. In his brief, counsel for the General Counsel also notes the admitted fact that Ducate had read to the employees portions from the Union's "Organizers' Handbook" and "Constitution." The General Counsel observes that Ducate did not state where he had obtained these docu- ments. However, the absence of such explanation is not in itself significant. It may well have been that the docu- ments were voluntarily given to him by an employee or employees in connection with the 1977-79 campaigns. Indeed, Respondent would prudently want such material to correct misrepresentations, which it believed the Union might make. Thus, possession of union documents does not in itself suggest that Ducate had engaged in sur- veillance. Accordingly, I shall recommend that the complaint be dismissed insofar as it alleges that Respondent gave the impression of having engaged in surveillance in violation of Section 8(a)(1) of the Act. 1 Employee Randolph McCrea testified that he knew he could not distribute union cards in the plant during working time without specific permission, which was denied him. f. Threat of plant closure or removal McCrea testified that, in an employee meeting in No- vember 1978, John Ducate, Jr., referred to statements by the Union that, because Respondent was then in a chap- ter 11 reorganization, the plant could not be moved until its creditors had been paid. According to McCrea, Ducate said there was no reason why the plant could not be moved when the creditors had been paid off. Ducate conceded that he "may have mentioned Chapter 11," since he mentions it "quite often," He then testified that Respondent "posted a statement stating that [it] did have until 1985 a multimillion dollar payout," but there were no "Federal restrictions" on its ability to relocate. If Ducate's reference to Respondent's ability to move had been gratuitous, it might well be deemed an unlaw- ful threat. However, Ducate testified that he posted the notice and made his statement in November 1978 in re- sponse to statements made by Horace Wallace, Interna- tional representative of the Union, to the effect that Re- spondent was prohibited by law from moving until 1985. According to Ducate, Wallace's statement "was just an- other mistruth, misleading." The General Counsel made no attempt to deny that Wallace had spoken of the Com- pany's chapter 11 proceeding or to establish that Wallace was correct and Ducate was in error. Ducate was free to reply to what he considered misstatements by the Union, even if the employees might feel threatened by the possi- bility of Respondent's closing the plant. Employee Willie Johnson testified that in the preelec- tion speech on March 21, 1979, John Ducate, Jr., "said that if the union came in, he could close his doors when he got ready to .... He didn't explain it." There is no evidence that at that time Ducate was referring to any alleged misstatements by the Union. I credit Johnson and find that on March 21, 1979, Ducate unlawfully threat- ened plant closure in the event of a union victory. Accordingly, I find that the General Counsel has failed to show that, as alleged, John Ducate, Jr., unlaw- fully threatened plant closure or removal in November 1978. However, I also find that Ducate was guilty of such misconduct on March 21, 1979. The complaint alleges that on April 10, 1979, Supervi- sor Louis Brown threatened plant closure because of the employees' union activities. In support of this allegation, the General Counsel relies on testimony by employee Ernest Washington. However, while Washington's testi- mony warrants a finding of violation (as noted below), he did not quote Brown as having specifically threatened plant closure. The General Counsel then maintains that Brown's testimony itself establishes such threat. Brown's testimony was: [Washington] asked me if the Union came in would the company move and I told him, I ex- plained to Ernest, I said, just because the Union came into the company that doesn't mean the com- pany is going to move but if the Union comes in and then you go out on strike we have customers that we have to satisfy and if we cannot meet their demands the company might have to close up or move. 119 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Taken by itself, Brown's statements is close to the boundary between the permissible and the impermissible. However, as seen by the Regional Director's Report on Objections, and the material attached thereto, the cam- paign was conducted against a background of persistent employer propaganda to the effect that unionization would result in strikes and violence. Under these circum- stances, Brown's statement would necessarily be taken as a threat that the plant would be closed and/or moved. Electric Products Division of Midland Ross Corporation v. N.L.R.B., 617 F.2d 977 (3d Cir. 1980). Accordingly, I find that, as alleged, Respondent violat- ed Section 8(a)(1) on April 10, 1979, when Brown at least impliedly, and pointedly, threatened that the plant would be closed if the Union were to be voted in. 18 g. Promise of increases in wages and benefits There is considerable undisputed evidence that, in an employee meeting held just before Christmas 1978, Ducate announced that he had recommended certain action by Respondent and that if these recommendations were approved, effective July 1979, the employees would receive a wage increase of 28 cents per hour, to- gether with increased pension and insurance benefits. In accordance with considerable evidence already in the record, the parties stipulated that "on December 22, 1978, Respondent in its usual and customary practice an- nounced to its employees that the following increase in wages and benefits would be effective in July 1979": 28- cent-per-hour wage increase; I-cent-per-hour increase in pension plan; $1,000 increase in life insurance; a compa- ny-sponsored trip; and a company party. Since it was stipulated that such announcement followed Respon- dent's "usual and customary practice," it cannot be found to have violated the Act, even though the wage increase was the largest ever granted. The stipulation also listed, "Martin Luther King's Birthday as a holiday to be first observed in January 1980." Considerable evidence received before the stipula- tion was reached established that there was no precedent for Respondent's announcing benefits to become effec- tive more than a year in the future. Respondent gave no explanation for following that unusual course. Employee Morgan credibly testified that Ducate said that "if the union would get in, [the new holiday] wouldn't be prom- ised to" the employees. 19 In summarizing his lengthy speech to the assembled employees on March 21, Duicate disclosed that he had played on the fact that the work force was largely black. He stated that Respondent was probably the first employer in South Carolina to grant Martin Luther King's birthday as a holiday. The benefit, particularly appealing to black employees, was held out to them if they rejected union representation. On the substantial evidence in the record, I should have found that Ducate's promise of Martin Luther King's birthday as a paid holiday more than a year later, "if approved," clearly violated Section 8(a)(1) of the I' It should perhaps be noted that during the 1977 campaign Brown was an employee and known to be strongly antiunion. By the time of the second campaign he had been promoted to a supervisory position. 19 Morgan erroneously placed the new holiday in July rather than Jan- uary. Act. However, the parties' stipulation arises as an im- pediment to such a finding. As worded, and received, the stipulation lists the January 1980 holiday as one of matters announced in December 1978 under Respon- dent's "usual and customary practice." Although it ap- pears that Respondent had never before made such a long-range promise, I believe myself bound by the terms of the stipulation. It is, of course, well established that an employer does not violate Section 8(a)(1) of the Act if, during an elec- tion campaign, he announces and/or grants benefits in accordance with his established past practice. Cf. e.g., American Sunroof Corporation Automobile Specialty Corpo- ration; American Sunroof Manufacturing Co., 248 NLRB 748 (1980). Accordingly, on the basis of the parties' stip- ulation of fact, I shall recommend that the complaint be dismissed to the extent that it alleges unlawful promises of benefits. h. The grant of benefits McCrea testified that about 2 weeks before the elec- tion William Creech, supervisor of the gas welding de- partment, informed the employees under him that, hence- forth, they would be permitted to quit working at 3:45 p.m., but they would not be permitted to leave until 4 p.m., the end of the shift. Employee Ernest Washington testified that about a week before the election Louis Brown, supervisor of the gas fabrication department, similarly