AutoZone, Inc.

115 315 NLRB No. 21 AUTOZONE, INC. 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an admin- istrative law judge’s credibility resolutions unless the clear prepon- derance of all the relevant evidence convinces us that they are incor- rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 We note that no exceptions have been filed to the decision of the judge dismissing certain 8(a)(1) complaint allegations nor to his decision overruling Objections 2, 3, 6, 8, and 14. 1 All dates are for 1993 unless otherwise indicated. AutoZone, Inc. and General Drivers, Warehouse- men and Helpers, Local Union No. 28, Inter- national Brotherhood of Teamsters, AFL–CIO. Cases 11–CA–l5357, 11–CA–l5559, 11–CA– l5665, and 11–RC–5894 September 30, 1994 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN GOULD AND MEMBERS STEPHENS AND BROWNING On March 28, 1994, Administrative Law Judge Richard J. Linton issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the Charging Party filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has de- cided to affirm the judge’s rulings, findings,1 and con- clusions2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, AutoZone, Inc., Greenville, South Carolina, its officers, agents, successors, and as- signs, shall take the action set forth in the Order. IT IS FURTHER ORDERED that the election held in Case 11–RC–5894 is set aside and that Case 11–RC– 5894 is remanded to the Regional Director for Region 11 to conduct a new election when he deems the cir- cumstances permit the free choice of a bargaining rep- resentative. [Direction of Second Election omitted from publica- tion.] Michael W. Jeannette, Esq., for the General Counsel. James F. Wallington, Esq. (Baptiste & Wilder), of Washing- ton, D.C., for Teamsters Local 28. Cornelius G. Heusel, Esq. and Tracy K. Hildago, Esq., and, only on brief, Robert F. Spencer Jr., Esq. (Kullman, Inman, Bee, Downing & Banta), of New Orleans, Louisi- ana, for AutoZone. DECISION STATEMENT OF THE CASE RICHARD J. LINTON, Administrative Law Judge. Although discrimination allegations here are important, especially to the individuals, the principal issue probably is whether AutoZone unlawfully announced to employees that, under the law, it could not reach a final decision on a pay raise at Greenville, South Carolina, because the Union had filed an election petition to represent the Greenville employees. Find- ing that announcement unlawful, and AutoZone’s freezing of its decision process likewise illegal, I order AutoZone to make that decision and to implement the wage increase retro- active to January 3, 1993, with interest. Based on these and related findings, I recommend that the Board sustain several of the Union’s objections, set aside the March 5, 1993 elec- tion (which the Union lost by a substantial margin), and di- rect that a second election be conducted. I dismiss several al- legations, including those of discrimination against named in- dividuals. I presided at this 5-day trial in Greenville, South Carolina, opening December 6, 1993, and closing December 16, 1993, pursuant to the November 9, 1993 third order consolidating cases, consolidated complaint and notice of hearing (com- plaint) issued by the General Counsel of the National Labor Relations Board through the Regional Director of Region 11 of the Board.1 The complaint is based on a charge filed and served, in the first case, on March 15, 1993, by General Drivers, Warehousemen and Helpers, Local Union No. 28, International Brotherhood of Teamsters, AFL–CIO (Union or Teamsters Local 28). That charge was amended later, and charges were filed later in the other cases. The charges were filed against AutoZone, Inc. (AutoZone, Company, or Re- spondent). Issues from the representation case are embodied in the Regional Director’s April 29, 1993 report on objections, order directing hearing, and order consolidating cases (report on objections or report). On March 5, 1993, a secret-ballot election was held in Case 11–RC–5894 under the supervision of the Regional Director. The Union lost by a vote of 135 to 57. Although the two challenged ballots were insufficient in number to affect the outcome, Teamsters Local 28 filed 13 specific objections with Objection 14 protesting ‘‘other conduct’’ by AutoZone. As the Regional Director’s April 29 reflects, the Union withdrew Objections 4, 9, 10, 12, and 13, and the Regional Director consolidated the remaining objec- tions (1–3, 5–8, 11, and 14) with the complaint for hearing. Most of the objections to be heard parallel allegations of the complaint. 116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 References to the five-volume transcript of testimony are by vol- ume and page. Apparently because the transcript for December 15, 1993 (the fourth day of the hearing), is a bit large at 309 pages, the court reporting service divided the day into 2 volumes. I have re- strung the day as a single volume, volume 4 of the transcript. In the Government’s complaint the General Counsel al- leges that AutoZone violated Section 8(a)(1) of the Act, 29 U.S.C. 158(a)(1), by various economic threats, promises, in- terrogation, and other conduct between about November 18, 1992, and about March 16, and that AutoZone violated Sec- tion 8(a)(3) of the Act, 29 U.S.C. 158(a)(3), by withholding a scheduled wage increase since about January 22, by failing about March 18 to offer a cutter position to Jacqueline McGinnis, by issuing a (written) warning to James Andrews about July 9, and by firing Stanley Phillip Wilson about Sep- tember 13, 1993. By its answer AutoZone admits certain facts but denies violating the Act. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel (who attached a proposed order and notice to the Government’s brief), Teamsters Local 28 (the Union adopts the Government’s brief respecting the un- fair labor practice portion of the case), and AutoZone, I make the following FINDINGS OF FACT I. JURISDICTION A Nevada corporation, AutoZone has an automotive parts warehouse at Greenville, South Carolina. During the past 12 months, AutoZone purchased and received at its Greenville facility goods and materials, valued at $50,000 or more, di- rect from points outside South Carolina. At all material times, I find, AutoZone has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION INVOLVED Complaint paragraph 6 alleges that Teamsters Local 28 is a labor organization within the meaning of Section 2(5) of the Act. In its answer to complaint paragraph 6, AutoZone asserts that the allegation ‘‘is a legal conclusion which the Respondent is not required to admit or deny.’’ The General Counsel did not move to deem this response as an admission. At trial neither the General Counsel nor the Union adduced direct evidence on this allegation. Thus, when the Union called the organizer, David M. Barry, the examination (al- though adducing evidence about employees participating in the organizing) was not expressly directed toward establish- ing labor organization status. (2:265.)2 On brief the parties advance opposing arguments, with AutoZone going beyond the position in its answer to argue that the parties were on notice by that answer that the Union’s status as a labor orga- nization was in dispute. Under Section 2(5) of the Act, only three simple require- ments have to be met to establish labor organization status. First, an organization or group of any kind. Second, that em- ployees participate in the organization. And third, that the or- ganization exists, at least in part, for dealing with employers concerning such matters as wages, hours, or working condi- tions. These requirements are interpreted liberally. NLRB v. Cabot Carbon Co., 360 U.S. 203 (1959); South Nassau Com- munities Hospital, 247 NLRB 527, 529–530 (1980). The three prerequisites are purely factual matters, and the conclu- sion of labor organization status which flows from these three basic facts is likewise a factual conclusion—even though the factual conclusion also coincides with the defini- tion set forth in Section 2(5) of the Act and may be ex- pressed as a legal conclusion. Thus, AutoZone was required by 29 CFR 102.20 to admit, deny, explain, or state that it lacked knowledge. Ample evidence in the record shows that the Union meets the first and third requirements. Only as to the second condi- tion is there any question, and even then only if participation ‘‘in the organization’’ means membership rather than such activities as signing union authorization cards or serving on an organizing committee. As the Board has found that the mere act of signing authorization cards constitutes the re- quired participation, it is clear that membership is not re- quired. Electrical Construction & Maintenance, 307 NLRB 1247 fn. 1 (1992). Serving, as employees did here, on the Union’s organizing committee, also constitutes, I find, the participation required by the statute. Thus, I find that the Union satisfies the three prerequisites. Moreover, AutoZone was well aware of the three basic facts as of the time it filed its answer. Common sense dictated that it form the factual conclusion and admit complaint paragraph 6—in the same manner that it admitted to the 2(11) status of the supervisors alleged in complaint paragraph 7. In this case we do not have some employee committee whose status as a labor organization might, in good faith, be questioned. We have here the Teamsters. In addition to its own status, the Teamsters is affiliated with the AFL–CIO. C.D. Gifford, Directory of U.S. Labor Organizations 3, 53, 57–59 (1992–1993 ed., BNA). No doubt there are thousands of Board cases in which Teamsters locals, and the Inter- national, have been found to be statutory labor organizations. These include cases where I have presided, such as Brown- ing-Ferris Industries, 306 NLRB 682, 683 (1992). Finally, the Board has held that a local of the International Teamsters is a statutory labor organization by virtue of its status as a local. Story Oldsmobile, 244 NLRB 835, 836 fn. 1 (1979) (with representation documents there similar to those here). I find that Teamsters Local Union No. 29 is a labor organi- zation within the meaning of Section 2(5) of the Act. In light of the foregoing, and AutoZone’s refusal to an- swer the allegation of labor organization status, AutoZone’s continued litigation of the matter appears akin to requiring NLRB Region 11 to prove that it is part of the Agency. AutoZone’s continued resistance to admitting what it obvi- ously knows amounts to nothing more than an effort to be argumentative—at the expense of the taxpayers who are funding this proceeding. (A stipulation in the briefs would have served nicely.) In a similar context, respecting resist- ance to a subpena duces tecum, the Supreme Court wrote, ‘‘A subpoena has never been treated as an invitation to a game of hare and hounds, in which the witness must testify only if cornered at the end of the chase.’’ U.S. v. Bryan, 339 U.S. 323 (1950). That, plus additional language, the Sixth Circuit described as ‘‘this guiding philosophy of the Supreme Court.’’ NLRB v. Strickland, 321 F.2d 811, 813 (6th Cir. 117 AUTOZONE, INC. 3 Exhibits are designated GCX for the General Counsel’s, CPX for the Charging Party Union’s, and RX for those of the Respondent, AutoZone. 1963). Lawyers appearing in Board proceedings should fol- low that ‘‘guiding philosophy of the Supreme Court.’’ The General Counsel now requests (Br. at 4 fn. 3) that I assess the facts here under Graham-Windham Services, 312 NLRB 1199 fn. 2 (1993) (sanctions of strong disapproval and warning under 29 CFR 102.21). Lawyers must pay atten- tion to the topic of possible sanctions in Board proceedings, for it is clear that the Board is serious about sanctioning law- yers who act in bad faith in Board proceedings, such as fil- ing frivolous pleadings which consume Agency time and the taxpayers’ money without legitimate cause. Thus, in addition to Graham-Windham Services, see National Football League, 309 NLRB 78, 86 (1992) (104.44 sanctions hearing directed over possible trial misconduct); Worldwide Detective Bureau, 296 NLRB 148 fn. 2 (1989) (102.21 sanctions of strong dis- approval and warning); and M. J. Santulli Mail Service, 281 NLRB 1288 fn. 1, 1289–1290 (1986) (102.21 sanctions of strong disapproval and warning). The General Counsel does not affirmatively move for any specific sanctions. AutoZone does not address the matter, perhaps because it may not have read the General Counsel’s brief. That is one reason a request for sanctions should be by separate document, a motion, served on the opponent, re- questing a specific order. I also consider the fact that neither the General Counsel nor the Union expressly covered the matter at trial. Although I therefore decline to address the issue of possible sanctions, I express confidence that AutoZone’s attorneys will give due attention to this area in future cases before the Board. III. THE ALLEGED UNFAIR LABOR PRACTICES A. AutoZone’s Business AutoZone sells automotive parts in its retail stores across the country. To supply these stores, AutoZone (as of early 1993) operates a distribution center in each of five cities: Phoenix, Arizona; San Antonio, Texas; Lafayette, Louisiana; Memphis, Tennessee; and Greenville, South Carolina. The Greenville DC (distribution center), the facility involved here, serves AutoZone’s retail stores in Georgia, North Caro- lina, and South Carolina. (4:683, 812–813.) There is some reference in the record to warehouses at other locations. (4:603; GCX 3 at 6; CPX 8.)3 It is unclear whether a ware- house may be something different from a DC. For some years AutoZone was a division of Malone & Hyde, but since 1989 AutoZone has been an independent company. AutoZone’s corporate headquarters is located at Memphis. J. R. Hyde (apparently J. R. Hyde III) is AutoZone’s chairman and CEO, Peter Formanek is president and COO, and Tom Hanemann is executive vice president of stores and distribution. (A news item in the March 17, 1994 Wall Street Journal, at B8, reports that Formanek is resign- ing effective April 30, with Hanemann succeeding to his post.) Each has his office at the Memphis corporate office. Within the corporation the retail stores are a separate division from the distribution centers until they reach Hanemann’s level. Thus, Dennis Edward Roberts is vice president of dis- tribution, and he reports to Hanemann. Reporting to Roberts are regional operation managers (ROMs), who are not named in the record. The individual DC managers report to the ROMs who, as noted, report to Roberts. (4:810–812, 883.) Rick Ferguson has been manager of the Greenville DC since October 1991. (2:96; 3:520), and during the relevant time Ferguson had a number of supervisors reporting to him. Although Ferguson normally reports to a ROM rather than to Roberts, it is clear that during the Union’s organizing campaign here that Ferguson frequently worked directly with Dennis Roberts. (3:506, 516–517; 4:813, 854; 5:938.) As we shall see, for example, they made joint speeches to the Greenville employees. (GCX 2; RX 17; CPXs 7, 10.) B. Overview of the Organizing Campaign The Union’s organizing campaign at AutoZone’s Green- ville DC began around October–November 1992, and some employees openly began wearing union pins by November and early December 1991. (1:31, 35; 3:350, 453–454, 467.) DC Manager Rick Ferguson acknowledges learning of the activity about early December. (2:98.) By mid-December or so Ferguson began a training program for his supervisors as to what they were not to do in a campaign. (4:660.) Ferguson instructed supervisors (‘‘advisors’’ at AutoZone) that, re- specting employees’ union activities, they were not to threat- en, interrogate, promise, or spy. The first letters of the four forbidden activities give rise to the acronym by which the in- structions are called: TIPS. The TIPS training occurred al- most daily. (4:610–611, 665–666, 689, 775, 862, 888; 5:908; CPX 11 at 4.) By January 6 the Union’s campaign reached the point where the Union sent a telegram (RX 13) demanding rec- ognition and offering to demonstrate its majority status. (Al- though no party objected to the offer of RX 13 (4:850), I failed to receive it in evidence. I do so now.) The following day, January 7, the Union filed its petition (CPX 4) for a representation election in a unit of warehouse employees. By letter dated January 8 (RX 14), Ferguson declined the Union’s demand for recognition. On January 11, Ferguson posted a notice (RX 15) to all personnel advising them of the petition and AutoZone’s opposition. By letter of January 19, the Union encouraged AutoZone to give employees pay raises ‘‘currently due’’ to ‘‘some’’ employees, and warned that charges would be filed for numerous violations of the Act. (GCX 5.) AutoZone did not respond to the Union’s let- ter. (4:858–859.) During the campaign AutoZone’s management delivered prepared-text speeches to groups of employees as one means of communicating AutoZone’s position on the issues. Vice President Dennis Roberts describes the purpose of the meet- ings as ‘‘educational,’’ to present the facts concerning union representation. (4:863, 881.) DC Manager Ferguson testified that six speeches were given, with each speech delivered, on average, to 15 small groups of employees in order to cover all employees. (5:924–925, 979-980.) Each meeting lasted about an hour. (5:926.) On January 22, AutoZone gave the first (so far as the record shows) of its speeches by management to groups of employees. Ferguson and Roberts divided this relatively short speech (GCX 2) of eight double-spaced pages. This was fol- lowed by a lengthy question-and-answer session. As with the other speeches in evidence, employees tape recorded the question-and-answer session, a transcript of which (pp. 6–33) 118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD is in evidence as CPX 1. (2:336–340.) Ferguson and Roberts delivered a second speech on January 25. (RX 17; 4:873.) On January 27, in Case 11–RC–5894, the Regional Direc- tor for NLRB Region 11 approved a stipulation (CPX 5) by the parties to conduct an election on March 5 in the follow- ing bargaining unit: All full-time and regular part-time warehouse, mainte- nance, and housekeeping employees, and all full-time and regular part-time truckdrivers employed by the Em- ployer at its Greenville, South Carolina location; ex- cluding all office clerical employees, line leaders, guards, and supervisors as defined in the Act. On February 1, Ferguson and Roberts delivered the third speech (CPX 7). By letter (GCX 4) of the same date, the Union sent AutoZone a list of 32-named employees serving as the Union’s organizing committee. The letter warns AutoZone not to violate Federal law respecting the statutory rights of employees to organize. Beginning with the February 1 speech, AutoZone excluded employees wearing union in- signia on the basis their minds were closed to AutoZone’s educational training. (2:112–113; 4:881; 5:925, 974, 979.) Ferguson and Roberts delivered their fourth speech (CPX 10) on February 8. By two-page letter (CPX 8) dated February 16 Roberts wrote employees describing past strikes by the Teamsters at other warehouse locations and urging employees to vote ‘‘No’’ on March 5. (3:534.) On February 19, J. R. Hyde III, AutoZone’s chair and CEO, delivered a speech (GCX 3) to employees in which, on the last of 12 double-spaced pages, he urges them to vote ‘‘No’’ on March 5. (2:292, 325.) The Hyde speech is the fifth one so far as the record shows. If a speech was given the preceding week (the week of Feb- ruary 11), it is not identified and no text is in evidence. Moreover, if a speech was given the week of February 22, or the following week on March 1, 2, or 3, its text is not in evidence. The text of a sixth speech (GCX 14), a short address by Ferguson on March 16, is in evidence. That speech came after the election, but during the objections pe- riod. The March 5 election was held in two sessions, 8:30: a.m. to 11 a.m. and 1 p.m. to 2:30 p.m. (CPX 5; 3:400.) Of ap- proximately 203 eligible voters, 135 employees voted ‘‘No,’’ 57 voted ‘‘Yes,’’ and only 2 ballots were challenged. The Union had lost. Thereafter the Union filed objections, and on April 29 the Regional Director for NLRB Region 11 issued his Report On Objections (GCX 1i) approving the Union’s withdrawal of several objections and directing a hearing on Objections 1–3, 5–8, 11, and 14. (GCX 1i at 8.) For the most part these nine objections parallel allegations in the com- plaint. C. Overview of the Allegations and Objections Complaint paragraph 8 contains the allegations of inde- pendent violations of Section 8(a)(1) of the Act (the other 8(a)(1) alleged derives from alleged violations of Section 8(a)(3) of the Act). The alleged independent violations begin with an alleged threat by Eloise Ruth about November 19, 1992, and continue with other economic threats, interroga- tions, promises, and other conduct through about March 16 when DC Manager Ferguson allegedly threatened to withhold pay raises due employees because of their support of the Union. The 8(a)(3) paragraphs allege that since January 22 AutoZone has withheld scheduled pay increases due unit em- ployees because the Union filed a representation petition, that since about March 18 AutoZone has failed to offer a cutter position to Jacqueline McGinnis, that about July 9 AutoZone issued a written warning to James Andrews, and that about September 13 AutoZone fired Stanley Phillip Wilson. AutoZone denies all the 8(a)(1) allegations and the first of the 8(a)(3) allegations (withholding a scheduled pay in- crease), but admits that it did not offer McGinnis a cutter’s job, that it warned James Andrews on July 9, and that it fired Stanley Phillip Wilson on September 13. AutoZone denies any unlawful motivation. As noted, most of the Unions’ ob- jections parallel allegations of the complaint and, in some in- stances, expand on them. At trial the General Counsel withdrew one of the inde- pendent allegations, paragraph 8(p), as unsupported by any evidence. I granted the motion. (3:550–552.) On brief (at 6 fn. 5) the General Counsel also moves to withdraw a related allegation, paragraph 8(q), apparently for the same reason as AutoZone observes in its brief (at 9 fn. 5). I grant that mo- tion also. D. AutoZone Waives Motion to Dismiss After the General Counsel (3:500) and the Union (3:536) had rested their cases in chief, AutoZone made a lengthy motion to dismiss the complaint. (3:536–553.) When I denied its motion to dismiss, AutoZone proceeded with its defense. (3:553.) A respondent tests the sufficiency of a prima facie case by resting on its motion to dismiss the complaint. It must elect whether to rest or to proceed, for if it proceeds it waives the motion. By proceeding with its own case in chief rather than resting on its motion to dismiss, AutoZone waived the motion to dismiss. Peter Vitalie Co., 313 NLRB 971 (1994). I therefore shall consider all the evidence in the entire record in reaching my decision. Peter Vitalie, id. E. The 8(a)(1) Allegations 1. Eloise Ruth—November 18, 1992 a. Facts Complaint paragraph 8(a) alleges that on November 18, 1992, Eloise Ruth threatened employees with more onerous working conditions if they selected the Union as their collec- tive-bargaining representative. Reuben Rice testified in sup- port of the allegation, with Ruth supporting AutoZone’s de- nial. Rice, who left AutoZone in June 1993, worked as an order selector pulling parts such as starters and alternators. (3:452, 475.) About October 1992, Rice had his first contact with union representatives or supporters, and in November he began wearing, occasionally, a union pin. Eventually Rice served as an observer for the Union at the March 5 election. (3:453–454, 467–468.) Rice apparently worked in the section where Eloise Ruth is the line leader. Although line leaders later were excluded from the stipulated bargaining unit (CPX 5), line leaders are hourly paid and, as Rice concedes, serve as the lowest level supervisors. (3:454, 470; 4:690.) The complaint lists Ruth 119 AUTOZONE, INC. among the statutory supervisors, and in its answer AutoZone admits that allegation of supervisor status. Rice testified that, apparently in November 1992, he would tell Ruth why he was supporting the Union. (3:469.) At that time he considered Ruth a friend and he confided in her on occasion. They voluntarily discussed union matters. (3:471.) In mid-November, Rice testified, Ruth, in the same sentence, told Rice that if he continued his support of the Union and his dating of a specific (unnamed in the record) white woman that Ruth would make Rice’s job harder on him. (3:454, 471–472.) Both Rice and Ruth are black. (3:471, 474.) Rice initially admitted that he, in one or more conversations, had told Ruth that she should support the Union rather than siding with whites (3:472), but, reversing position and denying that statement, testified he told Ruth that if the employees voted in the Union it would produce an equal opportunity for everyone. (3:473–474.) Line Leader Ruth asserts that Rice would initiate con- versations with her about the Union, promising that the Union could get better benefits for her on insurance, uni- forms, and the like. Ruth denies telling Rice that she would make his job harder if he ‘‘voted’’ for the Union, and she denies threatening Rice in any way. (4:693–694.) Ruth does not expressly address the matter of a conversation with Rice about his dating of a white woman. b. Discussion Crediting Ruth rather than Rice, I find that Rice seized the occasion of this case to retaliate against Ruth because she disapproved of his interracial dating. To accomplish this, Rice simply modified Ruth’s threat about dating to include a reference to the Union. I shall dismiss complaint paragraph 8(a). 