told the employees under him that they could stop working at 3:35 or 3:45 p.m. Employee Morgan tes- tified that Jacob Stephens, supervisor of the oil fabrica- tion department, assembled the first-shift employees of that department and informed them that, henceforth, they would be able to stop working 15 minutes before the 4 p.m. end of the shift. At first, Morgan stated that that incident occurred on "January 1st, 1978; '78; '79." However, after refreshing his recollection by reading his pretrial affidavit, Morgan changed his testimony and said that the meeting was held 2 weeks before the election. All three witnesses testified that on March 23, the day after the election, Ducate held an employee meeting, in which he said that production had declined and that em- ployees would, henceforth, be required to work harder. The privilege of quitting work at 3:45 p.m. was with- drawn. Respondent's witnesses denied that employees were granted the privilege of stopping work at 3:45 p.m. It follows that they denied withdrawal of that privilege. Despite such denials, testimony by a witness for Respon- dent tends to corroborate that of the General Counsel's witnesses. Employee Hammonds, who worked in the oil fabrica- tion department under Supervisor Stephens, testified on behalf of Respondent. On direct examination, he denied that he and employee Morgan had ever been called to a meeting in which Supervisor Stephens had told them that they could quit working at 3:45 p.m. However, on cross-examination, he testified as follows: Q. (By Ms. Somson) Let's talk about this, let's say one or two weeks before the election did you ever see Marion Morgan talking to fellow employ- 120 DUCANE HEATING CORPORATION ees, let's say 15 minutes before quitting time at about 3:45 to 4:00 did you ever notice that he wasn't actually working? A. Yes, I noticed that a couple of times. Q. Can you remember what he was doing? A. All I'd know is that he was standing there talking, I saw that. Q. Who was he talking to? A. I can't place him, it'd be a lot of people he talked to. Q. Where was Marion Morgan? A. He was in the punch press area. Q.... And where was Jake Stephens? A. He was in the punch area. Q. From the line press area can you see the line punch press area? A. Yes you can. In view of the strictness with which Respondent claims it enforces discipline, it is inconceivable that Morgan would have been permitted to stand around talk- ing to "a lot of people" if they were all supposed to be working. The only reasonable inference is that, as the General Counsel's witnesses testified, during the week or two preceding the election employees on the first shift were permitted to stop working before the end of the shift. The inference is reinforced by the testimony of em- ployees that the privilege of not working after 3:45 p.m. was withdrawn the day after the election. In this connec- tion, Supervisor Louis Brown testified that in the post- election meeting on March 23, 1979, John Ducate, Jr., said that "Production had dropped, production had been falling off," and "the company cannot survive if they keep going the way it was going because it was losing money." In the March 21, 1979, meeting, John Ducate, Jr., said, inter alia, that, after each employee voted, he would be free to leave for the day, and the second-shift employees would not have to work at all. He further announced that there would be a raffle; as each employee left the polling booth, he could pick up a raffle ticket and on his way out deposit it for the subsequent drawing. The raffle prizes were $100 bills. Ducate testified that the number of bills had been set at eight, but he believed he actually increased the number when he awarded the prizes in the employee meeting he convened on March 23. The Gen- eral Counsel contends that the announcement of the raffle and the time off on election day constituted the promise and/or grant of benefits to influence the employ- ees' vote, in violation of Section 8(a)(1) of the Act. Al- though Respondent has not set forth its legal defense, John Ducate, Jr., testified that the raffle was designed to assure that all the employees would vote. The Board has frequently held that a raffle tied to an election does not per se interfere with the election. Tunica Manufacturing Company, Inc., 182 NLRB 729, 743 (1970); Hollywood Plastics, Inc., 177 NLRB 678, 680 (1969); Buzza-Cardozo, a division of Gibson Greeting Cards, Inc., 177 NLRB 589 (1969). Conduct which does not interfere with the conduct of an election a fortiori would not constitute a violation of Section 8(a)(1) of the Act. Cf. Dal-Tex Optical Company, Inc., 137 NLRB 1782 (1962). The General Counsel presented no evidence that Respondent conditioned the raffle on the outcome of the election or that there were present other special circum- stances rendering it improper. Cf. Marathon Le Tourneau Company, Gulf Marine Division of Marathon Manufactur- ing Company, 208 NLRB 213, 223-224 (1974). Accord- ingly, I find that the raffle did not violate the Act. On the other hand, Respondent's permitting the em- ployees to leave immediately after voting would appear to be a great economic benefit which would tend to create the belief in the employees that Respondent was the source of all largesse. N.L.R.B. v. Exchange Parts Co., 375 U.S. 405 (1964). While the first-shift may not have been excused from very much work, the second- shift employees received a full day off with pay. In the absence of any business justification or other explanation of Respondent's excusing the employees from working full shifts on election day, I find that such conduct vio- lated Section 8(a)(1) of the Act. i. Threat to deny employees direct access to management McCrea testified that, in his captive-audience speech on March 21, 1979, John Ducate, Jr., stated that if the Union came in employees could no longer have direct access to him, but would have to deal through the Union. Ducate testified that he told the employees that they would have to deal with him in the presence of a union steward and thus would lose dignity by having to discuss their personal problems in the presence of a third party. "Dignity" was a major theme in Ducate's speech to the employees on March 21, when he listed benefits provided by the Company. His version of his statement does not accurately state the employees' statutory rights. Section 9(a) of the Act grants employees the right of presenting grievances to their employers without union intervention. Cf. Cosmo Graphics, Inc., 217 NLRB 1061, 1065 (1975); Jacob Wiesel d/b/a Saticoy Meat Packing Co., 182 NLRB 713, fn. 6 (1970). In the main, the em- ployees were not well educated or sophisticated. In the light of Ducate's paternalistic approach, his appeal was especially misleading in failing to suggest that the Union might be of assistance to the employees in connection with grievances and disciplinary matters. Accordingly, I find that, as alleged, Respondent violat- ed Section 8(a)(1) of the Act when, on March 21, John Ducate, Jr., the general manager, informed the employ- ees that unionization would necessarily deprive them of direct communication with management concerning grievances and other problems.2 0 20 In this connection, it should be noted that the evidence, as a whole, indicates that employees were not permitted to ask questions at the March 21 meeting. Employee Hammonds testified that at the end of the meeting Ducate solicited employee questions. However, no other wit- nesses so testified and Willie Johnson testified that employees were not Continued 121 DECISIONS OF NATIONAL LABOR RELATIONS BOARD j. Threats of strike and violence At the employee meeting of March 21, John Ducate, Jr., stressed the facts that unions frequently call strikes, engage in strike violence, and try to prevent employees from working during strikes. He pointed out that, under the Union's constitution, employees would have to wait 2 weeks before getting strike benefits and then might re- ceive only $12 per week. He also warned that they would be ineligible for food stamps and that under South Carolina law strikers are ineligible for unemployment compensation. The evidence as a whole shows that in his speech, as throughout the campaign, Ducate so empha- sized the occurrence of strikes and strike violence as to give the impression that such conduct would inevitably follow if the employees chose union representation. There is no evidence that Ducate at any time evinced any awareness of collective bargaining as a means of averting and/or resolving disputes. It has long been es- tablished that an employer violates Section 8(a)(1) by representing, either expressly or impliedly, that unioniza- tion will inevitably lead to strikes and violence. k. Threat of denial of promotions Employee Washington testified that on April 10, 1979, his supervisor, Louis Brown, asked if Washington had any complaint about his job. Washington expressed dis- pleasure with Respondent's practice of posting jobs even though it had already decided who were to get the jobs. According to Washington, Brown replied: "[You] know, if you keep hanging around with the union, you won't get anything" and "if the union gets into Ducane . .. you won't be able to get a job in Barnwell County." Brown denied Washington's testimony. Despite Brown's denial, I credit Washington's testimony and find that Brown's threats to Washington violated Section 8(a)(1) of the Act. I. Denial of access by employees to management The General Counsel maintains that on March 21, 1979, McCrea's request to speak with John Ducate, Jr., was denied "to show the employees what they could expect" under the Union. On that day McCrea, having a dispute with another employee, asked Creech, his super- visor, to see if McCrea could discuss the problem with John Ducate, Jr. Creech apparently passed the request on to Stewart, at the next step in the hierarchy. Stewart later reported to Creech that Stewart had taken care of the problem and there would be no need for McCrea to see Ducate. So far as appears, the matter actually had been satisfactorily adjusted. According to McCrea, Creech then reported to him that Ducate had said that both he and Stewart were "too busy" to see McCrea, who should "see [his] union organizer." There is no statutorily protected right for an employee to see any particular management representative on demand. Respondent's management claims to have an "open-door" policy. However, as reflected in McCrea's conduct, the practice apparently is for employees to go permitted to ask questions. Employees Willie Ferguson, Katherine Garret, and Roger Nimmons, called by Respondent, testified, incredibly, that at the March 21 meeting Ducate did not even mention the Union. through the established management hierarchy, starting with their immediate supervisors. While I credit McCrea's testimony that Creech quoted Ducate as having advised McCrea to "see [his] union or- ganizer," I do not find that remark to be coercive. McCrea was known as a longtime union activist and Re- spondent strongly opposed the Union. Thus, Ducate's "advice" was a bit of sarcastic humor, which, under the circumstances, could have no tendency to coerce.2 1 Ac- cordingly, on all the evidence, I find that the General Counsel has failed to show that, as alleged, Respondent violated Section 8(a)(l) of the Act by denying an em- ployee "direct access to communicate a grievance to the Employer because of said employee's union activity." 2. Section 8(a)(3) a. Randolph McCrea As already observed, McCrea was a leader in the Union's organizing campaigns. On December 1, 1978, he asked Creech, his supervisor, for permission to solicit union authorization cards during working time to the same extent that other employees circulated an antiunion petition. When Creech denied the request, McCrea asked to see Stewart. Shortly thereafter Creech went to McCrea's work station to escort him to a meeting with Stewart in the "coffeeroom," where Stewart had his office. As Creech and McCrea were proceeding to the coffeeroom, McCrea passed employee Thomas Goodwin and stopped to talk to him very briefly. McCrea then fol- lowed Creech into the coffeeroom and closed the door. Stewart was in the process of preparing a cup of coffee. Stewart testified that he asked what McCrea wanted to discuss but McCrea, at that time, requested a brief delay before starting the conversation. Creech did not corrobo- rate this detail. As the discussion was about to proceed, there was a knock at the door. McCrea opened the door, disclosing Goodwin. Creech and Stewart testified that, in answer to Stewart's question, Goodwin stated that McCrea had told him to come to the coffeeroom where there was to be a discussion of union business. Stewart told Goodwin to return to his work station and that he would be called if he was needed. Goodwin did as ordered. Stewart, ac- companied by Creech, then went to Goodwin's work station. McCrea started to follow, because he wanted to hear what was said. However, he was ordered to return to the coffeeroom and wait for the two supervisors. Creech and Stewart testified that back at his work sta- tion Goodwin repeated that McCrea had told him to go to the coffeeroom for the discussion. Creech testified that Goodwin quoted McCrea as having said he wanted Goodwin present for the union discussion. According to Creech, Goodwin added the statement, "but I don't want no part of it." Stewart testified that he told Goodwin they were not going to discuss union business, an appar- ent untruth. McCrea testified that he did not invite Goodwin to the meeting. However, McCrea testified that Goodwin was a 21 This finding would be to the contrary if it had been shown that McCrea's problem had not been satisfactorily adjusted by Stewart. 122 DUCANE HEATING CORPORATION member of the union committee and knew that McCrea was going to ask for permission to solicit for the Union during working time. At the end of the day, McCrea was given a formal, written warning notice reciting that Goodwin had said that McCrea had "told [him] to come up" to Stewart's office. The warning continued: You do not have the authority to tell another em- ployee to stop work and attend a meeting without permission from your supervisor. This could have caused a work stoppage or a production slow down. Because of this incident you are being given a written warning and if this ever occurs in the future you will force us to terminate you. Goodwin was not given a warning or subjected to any other form of discipline. Only McCrea and Goodwin could have any direct knowledge of what McCrea had said to Goodwin. McCrea testified unequivocally that he said nothing more than that he was going to talk to Stewart. Stewart's and Creech's testimony is hearsay as to what McCrea had said to Goodwin. The only possible cor- roboration of that hearsay testimony was Stewart's fur- ther testimony that, after they entered the coffeeroom, McCrea asked for a short delay in commencing their dis- cussion. In hindsight, such request might suggest that McCrea was awaiting Goodwin's appearance. But nei- ther Creech nor McCrea testified to any such request by McCrea. Stewart's uncorroborated testimony is insuffi- cient support to warrant a finding based on Creech's and Stewart's testimony concerning what Goodwin had al- legedly told them that McCrea had said. This is particu- larly true here, where Goodwin had left his work station and undoubtedly was on the defensive. 22 On all the evidence, together with careful observation of the demeanor of the witnesses, I credit McCrea and discredit Stewart's and Creech's testimony concerning Goodwin's quotation of McCrea. Even if it be assumed that Goodwin did say that McCrea had told him to attend the meeting in the coffeeroom, it would not neces- sarily follow that Respondent was warranted in disciplin- ing McCrea. The Union argues that, even on Respon- dent's version of the facts, McCrea could not properly be disciplined because he was engaged in protected con- a2 The General Counsel and the Union take Respondent to task for not having called Goodwin as a witness. They would have me draw an ad- verse inference from Respondent's failure to do so. Goodwin had been a member of the Union's organizing committee and was no longer em- ployed by Respondent at the time of the hearing. Thus, it cannot be said that he was "within the control of respondent." However, such "control" is not always essential to applicability of the "adverse inference" rule. See, e.g., N.L.R.B. v. Douglas Lantz d/b/a Transportation Consultanls Alcan Forwarding Company. and/or AFCO, 607 F.2d 290 (9th Cir. 1979): Although these witnesses cannot be said to have been within the control of respondent, they were presumably personal and business acquaintances of Lantz and it is, therefore, proper for the Board to draw an adverse inference. Respondent's production of Lantz' weak hearsay testimony regarding an independent AFCO, when strong direct evidence could have been supplied, can only lead to the con- clusion that the strong evidence would have been adverse. It may be noted that many of Respondent's witnesses appeared under subpena and at least one was an ex-employee. certed activities. It is unnecessary to decide whether McCrea's conduct would have lost its protection if he had in fact directed Goodwin to leave his work station and go to the coffeeroom. As noted above, the only evi- dence that McCrea gave any such direction to Goodwin is essentially uncorroborated and unreliable hearsay. Re- spondent, thus, has failed to establish that McCrea direct- ed Goodwin to leave his work station, the reason assert- ed for disciplining McCrea. It would be no defense that Respondent acted in reliance on unsupported statements by Goodwin. See