2. Barbara Cunningham—January 13, 1993 a. Facts Complaint paragraph 8(b) alleges that on January 13 Su- pervisor Barbara Cunningham threatened to withhold pay in- creases due employees because of their support for the Union. Robin Delk is the principal supporting witness, with Cunningham supporting AutoZone’s denial. Robin Delk worked for AutoZone from July 1991 to April 1993. (3:349.) Delk worked as an order selector under Bar- bara Cunningham and was an early and open supporter of the Union. (3:349-350.) Supervisor Cunningham held a sectional meeting in the warehouse after lunch on January 13, Delk testified, with some 100 employees attending. (3:350–351, 364.) Delk was standing in a group to one side which in- cluded Janette Hanson, Paul Henry, Jackie McGinnis, Reu- ben Rice, and others. (3:351, 370.) At one point during the meeting Delk, as she testified, asked Cunningham when she would receive her (regular progression) pay increase which then was about due. Cunningham said that Delk would not receive a raise because of the support of the Teamsters by the warehouse employees. Delk responded that her raise should depend on her evaluation, and her job performance, not on the level of union support in the warehouse. Cunningham replied that Delk needed to talk to her fellow employees about the union support. (3:351, 369.) Cunningham had turned to face Delk and Delk does not know whether employees on the other side of the area could hear the exchange, particularly since some of the employees were talking among themselves. (3:365, 369-372.) Following the exchange, and while she was still standing at the meet- ing, Delk made some notes about the exchange, but she did not bring those notes to the hearing. (3:363, 376–377.) With- in 10 days Delk was evaluated by Cunningham and received her progression increase. (3:351–352, 364, 367–368, 372.) Cunningham recalls the evaluation review as being about January 21, her birthday. (4:777–778.) Jackie McGinnis recalls Delk’s question coming as the meeting (in late January) ended and as employees were leav- ing the area, with Cunningham telling Delk to ask the Union where her raise was. Delk just turned and laughed. McGinnis asserts that the only ones then present were Delk, McGinnis, Hanson, and Cunningham. The three employees, open sup- porter of the Union, were wearing their union insignia. (2:233–235, 256–259.) Disagreeing with McGinnis, Delk firmly states that the meeting had not ended. (3:364.) Janette M. Hanson describes a reference to a question, by someone, of when employees were going to receive their raise, with Cunningham replying that the raise was frozen until after ‘‘all this was over.’’ (1:16–17.) Hanson does not describe any specific exchange between Delk and Cunningham, nor does Reuben Rice. Paul Henry, also named by Delk, did not testify. McGinnis asserts that it was employee Joe Smith who, during the meeting, asked Cunningham whether she had heard anything on their raises, with Cunningham answer- ing ‘‘No.’’ (2:257.) Hired as the first employee when the facility opened in October 1986, Barbara Cunningham began as the center’s re- ceptionist. She progressed through a series of positions, in- cluding personnel manager (1988–1989), then to order selec- tor advisor, and finally, about March 1, 1993, to assistant DC manager. (4:771, 796–797.) Cunningham recalls no question at a group meeting by Delk about a pay raise, denies telling her at a meeting that Delk should ask the Union about her pay raise, asserts that she would not have said, ‘‘Go ask the Union,’’ and denies discussing, immediately following a group meeting, a pay raise with Delk, Hanson, and McGinnis. (4:773–776, 779.) b. Discussion Differences by corroborating witnesses on details are not unusual, but the differences here are substantial. The General Counsel does not suggest how the differences are to be rec- onciled. In view of the TIPS training Cunningham had re- ceived, the fact that some 100 employees were present, with several, perhaps many, wearing insignia of the Union, the Hanson version certainly seems to support Cunningham. Un- able to credit Delk or McGinnis, I shall dismiss complaint paragraph 8(b). 3. Eddie Massey, Timothy Schlichting, and Jim Wartinger—January 20, 1993 a. Facts Complaint paragraph 8(d) alleges that on January 20 Eddie Massey, Timothy Schlichting, and Jim Wartinger removed prounion literature from canteen bulletin boards while leav- ing antiunion literature posted. Reuben Rice testified in sup- port of the allegation, with Massey and Schlichting support- ing AutoZone’s denial. Massey is AutoZone’s transportation 120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD advisor (4:695) and Schlichting was then an advisor (super- visor) over three departments, Returns, Maintenance, and Housekeeping. Schlichting left AutoZone for another com- pany about August 1, 1993. (4:608–610.) According to the distance estimate by Reuben Rice, the beginning of his first floor work area is some 30 feet from the canteen, or employee breakroom, which is situated at the second floor level. A large clear glass window forms the top portion of the canteen wall and faces out onto the warehouse floor. The bottom portion of the canteen wall is concrete and reaches up to a point above waist level. (3:456–457, 475– 482, 638.) There are several company bulletin boards inside the canteen, and on one of them employees may post classi- fied sales and other personal notes. (4:636, 696, 866, 892.) From the glass wall to the employee bulletin board is about 20 feet. (3:481.) As he was standing at the front of his work area on Janu- ary 20, Rice testified (3:456, 475), and looking up through the second floor glass portion of the canteen wall and across the canteen to the bulletin board, he observed Massey, Schlichting, and Wartinger standing at the employee bulletin board. As Rice watched, he saw Schlichting remove three or four letter-size union flyers which, previously posted by Rice, addressed such matters as management salaries. Al- though antiunion matter also was posted on the board, Schlichting left the antiunion matter posted. (3:455–457, 484–486.) When Vice President Dennis Roberts came by about 30 minutes later, Rice complained to him about the re- moval. Roberts said he would take care of it. By the end of the shift, about 3 hours later, Rice observed that the flyers had been reposted. Roberts apologized to Rice for the re- moval. (3:486–487.) Schlichting denies removing any union flyers, or seeing anyone do such. (4:637.) Massey denies that any of the three removed any union items. (4:697.) Schlichting (4:637) and Massey (4:697) claim they saw a cardboard poster fall to the floor (blown down by wind from a fan) while they stood there. In his testimony Roberts does not address the report by Rice that Roberts said he would take care of the matter, that the flyers were reposted within 3 hours, and that Roberts apologized. Ferguson testified that following Rice’s testimony he measured the distance required to view the canteen bulletin board from the warehouse floor. At 6 feet 2 inches, Ferguson had to stand 132 feet from the bulletin board in order to see the posted items. As Ferguson’s measurement apparently was made on the floors of the warehouse and the canteen, rather than measuring the line of sight, the measurement does not include whatever extra distance would be added to the ware- house floor distance in order to raise it up and link it to a line-of-sight straight line. (5:909-910.) No witness was called in rebuttal to contradict Ferguson’s measurements. Ferguson concedes that he and Roberts did not question Rice’s line of vision, or that he observed what he protested, on the day in question. (5:972.) I estimate that Rice stands about 5 feet 11 inches, or slightly under 6 feet, in work shoes. No expert in mathematics testified concerning whether, calculating the math of distance and angles, a person in Rice’s position could have looked over the second floor con- crete wainscot (apparently anywhere from 42 to 48 inches high), through the glass portion of the wall, across the 20 to 24 foot canteen, and have seen the level at which items were posted on the bulletin board. Moreover, there is no estimate for the height of the first floor wall. Whether the wall meas- ures 9 feet, 10 feet, or something different, is not shown in the record. b. Discussion I need not resolve this question of geometry (there are not enough measurements in any event), for Vice President Rob- erts, in effect, admits Rice’s version. Indeed, after Roberts reassured Rice the matter would be taken care of, the items were reposted that afternoon. Moreover, Ferguson admits that Roberts told him about Rice’s protest, and they did not ques- tion Rice’s version on the day of the event. Accordingly, whether Rice actually saw the removal, or someone in the canteen reported it to him, is immaterial. Crediting Rice’s ac- count, as admitted by AutoZone, I find that AutoZone vio- lated Section 8(a)(1) of the Act as alleged. I further find that the reposting did not effectively disavow the effects of the discriminatory removal under Passavant Memorial Area Hos- pital, 237 NLRB 138 (1978). 4. Barbara Cunningham—January 21, 1993 a. Facts Complaint paragraph 8(e) alleges that on January 21 Bar- bara Cunningham interrogated employees regarding their union sympathies and desires. Robin Delk testified in support of the allegation, with Cunningham supporting AutoZone’s denial. As earlier noted, Robin Delk testified that a week to a week and a half after Cunningham’s January 13 sectional meeting, during which Delk asked about her progression wage increase, Cunningham conducted her evaluation inter- view. (3:351–352, 367–368, 372.) Cunningham recalls that it occurred about her birthday, January 21. (4:778, 782.) Delk considered the evaluation good, and she was told that she was getting a pay raise and the amount of her pay increase. (3:352, 372–373; 4:777.) There is no dispute that before the January 21 evaluation interview Cunningham knew of Delk’s open and outspoken (wearing union pin, union jacket, and handbilling) support of the Union, and Delk was wearing her union pin during the January 21 interview. (3:368, 372.) Cunningham suggests that Delk had expressed her union sup- port to Cunningham in earlier conversations (4:776, 778), and (on a leading question) that the position was unsolicited by Cunningham (4:779.) Denying any prior conversations with Cunningham about the Union (3:375), Delk observes that her father, a 25-year member of the Union, makes regu- lar stops at the Greenville warehouse, she visits with him on some of those occasions, and that his union membership in the Teamsters is common knowledge. (3:375.) Delk testified that after the evaluation portion of the inter- view, Cunningham, changing the subject, asked Delk how she felt about the Union and why she supported the Union. (3:352–353, 374.) (Although Delk later testified, 3:373, that she did not recall at what point the union topic arose, her initial description, 3:352, puts it after at least some, perhaps all, of the evaluation portion.) Although Delk was wearing a union pin, Cunningham did not explain why she was ask- ing how Delk felt about the Union. (3:374–375.) To Cunningham’s questions, Delk replied that she was raised with the Union, that it was strong in her family, and 121 AUTOZONE, INC. that she believed in the Union. Her father has been a mem- ber of the Union for over 25 years, and Delk values the union benefits her father has received. Cunningham re- sponded that she grew up in the North, that she remembered the Teamsters and Jimmy Hoffa, and that she remembered the Teamsters as being violent people who would overturn cars and set fire to property. (3:352, 374, 393–394.) Cunningham’s initial description of the interview was in terms of what the customary sequence was rather than what actually occurred. (4:778.) Cunningham denies there was any discussion between them about their opinions on the Union. In answer to a leading question (‘‘Did she [Delk] volunteer . . .’’), Cunningham testified Delk volunteered how she felt about the Union, that her father was part of the Union, that she had grown up with it, and that is why she felt that way. To another leading question of whether this was in response to Cunningham’s asking a question, Cunningham testified ‘‘No.’’ (4:782–783.) b. Discussion Without hesitation I credit Delk rather than Cunningham. Indeed, Cunningham’s answers to the leading questions tend to corroborate Delk’s version. Although asking an open sup- porter of the Union how she feels about the Union seems silly and strange, and therefore not credible, oral statements in conversation generally are not prepared in advance and not as precise and logical as are expressions reduced to writ- ing. In any event it is not the first time such a question has been asked of an open union supporter. See Pilliod of Mis- sissippi, 275 NLRB 799 fn. 2 (1985). AutoZone relies on Pilliod to argue that even if Delk is credited the allegation must be dismissed. I agree. Had Cunningham asked the questions before the evaluation, I would find a violation. Even an open union supporter might well be coerced by such questions occurring at the beginning of a performance evaluation. And whether Delk in fact was, or would be, is immaterial, for actual impact is not the test. Here, however, the questions came after Delk was informed of her good evaluation and of the amount of her pay in- crease. The questions which followed merely launched brief position statements by two persons with opposing views. The General Counsel also argues that Cunningham’s ref- erence to violence by the Teamsters under Jimmy Hoffa ‘‘is naturally coercive and would cause a reasonable person to re- consider supporting the Union. Thus, Cunningham’s remarks to Delk amounted to unlawful interrogation and are violative of the Act.’’ The General Counsel does not assert that Cunningham’s description of her experience with the violent acts in the North, such as the overturning of cars and setting fire to property, is untrue. It therefore is no surprise that such violence ‘‘would cause a reasonable person to reconsider supporting the Union.’’ But such fact does not make Cunningham’s description of her experience in the North un- lawfully coercive. By contrast, Delk’s experience with the Union, its representatives, as well as her father, has been just the opposite—everything she has seen has been good. And she expressed her view very well to Cunningham, supporting it with the specific benefits she has observed. Robin Delk’s father can be justly proud of his daughter’s articulate defense of the Union. For the reasons stated, I shall dismiss com- plaint paragraph 8(e). 5. Dennis Roberts—January 22, 1993 a. Introduction Complaint paragraph 8(f) alleges that on January 22 Vice President Dennis Roberts told employees ‘‘that a pay raise was being withheld because the Union had filed a representa- tion petition.’’ The question here is whether the final paragraph of the text of the January 22 joint speech (GCX 2) by Roberts and DC Manager Rick Ferguson (they alternated in delivering portions) rises to the violation alleged in paragraph 8(f). (2:325.) The final text paragraph of the speech, delivered by Roberts, reads (GCX 2 at 7–8): The other issue I want to discuss has to do with the sta- tus of pay increases at this D.C. A number of you have asked when or if the 4% to 5% increase we had men- tioned back in December would be going through. You need to understand that the numbers we mentioned in December were a tentative forecast only. After that time, we decided to re-evaluate the pay situation in this market. Before we were able to gather all the data we needed and reach a final decision, however, the Team- sters’ petition came in. Our understanding of the law is that we cannot make changes in the pay or benefits once a petition comes in, unless the decision had been finalized beforehand. We very much regret that the union’s poor timing has now tied our hands, but we do not intend to violate the law. The thing to keep in mind, though, is that once the union is beaten in the election—and we feel confident that that is exactly what is going to happen here—then we will be able to move forward, free of the restrictions that we now live under. We’re sorry we cannot be more specific than that now, but we wanted you to understand the legal status of your pay increase at this time. In this speech, and others, AutoZone vigorously opposes the unionization of its Greenville facility. Clearly and ex- pressly AutoZone (Ferguson speaking), as is its right, told the employees that AutoZone does not want ‘‘the Teamsters or any other union in our operation. We are completely and entirely against this union getting in here and we will take every legal step available to us to keep it out!!’’ (GCX 2 at 2–3.) Complaint paragraph 9 alleges that AutoZone has violated Section 8(a)(3) of the Act since January 22 by withholding ‘‘scheduled pay increases due to its unit employees because the Union filed a representation petition.’’ AutoZone denies the allegation. The pay increase allegations constitute a principal part of the case. I do not treat the paragraph 9 allegation until later. Paragraph 9 is relevant here, however, because it provides context for the paragraph 8(f) allegation about Roberts’ re- marks of January 22. b. Facts Vice President Dennis Roberts testimonially described AutoZone’s pay increase procedure and its background. First, AutoZone has two types of pay increases for its DCs (dis- tribution centers). One is a wage progression advance for an employee’s initial 2 years: evaluations and increases at (90 122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD days at Greenville), 6 months, 12 months, 18 months, and 24 months. (4:815, 826.) The second is an annual adjustment, inaccurately called a cost of living (COL) increase. (4:815.) It is not a true COL because (1) not everyone gets the same increase, and (2) the annual adjustment is based on the re- sults of a market analysis, or area wage survey rather than some COL index. The wage survey is conducted by the local management. The data collected is passed to the ROM (Re- gional Operations Manager), and thence to Roberts who, with accounting support, assembles the analysis, forms, and recommendation for AutoZone’s president who typically makes a decision based on the data and recommendation sub- mitted. (4:815–816, 839.) Because the wage surveys are based on the DCs’ geographic areas, the DCs have different pay scales. (4:824.) An annual adjustment is a bit of a mis- nomer, for the adjustments are not guaranteed if the wage survey shows that a DC’s payscale is competitive for its area. (4:831.) For several years AutoZone performed its wage surveys, or market analyses, in November with any adjustments im- plemented in December. AutoZone changed its procedure in late 1991, shifting the survey to December with adjustments made in the following January, the first being January 1992. (4:820–821; GCX 6.) On a routine visit to the Greenville DC in late November 1992, Roberts testified, several employees approached him and asked whether there would be an annual increase and if so how much. Roberts answered that to the best of his knowledge he expected that there would be an increase in the range of 4 percent to 5 percent. He told them that this was not yet confirmed. (4:835–836, 885.) To be fair to other em- ployees, Roberts testified, he returned some 2 weeks later, around December 8, 1992, and management held meetings with small groups of employees sharing that same informa- tion (there ‘‘might’’ be an annual increase in range of 4 per- cent to 5 percent) with all employees. The employees also were told that AutoZone was awaiting the results of a market analysis being done in the Phoenix area by the Hay Group. (4:836–837, 885–886.) The day he left Greenville, Roberts received, by overnight mail, an advance copy of the Hay Group’s survey, dated December 15, for his review on his return flight to, presumably, Memphis. (4:837–838.) The Hay Group’s report indicated to Roberts that AutoZone was no longer competitive in the Phoenix area. That led him to instruct Ferguson, the Greenville manager, to begin a wage survey for the Greenville area. This was done by Ferguson and Personnel Manager Jim Wartinger. They contacted such firms as Wal-Mart which has a ware- house some 20 miles from AutoZone’s Greenville DC. (4:839-841.) By Friday, January 8, or Saturday, January 9, 1993, Roberts testified, Roberts had received all of the wage survey data. He did not have it before Ferguson met with Wal-Mart on January 6. He made his analysis, with account- ing staff support, and gave his recommendation on all DCs, except Greenville on Monday, January 11, to AutoZone’s president, who approved it that afternoon with some modi- fication. (4:844–845, 847–848.) Although Roberts had all the wage survey data for Greenville, he did not perform his anal- ysis nor finalize a recommendation respecting a pay adjust- ment at Greenville. (4:845, 848, 862, 884–885, 887, 898.) According to Roberts, he did not learn of the Union’s or- ganizing activities at Greenville until Ferguson called him on receiving the Union’s telegram (RX 13) after 5 p.m. on Wednesday, January 6, in which the Union demanded rec- ognition. (4:842, 854.) After consulting its attorneys, AutoZone concluded that it would be unlawful to implement a pay increase at Greenville. He therefore put the Greenville data aside, did not complete the analysis for Greenville, and has not done so. (4:846, 848, 862, 885.) The analysis was stopped because of concern over legality, and not for the lack of any data. (4:846.) Extrapolating from the wage sur- veys for the other DCs, Roberts testified that the adjustment for Greenville, had it been made, would have been greater than 5 percent. (4:841, 885.) Had the analysis been made and an adjustment implemented at Greenville, as it was else- where, it would have been effective for the pay period begin- ning Sunday, January 3, 1993, with the increase reflected in the paychecks issued January 22. (4:842–843.) g. Discussion The law is settled on this issue. ‘‘It is well established that an employer is required to proceed with an expected wage or benefit adjustment as if the union were not on the scene.’’ Atlantic Forest Products, 282 NLRB 855, 858 (1987). In At- lantic Forest the Board, continuing, observes that an excep- tion to the rule allows the employer to postpone the wage or benefit adjustment so long as it makes clear to employees that the adjustment would occur whether or not they select a union, and that the ‘‘sole purpose’’ of the postponement is to avoid the appearance of influencing the election’s out- come. In making such announcements, however, the em- ployer must avoid attributing to the union the onus for post- ponement of adjustments in wages or benefits, or disparaging and undermining the union by creating the impression that it stood in the way of their getting planned wage increases and benefits. Atlantic Forest, id. In Atlantic the Board found that the employer’s announce- ment unlawfully attributed to the union the withholding of a regularly scheduled semiannual wage increase. The statement in issue here is very similar to the employer’s announcement in Atlantic. Thus, although Roberts tells employees that the 4 percent to 5 percent was a tentative forecast, it is based on employees’ knowledge of an annual adjustment decision. The December forecast by Roberts, as he asserts, was 4 per- cent to 5 percent. Thus, an adjustment of some kind, forecast to be in the range of 4 percent to 5 percent, would be made. After the December ‘‘tentative forecast,’’ Roberts states, AutoZone decided to reevaluate wage rates in the Greenville market. Before that could be completed and a final decision reached, the Union filed its petition. Now as we know from Atlantic Forest Products, the Union’s petition is irrelevant—but for one exception. Other than the one exception, an employer, election petition or no, is to proceed as if there is no union on the scene. That is, AutoZone was required to complete its wage survey, to make a final decision, and to implement that final decision—all as if the Union were not there. By one permitted exception, the employer may announce a postponement provided it makes clear to employees, (1) the adjustment eventually will occur regardless of the election results; (2) the sole purpose of the postponement is to avoid the appearance of influencing the election’s outcome; and (3) in making the announcement, the employer must avoid attributing to the union the onus for the postponement, or disparaging or undermining the union by 123 AUTOZONE, INC. creating the impression that the union stands in the way of the employees getting the planned adjustment. So stated, At- lantic Forest establishes (reiterates, actually) the three tests to be applied. How does AutoZone fare on the three tests? The answer is easy. AutoZone, after a fashion, passes test one, but it fails tests two and three. First, the understanding it expressed about the law is wrong, for, as I have noted, filing of the petition is an irrelevant event, save for one exception. Sec- ond, there is no requirement that a decision have been final- ized. (Not misstating the law perhaps is an implied fourth test of Atlantic.) Consideration of tests two and three show very clearly that the sole purpose of Roberts’ announcement was just the op- posite of the Atlantic test two, for the purpose was to encour- age a vote ‘‘No.’’ A negative vote would be encouraged be- cause Roberts blamed the Union’s ‘‘poor timing’’ for the postponement. Incited anger needs an outlet, and voting against the Union in the election would provide that outlet. Not only would Roberts’ words incite anger against the Union, and remind employees how to take revenge (beat the Union in the election), but they promise the thrill of victory, after the Union is beaten, in the form of AutoZone’s being able ‘‘to move forward, free of the restrictions that we now live under.’’ That is, AutoZone would be able to proceed with its pay adjustment process when the Union loses the election. (The subliminal message is that a ‘‘Yes’’ vote will doom any pay adjustment.) His overt message is the same as that found unlawful in Atlantic Forest Products. It is the ‘‘carrot or the stick’’ approach condemned in DTR Indus- tries, 311 NLRB 833, 836 (1993). I find that AutoZone, by Vice President Roberts’ speech, violated Section 8(a)(1) as alleged by complaint paragraph 8(f). 6. Martin Nelson—February 2, 1993 a. Facts Complaint paragraph 8(h) alleges that on different dates two supervisors, Marty Nelson (on February 4) and Tim Schlichting (mid-February), threatened employees with un- specified reprisals if they selected the Union as their bargain- ing representative. Respecting Nelson, James Andrews is the General Counsel’s supporting witness, with Nelson opposing. I address the Schlichting allegation under separate heading. James Andrews began working for AutoZone in August 1992. He works in housekeeping. He became a member of the Union’s organizing committee, and in late January 1993 he began wearing a Teamsters pin on his collar. (2:273.) Martin Nelson also joined AutoZone in August 1992, as as- sistant manager of the San Antonio DC. (4:602.) As were some managers from other locations, Nelson arrived at the Greenville DC in late January or early February for some training. (4:598, 602.) Andrews testified that in the latter part of February, in the rear of the warehouse, Nelson approached him and, seeing the union pin on Andrews’ collar, asked, ‘‘What are you going to do when you lose this election?’’ Andrews replied that he would just continue doing his job. Nelson did not re- spond specifically to that, but they did have some general conversation following the initial exchange. (2:278–279, 297–298.) At some point Nelson introduced himself. (2:299.) Andrews concedes (no objection registered) that Nelson did not say Andrews would lose his job nor was he threatened in any other way. (2:298–299.) However, Andrews asserts, Nelson used a ‘‘threatening tone’’ when he asked what An- drews was going to do after losing the election. (2:299.) Nelson places the conversation as occurring about Feb- ruary 2, the very morning he arrived at the facility. (4:598, 602, 604.) Before leaving San Antonio, Nelson was informed of the union campaign at Greenville. (4:602–603.) On his ar- rival at Greenville Nelson was told by Bob Flynn, the assist- ant manager from the Lafayette DC also there for training, not to engage in any ‘‘prolonged’’ conversations with em- ployees about the Union; just do not talk with them about the union campaign. (4:601, 602.) Some days later, after his conversation with Andrews, Nelson, as all members of man- agement, received ‘‘guidance’’ from Ferguson and Roberts not to engage in ‘‘prolonged’’ conversations (4:603–604), or in ‘‘any’’ conversations (4:605) with employees about the Union. This guidance was imparted in an unscheduled meet- ing with some other managers on the warehouse floor. (4:605–606.) On this morning, Nelson testified, he decided to take an inspection walk around the facility while the local manage- ment was in a meeting. (4:598.) Nelson was wearing an AutoZone jacket, giving San Antonio as the facility, but not bearing his name. Nelson was aware that AutoZone had cer- tain pins that employees wore, although he was not familiar with all of them at that time. (4:599-600.) As Nelson walked by a maintenance area, James Andrews stopped him and asked his identity. Nelson introduced himself. Observing An- drews’ pin, he thought it was an AutoZone pin, although he did not recognize it. He could not read the inscriptions be- cause he was not wearing his reading glasses. (4:599-600, 601.) (Nelson appears to be in his fifties, or well past the age when many persons require corrective glasses to read.) ‘‘In the course of the conversation,’’ Nelson testified, he told Andrews that he had ‘‘never seen [that type] pin before.’’ He therefore asked Andrews, ‘‘What is that?’’ Andrews said it was a Teamsters pin. Realizing that Andrews was one of the prounion employees, Nelson decided it was best to move along and he began to walk. Andrews asked what Nelson thought about the ‘‘whole business,’’ or the ‘‘proceedings.’’ Turning to answer as he was walking, Nelson replied, ‘‘I hope it all comes out well.’’ Nelson denies threatening An- drews in any way, denies telling Andrews he would lose his job once the election was over (adding that he had no reason to say that), and asserts that this was the only conversation he ever had with Andrews. (4:600.) b. Discussion The versions of Andrews and Nelson are consistent up to a point. Where they differ, I credit Andrews. Although the General Counsel views Nelson’s inquiry as threatening (‘‘What are you going to do when you lose this election?’’), I see it as ambiguous, subject to different interpretations. Ac- cordingly, I shall dismiss complaint paragraph 8(h) as to Martin Nelson. 7. Rick Ferguson—February 11, 1993 a. Facts Complaint paragraph 8(n) alleges that on February 11 AutoZone, by DC Manager Rick Ferguson, ‘‘promulgated a 124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD rule which prohibited employees from discussing the Union during working time.’’ Several employees, including Reuben Rice, testified in support. Dennis Roberts and Rick Ferguson testified for AutoZone’s denial of a violation. Several of the central facts are not in dispute. All agree that the morning of Thursday, February 11, several members of the Union’s organizing committee, including Reuben Rice, approached Ferguson and Roberts in the upstairs conference room. Rice read (2:122, 235, 274; 3:461, 495; 5:936) a short handwritten note (CPX 3) which, in essence, protests a dis- criminatory practice by AutoZone of allowing antiunion em- ployees, such as Debra Phillips, to walk around during worktime talking antiunion, and interrupting others at work (2:255), while prohibiting union supporters from campaign- ing for the Union during worktime. Ferguson said he was un- aware that was occurring and that he would put a stop to em- ployees talking either for or against the Union during work- ing time. (3:462, 496; 4:864.) Ferguson recalls that he simply said he would handle the situation. (5:936.) After lunch that same day all employees were assembled and Ferguson told them that henceforth there would be no talking for or against the Union during working time, that it was hampering production, and that violators would be sub- ject to discipline up to and including discharge. (2:122–123, 256; 3:462.) Stanley Phillip Wilson testified that Ferguson made it clear that employees could discuss union or anything else during their personal time at breaks, lunch, and before or after work. Wilson testified that this satisfied the union supporters because it stopped the antiunion supporters from walking around talking against the Union. (2:158.) Rice, too, testified that he was satisfied with Ferguson’s presentation to the assembled employees. (3:497.) Although the accounts by Roberts (4:864–865) and Ferguson (5:936–937) do not in- clude the warning of discipline for any violation, I find that such warning was given. Company policy, as Vice President Roberts acknowledges, has been to permit employees to carry on conversations dur- ing work so long as their talking does not interfere with the work to be done. (4:865.) Robin Delk so confirms. (3:354.) The promulgation by Ferguson to the assembled warehouse, therefore, was not a change in policy, for AutoZone’s policy has always been to restrict talking once it reaches the point of interfering with production. (4:865.) There was no evi- dence here that merely talking about issues in the organizing campaign, during the critical period, interfered with produc- tion or did so any more than talking about the weather, sports, politics, or a variety of other topics all of which are permitted until the point production is interrupted. b. Discussion Citing Visador Co., 303 NLRB 1039, 1041–1042 (1991), the General Counsel argues that an employer may not pro- hibit only union discussion, even by forbidding both for and against, while allowing employees to talk about anything else. Visador stands for the proposition that the Section 7 right to discuss union topics in an organizing campaign may not be prohibited while permitting employees to discuss, dur- ing working time, virtually all other topics. The complaint does not allege against AutoZone’s concern about employees leaving their work stations without authorization during working time. Instead, the General Counsel attacks only the prohibition which amounts to a gag rule on discussion of the Union (pro or con) while permitting employees, during work- ing time, to discuss practically any other topic. Unlike Adco Electric, 307 NLRB 1113, 1117–1118 (1992), cited by AutoZone, there is no showing here that talking about the Union (as distinguished from antiunion employees leaving their work stations and going to employees at other work stations), ever reached the point of interfering with pro- duction. Indeed, Ferguson’s account of his February 11 pro- nouncement conveniently omits the gag rule, while prohibit- ing roaming during worktime or stopping ‘‘to put informa- tion together’’ rather than working. (5:937.) Roberts con- cedes that Ferguson was to prohibit any discussion of the Union during worktime. (4:865.) AutoZone defends on the basis that, in effect, any cases outlawing gag rules are misapplied here because AutoZone ordered only what the Union (that is, the Union’s organizing committee) requested, citing Manchester Health Center v. NLRB, 861 F.2d 50 (2d Cir. 1988). Manchester is inapposite. There is no statutory representative here with bargaining au- thority to restrict employees’ Section 7 rights, nor was there here, as there, a bitter and divisive strike. Nor was there here, as already noted, any evidence that mere talking about the Union during work interfered with work at all and cer- tainly not any more than talking about fishing, football, the weather, or any other nonwork topic. Finally, the employees here asked for equal time, and complained about the antiunion roamers. That Reuben Rice and other employees may have acquiesced in a pronouncement which barred all talk, pro or con, about the Union during worktime does not override the statute. Finding DC Manager Ferguson’s February 11 promulga- tion to be a gag rule unnecessarily restrictive, and therefore unlawful under Section 8(a)(1) of the Act, I shall order AutoZone to rescind it. Willamette Industries, 306 NLRB 1010 fn. 2, 1017 (1992); Emergency One, 306 NLRB 800, 806 (1992). 8. Timothy Schlichting—February 15, 18, 1993 a. Facts Complaint paragraph 8(l) alleges that on February 5 AutoZone, by Supervisor Tim Schlichting, ‘‘threatened em- ployees with transfer if they selected the Union as their col- lective-bargaining representative.’’ Paragraph 8(m) alleges that 10 days later, on February 15, Schlichting threatened employees ‘‘with discharge if they utilized Board proc- esses.’’ Stanley Phillip Wilson testified in support of the alle- gations, with Schlichting opposing. As noted earlier, Stanley Phillip Wilson was fired Septem- ber 13, 1993. Later I discuss the allegation respecting his dis- charge. During the Union’s organizing campaign Wilson worked in the returns department, under Supervisor Timothy Schlichting, performing such duties as reboxing repaired merchandise for resale. (2:117; 4:611–612.) He also assisted in various other duties, such as separating salvageable anti- freeze, brake fluid, liquid cleaners, and other chemicals (2:117–118, 137; 4:612–613) and scanning (2:167; 4:614– 615). Jeananne Cole was the line leader (admitted statutory supervisor) who was Wilson’s immediate superior. (2:148– 149; 4:619-620, 740.) Wilson openly and vigorously sup- ported the Union. He began wearing a union pin on January 6. (2:118–119.) His name appears at number 11 on the list 125 AUTOZONE, INC. of 32 members of the organizing committee, the list being attached to the Union’s transmittal letter of February 1 to AutoZone. (GCX 4.) He was one of the committee persons present when Reuben Rice protested to Ferguson and Roberts on February 11, in the conference room, that the union sup- porters could not campaign on worktime but antiunion em- ployees could. (2:122, 156.) Schlichting acknowledges his awareness of Wilson’s open position of union support. (4:613–614, 670.) The scanning computer is similar in appearance to a super- market cash register and hand-held infrared scanning gun. Operation of the scanning gun electronically records, on the computer, the product number of damaged merchandise which AutoZone’s retail stores have returned to the ware- house. When the gun scans the product number, the com- puter electronically credits the retail store for the returned product. (2:158; 4:616–617.) About 5 feet from Wilson’s (primary) work station, and separated by a conveyor belt, is a scanning machine which normally was operated by Missy Riley. (2:159; 4:615.) Wilson was cross-trained to operate this scanning equipment, and at various times did operate it and others. (2:167; 4:615, 623–624.) On February 5 (2:164), a Friday, Missy Riley was not at work, having quit AutoZone for other employment. (2:124; 4:614.) Wilson testified that on this day Schlichting told him that he would have to do Riley’s scanning, as well as his regular reboxing work, for about 2 weeks while AutoZone found a replacement. (2:124, 160, 163, 164, 170.) Schlichting testified that he discussed the matter with Wilson and that Wilson willingly agreed to help out. (4:615.) Schlichting as- serts that, because the winter season has fewer returns of damaged merchandise, Wilson’s regular work was slow at the time. (4:614, 639-642.) Schlichting and Jeananne Cole figured that there would be only a 2-week need for Wilson to cover the extra work. (4:619-620.) Wilson acknowledges that at the time of the additional assignment, both Schlichting and Cole told him that in their opinion Wilson could do both jobs because the work stations were next to each other. (2:162.) Wilson testified that, at the temporary assignment, he told Schlichting he did not want the assignment, but Schlichting assigned him the extra duty anyway. Wilson said he would try to do both jobs. He concedes that the additional assignment upset him. (2:170.) According to Wilson (on cross-examination), he expressed the view that Schlichting was making the assignment because Wilson was supporting the Union. (2:170.) Also according to Wilson, in making the assignment, Schlichting told him that if he did not perform both jobs he would be permanently replaced. (2:124, 172.) However, in answers to questions which I asked in order to clarify the sit- uation, it is clear that the permanent replacement threat was not made on February 5, but on February 18 in a different, and unalleged, incident. (2:172–173.) There is no complaint allegation of a discriminatory trans- fer, and the General Counsel announced that he was not seeking to amend the complaint in pursuing complaint para- graph 8(1). (2:127, 166–167.) I note that complaint paragraph 8(l) does not allege ‘‘on or about’’ February 5; it alleges the specific date of February 5. AutoZone did not object to any reference to the unpleaded date of February 1. (Recall that the testimony, in answer to my questions, served to clarify Wilson’s initial, 2:124, reference to the attributed threat.) Even though I, rather than one of the parties asked the ques- tions, AutoZone should have objected to evidence of any in- cident on February 18 as not being material because outside the pleadings. I therefore shall summarize the incident. Inspecting his notes, Wilson testified (when AutoZone asked about the replacement threat attributed to Schlichting at the February assignment) that the threat occurred in these circumstances. Supervisor Ralph Lozipone (who, Wilson thinks, possibly was an Assistant DC Manager) came by and instructed Wilson to clean up his (regular) area. Wilson told Lozipone that he would clean as much as he could but he had to do the scanning job, too. After Lozipone then con- ferred with Schlichting, Schlichting told Wilson that if he did not do both jobs he would be permanently replaced. (2:172– 174.) Schlichting testified that toward the end of the 2 weeks (Thursday, February 18, would be the last day of the 2 weeks), he went to see Wilson because Wilson’s regular work was falling behind. After he told Wilson that he thought Wilson could handle both jobs, Wilson said it was too much work. Schlichting then offered Wilson the option of working (transferring, presumably) in another area of the warehouse. Taking offense at that, apparently because he was comfortable with his regular job, Wilson said he did not want to change, that he would stay. The following Monday Schlichting assigned Elaine Whitlock for training on the scanner. Whitlock, who had been on light duty from a back injury, had just received a medical release to return to full duty. (4:622–623.) Turn now to the second allegation. Wilson testified that on February 12, a Friday, he asked Schlichting why he was not being permitted to attend the ‘‘antiunion’’ meetings AutoZone was conducting. Schlichting said he would check with Ferguson. On Monday, February 15, Schlichting told Wilson that Ferguson said Wilson could not attend the meet- ings because his mind was made up in view of his open sup- port of the Union. Wilson said the exclusion left him feeling like an outcast and he felt like filing a charge of discrimina- tion. ‘‘Go ahead,’’ Schlichting replied, ‘‘it won’t do no good here in Greenville. It did not do any good in Phoenix and by the way, after this election you will be out of a job per- manently.’’ (Rather than the run-on sentence reflected in the transcript, I would record the ‘‘And by the way . . .’’ as the ending sentence.) (2:125–126, 151–152, 168–169.) Schlichting’s account is generally consistent with Wil- son’s, although Schlichting asserts, after saying the Phoenix charge had not been substantiated, and doubted that it would be successful in Greenville, that Wilson said he would file one anyway. To this Schlichting told him to do what he had to do. Schlichting denies saying that after the election Wilson would be out of a job permanently. (4:624–627, 643–644.) b. Discussion Although I credit Wilson in one or two instances where he supports the testimony of others, I generally do not be- lieve him. Similarly I generally have not credited Schlichting. Even though Wilson’s testimonial trip to the February 18 attributed threat is both tortuous and torturous, I credit his description of Schlichting’s return to tell him that he would have to do both jobs (meaning his regular job as well as the scanning job) or he would be permanently re- placed. His version is more natural than Schlichting’s, whose 126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD account seems disconnected. That is, Schlichting began the conversation on the issue of Wilson’ falling behind on his regular job of reboxing damaged/repaired merchandise. Noth- ing was resolved about that when Wilson said he would stay rather than transfer. I credit Wilson’s version. Having credited Wilson’s version, I shall dismiss com- plaint paragraph 8(l). The credited version describes a Feb- ruary 18 threat that Wilson had better do his regular job, as well as the temporary one, or else. First, there is no com- plaint allegation covering the incident. Second, in the context of events, there is nothing unlawful with that statement. Third, the statement is not directly related to a job transfer (the February 5 allegation) in any event. Actually, complaint paragraph 8(l), the February 5 allegation, appears to be based, somehow, on Schlichting’s trial version of the (Feb- ruary 18) incident, a version I have not credited, rather than on any version described by Wilson. Respecting the second allegation, the supposed February 15 threat, I do not credit Wilson. I find that he, admittedly upset over the scanning work which he did not want, gratu- itously added to Schlichting’s response about a charge in Phoenix being unsuccessful. Aside from being all too con- venient, the addition has an unnatural fit to Schlichting’s statement. By contrast, Schlichting’s threat some 3 days later, as I detailed above, had a natural ring (and Supervisor Lozipone did not take the stand to dispute Wilson’s version), and I credited it (although I shall dismiss the allegation.) I shall dismiss complaint paragraph 8(m). 9. Timothy Schlichting—Mid-February 1993 a. Facts Marvin Holmes testified for the General Counsel in sup- port of the paragraph 8(h) allegation that Timothy Schlichting, at mid-February 1993, threatened employees with unspecified reprisals if they voted in the Union. After a 10-year employment with AutoZone, Marvin Holmes left AutoZone in September 1993. (3:437.) He had worked in the maintenance department, the name of which was changed to housekeeping in August 1993. (3:438, 450– 451.) Holmes was active in the 1993 campaign on behalf of the Union, being a member of the organizing committee and wearing a union pin on his shirt at work. He began wearing the union pin in January. Timothy Schlichting was his super- visor. (3:438–439.) In a departmental meeting, about Feb- ruary, with Holmes and some 15 other employees present, Schlichting told the group that it would be the wrong thing to bring in the Union, and that if the employees voted for the Union they would regret it. He did not say in what way they would regret it. (3:339-340, 343–344.) None of the other 15 employees present testified in corroboration. Acknowledging he made a reference in a departmental meeting during the campaign to employees being sorry, Schlichting testified that he said this as part of a statement that the employees would be sorry because of all the ‘‘things they would have to go through in order to get this process through.’’ (4:628, 662–663.) Schlichting’s account, which is rather disjointed, appears to be that he told the group some- thing on the order that they would be sorry they had given the Union enough support to file a petition, for before the matter was over they would have to attend meetings about the union campaign and listen to speeches on the subject. In short, the campaign process would be a big hassle, and they would be sorry because of the stress the campaign would create. b. Discussion Crediting Holmes’ version rather than the strained and dis- jointed version of Schlichting, I find that the ‘‘regret’’ Schlichting predicted related to voting for the Union, not to any campaign stress. Equating a vote for the Union to regret, however, is ambiguous. Employees could regret the dues they would have to pay, or a strike they would have to sup- port or endure. The statement does not necessarily threaten job discrimination if the employees select the Union as their bargaining representative. I shall dismiss complaint 8(h) in its entirety. 10. J. R. Hyde III—February 19, 1993 a. Facts Complaint paragraph 8(j) alleges that in mid-February AutoZone by its chairman, J. R. Hyde, ‘‘threatened employ- ees with closure’’ of the Greenville facility if they voted in the Union. Complaint paragraph 8(k) alleges that in mid-February AutoZone, by Chairman J. R. Hyde, ‘‘threatened employees with loss of jobs’’ if they vote in the Union. The subjects of the Government’s attack here are portions of a speech (GCX 3) which AutoZone’s chairman, J. R. Hyde III, gave to the Greenville employees on Friday, Feb- ruary 19. The General Counsel designates the last paragraph on page 8 as the target of complaint paragraph 8(j), and the middle paragraph on page 7 as the focus of complaint para- graph 8(k). (2:325–326.) Before quoting the paragraphs, a brief summary of the speech is in order. The double-spaced, and moderately large type, covers about 11 letter-size pages (a short first page and less than 3 lines on p. 12). Hyde quickly emphasizes that the election is a serious matter and that AutoZone is ‘‘totally opposed to the Teamsters getting in here.’’ Hyde reports that although AutoZone is completely nonunion, Hyde has had much experience with the Teamsters in his many years with Malone & Hyde. (Recall from my earlier description of AutoZone’s business history that AutoZone formerly was a division of Malone & Hyde.) The experience was bad, and in every instance where the Team- sters made the company lock horns with them, it was ‘‘the employees who suffered the most.’’ (GCX 3 at 2.) This is why, Hyde explains, AutoZone has spent so much time in meetings with the employees during the last few weeks. Hyde soon begins talking about the Union and strikes, and that the record of the Teamsters is enough to scare anyone. Based on his personal experience, Hyde asserts that the Teamsters strike ‘‘100% of the time.’’ (GCX 3 at 6.) Considering that record, Hyde states he would be very con- cerned about what would happen at Greenville after March 5 if the Union were to win. ‘‘I do not want any of you or any of us to run the risk of the Teamsters making this DC number 4 [Hyde had described strikes at three other DCs, Sikeston (Missouri), Memphis, and Nashville] on their strike list against us. That’s one of the biggest reasons we are op- posed to their getting in.’’ (GCX 3 at 7.) Hyde then reached the middle paragraph on page 7, the subject of complaint paragraph 8(k). The text reads: 127 AUTOZONE, INC. Nobody wins a strike. At each of the cases I men- tioned, both the company and the Teamsters survived the strike and are still around. Nashville is still operat- ing today full bore. So is Sikeston and so is Memphis. The only part of the equation not still there are the em- ployees who allowed the Teamsters to call them out on strike. As Rick and Dennis told you, the 185 strikers at our Nashville warehouse who walked out on an ille- gal wildcat strike were all fired. Those 185 employees did not get to vote. Not one of them has ever gotten his job back. The strikers in Memphis and Sikeston were all replaced, and none of them have gotten their jobs back to this day. In fact, there is no union today in the Nashville DC, the Sikeston DC, or the Memphis DC. From there through the last paragraph on page 8 (‘‘I know . . .’’—the focus of complaint paragraph 8j), the text reads: The Teamsters’ record with me and your manage- ment team is just about as bad as you can get. Maybe it’s because I take a no-nonsense business approach to dealing with them, and I never suck up to them or try to become pals with the Teamster bosses. I’ve always dealt fairly and legally with them, but neither do I quake and shake when the word ‘‘union’’ is mentioned. I don’t make many bets but I will bet you this—Mr. Barry, Mr. Wood and Local 28 have never dealt with anyone like us. If the Teamsters want to play hardball, we can do the same. I doubt very seriously that they have ever tried to change a uniform policy with a com- pany whose Chairman and CEO wears the same uni- form. Don’t misunderstand: AutoZone and I don’t want a strike; we don’t want trouble. But, if the Teamsters make demands on us which I am unwilling to accept, I will say, ‘‘NO.’’ I guarantee you and Mr. Barry that if I say, ‘‘NO,’’ I will mean it and I am ready. If you or he believe for one second that a picket line or a strike at the DC will make me give in one inch—you’re dead wrong. And if the organizers think a strike or picket, anywhere else—including the stores—will make me give in one inch—then they are dead wrong. I know, as sure as I’m standing here, that if I let anyone—here or anywhere else in this company—think the Teamsters union is in charge, I might as well close the doors, put a lock on the gate, and throw away the key. I will not let the Teamsters, with their record and their own agenda, destroy what you and I have built. b. Discussion When an employer conveys a message that in strikes em- ployees may lose their jobs, the employer must explain. As the Board wrote in Baddour, Inc., 303 NLRB 275 (1991): The Board in Larson Tool & Stamping Co., 296 NLRB 895 (1989), made it clear that employers cannot tell employees without explanation that they would close their jobs as a consequence of a strike or perma- nent replacement.3 The phrase ‘‘lose your job’’ conveys to the ordinary employee the clear message that em- ployment will be terminated. 3 For example, the Respondent could have explained that the names of replaced employees would be placed on a preferential hiring list and that they would be recalled if a permanent replacement left the employ of the Respondent. Applying that principle here, I conclude that AutoZone has failed the test. In the ‘‘Nobody wins a strike’’ paragraph, the penultimate sentence refers to strikers at Memphis and Sikeston who ‘‘were all replaced,’’ with none getting their ‘‘jobs back to this day.’’ The vice with the statement is that it equates striker replacement with loss of jobs. This thought is reinforced by two of the three sentences which precede it, referring to the ‘‘fired’’ 185 wildcat strikers and the fact that not one ‘‘has ever gotten his job back.’’ Thus, juxtaposing a statement about strikers being ‘‘fired’’ in an illegal strike, combined with the sentence that not one has ever gotten his job back, creates a liquefied fire which spills over to the suc- ceeding sentence (‘‘The strikers in Memphis . . . to this day.’’), drenching it. The statement, by itself, about fired illegal strikers never getting their jobs back is lawful. But splashing that verbal napalm onto the succeeding sentence forms an incendiary mixture which, even if (contrary to fact) the succeeding sen- tence were lawful standing alone, unlawfully threatens loss of jobs for strikers who participate in lawful strikes. With Hyde’s earlier reference to his personal experience being that the Teamsters strike ‘‘100% of the time,’’ the overall mes- sage is clear—a successful vote for the Union means that there will be a strike, that the strikers will be replaced, and that the replaced strikers will lose their jobs at AutoZone. I find that the message threatens loss of jobs in violation of Section 8(a)(1) of the Act, as alleged by complaint paragraph 8(k). Respecting the remaining portion in issue, the General Counsel attacks the final paragraph, ‘‘I know . . . destroy what you and I have built.’’ Citing Almet, 305 NLRB 626 (1991), enfd. 987 F.2d 445 (7th Cir. 1993), the General Counsel argues that the paragraph fails to define the ref- erence to the Union’s being in charge, and fails to explain why AutoZone would close the doors, lock the gate, and throw away the key rather than simply reject the Union’s contract demands. Thus, the Government argues, AutoZone’s message unlawfully threatens to retaliate by closing the plant if the Union is selected. Arguing that it is free to express its views so long as there is no threat of reprisal, AutoZone relies on, for example, Emory Nursing Home, 260 NLRB 540, 554 (1982), that a mere reference by the CEO to closure is protected speech be- cause not a threat to close. There the CEO also told the em- ployees, before and after reading his speech, that he did not intend to threaten or coerce anyone. Emory, id. Hyde gave no such assurance in his speech. Almet involved a statement in which the employer’s chair- man, Richard Greim, stated: You all know what kind of man I am and what I stand for. You also know how I feel about the unions. I have never lied to you before, and I’m not going to start now. As I stand here before you I’m here to tell you that I will never agree to any demands that I be- 128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lieve are not in the best interest of this company—and if I have to shut down this plant to maintain those prin- ciples—I will shut it down and go out of business. The Almet statement is a direct threat of shutting down and going out of business. Greim made no effort to describe the objective facts which would cause that drastic event. Although CEO Hyde does not flatly state he will close the doors, his statement conveys that message. His message is that if the Union gets in, and secures such favorable contract terms [to which, of course, AutoZone would have to agree], so that someone at AutoZone could ‘‘think’’ that the Union was in charge, then Hyde ‘‘might as well’’ close the Green- ville plant. And he would do so because ‘‘I will not let the Teamsters, with their record and their own agenda, destroy what you and I have built.’’ That is, Hyde would close the plant before he sees it destroy the nonunion operation ‘‘that you and I have built.’’ That, I find, is the message. The mes- sage threatens to retaliate for a union victory by closing the plant. The retaliation threat violates Section 8(a)(1) of the Act as alleged by complaint paragraph 8(j). 11. Barbara Cunningham; Marshall Hurley—mid- February 1993 a. Facts Complaint paragraph 8(o) alleges that sometime from Jan- uary 7 through March 5 Supervisors Barbara Cunningham and Marshall Hurley instructed employees to refrain from discussing the Union. I describe this as a mid-February alle- gation because the incidents appear to have followed Fer- guson’s February 11 pronouncement. Reuben Rice testified that during a sectional meeting Cunningham stated that if anyone was caught talking about the Union, either for or against, he would be terminated, and for the employees to keep their ‘‘mouths closed and just keep working;’’ (3:459) ‘‘just nobody talk about it and, you know, get your job done and stay busy and, you know, do your job.’’ (3:492.) Cunningham testified that she never said that to ‘‘Ms. Delk’’ or ‘‘Ms. McGinnis.’’ (4:783.) (In fair- ness to witness Cunningham, I note that the questions speci- fied Delk and McGinnis, and did not focus on a sectional meeting.) I credit Reuben Rice. Robin Delk testified that as she was standing in the rest- room line and talking to those in line, Supervisor Marshall Hurley walked by and told them they did not need to be talk- ing about the Union. Delk does not recall what she and the employees were talking about, but does recall it was not about the Union. (3:353, 378.) Supervisor Marshall Hurley did not testify. I credit Delk. b. Discussion Because Rice and Delk and Delk can do no better than to place the incidents as being between the petition and the election, and because the statements conform to the gag rule which DC Manager Ferguson imposed on February 11, I find that the incidents occurred at mid-February, after Ferguson’s February 11 pronouncement. The two incidents here are merely evidence that super- vision implemented DC Manager Ferguson’s February 11 pronouncement. As such, the conduct violates Section 8(a)(1) of the Act, as alleged. 12. Timothy Schlichting—mid-February 1993 a. Facts Complaint paragraph 8(g) alleges that AutoZone, through Supervisor Timothy Schlichting, on two occasions from late January to early February, ‘‘promulgated a discriminatory rule prohibiting pro-union employees from conversing about the Union.’’ The parties brief an incident in which Andrews, while cleaning lavatories in a women’s restroom, stopped two fe- male employees who came in to use the facility, and began discussing the Union’s health benefits, an issue in the union campaign. Andrews concedes that he prevented (delayed) the two women from returning to their jobs. Schlichting there- after told Andrews he was not to discuss union issues on company time. (2:276–277, 2:293–297.) Denying that he mentioned the Union to Andrews, Schlichting asserts that he told Andrews he was there to do a job, that while he could mention, for example, a football game, Andrews was not to detain employees from returning to work. Schlichting did not issue Andrews a written warning or even memorialize the event for Andrews’ personnel file. Schlichting never spoke with the two female employees, hearing about the incident from another employee, Debra Shue. (4:630–635, 671–673.) b. Discussion Crediting Andrews, I find that Schlichting’s focus was not on production, or on the awkwardness of AutoZone’s proce- dure of not requiring a male housekeeping employee to block the entrance door when he is cleaning a women’s restroom, or even on detaining the women for discussion, but it was the topic of discussion—the Union—which caused Schlichting to counsel Andrews. Complaint paragraph 8(g) actually alleges that there were ‘‘two occasions’’ when Schlichting engaged in this conduct. The General Counsel briefs only the foregoing incident, in- volving James Andrews. AutoZone also briefs as to testi- mony by Stanley Phillip Wilson. Wilson testified that, a cou- ple of days before the February 11 meeting with Ferguson, Schlichting told him that he would be discharged if he were caught discussing union on the job. (2:156.) Schlichting does not address this. I credit Wilson because his version is con- sistent with the committee’s purpose in going to Ferguson on February 11. I find that the conduct of Schlichting violates Section 8(a)(1), as alleged. 13. Jerome Flowers—February 24, 1993 a. Facts Complaint paragraph 8(i) alleges that of February 24 AutoZone, through Supervisor Jerome Flowers, ‘‘threatened employees with discharge because’’ they supported the Union. Karen Holcombe testified in support of the allegation, with Jerome Flowers denying. Karen Holcombe worked for AutoZone a year, leaving the Friday before she testified. (3:401, 407.) Beginning as an order selector, Holcombe later moved to a checker position. Jerome Flowers was her supervisor. A cousin of Robin Delk (an open supporter of the Union), Holcombe began wearing 129 AUTOZONE, INC. a union pin on her clothing about mid-January. Her open support of the Union was common knowledge in the ware- house during late January 1993. (3:401–402, 407–408.) Holcombe testified that one day in late February, as Holcombe and Flowers met in the warehouse, Flowers initi- ated a conversation. Other than the fact Flowers spoke first, Holcombe recalls very little of what was said. She does re- call that Flowers said AutoZone was bringing in 52 replace- ment workers from Memphis, and if Holcombe voted ‘‘Yes,’’ one of the 52 would replace her. (3:403.) On cross- examination Holcombe recalls Flowers’ statement as being that if she voted ‘‘Yes’’ for the Teamsters she would lose her job. (3:409-410.) Either that day or later that week, she testified, Holcombe removed her union pin and went to Per- sonnel Manager Jim Wartinger and told him that she no longer was a supporter of the Union. He asked her why not. She answered that it was because she wanted to keep her job. She did not think about Flowers’ remark and so did not mention that to Wartinger. Wartinger said he would try to get her back into the antiunion meetings that AutoZone was conducting. She did attended two of AutoZone’s ‘‘edu- cational’’ or ‘‘antiunion’’ meetings after that and she never again wore the union pin before the election. At some point the 52 employees showed up and began working alongside the other employees. (3:403–404, 419, 422, 429, 434.) On cross-examination Holcombe confirmed the earlier im- plication by saying that the 52 replacements had not yet ar- rived when she and Flowers spoke. (3:410.) However, in her pretrial affidavit Holcombe reported that the 52 employees had arrived and that when she asked Flowers about their presence Flowers said that the 52 were replacement workers from the Memphis headquarters and that one would replace her if she voted ‘‘Yes.’’ (3:411, 413.) Holcombe, who had difficulty remembering details, then again answered that the 52 replacements were not present in the warehouse. (3:413.) To show that Holcombe’s testimony flowed from a bias against Flowers, AutoZone introduced a February 8, 1993 ‘‘second written warning’’ (RX 9) for pulling wrong parts. The warning states that continued errors could lead to termi- nation. Holcombe verifies the warning (after first not recall- ing any prior discipline), and does not recall any previous warning. She denies that the warning made her angry toward Flowers because, as she describes, she is ‘‘easy going’’ and because she in fact made the mistakes. She was not con- cerned about losing her job, but she was concerned, she testi- fied, about being replaced. (3:414–419.) To offset any bias effect of the February 8 warning, the Union offered Flowers’ performance review (CPX 2) of Holcombe. (3:426.) Although the form shows a typed review date of December 22, 1992, with an effective date for her new rate (from $6.25 to $6.50, 3:423) of January 3, 1993, Holcombe testified that the review occurred in late January, identifying her dated signature of January 28 and Flowers’ dated signature of January 25. (3:425.) In the review Flowers records that Holcombe does an excellent job in her assigned tasks. For improvement, Flowers encourages Holcombe to initiate action on her own. Overall he rated Holcombe as ‘‘Achieves Requirement.’’ (CPX 2.) In very brief testimony, Supervisor Flowers asserts that he had received daily training on what not to say (TIPS). He denies ever threatening Holcombe in any way, and denies telling Holcombe that she would be replaced by an outside employee. (4:689.) b. Discussion Karen Holcombe testified with such vagueness and con- tradiction that I have insufficient confidence in what she as- serts to find merit in the complaint allegation. The denials by Flowers are brief, but direct. Not crediting Holcombe, I shall dismiss complaint paragraph 8(i). 14. Barbara Cunningham—March 5, 1993 a. Facts Complaint paragraph 8(c) alleges that AutoZone violated Section 8(a)(1) of the Act on March 5 when Barbara Cunningham, who became assistant DC manager about March 1, promised employees a ‘‘pay raise’’ if they ‘‘voted against’’ representation by the Union. Complaint paragraph 8(r) is a duplicate allegation, phrased as a promise of a ‘‘wage increase’’ if employees ‘‘rejected the Union as their bargaining representative.’’ Both allegations cover the same incident, with Robin Delk testifying for the General Counsel, and Barbara Cunningham opposing. I shall dismiss paragraph 8(r) as an unnecessary duplicate of paragraph 8(c). Robin Delk testified that she voted during the afternoon session (1 p.m. to 2:30 p.m., recall) at the March 5 election. (3:391.) As summarized earlier, Delk worked much of her nearly 2-year employment under the supervision of Barbara Cunningham. (3:349, 352.) She could recognize Cunningham’s voice. (3:388.) During the voting period, but before she voted, Delk was working in an aisle next to the oil aisle. Although stacked merchandise blocked her full view of the oil aisle, Delk heard Cunningham speak. (3:356, 379, 386–388, 391–393.) Presumably Cunningham was speaking to one or more employees, although Delk, who could see only the top of Cunningham’s head, could not see the employees. (3:387.) Delk does not recall hearing any of the employees speak. (3:388.) On this occasion, Delk testified, Delk heard Cunningham say that when the ‘‘No’’ vote was brought through, the ware- house would receive a (pay) raise to $9. (3:356, 389.) Shortly before election day Vice President Dennis Roberts (4:862, 888) and DC Manager Rick Ferguson (5:907–908) instructed supervisors that on election day they were not to speak to more than one employee in a conversation, and if a second employee came over to join, the supervisor was to walk away. Assistant DC Manager Cunningham testified that she was so instructed. (4:780.) Cunningham denies that she had such a conversation as Delk attributes, that she made such a statement, or that she even had a basis for making such a statement. (4:780–782.) Reference to no ‘‘basis’’ for making the statement ushered in evidence about the pay range for the progression pay scale. A chart (GCX 6) in evidence reflects that the top rate of the 2-year pay progression at Greenville remains at $7.75 per hour. (4:820.) Cunningham testified, in effect, that she was outside the loop of any discussion of wage increases for 1993 (4:799, 804), and that she did not know what the other DCs were paying (4:806–807.) Vice President Roberts testified that the weighted pay in- crease percentages implemented in January 1993 were 3.30 at Memphis, 7.64 at Lafayette, 9.67 at Phoenix, and 10.24 130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD at San Antonio. (4:825–826; RX 12.) Even assuming that had the pay increase been implemented at Greenville, and that it would have been 10 percent, the top rate for the pro- gression categories would have increased by some 78 cents to $8.53 per hour. A raise to $9 per hour would have been an increase exceeding 16 percent. Although Roberts testified that the wage survey at Phoenix indicated that the increase at Greenville would have to exceed 5 percent (4:841, 885), no figure has been finalized. (4:885.) Of course, this does not mean that Cunningham never heard any rumors. Indeed, in- stead of rumors, the words of Vice President Roberts himself show a basis for Cunningham to have referred to $9 an hour. Thus, in the tape-recorded question-and-answer session fol- lowing the January 22 speech by Ferguson/Roberts, it is Roberts, responding to a question, who states that the raises implemented just days earlier at the other locations ‘‘aver- aged between 12 to 15 percent.’’ (CPX 1 at 8.) Had a 15- percent increase been implemented at Greenville, the $7.75 top rate would have been raised to $8.91. Thus, any state- ment by Cunningham about a raise to $9 would have been only slightly more, in percentage, than the percentage Rob- erts himself said had already been implemented at an unspec- ified distribution center. b. Discussion The fact that no one in Cunningham’s assumed audience spoke is puzzling. Surely the topic was of interest to who- ever was there. For that matter, there is no evidence of the identity of the person or persons who normally would have been working in the area and who might have been there with Cunningham. In view of all the questions about the in- cident, I am not persuaded that Delk heard Cunningham speak on this occasion. Accordingly, I shall dismiss com- plaint paragraph 8(c). 