N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21 (1964). McCrea's warning notice said that any repetition of his misconduct would result in discharge. This appears ex- cessively harsh in view of the absence of any discipline of Goodwin, whose conduct allegedly could have dis- rupted production and who must have known that McCrea was not authorized to direct him to leave his work station. Additionally, Respondent's attendance policy, the only written disciplinary procedure in the record, provides for progressive discipline, prescribing a 3-day and then a 5-day suspension between a written warning and discharge. Respondent's union animus is clearly shown by its vi- gorous preelection campaign, which included unfair labor practices. McCrea's union activities were well known, since he had been an observer for the Union in both the 1977 and the 1979 elections, had been on the Union's in-plant committee, and had handed out union literature on Respondent's premises. The warning given him was for alleged misconduct in connection with his union activities, namely, his request for permission to so- licit for the Union during working hours. While denying McCrea's request, Stewart did not investigate McCrea's statement that an antiunion petition had been circulated during working time. These facts clearly constitute a prima facie showing that McCrea was disciplined for his union activities. Respondent's evidence, as discussed above, was insufficient to rebut the prima facie showing that McCrea was discriminatorily disciplined in violation of Section 8(a)(3) and (1) of the Act. b. Suspension of Moses Bryant Moses Bryant has worked for Respondent since Janu- ary 1976. Until the events here in dispute, he had never received any warnings or other disciplinary action. He was openly active as a leader in the 1977-79 union orga- nizing campaigns. In December 1978 Bryant was employed in the ship- ping department. On December 12, he, along with other shipping department employees, was scheduled to work overtime from 4 to 6 p.m. In such situation, the overtime employees are given a 10-minute break, scheduled from 4 to 4:10 p.m. On December 12 at 4 p.m., Bryant moved his personal pickup truck from an employee parking lot to a location beside the company road leading to the main highway. He then joined other employees and one or two union staff representatives in passing out union leaflets to de- parting employees in their cars. Bryant remained on company premises. 123 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bryant maintained that he stopped leafletting and drove back to his work station at 4:09 p.m. Employee Timothy Jeffery testified that on December 12 he started to hand out leaflets at about 4:01 or 4:02 p.m. According to Jeffery, Bryant was already present at the time. Jef- fery further testified that at about 4:07 a voice called out to Bryant to return to work, at which time Bryant handed his supply of leaflets to Jeffery and headed back to his work station.2 Respondent presented a battery of witnesses in an at- tempt to show that Bryant did not return to his work station until after 4:30 p.m. His timecard was altered, in ink, to show that he was away for three-quarters of an hour and he was docked pay for that length of time. On December 15, 3 days after the event, Bryant was sus- pended for 5 days because of his "tardiness" in returning to work on December 12. Respondent's witnesses in regard to Bryant's activities on December 12 were generally incredible. For example, on direct examination, employee Willie McLeod testified that he had seen Bryant passing out leaflets at 4:15 p.m. On cross-examination, McLeod was asked how he hap- pened to remember the date December 12. His testimony was: A. December 12? That was an election day, I be- lieve. Q. That was election day? A. I mean, I don't know. Q. Did you vote that day? A. Yes. The election was on March 22, 1979. Employee Alonzo Brown's testimony was similarly unreliable. He testified that he had seen Bryant outside after 4:32, when Brown clocked out. Brown testified that at 3:30 p.m. he drove a company van from the company premises to a tire company in Barnwell, about 10 miles away. At the same time, guard Hargrove drove his own van to the tire company. Four new tires were to be put on the company van and two of the tires from the com- pany van were to be mounted on Hargrove's. The work did not begin until after the two men had gone to a res- taurant and purchased sandwiches. Then, according to Brown, the tire changes took more than an hour. He proceeded to say that he returned to the plant at 4:20 and clocked out at 4:32 p.m., when he saw Bryant still outside of the plant. Johnson also testified that when there was leafletting, exiting traffic ended at 4:15 to 4:20 p.m., "or thereabouts." Johnson's timecard for December 12 was not offered in evidence. Johnson's testimony could not have been accurate; he could not have left the Respondent's premises at 3:30 p.m., driven 10 miles, gone off and purchased food, then waited more than an hour while the tires were being switched, and returned to Re- spondent's premises at 4:20 p.m. A day or two after the 23 Washington testified that he also passed out leaflets on December 12. According to Washington, Bryant left and headed back to the plant at 4:07 or 4:08 p.m. Washington's testimony was confused as to when Bryant had arrived to pass out leaflets. Because of that confusion, Wash- ington's testimony in this regard is given very little weight. event, Stewart questioned Johnson and asked him to sign a statement. Johnson signed it without reading it. Thomas Bracco, a former leadman, appearing under subpena by Respondent, testified that on December 12, 1978, he clocked out at 4:07 p.m. and then waited about 10 minutes in the engineering office for the other mem- bers of his carpool. He testified further that when they left the premises, at 4:17 p.m., he saw Bryant and two other persons, whom he could not describe or identify, passing out leaflets. Respondent's witness, McLeod, placed the number of distributors at five. In any event, Bracco testified that when he left the premises there were three cars in front of him and none behind him. Thus, on Bracco's testimony, the leafletting would have been completed by 4:17 p.m.2 4 He, thus, could not possi- bly support Respondent's position that Bryant was out distributing for 45 minutes. Employee William English testified that on December 12, 1978, he clocked out at 4:02 p.m., and then waited inside the plant until 4:14 or 4:15 p.m., when the traffic had thinned out. He then left and, as he passed the guard shack, saw people passing out leaflets. Bryant was the only person he could recall. The next day Stewart asked English when he had left and whom he had seen passing out leaflets. Stewart particularly asked if English had seen Bryant and English answered in the affirmative. On cross-examination, English was asked how he happened to remember that December 12 was a Tuesday. His re- sponse to the inquiry was confused and contradictory, as follows: Q. How do you know that it was a Tuesday, how do you know that December 12th was a Tues- day, 1978? A. I know because I know the day. JUDGE KLEIN: He asked you how you knew that December 12th was a Tuesday, and what did you say? THE WITNESS: I takes my baby to the doctor once a month, you know, on Tuesday and I had to take him that day. Q. [By Mr. Brown] I see. What time did you have to go to the doctor? A. I didn't go. Q. You didn't go on that Tuesday? A. No. Q. I see. But do you normally take your baby to the doctor on Tuesdays? A. No, no, I don't. JUDGE KLEIN: Suppose you explain in your own words what this business is about the baby going to the doctor and that that is how you know that this was a Tuesday. 24 Bracco conceded that he did not look at a watch, which in itself renders the precision of his testimony suspect. 124 DUCANE HEATING CORPORATION THE WITNESS: Okay, I have a baby. He is sick and I have to take him to Charleston every so often and that one particular day, he had to go. JUDGE KLEIN: Did you take him that day? THE WITNESS: No. My wife took him. JUDGE KLEIN: Didn't you say that it was once a month on Tuesday? THE WITNESS: No, I didn't say once a month. JUDGE KLEIN: You didn't? THE WITNESS: I said "every so often." JUDGE KLEIN: And do you normally take him? THE WITNESS: YES, I USUALLY TAKE HIM .... OR WE BOTH USUALLY GO. JUDGE KLEIN: I see. You and your wife usually go together? THE WITNESS: Yes.... If I go, I don't work none at all because they keep him all day. Employee Ferguson testified that he had left the prem- ises on a company errand about 3:58 or 3:59 p.m. and re- turned at 4:20 p.m. At both times he saw six employees, including Bryant. According to Ferguson, at 4:20 Bryant was not passing out leaflets but was simply standing around talking to McCrea. On cross-examination Fergu- son testified that the Union had passed out handbills often. When asked how he recalled December 12 specifi- cally, he replied: "Because I was asked about it the next day, did I see Moses Bryant by the railroad passing out union leaflets." Conceivably the written statement Fer- guson had given to Stewart might have been dated and thus given substance to Ferguson's answer. 