15. Rick Ferguson—March 16, 1993 a. Facts Complaint paragraph 8(b) alleges that on March 16 AutoZone, by DC Manager Rick Ferguson, threatened to withhold pay raises due its employees because of the em- ployees’ support for the Union. AutoZone denies. (The other date, January 13, in this paragraph, specifying Barbara Cunningham, is summarized earlier.) For support the General Counsel relies (2:326; Br. at 8–9) on the prepared text (GCX 14) of a speech delivered March 16 by DC Manager Fer- guson to small groups of assembled employees. (1:19; 5:904, 924–925, 979–980.) Ferguson’s March 16 prepared text is short, about 1-1/2 pages of double-spaced text, of moderately large type. It reads (GCX 14): Good afternoon. I don’t know whether the union committee people have told you by now, but the Team- sters union has filed objections to our election with the Labor Board in Winston-Salem. Unfortunately, this means that the results of your election victory will not be officially certified until these objections are resolved. I want to repeat how proud I am of you and how appreciative I am of what you did when you voted this union down. It’s a crying shame that even though you voted overwhelmingly against the Teamsters, Mr. Barry, Mr. Wood and a few other people seem deter- mined to try to ignore your wishes. The filing of objections by a union after an election defeat is a common tactic. The did it to us in Phoenix after that election, but we were able to get them dis- missed there. We strongly believe that these objections are groundless, and we will do everything in our power to contest them, and to uphold your vote. We believe we did nothing wrong in the course of the campaign, and that—contrary to what the union may think—the only reason you voted down the Teamsters by such a wide margin was that we simply shared the truth with you about them. In the meantime, however, the Labor Board will con- duct an investigation of the union’s objections. The union may try to get statements from you to back up their claims. There is even the possibility that a hearing may be held to discuss the issues. All of this may take some time, and unfortunately, while these legal pro- ceedings are pending, we still have many of the same legal restrictions upon us as to what we can say or do with respect to any changes in the pay, benefits, or other terms of employment that we had before the vote. As we have said before, we do not want to create the impression we are trying to unlawfully interfere with the outcome of this issue before it’s officially over. We are sorry we can’t say more, but we intend to obey the law. We hope to have all of this behind us as soon as possible. In the meantime, we will keep you posted. Janette M. Hanson worked for AutoZone from May 1992 until her July 8, 1993 resignation. (1:13, 32.) During 1993 she worked as an order selector. She was an early supporter of the Union, and her support soon was open, including wearing a union pin and assisting in handbilling. (1:14, 33– 35, 46.) Of the 32 employees named on the list of the em- ployee organizing committee mailed to AutoZone with the Union’s letter (GCX 4) of February 1, Hanson’s name heads the list. According to Hanson, as Ferguson completed reading from the prepared text on March 16, in which he told the employ- ees AutoZone ‘‘could not give us a raise,’’ he looked out at the group and ‘‘he told everybody if they wanted to know what happened to their raises to ask the people on the Com- mittee.’’ (1:19–20.) Testifying that he was aware employees were recording the speeches management officials gave to employees, Fer- guson denies ever telling employees that if they want to know about their raises to ask the union committee. (5:905– 906.) Although he does not believe there were questions and answers following the March 16 speech, Ferguson concedes there could have been a conversation with him after the meeting. (5:973–974.) Ferguson names several of the Gov- ernment’s witnesses, such as Robin Delk, Reuben Rice, Jack- ie McGinnis, and other as employees who would have been present for the speech. (5:982–983.) None of these other wit- nesses addressed the statement which Hanson attributes to Ferguson. As I noted much earlier, following the Ferguson/Roberts speech of January 22 (GCX 2), a question-and-answer ses- sion followed. That session, also tape-recorded by employ- 131 AUTOZONE, INC. ees, is transcribed on some 28 pages of an exhibit in evi- dence (CPX 1). Although Roberts did most of the speaking during that lengthy informal session, there were several ques- tions about the pay raise (CPX 1 at 7–8, 16–20), and at no point did either Roberts or Ferguson refer employees to the Union’s organizing committee. b. Discussion I do not credit Hanson’s account that DC Manager Fer- guson, following his prepared text speech on March 16, looked out at the employees and told them (presumably with- out benefit of a question) that if the employees wanted to know what happened to their raises, to ask the people on the union committee. First, I note that Hanson quotes Ferguson as stating, in the prepared text, that AutoZone could not give employees a raise, yet in the stipulated text the pay-raise topic is not mentioned. Second, none of the employees, in- cluding none of the Government’s witnesses, support Han- son’s account. Thus, from all of the small group meetings held (and there were 15 per speech), not one employee sup- ports Hanson. Third, Hanson’s account is inconsistent with management’s responses to questions at a lengthy, informal session on January 22. Turn now to the prepared text read by Ferguson. The Gen- eral Counsel attacks the penultimate paragraph, which begins ‘‘In the meantime’’ (2:326) and, specifically, the clause read- ing ‘‘while these legal proceedings are pending, we still have many of the same legal restrictions upon us as to what we can say or do with respect to any changes in the pay, bene- fits, or other terms of employment that we had before the vote.’’ (Br. at 8–9.) The General Counsel argues that inform- ing employees that ‘‘a pay raise cannot be distributed be- cause of the employees’ support for the Union and because the Union filed objections to conduct during the election is violative inasmuch as it places the onus upon the Union when the Union merely sought to protect the rights of em- ployees.’’ The General Counsel relies on Atlantic Forest Products, 282 NLRB 855, 857–859 (1987.) Unlike Vice President Roberts’ remarks in the January 22 speech, where the pay raise was mentioned expressly, the Union’s ‘‘poor timing’’ cited, and hope voice once the Union ‘‘is beaten’’ in the election (and I found a violation as al- leged by complaint par. 8f), the statement here never men- tions, expressly, the pay raise. Although Ferguson reports that the Union has filed objections, and that it is a ‘‘crying shame’’ in view of the overwhelming vote, AutoZone be- lieves the objections are groundless and will be dismissed as at Phoenix, and advises that the Board’s processes may take time, the emphasis is on the legal proceedings. In that con- nection, the sentence in focus here about time, legal proceed- ings, same legal restrictions respecting any changes in pay, benefits, or other terms, does not expressly refer to the pay raise issue and says nothing about the Union. The Government’s position seeks to piggyback on the Jan- uary 22 remarks in order to argue that the March 16 remarks should produce the same legal conclusion of unlawfulness. I shall dismiss this allegation. Having earlier dismissed the Barbara Cunningham portion, I now shall dismiss complaint paragraph 8(b) in its entirety. F. The 8(a)(3) Allegations 1. Withholding pay increase—January 22, 1993 a. Introduction Complaint paragraph 9 alleges that AutoZone, ‘‘since on or about January 22, 1993, has withheld and continues to withhold scheduled pay increases due to its unit employees because the Union filed a representation petition.’’ Paragraph 15 alleges that the paragraph 9 conduct violates Section 8(a)(3) of the Act. In its answer, AutoZone denies both alle- gations. I summarized most of the essential facts earlier when covering the Ferguson/Roberts speech of January 22. AutoZone’s position here is that there is no violation be- cause the alleged pay increase was never scheduled; it had not been finalized before the Union filed its petition in the representation case and, indeed, has never been finalized. The General Counsel argues that the question is not whether AutoZone had decided to grant an annual pay adjustment, for it had decided to do that. The only question not answered, not finalized, was the percentage, and then only in the sense that Roberts knew it would be greater than the 5-percent esti- mate which Roberts gave to employees in November and De- cember 1992. The record contains evidence about the history of AutoZone’s annual adjustments at Greenville. Greenville did not open until October 1986. The first annual adjustment for Greenville was in late 1989, and made effective for late 1989. (4:818–820.) The 3.5-percent adjustment is a total for all the pay scales, for an individual pay category could have a different percentage. (4:821.) The adjustment made in late 1990 was less than 1 percent. (.9 percent; GCX 6; 4:820.) In late 1991 AutoZone changed its adjustment policy from facility anniversary to January in order to put all DCs on the same annual timetable. Thus, the late 1991 adjustment at Greenville was postponed and made the 4.3 percent adjust- ment was made effective the first Sunday in January 1992. (4:820–821.) I need not dwell on the history. Roberts testified that there is no guarantee that a facility will receive an annual adjust- ment. (4:831.) It is not an annual cost of living raise. (4:815.) Whether one is given depends on the market in the area. All that is beside the point. Several facts here are clear. Vice President Roberts told some employees in late November 1992 that management ‘‘expected’’ that there would be an annual adjustment in the range of 4 percent to 5 percent, al- though that had not been confirmed. (4:835–836.) In early December, Roberts testified, he returned to Greenville and told all employees, in small groups, what he had told the oth- ers 2 weeks earlier (4:836–837, 885–886), that ‘‘our assump- tion was that there might be an annual increase’’ in the 4- percent to 5-percent range. (4:837.) The question-and-answer session on January 22 reveals Roberts telling employees, when describing what he had told employees in December: that ‘‘we expected a 4 to 5 percent increase’’ (CPX 1 at 7); ‘‘We told you then that we thought it was going to be 4 to 5 percent’’ (CPX 1 at 19); ‘‘That’s [answering question re- garding 4 percent to 5 percent] what we told you in Decem- ber, we thought it was going to be at that time.’’ (CPX 1 at 20.) As Roberts phrased it in the speech only minutes ear- lier on January 22, ‘‘the numbers we mentioned in December were a tentative forecast only.’’ (GCX 2 at 7.) 132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In his December talk to the employees, Roberts also told them that AutoZone was waiting for the result of a market analysis being done for the Phoenix area. (4:837.) As I de- scribed earlier, when Roberts left Greenville that week to re- turn to Memphis, he had received, the day of his departure, an advance copy of the Hay Group’s Phoenix survey, dated December 15. Roberts testified that the Hay Group’s survey indicted to him that AutoZone was no longer competitive at Greenville, so he instructed Ferguson to begin a wage survey for the Greenville area. (4:838–839; 5:940.) As I summarized in more detail earlier, the Hay Group’s report plus the followup image survey at Greenville indicated to Roberts that the ear- lier estimate of 4 percent to 5 percent was ‘‘too low,’’ and that the ‘‘increase’’ at Greenville would be greater than 4 percent or 5 percent. (4:841, 845–846, 885.) According to Roberts, he did not complete his analysis, not ‘‘because the Union filed its petition (although that is the reason he gave employees on January 22, CPX 1 at 20.),’’ but because, after consulting with AutoZone’s attorneys, he ‘‘believed it would have been unlawful to have implemented a pay increase at that time.’’ (4:846, 884–885.) His concern was over the le- gality, not because he lacked any market data to analyze. (4:846.) As noted earlier, Greenville was not part of the rec- ommendation package which he submitted to President Formanek the afternoon of January 11, and Roberts, as of the trial, still had not finalized his recommendation. The analysis would determine a percentage, either in advance, and then al- locating it across the pay categories, or assign percentages by category first, with the result yielding an overall average per- centage. (4:896–898.) b. Discussion To the extent it is necessary at all to resolve credibility here, I do not credit Vice President Roberts. First, Roberts puts his knowledge of union organizing as of the Union’s January 6 telegram (RX 13) demanding recognition. (4:854.) The record persuades that he learned earlier. Ferguson testi- fied that he learned in early December (2:98), and, as I sum- marized earlier, by mid-December he began a TIPS training program. Eloise Ruth testified that Supervisor Barbara Cunningham told her in late November or early December that union organizing was occurring. (4:691.) When the Union’s demand telegram came, Ferguson called, not his ROM, his immediate superior, but Roberts ‘‘immediately.’’ (5:938.) This modification of the chain of command implies that the alteration was prearranged to handle the union situa- tion—an arrangement dating back, I find, to early December after Ferguson first learned. Second, Roberts asserts that he gave the TIPS training, that it began after January 7 on an almost daily basis, and that he recalls no earlier TIPS training by someone else. (4:861–862, 88.) Yet former Supervisor Timothy Schlichting testified that Ferguson began the TIPS training a few days before Christmas. (4:610–611, 660, 665–666.) Although As- sistant DC Manager Cunningham testified that it was both Roberts and Ferguson (4:775), she gives no time frame. I find that Roberts was aware that Ferguson began the TIPS training in December. Indeed, Ferguson no doubt did so after, I find, reporting to Roberts that there was union orga- nizing at Greenville. Third, when Roberts told employees, during the taperecorded question-and-answer session of January 22, that the pay increases effective that very day at the other DCs averaged from 12 percent to 15 percent (CPX 1 at 7–8), Roberts knew that was false because he prepared the package which he gave to AutoZone’s president. It is true that some of the individual wage categories below the top (2-year) bracket enjoyed increases of that much and even up to 16 percent (mainly where classes 1, 2, and 3 were merged into a single wage rate, the result being a big, but one-time, in- crease for the employees in the lowest paid class.) But Rob- erts also knew that the weighted averages were substantially less than that. The fact that they are substantially less means that most of the employees received substantially less than the 12-percent to 15-percent increase which he told the Greenville employees was what the pay increases at the other DCs had averaged. Moments earlier Roberts had referred to the ‘‘top bracket’’ when talking about the expected increase of 4 percent to 5 percent. Even if it could be said that Roberts was referring only to the top bracket when he later said that the increases at the other DCs varied across the board ‘‘but they averaged between twelve and fifteen percent,’’ then his statement is true only as to a single instance, and that being only because the three classes of that bracket were merged into a single wage rate for 1993. That was at Phoenix. There, in the 2- year bracket, the old class 1 rate was $7.90, the class 2 rate $8.15, and the class 3 rate $8.20. When AutoZone eliminated classes, except for Memphis, that naturally means that those in class 1 enjoyed a big increase when the new 2-year rate became the rate for all in the 2-year, or top, bracket at $9. For the person or persons in the former class 1 at Phoenix, that meant a one-time increase of (rounded) 13.92 percent. The same class 1 person at Lafayette received a $10.15-per- cent increase ($6.90 to $7.60) and $10.07-percent ($7.45 to $8.20) at San Antonio, but only $3.70-percent ($9.45 to $9.80) at Memphis where classes 1, 2, and 3 were retained and not merged. (RX 12.) Roberts’ answer certainly was misleading if he was refer- ring only to the top bracket increases for class 3, the highest paid of the classes. Thus, when the class 3 groups are con- sidered we see that their pay increases were only 6.29 per- cent at Lafayette ($7.15 to $7.60), 3.43 percent at Memphis ($10.20 to $10.55) where the classes were retained, 9.76 per- cent at Phoenix ($8.20 to $9), and 6.49 percent at San Anto- nio ($7.70 to $8.20 for class 2; there was no class 3). (RX 12.) The discrepancy is far worse when we consider the overall weighted increases for the facilities. Recall that Rob- erts testified that the percentages are weighted by wage cat- egory according to the number of employees in each cat- egory. (4:825.) For example, at Memphis the tabulation was based on ‘‘149 class 1 autozoners, 3 class 2 autozoners, and 25 class 2 autozoners.’’ (RX 12b.) (Weighting involves mul- tiplying the number in each class by the percentage assigned that class. That yields a number. The numbers are added and divided by the total number of AutoZoners to yield a final number, the weighted percentage. It is simply a method to assign the proper ratio, or weight, to the total number that each class represents in the final number. It is more rep- resentative than taking the percentage for each of three class- es and dividing by three to get an average number.) The overall weighted percentages were 7.64 percent (my calcula- 133 AUTOZONE, INC. tion yields 7.66) at Lafayette, 3.30 percent at Memphis, 9.67 percent (I calculate 9.70) at Phoenix, and 10.24 percent (I figure 10.26) at San Antonio. (RX 12.) Well, so what that Roberts misstated the math. In my view it was no accident, but a deliberate attempt to deceive. Rob- erts was tantalizing his listeners at Greenville about averages elsewhere of 12 to 15 percent, in conjunction with formal and informal remarks reciting how the pay increase matter had to be set aside because of the ‘‘poor timing’’ of the Union’s petition. Yet all the while Roberts knew that, at best, the 12-percent to 15-percent range was misleading. It is clear that Roberts did this as part of AutoZone’s strategy of incit- ing the anger of the Greenville employees toward the Union, and the greater the percentage of the pay raise they were missing out on the greater their anger and the greater the chance they would vote ‘‘No’’ on March 5. (George Wash- ington would not approve. ‘‘I hate deception,’’ he wrote to Dr. John Cochran on August 16, 1779. J. F. Schroeder, Maxims of George Washington 142 (1989, The Mount Ver- non Ladies’ Association.)) Fourth, Roberts was not a persuasive witness, and I do not credit him unless otherwise indicated. In short, I find that Vice President Roberts put aside his analysis of the Greenville DC pay raise matter, failed to fi- nalize his recommendation to AutoZone’s president, and did not include that recommendation in the recommendation package which he submitted on January 11 to AutoZone’s president, not because of any concern over the legality of im- plementing a pay increase at Greenville, but because of a de- sire to exploit the pay raise issue in the election which would be scheduled on the Union’s petition. As the facts I have summarized show, AutoZone did just that, with words in the January 22 speech (GCX 2) cal- culated to incite anger directed at the Union, and telling the employees how, in effect, they could vent their anger and frustration against the Union for causing their pay increase to be frozen, by beating the Union in the election so that AutoZone and the employees can move forward, ‘‘free of the restrictions’’ triggered by the Union’s petition. As the Gen- eral Counsel argues (Br. at 26), AutoZone chose to dangle the prospect of a delayed pay raise as a carrot on the ‘‘Vote No’’ stick. (Br. at 26.) I therefore find that the General Counsel prima facie has shown that a motivating factor in AutoZone’s failure to in- clude Greenville in the analysis, recommendation, approval, and implementation of its January 11, 1993 decision to make wage adjustments at four of its five (Greenville excluded) distribution centers was the fact that the employees had as- sisted the Union and AutoZone wanted to postpone the Greenville pay increase in order to help defeat the Union at the election which would be held. I further find that AutoZone has failed to show that it would have postponed its analysis notwithstanding the fact of union activities and solely over concern that to proceed in the face of an election petition, when no pay raise decision had been finalized, would have been unlawful. AutoZone, having failed to rebut the Government’s prima facie case, I find that Respondent AutoZone violated 29 U.S.C. 158(a)(3) and (1), as alleged, when it failed to proceed with its analysis of the Greenville market survey data, failed to make a decision on January 11, 1993, and failed to implement that decision effective January 3, 1993, with the results reflected in paychecks issued Janu- ary 22, 1993. I shall order AutoZone to take that action, with the effective date retroactive to January 3, 1993. Recall that Vice President Roberts testified that had the analysis been made and an adjustment implemented at Greenville, as it was elsewhere, it would have been effective for the pay period beginning Sunday, January 3, 1993, with the increase reflected in the paychecks issued January 22, 1993. (4:842–843.) AutoZone argues that no violation can be found because of the uncertainty respecting the percentage increases, if any, which Roberts would recommend, and AutoZone’s president approve, for the various pay categories, or at least allocate to those categories based on an overall percentage increase. That argument fails. The process is certain. All the data had been gathered. The Hay Group’s report on Phoenix and the data gathered by Ferguson indicated that Greenville needed a pay increase exceeding 5 percent. Although no formal deci- sion had been made about a pay increase at Greenville, that lack results from Roberts’ failure to analyze the market data and to make his recommendation. He can do that now, and AutoZone’s president can make a decision. Atlantic Forest Products, 282 NLRB 855, 859 fn. 21 (1987); Otis Hospital, 222 NLRB 402, 405 (1976.) Of course, the analysis, rec- ommendation, and decision must not be tainted by additional unlawful motivation. 2. Jackie McGinnis denied cutter position March 18, 1993 a. Facts Complaint paragraph 10 alleges that AutoZone violated Section 8(a)(3) of the Act on March 18 when it failed to offer Jackie McGinnis (and continues to fail to offer her) a cutter position. Admitting the fact, AutoZone denies any vio- lation. Jackie McGinnis had been working at AutoZone for 3 years as of the trial. (2:227.) Currently she operates a com- puter. (2:228.) She was one of the employees who called the Union in November 1992. (2:242–243, 262.) Around the first of January she began wearing a union pin. (2:228, 235.) Her name is one of the 32 on the list of employees on the orga- nizing committee, the list attached to the Union’s February 1 letter to DC Manager Ferguson. (GCX 4.) When AutoZone, on February 1, began excluding the open support- ers of the Union from AutoZone’s campaign speeches, McGinnis was one of those excluded. (2:234–235.) During the organizing campaign McGinnis worked as an order selec- tor under Supervisor Barbara Cunningham. (2:228, 233, 245.) When work was completed pulling orders, McGinnis would do other work, including that of a cutter. (2:229–230.) As DC Manager Ferguson explains, a cutter is a person who uses a box cutter to open a box of merchandise. The person then puts the box in a slot so that the merchandise can be pulled on an individual basis rather than by case lot. (5:932– 933.) It is a service function for the order selector who then is able to pull the merchandise. (2:229.) About the first of February, McGinnis testified, Supervisor Jerome Flowers (not McGinnis’s supervisor) told McGinnis that a cutter’s position was open. She told him she wanted the job, thereby (at least to her thinking) orally applying for it. (2:229, 245–246.) McGinnis did not ask Cunningham about the position. (2:246.) Although both jobs paid the same 134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and had the same hours (2:246; 5:933–934.) McGinnis want- ed to switch to a cutter position because she considered it less stressful. (2:246, 250.) The cutter position did not have a production rate but the order selector position did. (2:246; 5:933–934, 962.) On March 18 McGinnis learned that AutoZone had award- ed the cutter’s position to Carolyn Palmer (2:229, 246, 250), an order selector (2:246) who, during the campaign, had worn a ‘‘No Teamsters’’ pin and who had served as one of AutoZone’s observers at the March 5 election. (2:229, 240; 5:961.) Although many, perhaps most, of the order selectors performed some cutter work (2:229–230, 246), there is no di- rect evidence that Palmer was one of the many having that experience. McGinnis had seniority over Palmer (2:229, 240), and there is evidence that supervisors have told em- ployees as late as December 1992 that seniority was the basis for promotions or transfers. (2:120, 231, 277–278.) Indeed, DC Manager Ferguson concedes that in the past there was a job posting system, but asserts that it was dropped in late December 1992. (5:929–930.) On learning that Palmer had gotten the cutter position, McGinnis asked Ferguson why Palmer rather than McGinnis had gotten the job since she, McGinnis, had more seniority. McGinnis testified that an opportunity had arisen for some- one to leave the ‘‘Yellow Racks,’’ or H aisle, that it was Palmer and, in addition, the DC no longer was using job ti- tles and employees would receive assignments on coming to work and would do those assignments. McGinnis admits that Ferguson said nothing about the Union. (2:230–231, 248– 250.) When McGinnis ‘‘applied’’ to Supervisor Flowers for the cutter position she did not have any absentee problems. (2:231.) She had received one warning when $750 worth of sparkplugs did not reach the retail store, but Supervisor Bar- bara Cunningham told her not to worry about it, that the in- cident was a fluke, but to pay close attention. (2:232.) As an order selector, McGinnis’ production rate was consistently one of the highest. (2:247.) At some later point McGinnis obtained a transfer to the computer position she now holds. (2:260.) In early Septem- ber she was offered a cutter position. (GCX 13; 2:251; 5:934.) She declined because she considered the computer position more desirable (2:251) even though there was a pos- sibility the computer position would not remain on the first shift (2:260.) Unfortunately, at mid-November 1993, about a month before she testified, McGinnis and her computer posi- tion had to transfer to the third shift. Had she known the transfer to the third shift would have happened, McGinnis would have taken the cutter position offered in September. (2:260.) DC Manager Ferguson testified that about mid-March 1993, shortly after the election, he made a management deci- sion to change the method of assigning jobs. Instead of order selectors and others doing one task, such as puling orders, in the morning, and another, such as stocking the area they had pulled, the second half of the shift, he returned to an ear- lier system of each employee being assigned to one job for all of his or her shift. This is what he told McGinnis when she asked why she did not get the cutter position. (Actually, Ferguson testified, there had been more than one cutter va- cancy to fill.) He had not used seniority in making the new work assignments, but management had assigned workers based on management’s perception of their abilities. (5:930– 932, 962.) According to Ferguson, before the new work as- signments, Ferguson was not aware that McGinnis wanted to be a cutter. His first notice was when she asked him why she had not gotten the job. Thus, the decision not to place McGinnis in the cutter position had nothing to do with her support of the Union. (5:932, 934–935.) b. Discussion The first task is to determine whether the General Counsel established a prima facie case. To make that determination, I do not review the General Counsel’s evidence in isolation, but I weigh all the record evidence bearing on the question. Peter Vitalie Co., 313 NLRB 971 (1994). First, knowledge of McGinnis’s prounion support is well established. Second, although the General Counsel argues that AutoZone departed from an ‘‘unrebutted’’ past practice of assigning controlling weight to seniority, DC Manager Ferguson did offer rebutting testimony. The General Counsel dismisses that by contending Ferguson’s new policy, assum- ing a new one was implemented, was discriminatorily moti- vated. The complaint contains no such allegation, and the parties did not litigate that as an issue. I note that no evi- dence was offered of anyone’s being told in 1993 that senior- ity still controls. I find that Ferguson’s testimony neutralizes the seniority factor. There is a dispute whether Ferguson knew that McGinnis desired the cutter position. It is unclear what role Supervisor Flowers had in this other than his informing McGinnis of the opening. That is, was the opening under the jurisdiction of Flowers, under Cunningham, or someone else? Flowers was an order selector supervisor in February 1993. (4:688.) But so also, apparently, was Cunningham because she was McGinnis’ supervisor. A reasonable inference would be that the opening was in Flowers’ area, and that is why McGinnis ‘‘applied’’ to Flowers. That being so, it seems reasonable to infer that Flowers informed DC Manager Ferguson. This is all the more likely since Flowers, in testifying, did not deny any of McGinnis’ testimony. Respecting the question of whether Flowers knew that McGinnis wanted the cutter position, the General Counsel ar- gues that had Ferguson not known of her desire he would have said so when, in mid-March, she asked why Palmer had gotten the cutter position and she had not. Certainly it would have been a natural response for Ferguson to have answered, at least in part, ‘‘Why Jackie, I didn’t even know you wanted it.’’ Instead, under the versions of both, he recited business reasons (which differ per the version) why McGinnis did not get the position. It could be argued that Ferguson’s answer is consistent with ignorance of McGinnis’ desire in that his answer explained why McGinnis was not selected. That is, the answer shows that management reviewed everyone, in- cluding McGinnis, and placed everyone according to their abilities as perceived by management. Thus, his answer was not keyed to knowledge that McGinnis had applied for the job, but merely to why she, as others, had not been selected. However, the natural answer, the one not given, is the more credible possibility. Thus, I find that Flowers did report to Ferguson that McGinnis wanted the cutter position, but that Ferguson selected Palmer over McGinnis anyway. When another cutter position opened in September, AutoZone (through Cunningham) offered the position to 135 AUTOZONE, INC. McGinnis. This shows, AutoZone argues, that it bore no ani- mus against McGinnis. Although the General Counsel men- tions the September offer in relation to the proper remedy, the General Counsel does not evaluate it in terms of its bear- ing on credibility and whether the evidence shows a prima facie case. Ordinarily, the fact that the offer came after one of the Union’s charges listed the McGinnis situation, with the original complaint making the allegation, would have to be considered, the usual argument being that the offer was made merely to terminate any backpay liability. But here there would be no backpay liability because the positions have the same hours and pay rate. I therefore find that the September offer is a factor which weighs against a finding of animus. Summarizing, I find that AutoZone knew of McGinnis’ union activities, knew that she had cutter experience, and knew that she wanted the cutter position. Despite this knowl- edge, AutoZone awarded the position to one of its ‘‘No Teamsters’’ election observers—Carolyn Palmer—an order selector who, so far as the record shows, only probably had cutter experience in that most order selectors did. But the Government, to establish a prima facie case of unlawful dis- crimination, must do more than show that an antiunion per- son was selected over a union supporter. The evidence does not show pretext or disparity. There is no direct evidence, or inference, of animus having been directed toward McGinnis. Indeed, the September offer of a cutter position weighs against any finding of animus. In the absence of a finding of animus, direct or inferred, I find that the Government has failed to make a prima facie showing that a motivating factor in AutoZone’s not transferring Jackie McGinnis to the cutter position in March 1993 was her support of the Union. I therefore shall dismiss complaint paragraph 10. 3. James Andrews warned July 9, 1993 a. Facts Complaint paragraph 11 (with conclusory par. 15) alleges that AutoZone violated Section 8(a)(3) of the Act on or about July 9, 1993 by issuing a written warning to James Andrews. Admitting the fact, AutoZone denies any violation. James Andrews testified in support, with Timothy Schlichting and others opposing. Recall the earlier summaries of 8(a)(1) allegations against Martin Nelson on February 2 and Timothy Schlichting at mid-February. Although crediting Andrews respecting the Nelson incident, I dismissed the allegation, complaint para- graph 8(h), as to Andrews. Respecting complaint paragraph 8(g) and Schlichting, I credited Andrews (and Stanley Phillip Wilson) and found that Schlichting unlawfully counseled An- drews not to discuss union issues on company time. (This was the incident where Andrews, while cleaning a lavatory in the women’s restroom, delayed two female employees from returning to work.) Recall, also, that Andrews, who began work at AutoZone in August 1992, who openly supported the Union, began wearing a union pin on his collar beginning in late January. He is one of the 32 named in the Union’s February 1 letter (GCX 4) to DC Manager Ferguson as being on the Union’s in-plant organizing committee, and he was one of the group of committee members who went to Ferguson and Roberts to protest that supervisors were restricting union supporters from campaigning during working time but allowing antiunion employees to roam the plant while campaigning during working time. None of this prevented Andrews from receiving a favorable performance review, and a pay increase from $6.25 to $6.50 (GCX 7), from Schlichting and ap- proved by Ferguson. Andrews, who signed the review on February 26, testified that he was satisfied with it. (2:307.) Andrews works in the housekeeping department at Green- ville under Marshall Hurley, whom Andrews identifies as his supervisor. (2:273.) Hurley is an admitted statutory super- visor, but it appears that, at least in July 1993, he may have been a line leader under Supervisor Timothy Schlichting. Hurley’s wife, witness Hazel Ann Hurley, described her hus- band’s job as the section leader over maintenance and house- keeping. (4:709.) DC Manager Ferguson testified that Mar- shall Hurley is a line leader. (2:106.) However, Schlichting testified that in July 1993 he was Andrews’ ‘‘acting super- visor.’’ (4:647.) Marshall Hurley did not testify. The only relevance this has is to help understand references in the evi- dence to Hurley and Schlichting respecting James Andrews. Andrews’ job responsibility is to do general cleaning, in- cluding emptying the trash, dusting, and mopping and buff- ing floors (2:282) and, as we have seen, cleaning some of the women’s restrooms. Generally Andrews worked during the day, but his hours varied so that on some days he would begin at 6:30 a.m. and on other days end at 6 p.m. (2:286.) Andrews’ duties ordinarily required him to work throughout the facility. (2:286–287.) For a week and a half during the organizing campaign, however, AutoZone removed the gen- eral office area from his cleaning duties and the offices of DC Manager Ferguson and Personnel Manager Wartinger for an additional period extending through the March 5 election. (2:284–286, 304–306.) Ferguson testified that this had been done because of reports that Andrews was looking at papers on the desks. Based on the reports, Ferguson decided to ex- clude Andrews from the areas where confidential information would be available. Ferguson ‘‘thinks’’ that Supervisor Schlichting orally counseled Andrews, at the time Andrews was excluded from the office area, about looking at items on desks. (5:963–965.) During his testimony Schlichting did not describe the March exclusion or mention any oral counseling of Andrews. During cross-examination Andrews testified that the written warning he received in July 1993 is the only oc- casion he was ever talked to about reading papers on any- one’s desk. (2:299–300.) The July warning came about after two receptionists, wit- nesses Betty Beacham (3:555–556, 558–560, 563–564) and Wendy Vaughn (3:568–573, 576) reported to Personnel Man- ager Wartinger on July 7 that, on the morning of that day, they had observed Andrews, while in Ferguson’s office to clean and buff, touching and reading a paper on Ferguson’s desk. Beacham places her report to Wartinger about 9 a.m., with her observation occurring some 30 minutes earlier. (3:558, 563.) At Wartinger’s request, the following day they wrote brief statements (GCX 8b,c) concerning what they had observed. When he arrived for work on June 28 at his usual 7 a.m., Accounting Manager Ricky Trammell testified, he observed Andrews, with a wastebasket on the desk of one of the ac- counting clerks, looking at a paper he was holding. Appear- ing startled, Andrews put the paper in the trash can and then proceeded to empty the trash into a bag as part of his clean- 136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing duties. That morning Trammell reported the incident to Wartinger who, later that day, asked Trammell to make a written description of his observation. It was a week before Trammell wrote his statement (GCX 8d.) (3:581–585, 588– 590.) For his part, Andrews concedes that about July 7 he did read a newspaper clipping that was lying on Ferguson’s desk. The clipping described a Greenville company, Standard Trucking, about to close, with employees losing their jobs and not being able to vote in an election. Andrews denies picking up the clipping or moving any items on Ferguson’s desk, and he denies ever moving any papers on supervisors’ desks in order to read papers on the desks. (2:282–284.) Ad- mitting that he previously had read material on other desks, Andrews states simply that the papers he has read have been lying open for anyone to see, and ‘‘I was curious.’’ (2:300– 301.) During the organizing campaign it was mostly news- papers which he dug out of wastebaskets. (2:304.) Supervisor Schlichting did not participate in Personnel Manager Wartinger’s investigation of obtaining written state- ments. (4:630, 647; 5:962.) On either July 8 or 9, Schlichting testified, Wartinger informed him that a decision had been made to issue a written warning to Andrews because he had been observed touching documents on the desks of Ferguson and others. (4:650–651.) Schlichting testified that he had ob- served Andrews, while cleaning Ferguson’s office, ‘‘long- necking everything.’’ (4:651.) Schlichting gives no time frame of his observations or whether he said anything about it either to Andrews or to Ferguson. Ferguson testified that he did not confer with Schlichting about the July warning. (5:962.) Ferguson testified that he approved the issuance of a writ- ten warning, and even considered firing Andrews, because Andrews’ conduct violated AutoZone’s written policy [not in evidence] that protects confidential information. Andrews’ ‘‘going through trash cans, looking at that information— going through and looking at information on my desk—I felt it was a very serious violation that I would have someone whose responsibility was to mop and wax the floors, going through and looking at information that was on my desk.’’ (5:911.) Although AutoZone’s policy provides for progres- sive discipline, the earlier warnings were skipped and a ‘‘se- rious violation’’ approved because Andrews ‘‘had access to look at confidential information—and it was very obvious that if he was looking at information that was on my desk, he had no reason to be looking at information that was on my desk.’’ AutoZone’s policy handbook, Ferguson testified, allows skipping the earlier steps when the infraction is deemed serious. (5:913–914.) Asked, on cross-examination, what confidential material it was that Andrews had read, Ferguson testified that he had no idea, but that it was the information ‘‘that was on my desk.’’ (5:963.) Ferguson considers it a ‘‘very serious con- cern,’’ particularly after Schlichting, as Ferguson recalls, orally counseled Andrews on this topic during the organizing campaign. (5:964–965.) On Friday, July 9, Supervisor Schlichting escorted An- drews to a meeting attended by Schlichting, Andrews, and Personnel Manager Wartinger where Andrews was given a written warning (GCX 8a). (2:279; 4:629–630, 650.) An- drews asserts that Schlichting did most of the talking (2:279), but Schlichting claims that Wartinger did (4:654.) Schlichting testified that the written warning was prepared before the meeting with Andrews. (4:650.) The warning, in evidence as an AutoZone ‘‘Corrective Action Review’’ (GCX 8a), has blank spaces beside the four categories of verbal warning, first written warning, second written warning, and serious violation. The latter was checked on this warning. For the last category, the employee ‘‘may be separated without prior warning.’’ The type of infraction is listed as ‘‘Unauthorized possession/handling of confidential information.’’ ‘‘Details Of Infraction’’ are stated on the written form as: On several occasions you have been observed by man- agement and fellow AutoZoners reading papers thrown away in the trash and handling paperwork on the desks of office personnel and the DC Manager. This type of conduct is unacceptable. ‘‘Suggestions For Improvement’’ are stated in these words: Jim, when performing your housekeeping duties you should pick up the bags of trash and throw them away, not read through them. When cleaning the floors you should mop, sweep or buff, not read or handle any pa- perwork on desks. Wartinger and Schlichting signed (2:85), noting on the form that Andrews had refused to sign. Andrews testified that he did not sign because he had done nothing wrong. (2:282, 316.) The final block is a printed notice warning that performance must improve or, should the same violation recur, action will be taken. That action is described, in hand, as: ‘‘Any further conduct of this kind will result in termi- nation.’’ Ferguson acknowledges that this warning would permit AutoZone to terminate Andrews for a repetition of this type conduct, and that it does not matter to him whether Andrews is prounion or procompany. (5:969.) On the other hand, Fer- guson admits (5:975–976) that his following remarks in the Ferguson/Roberts speech of February 1 about ‘‘button wear- ers’’ refer to employees such as Andrews, Stanley Phillip Wilson, Robin Delk, Jackie McGinnis, and others (CPX 7 at 14): Speaking of button wearers, are these really the type of people you want running the union’s show in here if the Teamsters are somehow able to dupe enough AutoZoners to vote for them and to get in here? Are they the kind of leaders you want to entrust your jobs and your futures to? Are they the people you want speaking for you? You can keep yourselves free of their control and the control of the International by voting NO! Ferguson disclaims any purpose by the words of trying to convey any message other than the voters had a decision to make. He was not trying to isolate anyone by referring to ‘‘type.’’ Beginning with the February 1 speech, those wear- ing union buttons were excluded from AutoZone’s other campaign speeches. (5:925, 974, 979.) Andrews testified that during the July 9 interview Schlichting said a warning was being issued to Andrews for reading material out of wastebaskets, on top of desks, the DC 137 AUTOZONE, INC. manager’s office, and confidential matters on the desks of others. Schlichting said they had a witness. (2:279–280, 282, 300.) Andrews claims not to know if the charge of reading papers on desks referred to Ferguson’s desk because he has read papers on other desks and he has no idea what they were talking about on July 9. (2:300.) During the warning interview, Andrews reminded Schlichting of an incident some months earlier when Schlichting had discarded a letter addressed to Andrews. In late January Marshall Hurley asked Andrews about cleaning the carpet in the upstairs conference room and to obtain the cleaning chemicals. Andrews called several dealers in the area, one being Garrison’s Cleaning Service which took An- drews’ name and (company, apparently) address. In mid-to late-March, dumping as Andrews was Schlichting’s trash, Andrews discovered a letter addressed jointly to him and to AutoZone inviting them to an open house at Garrison’s. An- gered that Schlichting had discarded mail addressed to him, Andrews waited a few days to see if Schlichting would say anything. Hearing nothing from Schlichting, Andrews then reported the matter to Ferguson. (2:280–282, 302–303.) The end result was that Schlichting, at Ferguson’s suggestion, apologized to Andrews, saying that it was not intentional. (4:654–657; 5:914–915.) Andrews, Schlichting testified, re- plied, ‘‘Well, you still threw it away.’’ (4:657.) About a month after his August 1992 hire at AutoZone, Andrews spied an envelope, marked ‘‘Personal and Con- fidential,’’ and bearing Andrews’ name, on Schlichting’s desk. Taking the letter and opening it, Andrews found infor- mation about life insurance. (Company life insurance, pre- sumably.) For unstated reasons, Andrews reported this to Wartinger who said nothing. Indeed, Andrews testified, he was never told he could not read papers addressed to him which he found on the desks. (2:281–282.) Andrews presum- ably considered it improper for Schlichting to have on his desk the personal and confidential envelope for Andrews. During his testimony, Schlichting did not address this inci- dent, and did not explain whether he simply was waiting to deliver company mail to Andrews. In any event, Andrews suggests that he looks through trash to see if there is anything addressed to him. (2:304.) No one, he testified, had ever told him that it was unacceptable for him to inspect an item on DC Manager Ferguson’s desk. Further responding to counsel’s question, Andrews replied, ‘‘I don’t have a problem with reading newspaper articles, do you?’’ (2:315.) Andrews testified that so far as he knew Fer- guson trusted him to clean around his desk. (2:309.) The July written warning had no impact on the next per- formance review given to Andrews. Thus, for his February performance review he was given the middle rating of ‘‘Achieves Requirement’’ plus a pay increase of 4 percent. (GCX 7.) For his August performance review (GCX 9), signed by Andrews on September 2, Assistant DC Manager Cunningham, giving Andrews the same rating, marks for im- provement for Andrews to spend less time on a given task. Cunningham compliments Andrews’ willingness to accept spot assignments and compliments the quality of his work. Moreover, Andrews was given a pay raise to $7, a $7.69 per- cent increase—a bigger percentage increase than he received in February before the warning. b. Discussion The Government’s position on brief appears not to be that a warning issued at all, but that the warning which issued was at the last step, a ‘‘serious violation’’ warning. The Gen- eral Counsel sees this as nothing more than laying the paper foundation for an immediate discharge of James Andrews on a pretext that the slightest mistake would be perceived as falling in the area of his July warning. As described, there is some indication that both Schlichting and Wartinger did not show immediate alarm on either observing Andrews ‘‘long-necking’’ in Ferguson’s of- fice (Schlichting) or when Wartinger learned that Andrews, a month after being hired, removed a letter, addressed ‘‘Per- sonal and Confidential’’ to Andrews [apparently a letter which Schlichting, as the supervisor, would have delivered to Andrews] from Schlichting’s desk. There also was some delay in Wartinger’s obtaining Accounting Manager Trammell’s typed statement, although Trammell could not re- call whether Wartinger was out (3:584), possibly explaining why Wartinger did not remind Trammell after a day or two rather than the week it took Trammell. The key person, how- ever, is DC Manager Ferguson, for it was the news that An- drews had been reading a paper on his desk that really got Ferguson’s attention and persuaded him that this was a seri- ous matter. AutoZone’s policy handbook provides for skipping to the last warning, and the General Counsel offered no evidence here that AutoZone has ever given anyone else a lighter dis- cipline for similar conduct. Nor is there any evidence of a pretext. Certainly the penalty imposed could have been light- er, such as a first written warning, and under AutoZone’s policy for a serious violation, Andrews could have been fired. The question here, however, is whether union animus was a motivating reason for the ‘‘serious violation’’ warning which was given. Whatever animus existed in Schlichting’s unlawful warning to Andrews in mid-February, concerning the restroom incident, was so anemic that it had no adverse impact on the performance review which Schlichting gave Andrews later that month. (Although Schlichting signed ear- lier in the month, he could have changed it before giving it to Andrews later in the month.) Andrews apparently had ex- perienced no problems with management after the March 5 election. AutoZone knew full well that Andrews was a strong union supporter, and excluded him from Ferguson’s office, at some point, until the March 5 election. Andrews received similar performance ratings both before and after the July warning. As Andrews testified that he was satisfied with his February evaluation (2:307), presumably he was satisfied with his August appraisal as well. Ferguson’s recall was a bit fuzzy, and details lacking, con- cerning whether Schlichting reported to him, about February, that he had counseled Andrews at the time Andrews was ex- cused from cleaning the offices during the campaign. (5:964– 965.) Schlichting did not address the point, and Andrews as- serts that the July 9 warning was the first time he was talked to about reading papers on desks. In these circumstances I credit Andrews that he was never previously counseled or warned. Ferguson described AutoZone’s policy handbook as per- mitting a ‘‘serious violation’’ for improperly handling ‘‘con- fidential’’ information. The only paper identified by any of the witnesses was the newspaper clipping described by An- 138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD drews. I credit Andrews that what he was reading on July 7 at Ferguson’s desk was that newspaper clipping, and that it was that clipping which the two receptionists observed him reading and, I find, touching the clipping. By Ferguson’s def- inition the fact that the paper—regardless of its nature—was on his desk made it confidential. (5:911, 963.) The written warning is broad enough to cover items thrown into the trash at any of the desks. On one hand it can be said that Andrews can avoid any problem simply by emptying the trash, not reading it or papers on the desks. On the other, it is clear that the warning could be used as a tool for mischief. As noted, there is no evidence of disparity or pretext, and the only evidence of arguable animus predates the February performance appraisal yet had no adverse impact on it. There is no other evidence of animus directed toward Andrews be- cause of his strong and open union activities. The July 9 warning had no adverse impact on the performance review which Andrews received less than 2 months later, and the pay increase he received was greater in amount and percent- age than what he received in February. Perhaps the key lies in Andrews’ assertion that with the resumption, after the March 5 election, of his access to Fer- guson’s office, Ferguson trusted Andrews to clean around his desk. (2:309.) But after Andrews was observed on July 7 reading a paper on Ferguson’s desk, it is clear that Andrews no longer enjoyed Ferguson’s trust. Ferguson testified that Andrews’ union activities played no part in the July 9 warn- ing. (5:969.) On this record, I credit Ferguson. Finding, therefore, that the General Counsel failed to establish a prima facie case of unlawful motivation in the July 9, 1993 written warning to James Andrews, I shall dismiss complaint para- graph 11. 