25 It is unnecessary to review further testimony of em- ployee witnesses for the Respondent concerning the time they had seen Bryant outside the plant after 4 p.m. on December 12. The testimony of John Ducate, Jr., and Ronnie Hutto, Bryant's supervisor, is also grossly flawed. John Ducate, Jr., testified that at 4:15 p.m. on Decem- ber 12, while he was in his office, he heard cars passing. He opened the blinds and looked outside, where he saw cars still backed up. According to Ducate, Stewart then entered the office and reported that Bryant was outside passing out leaflets when he was supposed to be work- ing. No explanation was given for Stewart's reporting to Ducate when Stewart himself had authority to mete out discipline when called for. Ducate then telephoned the shipping department. He testified that he was informed that Hutto was not available and he therefore spoke to Betty Geiger Robinson, the secretary in the shipping de- partment. On direct examination, Ducate testified that Robinson said she had not seen Bryant until sometime after the forklifts started running, which would have been 4:10 p.m. 26 However, Ducate's testimony on cross- examination was considerably different, as follows: 25 It is not clear why Respondent called employee Van Saunders, since the latest time he said he saw Bryant passing out leaflets on Decem- ber 12 was 4:10 p.m. When he was questioned by Stewart the next day he placed the time "about 10 minutes after 4:00." It appears that employ- ees are allowed 3 minutes before they are deemed to be tardy. 26 An objection to this testimony as hearsay was sustained. A. I tried to call Ronnie [Hutto] on the phone, I never talked to him. A. What time did you try to call him? A. Right about that time, 4:15, as soon as I had heard that Moses [Bryant] was supposed to be working. Q. Who did you talk to? A. I got a young lady on the phone. Q. Do you know who it was? A. No, I do not. Well, yes, I would assume, we only have one young lady back there, and that was Betty Geiger [Robinson]. Q. How long did you talk with her? A. I asked if Ronnie Hutto was there, she said no. Q. Anything else said? A. No, sir. Ronnie Hutto, shipping supervisor, testified that Bryant was not in the shipping area at 4:10 p.m. on De- cember 12, when Hutto gave work instructions to two other employees and then left the building to take a trail- er to the dock. Since the tractor he was going to use would not start, Hutto attempted to start the tractor by a jump from the battery of his own pickup truck. He was in the process of starting the tractor when Bryant came out of the building and told Hutto there was a telephone call for him. Hutto testified that he then went inside to take the telephone call and at the same time gave Bryant work instructions. According to Hutto, it was then 4:30 or later. Respondent did not call as a witness either of the two employees whom Hutto testified he had instruct- ed at 4:10 p.m. They presumably could have testified as to Bryant's presence or absence. 27 Additionally, Hutto did not say with whom he had spoken on the telephone. Hutto testified that he first became aware of the Bryant problem the next day, December 13, when Frank Ducate asked whether Bryant had returned to work on time after the 4 o'clock break the day before. Hutto testi- fied that he reported that Bryant had appeared at "4:30 or later." However, it is undisputed that Bryant had come out of the building to announce the telephone call. Hutto acknowledged that he had not seen Bryant enter the building, and Bryant would not have passed within Hutto's sight while returning from the parking lot to the shipping department. On December 15, Hutto gave Bryant a suspension notice, which Frank Ducate had given to Hutto for transmittal. It was Frank Ducate's decision; Hutto had not recommended discipline and had not been consulted, even though he was Bryant's immediate supervisor and had authority to impose discipline. Hutto testified that it was Frank Ducate's decision to suspend Bryant. Howev- er, John Ducate, Jr., testified that it was his decision to 27 Shipping clerk Robinson testified that Hutto recently had said to her that he "went out on the floor to give the guys their work assign- ments and none of them were there . . so, then [he] went outside to jump, to put a trailer up ... . 125 DECISIONS OF NATIONAL LABOR RELATIONS BOARD impose a disciplinary layoff because he considered Bryant's conduct to constitute theft. 2 8 Frank Ducate did not testify.2 9 It is undisputed that Bryant was a good worker and had not received any written warnings in the 3 years he had worked for Respondent. Respondent's "Attendance Policy" provides that an employee will be charged with two points for an "unknown absence," i.e., if he does not call in to his supervisor; one point for an "unexcused ab- sence" i.e., if he calls in but does not provide the neces- sary "paperwork," such as a doctor's, lawyer's, or court officer's statement; and one half point for "arriving late or leaving early" without providing the necessary "pa- perwork." The policy provides for progressive discipline: (1) a verbal warning, (2) a written warning, (3) 3 days off, (4) 5 days off, and (5) discharge. The policy further provides that: An employee could be discharged if he used over six points in any thirty working day period .... However, should an employee use up his two points in any given thirty working day period, and re- ceives a warning and does not have any other viola- tions, he will be given a fresh two point credit the following thirty day period. If that is also abused, he will then receive his second warning. However, if he does not have any violations in the new thirty day working period, he . . . will be eligible for "Perfect Attendance Awards," and as a show of good faith, we will cancel out this last warning. For example, for every thirty working days you do not have any violations, we will cancel out your last warning. If you receive two warnings, you would have to work sixty working days without a viola- tion to cancel both warnings. Hutto testified that Bryant's allegedly late return from his 4:10 p.m. break would be considered "tardiness," for which the attendance policy provides only a one-half point charge. Yet Bryant was given a 5-day suspension-- the fourth step in the progressive discipline pattern. The suspension notice given to Bryant reads, in part: ... On Tuesday you left the facility at approxi- mately 4:00 p.m. and did not punch out. You dis- tributed union literature on the main road leading into the plant, for approximately 45 minutes. This incident was witnessed by approximately 460 Ducane employees. You returned to work and did not punch in. However, at the end of your overtime shift you punched out at 5:59. Since you were scheduled for overtime and did not seek your Supervisor's permission to leave the fa- cility, and misrepresented your time card by not 28 Ducate's testimony was: "I considered it stealing [and] if he wasn't involved in the union effort, I knew he was involved, I would have dis- charged him, a good employee or not. If you steal material, you steal money. I have the same strong feelings and because he was involved I said, well, give him five days off. And that is when [the disciplinary notice] was made up." 29 Although the record does not so disclose, the General Counsel's brief states that Frank Ducate "was available and in the courtroom every day." properly punching in or out, falsifying your card, you have forced us to place you on a 5 Day Sus- pension. If there is another occurrence, you will force us to terminate you. The record establishes that employees are not required to clock out or in for breaks, at least if they do not leave Respondent's premises. Since Bryant remained on com- pany premises while he passed out union leaflets, the major thrust of the suspension notice would be unwar- ranted even if Bryant had been outside for 45 minutes. But, as shown here, there is no substantial credible evi- dence that Bryant was outside for 45 minutes. As noted above, Hutto testified that around 4:30 p.m. Bryant had come out of the plant to tell Hutto he had a telephone call. And neither Stewart nor John Ducate undertook to explain why Bryant was not directed to return to work at 4:15 p.m., when Stewart reported to Ducate. The most reliable, essentially disinterested witness was Robinson, who appeared as a rebuttal witness under sub- pena by the General Counsel. As noted before, Robinson had sworn to a pretrial statement at Respondent's re- quest. Before union counsel raised a hearsay objection, John Ducate, Jr., testified that Robinson said that she had not seen Bryant "until well after, sometime after [the forklifts] started up again and the heisters would have started up at 4:10." Ducate indicated that Robinson had given this information on June 22, 1979, at the time she gave Respondent a written statement.30 Called by the General Counsel as a rebuttal witness, Robinson testified that she could not state precisely what time Bryant had returned from his 4:10 break. However, when she re- ceived the telephone call for Hutto, Bryant was in her office, in the shipping department. She went to the door but did not see Hutto or any shipping department em- ployees. She called out, but nobody answered. Accord- ingly, she asked Bryant to go out and tell Hutto that there was a call for him from Arnold Croft, also a ship- ping foreman or supervisor. Robinson testified that at that time she faintly heard forklifts starting up in another part of the plant, but nobody was working in the ship- ping department.3s At the end of her direct examination, Robinson testified: Q. [By Mr. Brown] The employees when they're on break, when they're working overtime in ship- ping do they always get back by 10 after? A. The shipping department? Q. Yes. A. No, never. Robinson further testified that when she was inter- viewed by John Ducate, Jr., and gave him a statement, he told her that it was he, Ducate, who had called Hutto after 4 p.m. on December 12. Robinson nonetheless in- sisted that it was Croft. As she said: 30 The statement was identified but not formally offered in evidence. Had it been offered and objected to. it would have been rejected as hear- say. al Robinson said she did not know if Henry Livingston, who never leaves for breaks, was working in the warehouse. 126 DUCANE HEATING CORPORATION . . . Arnold and John Jr., have got a different tone of voice, I work with Arnold all the time and John Jr., is a northerner and Arnold is a southerner and even their tone of voice sounds different .... In substance, she denied having spoken to John Ducate, Jr., after 4 p.m. on December 12.32 Respondent made no attempt to impeach Robinson by using her pretrial state- ment. On all the evidence, I find that Bryant was given the harsh discipline of a 5-day suspension, with the threat of discharge for any future dereliction, because of his union activities. Respondent's evidence that Bryant was sus- pended for cause contains many inconsistencies, gaps, and implausibilities. Even if, as Respondent maintains, Bryant returned late from his 4 p.m. break on December 12, other shipping department employees were also late and, so far as appears, they were not disciplined. Respon- dent's published attendance policy did not call for any discipline for one tardiness, yet Bryant, a good worker, was given the stern discipline of a 5-day suspension, ap- parently for a first offense of any kind. Although Stewart allegedly informed John Ducate, Jr., of Bryant's miscon- duct at 4:15 p.m., no action was taken to have Bryant return to his work station immediately. Only two possi- ble inferences come to mind: either Stewart did not see Bryant outside at about 4:15 p.m. on December 12, or Respondent was more interested in building a record against Bryant than in having him go to work as he was supposed to. Since Stewart did not testify concerning the Bryant matter, and did not corroborate John Ducate, Jr.'s testimony, I find that Stewart did not see Bryant outside the building after 4:10 p.m. on December 12. On the foregoing considerations, I find that, as alleged in the complaint, Bryant was given a 5-day suspension and a threat of discharge because of his union activities, in violation of Section 8(a)(3) and (1) of the Act. c. Norman Wise Norman Wise commenced work for Respondent on November 20 and was discharged on Friday, December 8, 1978. There is no dispute that, from the beginning of his employment, he was an active supporter of the Union. His sympathies were obviously known to Re- spondent since, among other things, he participated in the distribution of union literature on Respondent's premises. The General Counsel and the Union contend that Wise was discharged because of his union activities, while Re- spondent maintains that he was terminated for "absentee- ism" during his "90 days Probation Period." Wise testified that while he was working on the morn- ing of December 7 Carpenter approached him and asked him to read and sign an antiunion petition. Wise refused to sign. When Carpenter asked him to repeat his state- ment, Wise again said, this time loudly, that he would not sign the petition. According to Wise, Stewart was about 20 feet away and turned to look directly at Wise when he repeated his refusal to sign Carpenter's petition. a2 Robinson testified: "I may have gotten two, I may have gotten one other than the phone call that came in for Ronnie and that would have been from purchasing, Marilyn telling me to hurry .... Carpenter confirmed that he had asked Wise to read and sign the antiunion petition and that Wise had re- fused, in emphatic and obscene terms. Carpenter, howev- er, placed the event around Thanksgiving Day. Al- though both Stewart and Carpenter appeared as wit- nesses, neither was questioned as to whether Stewart was present and heard the exchange between Carpenter and Wise. McCrea testified, as did Carpenter, that the antiunion petition was circulated during the week of Thanksgiving. Thus, while Wise was generally a credible witness, I find that he was in error as to the date he was asked to sign the petition. In the absence of any contrary evidence, I find, in accordance with Wise's testimony, that Stewart was present and overheard the exchange between Car- penter and Wise. On Friday, December 8, Wise was given his paycheck and termination notice in Stewart's office, with Stewart and Creech present. On his way out, Wise noticed that there had been a deduction from his pay, which he did not understand. He testified that, as he was returning to ask about the deduction, he overheard Stewart say to Creech: "We had to let him go because he wouldn't sign the petition against the Union." Despite Stewart's and Creech's denials, I credit Wise's testimony concerning the statement he overheard. That statement in itself con- stitutes sufficient evidence to establish a violation of Sec- tion 8(a)(3) and (1) of the Act. The weakness of Respon- dent's evidence as to the reason for Wise's discharge considerably reinforces the conclusion based on the Gen- eral Counsel's evidence. Wise's discharge notice states as the reason: "Failure to comply with company 90 days Probation Period. Ex- cessive lateness on 11/22, 12/5 & 12/7. Left early on 12/ 1.. It is undisputed that employees are given 3 minutes leeway but are deemed to be late if they punch in after 7:33 a.m. for the first shift. On November 22, his third day of employment by Respondent, Wise arrived at 7:35 a.m. He testified that within 5 minutes after arriving he reported to Stewart, explaining that because his car was not then operable, he commuted with employee Timothy Jeffery, and Jeffery was late that day. According to Wise, Stewart said he understood and did not reprimand Wise. Wise testified that soon after his arrival at work on December I he tried to speak to Stewart about Wise's need to leave early that day. According to Wise, Stewart said he was busy and told Wise to talk to Rider, his lead- man.33 Wise did so, telling Rider that he (Wise) had to get to a credit union 50 miles away before it closed at 5 p.m. Wise testified that Rider thereafter reported that Stewart said it was all right for Wise to leave early, and Wise did so. According to Stewart, Wise asked Stewart for permission to leave early because he had to make a trip, without further details. Stewart testified that he said the department was very busy and asked Wise "if he 3 Stewart testified that he did not know of any leadman named "Rider," Creech, however, testified that Rider was a leadman working under Stewart when Wise was also supervised by Stewart. 127 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could schedule his trip for another day. [Wise] said, no, he had to go that day. So, he went." Wise testified that he punched the clock at 7:30 a.m. on December 7, but the stamp on the card read "7:35." Wise testified that employee Jeffery punched in a few seconds after Wise but Jeffery's card showed the time as 7:30. Wise further testified that employee Christine Grimes was present at the timeclock area. Respondent introduced timecards showing the following punch-in times on December 7: Grimes, 7:27, Jeffery, 7:32, Wise, 7:35. Jeffery testified that when he and Wise punched in, the clock read 7:30 but the time recorded on their cards was 7:35. Jeffery was in error as to his card, which shows 7:32. However, he further testified that he advised Wise, as a new employee, to talk to Creech, his supervi- sor, immediately. Thereupon, according to Jeffery, both men went to see Creech, at his desk. According to Jef- fery, Creech said "he was going to do something about it, that he was going to have it straightened out." Creech testified, but was not questioned on this matter. Thus, Jeffery's testimony is uncontradicted. Christine Grimes did not testify although she had been identified as having been present when Wise and Jeffery punched in. The timing of Wise's discharge is most significant. As previously noted, his fourth alleged offense occurred on December 7. On Friday, December 8, he was not paid when other employees were. Instead, at about 3:50 p.m., at Stewart's request, Creech took Wise to Stewart's office, where Stewart presented Wise his termination notice and final check. This sequence is noteworthy in view of other evidence presented by Respondent. Hutto testified that on each Monday morning the su- pervisors check the timecards of employees in their de- partments to see if they are in order. After the supervi- sors' review, the cards go to payroll, where the hours are computed and marked on the timecards. Stewart tes- tified that he reviews timecards on Monday. He marks tardiness, early departures, and absences, and also enters the number of hours to be paid for. The cards then go to the payroll department. Personnel Manager Sandra Brown confirmed that the timecards do not reach the person charged with administration of the attendance program until Monday. The evidence also inferred that at the time here involved, supervisors received checks on Thursday for distribution to their employees on Friday. From the foregoing evidence, it must be inferred that there is a -week time lag in the payment of wages. Yet Wise was discharged on Friday, December 9, for tardiness on Tuesday and Thursday, December 5 and 7,34 Respondent's witnesses never explained how or why Wise's delinquencies were punished before his timecard for his final week would normally have been reviewed. An explanation would be in order, particularly in view of Stewart's testimony that the payroll department would automatically prepare a discharge form for any probationary employee who reached two points under the attendance policy. However, some absences, includ- ing tardiness and early departure, are excused and thus do not constitute charges if the employee provides the 34 Tuesday was 7:34 and Thursday was 7:35, or I and 2 minutes, re- spectively, beyond the permissible time. requisite "paperwork," which is presented to the em- ployee's supervisor, who forwards it to the personnel de- partment. Under the system as described by Respon- dent's representatives, Wise's having accumulated two points could not have been apparent or known to the personnel department on December 8, the day he was discharged. It thus follows that his case was given spe- cial treatment. No explanation was forthcoming as to how or why Wise was discharged on Friday, December 8, the very day after he allegedly reached two points under the attendance policy. To support its view as to Wise's discharge, Respon- dent introduced into evidence six notices of termination for "failure to comply with company 90 working days Probation," all apparently for attendance problems. However, as the General Counsel points out, five of the six notices are dated between January and June 1979, after Wise's discharge.3 5 The remaining notice was issued on November 10, 1978, with the most recent at- tendance offense on November 2, more than a week ear- lier. Creech, who has been employed by Respondent for 11 years, testified that he could not recall any employee in his department who had been fired before Wise was. The Union introduced into evidence a discharge notice dated January 12, 1979, which discloses that the employ- ee involved had reached two points on December 5, 1978, and had another half point on December 22, 4 weeks before the discharge. Wise testified that on December 5, 1978, he had diffi- culty starting his car and Jeffery was not going to work that day. Realizing that he might be late for work, he telephoned in and reported to the lady who answered the telephone. Respondent presented evidence that the Company's switchboard is never opened before 8 a.m., at the earliest. Personnel Manager Sandra Brown testified that in November and December 1978 she arrived at work and opened the switchboard between 8:30 and 9 a.m. Employees Dorothy Brown and Donna McCauley also operate the switchboard, but they do not arrive at work until 8 a.m. or later. According to Sandra Brown, employee Donna Winstead frequently serves as a relief switchboard operator but never arrives at work before 8:30 a.m. Sandra then conceded that at one time Win- stead commuted with Arnold Croft, who begins work at 7:30 a.m. But Sandra persisted in her testimony that Win- stead would never have opened the switchboard before 8 a.m.; Dorothy Brown was the regular switchboard oper- ator and, if she was to be late or absent, Sandra Brown opened it. On rebuttal, employee Robinson testified that she had seen Winstead operating the switchboard between 7:30 and 8 a.m. Robinson had frequently arrived early to obtain experience on the "twix" machine, which is locat- ed near the switchboard. Robinson could not specify when she had seen Winstead at the switchboard between 7:30 and 8 a.m., but she knew it was more than once. Robinson specifically recalled Winstead's having com- plained about being required to plug the switchboard in a3 Of these five notices, three apparently were issued before the Monday following the final offense. These employees had all had "un- known" or "unexcused" absences. 128 DUCANE HEATING CORPORATION early, whereas Winstead believed that McCauley should have that obligation. Sandra Brown's testimony was generally unreliable. (See the next paragraph.) On the other hand, Robinson's testimony was straightforward and was not broken down by cross-examination. Accordingly, I credit Robinson and discredit Sandra Brown's testimony that the switch- board was never opened before 8 a.m. Thus, Wise's testi- mony that he called in and spoke to a lady on the morn- ing of December 5, 1978, remains unrebutted. It might be added that, in Respondent's view of the case, that fact would be immaterial in any event, since John Ducate, Jr., testified that car trouble was never accepted as a jus- tifiable excuse for tardiness. The most inscrutable aspect of Wise's discharge is the fact that the attendance policy as applied to "probation- ary" employees is nowhere written. Most significantly, there is no reference to "probationary" status or any spe- cial rules governing probationary employees in Respon- dent's "Employee Newhire Packet" (emphasis supplied). Sandra Brown, Respondent's personnel manager, and Su- pervisor Creech, who had been employed by Respondent for some 6 and 11 years, respectively, both testified that supervisory personnel were aware of the probationary policy because it appeared in the employee handbook. However, John Ducate, Jr., author of the "Attendance Policy," which appears in the Newhire Packet, testified that Respondent has had a "probationary period" since his early childhood but he "neglected to specifically spell out probationary employees in that program although" the Packet does refer to a 90-day waiting period for in- surance coverage. 6 Ducate further testified that when he devised the at- tendance program, apparently in 1977, he called all the supervisors together and told them about the program. However, Creech was unable to provide any details about such a meeting. He conceded that he did not fully understand the details of the program. According to Creech, the program was to be fully explained to each new employee when he was hired. However, Creech tes- tified that he had not explained the program to the em- ployees under him and had not instructed Wise until No- vember 22, when Wise was late for the first time. Creech's understanding of the purported program was so limited that he could hardly have explained it to Wise. I find it totally incredible that Respondent would omit from its "Newhire Packet" an established policy govern- ing new hires, particularly when, as here, a detailed at- tendance policy is set forth. As noted above, under the attendance policy included in the "Newhire Packet," Wise would have been subject to an oral warning for his attendance record at the time he was discharged. One other matter should be noted. Respondent called two witnesses to show that Wise's attendance had been unsatisfactory on a job before he was hired by Respon- dent and again on another job he obtained after Respon- dent discharged him. Respondent's counsel maintained 36 On cross-examination. Sandra Brown testified that the probationary attendance policy appears in the employee handbook. When she was asked where it appeared in that document, Respondent's counsel said: "I will stipulate that the probation policy is not in there." Nonetheless, Creech later testified that the policy appeared in the handbook. that such evidence would "reflect on [Wise's] work habits and behavior while [he] was employed both prior to and subsequent to his employment with Ducane" and would "establish a habit and practice . . . similar to his work habits at Ducane." Since Respondent did not claim that Wise's discharge by Respondent had been based in any part on his record with other employers, the evi- dence was excluded and Respondent's counsel made offers of proof. Respondent did not cite Rule 406 of the Federal Rules of Evidence or any other authority for the admissibility of such evidence. However, Rule 406 reads: Habit, Routine Practice Admissibility. Evidence of the habit of a person . . . whether corroborated or not . . . is relevant to prove that the conduct of the person . . . on a par- ticular occasion was in conformity with the habit or routine practice. Proof of a pattern of poor attendance on other jobs might tend to show that Wise's attendance was unsatis- factory while he was working for Respondent. However, with the exception of December 7, when he maintains the timeclock did not print accurately, Wise's tardinesses and early departure are admitted. The relevant question here is not whether Wise was late three times and left early on one occasion, but, rather, whether such conduct was the real and only reason for his discharge by Re- spondent. There is no suggestion in the evidence or in counsel's offers of proof that Wise's "habit," as allegedly manifested on other jobs, entered into Respondent's deci- sion to discharge him. Respondent apparently maintains that Wise was "automatically" discharged under a com- pany rule governing the attendance of probationary em- ployees. As shown above, that contention does not with- stand scrutiny. As hitherto noted, Respondent's union animus is estab- lished by the record. Wise's open union activities began almost immediately after he began to work. His precipi- tous discharge thus was prima facie violative of Section 8(a)(3) of the Act. Respondent's explanation of the dis- charge was so riddled with inconsistencies, implausibil- ities, and gaps that it could not serve to rebut the Gener- al Counsel's prima facie showing. Accordingly, I find that, as alleged, Respondent discharged Wise because of his union activities and thus violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. The Respondent, Ducane Heating Corporation, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, International Union of Electrical, Radio and Machine Workers, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. Since October 1978 Respondent has engaged in unfair labor practices within the purview of Section 8(a)(1) of the Act by: discriminatorily prohibiting solici- tation on behalf of the Union on working time although solicitation by antiunion employees was permitted during working time; threatening an employee with loss of 129 DECISIONS OF NATIONAL LABOR RELATIONS BOARD favors for engaging in union activities; threatening em- ployees with discharge and/or plant closure or removal because of employees' union activities; threatening em- ployees with loss of direct access to representatives of management in connection with grievances if the em- ployees chose to be represented by the Union; granting benefits to discourage employee support for the Union; threatening strikes and violence if the employees elected to be represented by the Union; and threatening an em- ployee with a denial of wage increases and inability to obtain employment if he continued to engage in union activities. 4. Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act by: issuing a written warning and threat of discharge to employee Randolph McCrea on December 1, 1978; sus- pending employee Moses Bryant for 5 days on Decem- ber 5, 1978; and discharging employee Norman Wise on December 8, 1978, all for the purpose of discouraging union membership. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 6. It has not been shown that Respondent has engaged in unfair labor practices other than those specifically found herein. THE REMEDY Having found that Respondent has committed and is committing unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action, in accordance with cus- tomary practice in cases such as this. Although the unfair labor practices include a discriminatory discharge and two additional instances of discriminatory discipline, the record cannot be said to demonstrate a proclivity on the part of Respondent to violate the Act. Accordingly, under the standards of Hickmott Foods, Inc., 242 NLRB 1357 (1979), I shall not recommend a broad cease-and- desist order. Having found that employee Norman Wise was unlaw- fully discharged, I shall recommend that Respondent be required to offer him reinstatement to his former job, or, if such job no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the dis- crimination against him. Similarly, it will be recommend- ed that Respondent be required to make Moses Bryant whole for any loss of earnings he may have suffered by reason of the discrimination against him. Backpay for Wise and Bryant is to be computed in the manner pre- scribed in F W. Woolworth Company, 90 NLRB 289 (1950), with interest as provided in Florida Steel Corpora- tion, 231 NLRB 651 (1977). 3 7 Additionally, it will be recommended that Respondent be required to remove from its records and destroy any reference to the disci- 37 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The General Counsel's request that interest be provided at the rate of 9 percent per annum is rejected. Jeffrey Manufacturing Division, Dresser In- dustries, Inc., 248 NLRB 33, fn. 2 (1980). plinary actions against employees McCrea, Bryant, and Wise which are the subject of this proceeding. Respondent will, of course, also be required to post an appropriate notice. Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record, and in accordance with Section 10(c) of the Act, I hereby issue the follow- ing recommended: ORDER3 8 The Respondent, Ducane Heating Corporation, Black- ville, South Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Restricting solicitation by employees for Interna- tional Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organization, to any extent greater than any other employee solicitations are restricted. (b) Threatening to discontinue doing favors for any employee because of his union activities. (c) Threatening employees with discharge or with clo- sure or removal of Respondent's Blackville, South Caro- lina, plant if they choose to be represented by a labor or- ganization. (d) Granting increased benefits to discourage employee support for the Union. (e) Threatening employees with loss of direct access to representatives of management in connection with griev- ances if the employees choose to be represented by a union. (f) Threatening employees with the denial of promo- tions and job opportunities for continuing to engage in union activities. (g) Discharging, suspending, warning, or otherwise discriminating against employees because of their union activities and/or sympathies. (h) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Norman Wise immediate and full reinstate- ment to his former position, or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority and other rights and privileges. (b) Make employees Norman Wise and Moses Bryant whole for any loss of earnings they may have suffered as a result of the discrimination against them, in the manner set forth in the section herein entitled "The Remedy." (c) Preserve and make available to the Board or any of its agents, upon request, all records necessary to analyze the amount of backpay due to Norman Wise and Moses Bryant under the terms hereof. '8 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. 130 DUCANE HEATING CORPORATION (d) Remove from its records, and destroy, all mention of or reference to the written warning given to Ran- dolph McCrea on December 1, 1978; the suspension im- posed on Moses Bryant on December 15, 1978; and the discharge of Norman Wise on December 8, 1978. (e) Post at its Blackville, South Carolina, facility copies of the attached notice marked "Appendix." 3 9 Copies of said notice, on forms provided by the Regional Director for Region II, after being duly signed by an au- 39 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." thorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) 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. IT IS FURTHER ORDERED that the consolidated com- plaint herein be, and it hereby is, dismissed to the extent that it alleges unfair labor practices other than those spe- cifically found herein. 131