4. Stanley Phillip Wilson fired September 13, 1993 a. Introduction Complaint paragraph 12 alleges that AutoZone violated Section 8(a)(3) of the Act when it fired Stanley Phillip Wil- son on September 13, 1993. Admitting the fact, AutoZone denies any violation. A large portion of the record is devoted to the Wilson dis- charge. The bottom line is that I do not believe Wilson. Ex- cept where I credit Wilson, generally when he corroborates someone’s credited testimony or is supported by credited evi- dence, I do not believe anything he says. The record dem- onstrates that Wilson frightened female employees, threaten- ing the young daughter and husband of Hazel Ann Hurley, and, holding a cardboard knife to Hurley’s throat, said ‘‘See how easy it would be for me to cut your throat.’’ (4:714.) Contending that he only showed a foot-long cardboard knife to Hurley, Wilson denies that he threatened Hurley, denies that he held it to her throat, and denies that he even teased her with it. (2:129–130, 184–185.) According to Wilson, he merely showed Hurley a foot-long knife he had cut from cardboard, and she simply said, ‘‘Oh, well, big deal.’’ (2:184–185.) DC Manager Ferguson testified that one of the motivating reasons for the discharge of Wilson was the threats he had made to Hazel Ann Hurley. (5:919–920.) Citing evidence that employees, particularly Wilson, joked and engaged in horseplay, the General Counsel argues that AutoZone’s reliance on the cardboard knife incident, and other alleged threats, to justify Wilson’s discharge was mere- ly a pretext to mask its unlawful purpose of getting rid of an activist supporter of the Union. Finding no merit to the Government’s case, I dismiss complaint paragraph 12. b. Facts Earlier, in treating allegations against Supervisor Schlichting (pars. 8(l),(m)), I summarized Wilson’s job duties and his open and vigorous support of the Union. Thus, com- pany knowledge is well established that Wilson was strongly prounion. Respecting Wilson’s work history, I should add that, although Wilson did not arrive at the Greenville DC until either January 1991 (2:100, Ferguson; 2:117, 148, Wil- son) or possibly April 1992 (4:648–650, Schlichting), he had been working at one of AutoZone’s retail stores since his hire date of September 30, 1986. (2:117.) Ferguson, who had been the district manager over the area retail stores when Wilson worked in the store, and Supervisor Schlichting brought Wilson to the Greenville DC because of his knowl- edge of parts and their saleability in the stores. (2:117; 4:611, 647–648; 5:951, 970.) Ferguson recalls 1991 as the year in which Wilson transferred. (2:100.) For Wilson’s July 1992 performance evaluation (GCX 10), Schlichting gave him the top rating of ‘‘Exceeds Requirement.’’ (4:648–649.) Al- though no other performance reviews are in evidence, Wil- son’s technical abilities and knowledge are not in issue. Fer- guson describes him as having been a ‘‘good, average em- ployee.’’ (2:104.) From the March 5 election until his Sep- tember 13 discharge, the only formalized problem Wilson had with AutoZone’s management was a September 3 first written warning (GCX 11) for poor attendance. Wilson goes by the short name of ‘‘Phil Wilson.’’ (2:117.) In the early afternoon one day around mid-to late-August 1993, the receptionist informed Ferguson that a male caller had made a telephone bomb threat. This came in the early afternoon. Ferguson ordered the plant evacuated for the bal- ance of the day. No bomb was found and the police have not apprehended anyone. The next day members of manage- ment were told by employees that they should interview Wil- son about the bomb threat because there were rumors he had talked of making a bomb. (AutoZone asserts that it makes no contention Wilson telephoned the bomb threat. Br. at 53 fn. 31.) Based on these reports, Ferguson instructed Assistant DC Manager Barbara Cunningham and Personnel Manager James S. Wartinger to investigate the matter. (2:103–104, 137–138, 174; 4:749, 759–760; 5:915–918, 952–953, 970– 971.) So far as the record shows, employees who submitted signed statements during the investigation were, Debra Shue, statement of August 31 (GCX 12c); Jeananne Cole, statement of August 31 (GCX 12d); and (Hazel) Ann Hurley, statement of September 9 (GCX 12f.) Shue did not testify. As Fer- guson does not rely on any incident described in Shue’s statement, I shall not quote it. Concluding that Wilson could not make a bomb by mixing the Greenville DC’s chemicals, Ferguson testified that the reasons AutoZone discharged Wil- son did not include the allegation that he would make a bomb and destroy the DC. (5:955.) About 2 weeks before his discharge, Wilson testified, Fer- guson informed him that he was investigating some allega- tions against him and that he soon would have a final deci- sion. (2:136.) Before he was called to his September 13 dis- charge meeting, Wilson was not interviewed for his version 139 AUTOZONE, INC. as part of AutoZone’s investigation. (2:136.) Acknowledging that the decision was made to discharge Wilson before Wil- son was called in (2:105; 5:920), Ferguson testified that the AutoZone policy, at least at Greenville, is to ‘‘gather the facts’’ and make a decision before confronting the accused employee. At the time of the disciplinary interview, if the employee presents evidence which counters the basis for the decision, then Ferguson would reconsider his decision be- cause his decision is ‘‘not irrevocable.’’ (5:920–921, 955.) (Recall from Schlichting’s testimony that the same procedure was followed respecting the written warning issued to James Andrews. (4:650–651.)) As Wilson, Ferguson testified, pre- sented no such countering evidence, his conduct, in Fer- guson’s view, constituted harassment of employees which, under AutoZone’s written policy (no written policy in evi- dence) calls for discharge. (2:109; 5:958–959.) Actually, Fer- guson recommended the termination (5:920) and Vice Presi- dent Roberts, some 2 to 3 days before Wilson’s discharge, decided that Wilson should be discharged under AutoZone’s corporate policy against harassment. (2:104, 109.) There is no record evidence that the procedure followed in Wilson’s case deviated either from AutoZone’s corporate policy or Greenville’s past practice. On Monday, September 13, Assistant DC Manager Bar- bara Cunningham escorted Wilson to DC Manager Rick Fer- guson’s office where, in the presence of Cunningham and Personnel Manager James Wartinger, Ferguson said that a decision had been made. Ferguson said that other employees had stated that Wilson had been harassing them. Ferguson cited three incidents and asked if he had any explanation. (2:128; 5:921, 958–959.) At the conclusion of the interview, after Wilson had offered his explanations, Ferguson said he was terminating Wilson for harassment. (2:135; 5:921, 959.) Protesting that he had harassed no one, Wilson asked Cunningham if he could see the papers. Cunningham said no and for him to ‘‘hit the door.’’ (2:135.) Wilson testified that he neither signed a termination paper nor had any conversa- tion with Wartinger about signing. (2:136.) The termination form (GCX 12a), signed only by Wartinger, records that Wil- son ‘‘did not sign.’’ (During his initial testimony, when called by the General Counsel, Ferguson testified, 2:104–105, that Wartinger took Wilson to his office to sign the termi- nation form.) I credit Wilson’s testimony about Cunningham’s remark, and about not signing and having no conversation with Wartinger about signing. First, Cunningham, who testified about other matters, did not address Wilson’s case. Although Wartinger is still AutoZone’s personnel manager (5:983), he was not called as a witness. Wartinger’s one-page minutes of the meeting are attached to the termination form. (GCX 12b.) Thus, of the four attendees at Wilson’s discharge interview, only Ferguson and Wilson testified about Wilson’s case. Sec- ond, Wilson’s testimony about this is consistent with Fer- guson’s version and with Wartinger’s minutes. As Wilson did not ask Ferguson about inspecting the papers, it is likely that the exchange with Cunningham occurred as they were leaving Ferguson’s office. The one-page termination form, ‘‘Corrective Action Re- view,’’ is marked Serious Violation—May be separated with- out prior warning.’’ (GCX 12a.) Under type of infraction is hand-printed, on the first line, ‘‘Harassment’’ and, on the second line, ‘‘Hostile Acts/Abusive Conduct.’’ As the hand- printed text on the form conforms to the minutes and to two of the statements (Debra Shue’s and Jeananne Cole’s) also signed by Wartinger, I find that the hand-printed text is by Wartinger. Barbara Cunningham also signed the minutes under Wartinger’s signature (GCX 12b), but she writes in script as is seen by her recording of Ann Hurler’s statement. (4:727.) In the block ‘‘Details Of Infraction’’ appears the following handprinted text: On several occasions Phil Wilson has harassed and threatened fellow AutoZoners with harm. This type of conduct will not be tolerated and is cause for S. Phil’s termination. In the next block, ‘‘Suggestions For Improvement,’’ ap- pears, handprinted, ‘‘See attch statements.’’ Actually, it ap- pears that, running out of space in the infraction block, Wartinger printed the ‘‘See attch statements’’ on the next line, the first line of the suggestions block, as a continuation of the block for infraction details. The statements attached have nothing to do with Wilson’s continued employment at AutoZone, but relate directly to the basis for the asserted in- fraction. The text of Wartinger’s September 13 minutes (GCX 12b) read: On this date, Phil Wilson, was brought into Rick Ferguson’s office. Rick Ferguson, Barbara Cunningham, Phil Wilson and myself were in attendance. Rick told Phil that several of his fellow AutoZoners had com- plained of Phil harassing them and that he had threat- ened them. Rick mentioned the incidents of[1] making a paper knife and acting as if he was stabbing some- one,[2] chasing Curtis w/ a handsaw and[3] having the 2x4 to hit David Bradberry. Phil admitted to all 3 incidents, saying he chased Curtis w/ the saw but did not intend to injure him. He did have the 2x4 to hit David with, because David kept bumping the hazardous waste barrels with his forklift and it made Phil mad. And that he did make the paper knife and stabbed at the Zoner (Ann) but he did none of this maliciously. Rick informed Phil that conduct of this type was un- acceptable and that he was terminated effective imme- diately. Ferguson testified that he cited the three incidents of Wil- son’s chasing Curtis Carrington with a handsaw, of planning to hit David Bradberry with a piece of 2x4 lumber, and mak- ing a cardboard knife and holding it to Ann Hurler’s throat. Wilson, Ferguson testified, admitted the incidents, explaining that he meant no harm. These admissions confirmed for Fer- guson that his discharge recommendation was correct, and he therefore fired Wilson for harassment based on these three items plus the other incidents described by Ann Hurley. (5:921–922, 955, 959.) Denying that Wilson was given no opportunity to rebut additional incidents described in Hur- ley’s statement, Ferguson explains that had Wilson denied the cardboard knife incident then he, Ferguson, would have asked about other incidents. In view of Wilson’s admission about the cardboard knife, there was not need to go into other details, for Wilson’s admitted conduct constituted har- 140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD assment which Ferguson would not tolerate. (5:956–957, 959.) Wilson asserts that he told the Ferguson group that Carrington (who jokes a lot with Wilson) pushed Wilson as the latter was cutting a box for Ann Hurley. Wilson, carrying the handsaw, ‘‘walked real fast’’ (2:128, 188–189) to catch up with Carrington. When he reached Carrington, Wilson asked why Carrington had pushed him. Carrington explained that he was only joking. Satisfied with the answer, Wilson returned to his area. (2:128, 189.) Although Wilson, in his pretrial affidavit, asserts that he had ‘‘chased’’ Carrington on this occasion, at trial he testified that ‘‘chased’’ means about the same as ‘‘walking fast.’’ (2:195–196.) Carrington testi- fied that Wilson briefly ‘‘chased’’ him. (2:204.) Carrington apparently passes it off as horseplay, although he observed that it was the first time Wilson had ‘‘picked up something.’’ (2:204–205.) Respecting the Bradberry incident, Wilson testified that he told Ferguson he uses a 2x4 in this work to pry up boxes that have fallen between racks. (2:130–131.) Although at trial Wilson gives more details, he does not say that he reported these additional details to Ferguson on September 13. As for the cardboard knife matter, mentioned in my intro- duction to this section, Wilson claims he told Ferguson that, to kill spare time at work, he, as do employees in the core section, throw cardboard cutouts at one another. From one of these box flaps he carved a knife ‘‘and I showed it to Ann Hurley’’ who said, ‘‘Oh, well.’’ ‘‘Nothing really happened,’’ Wilson explained. Employee Teomie Clay was present, Wil- son testified. (2:128–129.) (Clay testified that she never saw a knife, but that on one occasion Hurley jumped and said, ‘‘Teomi, make him stop.’’ Clay and Hurley then both laughed. 2:209, 223.) As I mentioned in the introduction, at trial Wilson denies holding the cardboard knife to Hurley’s throat. (2:130, 185.) However, in describing what he told Ferguson at the September 13 meeting, Wilson recites only what I have set forth above. Turn now to what Ferguson had before him at the time of his decision. As noted, Ferguson had before him the state- ments of Debra Shue, Jeananne Cole, and (Hazel) Ann Hur- ley. Cole and Hurley testified, but Shue did not. Because Ferguson did not list any item from Shue’s statement as one of the grounds for Wilson’s discharge, I shall omit Shue’s statement. Although Ferguson testified that he talked with Cole (2:107), he later corrected this to say that he had not. (5:919.) He did meet with Hurley. (2:107; 5:919–920, 956.) It is clear that Ferguson was strongly influenced by Hurley’s report. Before I quote the written statements of Cole and Hurley, a brief clarification of Jeananne Cole’s status is necessary. When Wilson arrived in 1991, his immediate supervisor was Line Leader Cole (an admitted statutory supervisor) who in turn reported to Advisor Timothy Schlichting. (2:148–149; 4:620, 740.) Around late spring or early summer 1993, Cole took a maternity leave, returning from that leave about Au- gust 2. (4:750, 757–758.) About 3 weeks into August, Cole relinquished her line leader position, and became a defect co- ordinator, because the overtime required in the line leader position interfered with the time she needed to devote to her young child. (4:740, 757–758.) When Cole signed a written statement (GCX 12d) for Personnel Manager Wartinger on August 31, she was no longer a line leader. (4:757, 758.) Nevertheless, at the time of the events described in her Au- gust 31 statement, she was a line leader. (4:759.) Recall that in the second part of August the facility had to be evacuated because of a telephoned bomb threat. A week or so before giving her August 31 statement, Cole tes- tified, employees Ann Hurley and Debra Shue informed Cole that Phil Wilson had made statements that he would blow up the DC. Thinking that Wilson perhaps could harm someone, Cole, after several days, went to Personnel Manager Wartinger. (4:749–750.) Cole made her statement to Wartinger on August 31. (4:747.) In her statement Cole describes four items respecting Wil- son. At trial Cole describes the first three (handsaw; 2x4; cy- anide; but not the fourth—Waco.) The text of Cole’s August 31 statement of 1-1/2 pages reads (GCX 12d): On or about August 16, 1993, after lunch, Phil Wil- son, Curtis Carrington, and Jeananne Cole were in the 4800 aisle. This is a statement of what happened. I [was] coming down from lunch to check the area to see how work was progressing. I was walking down the aisle between 4800–4900. I saw Phil with a hand- saw in his hand chasing Curtis Carrington acting like he was going to cut him. I approached Phil and asked him what he was doing. Phil said he was chasing Curtis with [the] saw. He did not say why. I told Phil not to do this that he might offend or hurt someone. I told him to go back to his area. I asked Phil why he had a saw in his hands. He told me he used it to cut core boxes down so it would be easier to put merchandise in. On or about August 16 or 17, I came in to Phil’s area. Phil told me he had gotten a 2x4 because David Bradberry had moved a pallet and almost hit Phil with the pallet. He said he had gotten the 2x4 so next time David almost hit him, he could knock David off the forklift with the 2x4. He appeared very upset and angry. David Bradberry and Keith Henderson had warned me prior to going into Phil’s area that he was angry about the incident. On or about March/April 93, Phil had a big bag of candy passing it out to everyone in the section. After I had put some in my mouth, Phil stated ‘‘he could have laced the candy with cyanide.’’ I assumed he meant he could have hurt people in the section by doing this. It made me so wary of Phil that I won’t eat any of the candy he has offered since. During the [spring 1993] Waco, Texas Massacre, Phil mentioned many times how he was excited about it and how he couldn’t wait to get home to watch it on Oprah, the news etc. Ann Hurley gave her four-and-a-half page statement (GCX 12f) on September 9. Assistant DC Manager Cunningham served as the amanuensis. (4:727, 732.) The day after the bomb threat, Hurley testified, Cunningham, also serving as Hurley’s supervisor, approached her about the rumors con- cerning Phil Wilson. (4:722, 726.) Initially uncertain as to how far she wanted the matter to progress, Hurley only told Cunningham about some of the threats Wilson had been making against her. (4:722–723.) No statement was taken at that time. (4:724.) Some 2 or 3 weeks later Hurley was inter- 141 AUTOZONE, INC. viewed by Ferguson in the presence of Wartinger. (2:107; 4:724–726; 5:919.) At the conclusion of that interview Hur- ley asked to speak with Cunningham alone. Either that same day, or later, Hurley met alone with Cunningham and gave her statement of September 9. (4:726–727.) Before I quote the text of Hurley’s statement, some back- ground is necessary. During the relevant time Hurley and Wilson worked in the credit returns department. (4:612, 707.) Hurley would sort damaged products and place them in boxes for return to the vendors. A conveyor belt separated her work area from Wilson’s primary work area. (4:708.) Employee Teomie Clay worked nearby, in the same depart- ment, at a computer. (2:208; 4:713.) In her September 9 statement Hurley describes certain threats by Wilson against her, her husband, and her young daughter. Her husband is Line Leader Marshall Hurley. (4:708–709.) Her daughter’s name is Allison (4:711), not the ‘‘Alician’’ as spelled in her September 9 statement. Hurley testified that daughter Allison was born in February 1992. (4:711, 737.) Allison, therefore, would have been about 18 months in August 1993. Hurley apparently worked in the receiving department before taking her maternity leave. After her maternity leave Hurley first went to receiving, but about September or October 1992 she was transferred to the credit returns department where she first met Wilson. (4:734–735.) Hurley’s September 9 state- ment reads (GCX 12f): Phil Wilson has been making remarks to me for many months. Remarks that started to concern me, making them over and over. As in, saying I’m going to kill Marshall, he’s going to take Alician, also asking how Alician’s doing each day and he’s Alician’s god- father and he’s going to take Alician this weekend and they couldn’t stop him. That he was going to kill Mar- shall and take Alician since he was the godfather and had visitation rights. [Hurley denies that Wilson is the child’s godfather, 4:712, and at trial Wilson makes no such claim of godfather status.] Phil also said he was going to make another Waco, Texas in our warehouse and blow up the place making sure me & Marshall was in here, and he was going to get Alician. I asked Phil how he knew where Alician was and he said ‘‘wouldn’t you like to know; I know a lot of things, so watch out.’’ On August 24, 1993 Phil said when he had a child, it was going to be a boy. He would name him Jason, and send him after my child and he (the boy) would take care of her. After Phil said that he started making weird noises, laughing like he was crazy and said to me, ‘‘Welcome to Phil’s world—This is the Real World,’’ saying it real wild. Phil and I were working in damages. Phil was run- ning the computer, and I was taking the merchandise off the belt and putting [it] on the cart. Phil had a part that didn’t have a number so I went to get it for him and as I was coming back down Phil was holding the scanner pointing it at me saying he was zapping me. He put the gun down and as I was going toward the rack Phil was starting to come towards me., leaning forward and making strange noises and I told Phil to stop it. I walked back as far as I could go and I was up against the rack where the boxes are. I turned my head because Phil was right up against me and I could feel his breath on my face. I felt Phil do something with his hand. I know he reached down like searching in his pockets and the next thing I know I felt something under my chin and for a brief moment I thought it was a knife, but I was not sure. Phil said, ‘‘Do you think I won’t? You just try me if you think I won’t!’’ He was saying this right in my face. I could still feel his breath on my right cheek. He started laughing crazy. I told him I was going to the bathroom and I left the aisle. He said he would take care of things while I was gone, in a very strong determined voice while he was talking through his clenched teeth. I kept thinking to myself I need to make sure that’s what Phil had (a knife.) So I went back to my station and started working again. There was a box taped up and Phil couldn’t find any paperwork, so I looked for paperwork and then told Phil it could be inside the box. I reached for my safety cutter and it was not in my apron. I started to reach for Teomie’s cutter and quickly thought I should ask Phil if he had something to open it with. Phil reached into his pocket. Opened the knife and cut open the box. As he was closing his pocket knife he had [a] smart smirk on his face. And then [he] turned around and went on with his business. The Thursday before [August 19], Phil made card- board knives (out of a box) and came up from behind me and stuck it under my throat, saying ‘‘See how easy it would be to cut your throat.’’ I told Phil to stop. Teomie told Phil he was crazy and stop and leave her alone. After this, he went back to his cart. Then a cou- ple [of] minutes later he came back and put the card- board knife in my stomach and said, ‘‘I’ll cut your baby.’’ I told Phil to stop and quit. Then Teomie yelled at Phil furiously. He came back again reaching under the belt acting as if he was cutting my legs. He said, ‘‘I’m going to cut your legs off.’’ I told Phil again to please stop. And Teomie went over and yelled at Phil again. Beginning about late December 1992, Hurley testified, Wilson began expressing an interest in Allison, such as ask- ing about her. (4:737–738.) Eventually the expressions turned to threats of kidnapping Allison from the sitter and of killing Marshall Hurley. By April/May 1993 Wilson made these threats on a daily basis. (4:710–711, 731, 734.) There is sub- stantial evidence that some of the employees in the depart- ment, along with employees in the Core department, would engage in horseplay. (cores are from alternators, starters, and master cylinders. 2:117, 133.) Wilson describes how he and employees from the core line, in the dock area, would throw boxes or sail pieces of cardboard at each other. (2:133–134.) They would do this when the supervisors were not looking. (2:135.) If a supervisor did see it, the employee or employees would be told to stop, but no disciplinary penalty would be imposed. (2:135, 191.) Some confirmation of this exists in former Line Leader Jeananne Cole’s statement, quoted above, about the handsaw incident (Wilson chasing Curtis Carrington) and the 2x4 incident (although Cole’s description there is of an angry Wilson planning to knock David Bradberry off his forklift with a 2x4.) Other than putting a 142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD stop to the incidents, Cole neither formalized her cautions to the employees nor informed management of the incidents. Wilson, at least, was well known by several employees as a person who joked a lot and engaged in horseplay. As Cole describes, however, until the handsaw and 2x4 incidents, jokes and horseplay by Wilson and others had been verbal, not physical. (4:755–756.) Even Curtis Carrington, who passes off the handsaw matter as some momentary horseplay by Wilson (2:204, 205), admits that it was the first time Wil- son had ever ‘‘picked up something.’’ (2:205.) Hurley insists that she seldom joked with Wilson, and even then it would be about such things as a ball game. (4:729.) Teomi Clay tells a different story, describing inci- dents where Hurley would laugh about Wilson’s horseplay (2:209, 210, 218–219) and, for example, when he would ‘‘zap’’ her with the scanner gun. (2:209, 210, 218–219, 223.) Clay, who admits that she thinks Wilson was wrongly fired (2:216–217), eventually concedes that by August Hurley was expressing concern about Wilson’s remarks about her daugh- ter, although, in Clay’s opinion, Hurley did not get serious until after meeting with Ferguson in August. (2:215–217, 223–224.) Hurley testified that about 90 percent of the time Wilson’s threats to her would be when no one else was around. (4:713.) Clay did not testify persuasively, whereas Hurley did. Neither party called David Bradberry to testify. Cole testi- fied that when she asked Wilson about the incident he showed her the 2x4 on this work desk and stated that the next time Bradberry almost hit him with a pallet Wilson was going to knock Bradberry off the forklift with the 2x4. Cole told Wilson to calm down, that she would talk to Bradberry. Cole spoke to Bradberry and told him to be more careful. (4:744–745–746.) Cole did not formalize her caution to Wil- son on the handsaw incident, and she did not discipline ei- ther Wilson or Bradberry or report (until her August 31 state- ment) that incident to management. (4:745–746, 752.) Al- though Cole never spoke to Carrington (4:752), Cole person- ally observed Wilson chasing Carrington with the saw. (4:741.) In confirming the cyanide incident, Cole explains that she was pregnant at the time and Wilson’s remark upset her. (4:750.) Although Cole, in her August 31 written statement, assumes that Wilson meant he could have hurt employees in the section by lacing the candy with cyanide, Cole testified that she did not report the cyanide incident to management, until August 31, because she was not sure Wilson had told anyone else in the section, and she saw no need to report a remark made only to her. (4:751.) Wilson denies making the cyanide remark. (2:187.) Ferguson testified that before his decision he read the statements of Cole, Hurley, and Shue. He testified that he was motivated to recommend Wilson’s discharge based on the reports of management, the information he received from Ann Hurley, and the Curtis Carrington (handsaw) and David Bradberry (2x4) incidents. (5:918–921, 954–955.) Ferguson did not list the cyanide remark to Cole. Wilson’s union sym- pathies were not a factor, Ferguson testified. (5:922–923.) Teomi Clay testified that Assistant DC Manager Cunningham spoke to her in the returns area about 2 to 3 weeks before Wilson was fired. Cunningham asked if Wilson had said anything about a bomb threat. Clay said no, but that Wilson had said the chemicals he was mixing [as part of his job] ‘‘could be a bomb.’’ (2:212.) At trial Clay testified that she had heard Wilson say that only once. (2:214.) A few days after her conversation with Cunningham, and still be- fore Wilson’s discharge, Wartinger and Cunningham inter- viewed Clay in the personnel office. Cunningham asked if Clay knew anything about Wilson’s harassing anyone. Clay answered no. When Cunningham said she was more con- cerned about the knife incident, Clay replied that she had not seen it. All she saw, Clay told them, was that Ann Hurley jumped, calling out, ‘‘Teomi, make him stop,’’ following which both Hurley and Clay laughed. After Wartinger and Cunningham looked at each other, Cunningham told Clay, ‘‘That’s all we wanted,’’ and the interview ended. Appar- ently no written statement was secured from Clay. (2:209.) Wilson denies ever using the word ‘‘bomb’’ in relation to the chemicals at work (2:174–175), and he denies ever teas- ing Hurley (2:184.) He asserts that he told Cole he was not threatening Carrington with the handsaw. (2:130, 190.) He denies telling anyone that he planned to hit Bradberry with the 2x4. (2:181.) When Cole asked what he was doing with the 2x4 in his area, Wilson explained (apparently) that he used it to raise pallets that had fallen between the racks. Cole did not tell him to dispose of the 2x4. Wilson asserts that he was upset when Bradberry, driving a forklift on this occa- sion in August, hit a pallet stacked with merchandise, almost pushing the pallet into Wilson. Bradberry then laughed. Wil- son claims, however, that he was not ‘‘extremely’’ upset and that he took no action other than to tell Bradberry not to do it again. (2:131, 177–184.) c. Discussion Crediting DC Manager Ferguson, Jeananne Cole, and Ann Hurley, and disbelieving S. Phillip Wilson, I find that the General Counsel has failed to establish, prima facie, that a motivating reason for AutoZone’s discharge of Wilson was his activities on behalf of the Union. I therefore shall dismiss complaint paragraph 12. Although Teomie Clay generally supports Wilson, she concedes she never saw a cardboard knife, yet Wilson admits that he ‘‘showed’’ one to Hurley. I credit Hurley that 90 per- cent of the time no one was around when Wilson made his threats. I also find that Clay observed more than what she admits seeing. What had started as an apparently innocent in- terest by Wilson in Hurley’s family developed into some kind of morbid fixation by Wilson resulting in his psycho- logical bullying and terrorizing of Hurley. As Hurley de- scribes it, Wilson began acting ‘‘weird’’ and ‘‘not normal.’’ (4:738.) Other than discussing the matter with her husband, Hurley did not report the threats to management out of fear it could provoke Wilson. She endured the threats in order to protect her daughter. (4:717, 733–734.) Whether most would have reacted as did Hurley is debatable, but I credit Hurley. In doing so I recognize that at work she may have joined the banter more than she allows, at least before matters be- came serious. Nevertheless, I find that Hurley eventually be- came seriously concerned, finally reporting the matter when, during the investigation initiated by management after the bomb threat in August, management interviewed Hurley. In any event, it is clear that Ferguson had before him re- ports alleging serious misconduct by Wilson. Although Fer- guson did not personally interview Jeananne Cole, he read her statement of August 31. He likewise read Hurley’s Sep- 143 AUTOZONE, INC. tember 9 statement and personally interviewed her. It is clear that Hurley’s statement, and the personal report she made to him, figured heavily in Ferguson’s decision to recommend Wilson’s discharge—a recommendation accepted by Vice President Roberts. Consistent with AutoZone’s past practice, at least at Greenville, Wilson was not confronted until his discharge interview. At that interview Wilson, I find, admit- ted the three incidents but asserted he had meant no harm by his conduct. (Had he denied them Ferguson would have cited some of the additional incidents.) But what was a (mor- bid) joke to Wilson was no laughing matter to Ferguson or to AutoZone, and Ferguson fired Wilson. Crediting Ferguson, I find that Wilson’s union activities were not a motivating reason for Wilson’s discharge. Accordingly, I shall dismiss complaint paragraph 12. IV. THE UNION’S OBJECTIONS A. Introduction As I mentioned in the Overview section of this decision, the Regional Director assigned for hearing Union Objections 1–3, 5–8, 11, and 14. For the most part these nine objections parallel allegations in the complaint, and on brief the Union generally relies on the evidence submitted in support of the complaint allegations as also sustaining its objections. B. The Objections 1. Objection 1 This objection attacks the February 19 speech of CEO J. R. Hyde III as threatening plant closure and loss of jobs. Having found merit to complaint paragraphs 8(j) and 8(k), I also find merit to Objection 1. 2. Objection 2 This objection alleges that during the critical period AutoZone hired more than 30 replacement employees, as- signed 50 additional managers, and advertised in local news- papers for new warehouse employees. Supervisors threatened employees that the new employees were hired to replace cur- rent employees who supported the Union and would perma- nently replace current employees if the Union were selected as the bargaining agent. On brief the Union’s entire one-sen- tence presentation cites the evidence presented in support of complaint paragraph 8(i), particularly the testimony of em- ployee Karen Holcombe at 3:411. As discussed earlier, find- ing Holcombe’s testimony unreliable, I dismissed complaint paragraph 8(i.) In the face of testimony by DC Manager Fer- guson showing that the newspaper advertisements (such as CPX 9) and additional hires (some being hired after the elec- tion) were not unusual (3:520–522), the Union apparently has abandoned this position of its objection. Finally, the Union fails to cite any evidence about 50 managers. The record shows that some managers were brought in for training and to assist during the campaign. The Union fails to articulate anything objectionable in this. I shall recommend that Objec- tion 2 be overruled. 3. Objection 3 This objection alleges that AutoZone distributed literature to employees and gave captive audience speeches threatening employees with strikes and loss of jobs if the Union were selected. Respecting the literature, the Union relies, appar- ently, on a February 16, 1993 letter (CPX 8) to employees from Vice President Roberts. For the captive audience speeches, the Union, on brief, fails to cite any complaint al- legation or evidence on which it relies. At trial the Union, during its case in chief, asked Ferguson about remarks by Roberts made following the January 22 captive audience speech. In these taperecorded remarks (CPX 1 at 29–30; 3:504–507), Roberts, answering questions by employee Les Hayes, states that if no contract is reached in bargaining there are repercussions, such as a strike, which hurt every- body. Similarly, at trial the Union focused on statements by Fer- guson and Roberts at the February 1 captive audience speech. (CPX 7; 3:507–514.) At page 14 of that joint 28- page speech Ferguson refers to ‘‘button wearers’’ and asks whether they are ‘‘really the type of people you want run- ning the union’s show in here if the Teamsters are somehow able to dupe enough AutoZoners to vote for them and to get in here?’’ Continuing, Ferguson rhetorically asks Are they the kind of leaders you want to entrust your jobs and your futures to? Are they the people you want speaking for you? You can keep yourselves free of their control and the control of the International by voting NO! At page 15 of the February 21 speech Roberts, discussing strikes, states, in part: The main reason we are opposed to the Teamsters get- ting in here is because this union means strikes. Our own management has fought its way through Team- sters’ strikes time and time again. In every case, the strikers lost everything, and the company was hurt too. The only people not hurt were the outside Teamsters organizers. That leads to the February 16 letter which the Union also cited at trial. (3:515–516, 534–535.) The letter describes AutoZone’s personal experience in dealing with the Team- sters. The text of Roberts’ letter, addressed individually to employees, reads (CPX 8): As you know, AutoZone is a totally non-union com- pany, and it has been that way since its found[ing] thir- teen years ago. But don’t let that fact lead you to be- lieve that we are ‘‘babes in the woods’’ when it comes to dealing with the Teamsters. When I and lots of other members of your management team—including Peter Formanek, Tom Hanemann, Ken Jones and John Wil- liams—were with AutoZone’s former parent company, Malone & Hyde, we had plenty experience dealing with the Teamsters. Unfortunately, that experience turned out to be disastrous for hundreds of our employees. Here is a recap of the history we had with the Teamsters: Nashville—Shortly after we purchased this ware- house, the Teamsters convinced the employees that they could not trust our management to be fair to them, and the employees voted for the Teamsters. As we were le- 144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gally required to do, we bargained with the union and eventually reached agreement on a contract. Things went reasonably well for a short while, but then one of the Teamsters’ stewards got upset with us over the dis- charge of one of his buddies, and pulled the 185 em- ployees out on an illegal strike in violation of the con- tract. We did not wait around to see what would hap- pen next; we fired every striker and hired new employ- ees to take their place. We never missed an order or a shipment, and the 185 fired strikers never got their jobs back. Memphis—The Teamsters got into our hometown warehouse longer ago than anyone can remember—at least 50 years ago. These employees also thought that they needed the Teamsters to have job security and that they had nothing to lose by having the Teamsters as their representative. Unfortunately, they found out the hard way that having the Teamsters is no guarantee of real job security. These employees, just like the ones in Nashville, walked out on an illegal wildcat strike. We fired all of them, too, and hired new employees to fill their jobs. We never missed and order or a shipment, and the fired strikers never worked for us again. Sikeston, MO—The employees at our Sikeston ware- house were also represented by the Teamsters. Unfortu- nately, the Teamsters called the employees out on strike to try to force their contract demands on us. The strike did not work, however, because we never gave in to the Teamsters’ demands; we never missed an order or a shipment; and we replaced all of the strikers with new employees. To this day, those replaced strikers have never returned to work at the warehouse. All of these stories had one thing in common—the Teamsters Union! And, unfortunately, all of those sto- ries had one common result: strikes which ended up being disastrous for the employees involved. By the way, each of these stories had the same final out- come—the Teamsters Union was eventually kicked out, and all of these warehouses are now now-union. It seems pretty clear that the Teamsters’ record of dealing with your management team has not been very good. Whatever the reasons for this, we just haven’t had good experiences when our employees have de- cided to turn their working lives and their futures over to this union. Maybe the reason for this is that we have taken a non-nonsense business approach to unions and that we have never let the Teamsters Union run our business. We run AutoZone today, and we will run it after March 5, no matter what the results of the election are. Some of you in the group meetings have asked why we have taken such a strong stand on this issue and why we have insisted that we don’t think it would be the best thing for you to bring the Teamsters in here. Well, now I hope you understand the reasons. The peo- ple who were hurt the worst by the strikes in Memphis, Nashville and Sikeston weren’t the management team, but the employees. We do not want to take a chance on the same kind of strike happening at the Greenville D.C. or anywhere else for that matter. We want to be free from union problems like the ones the Teamsters have caused for employees we have worked with in the past. We do not want to take a chance on this union doing to you and to us the same thing they did to us and to our employees in Nashville, Memphis and Sikeston. Remember, the only was you can guarantee that you will never get caught up in a Teamsters Union strike or other Teamsters’ trouble is by voting NO on March 5. These February 1 (speech) and February 16 (letter) re- marks merely describe AutoZone’s experience with the Teamsters. Finding nothing objectionable in AutoZone’s re- porting that experience to its Greenville employees for their edification, I shall recommend that the Board overrule Objec- tion 3. 4. Objection 5 In this objection the Union alleges that, in captive audi- ence meetings, that AutoZone was withholding a scheduled wage increase because the Union, supported by employees, filed the representation petition. On brief, the Union relies on the evidence adduced in support of complaint paragraphs 8(b) and (c) (which I dismissed), 8(f) (merit, respecting Rob- erts’ January 22 speech), 8(h), (i), and (r) (all three dis- missed), and 9 (merit respecting the 8(a)(3) allegation on the pay increase). Because I found merit to complaint paragraphs 8(f) and 9, I shall recommend that the Board sustain this ob- jection. 5. Objection 6 This objection alleges that AutoZone discriminated against union activists by placing them on more onerous work schedules and changing job assignments solely because of their visible and known support for the Union, denying these union activists the ability to attend employee seminar ses- sions on paid time unless they disavowed support for the Union. Once a known union activist verbally disavowed his or her support for the Union, AutoZone permitted their at- tendance at such paid seminars with other employees. On brief the Union relies on complaint paragraph 8(l) (which I dismissed) ‘‘and the testimony of employee Stanley Phillip Wilson at Transcript pages 124 to 125.’’ First, recall that beginning the week of February 1 AutoZone excluded from its meetings those employees who had a fixed opinion on the union issue. (5:925, 974, 979.) Respecting a discriminatory exclusion of union activists, there is no evidence that AutoZone required activists to dis- avow support for the Union, and DC Manager Ferguson de- nies knowledge that any supervisor ever said it. (5:928.) Fer- guson also testified that union supporters were permitted to attend if they merely said they wanted information to deter- mine whether their decision to support the Union was cor- rect. (3:525, 528–529.) This also is consistent with Advisor Timothy Schlichting’s report to Phillip Wilson when Wilson, as I described earlier, asked why he could not attend the meetings. Thus, on February 15 Schlichting informed Wilson that Ferguson said Wilson could not attend because his mind was not open. (2:125–126, 168.) Wilson makes clear that his opinion was fixed. (2:151–152.) It is well settled that both unions and employers may exclude opponents from their meetings. Teamsters Local 856 (Holiday Inn), 302 NLRB 572 (1991); Luxuray of New York, 185 NLRB 100 fn. 1 (1970.) 145 AUTOZONE, INC. Second, the only ‘‘onerous’’ aspect is that Wilson also had to cover the job of an employee called to the meetings, but this happened only for 1 hour per week in 4 separate weeks. (5:926, 929, 981–982.) That hardly rises to the level of ob- jectionable conduct. I shall recommend that Objection 6 be overruled. 6. Objection 7 By this objection the Union complains that AutoZone’s su- pervisors and managers threatened union activists with loss of their jobs and coercively interrogated union activists be- cause of their support for the Union. In support of the objec- tion, the Union relies on complaint paragraphs 8(d), (h), (i) (all three dismissed) and 8(j) and (k), the Hyde speech re- specting which I found merit. Based on my findings respect- ing CEO Hyde’s February 19 speech, I shall recommend that the Board sustain Objection 7. 7. Objection 8 This objection alleges that AutoZone solicited employee grievances and promised remedies and benefits. On brief the Union relies on complaint paragraphs 8(c) and (r) (I dis- missed both) and paragraph 9 (merit found to 8(a)(3) allega- tion on withholding scheduled pay raise). As the withholding of the pay raise does not promise a benefit, and paragraphs 8(c) and (r) are being dismissed, I shall recommend that the Board overrule this objection. 8. Objection 11 This objection alleges that AutoZone permitted employees to circulate antiunion petitions during worktime and gave other material support to antiunion employee while verbally reprimanding union activists for speaking to employees at work and while removing union literature from bulletin boards where general employee communications are nor- mally permitted. On brief the Union relies on complaint paragraphs 8(d), (g), (n), and (o) (merit found to each). I shall recommend that the Board sustain this objection. 9. Objection 14 In this ‘‘catch-all’’ objection the Union alleges ‘‘other’’ coercive conduct during the critical period. On brief the Union relies on a statement by Marty Nelson that, after a union loss in the election, she and the other (open) union supporters ‘‘would be considered anticompany.’’ (1:54–55.) Nelson, recall, is the assistant manager from San Antonio who was at Greenville to train and to assist. (4:602–603.) Nelson denies knowing Hanson (4:600) or having a con- versation with any employee, other than James Andrews, who was wearing union insignia. (4:600–601.) I credit Han- son. Hanson testified that Nelson had been working in the de- partment for several days. He was assisting in pulling orders on this occasion. (1:54, 58.) Hanson is certain Nelson was aware of her union support. (1:56) Hanson had openly worn union insignia, had handbilled for the Union, and was the first of 32 employees named as members of the Union’s or- ganizing committee in the Union’s February 1 letter (GCX 4) to Ferguson. Finally, on this occasion Hanson was wear- ing her union pin. (1:54.) I find that Nelson knew Hanson and knew that she was an open and vigorous supporter of the Union. On this occasion, Hanson testified, Nelson asked Hanson if she was on the Committee. Hanson replied yes. To this Nelson asked, ‘‘Well, what do you think is going to hap- pen when you lose the election?’’ [Recall, as I found, that Nelson asked James Andrews the same question.] In a joking (not ‘‘jerking’’ as the transcript reflects) fashion, Hanson re- plied that AutoZone probably would ‘‘fire us all.’’ ‘‘No,’’ Nelson stated, but they ‘‘would be considered antiCompany.’’ Hanson considers Nelson’s remark to be a threat of future retaliation. (1:59.) Although I credit Hanson rather than Nelson, I shall rec- ommend that the Board overrule Objection 14. There is no evidence other employees overheard Hanson’s remark or that she told any employees about it. In view of the lopsided vote (135 No, 57 Yes), it is clear that, even if Nelson’s remark had frightened Hanson into voting No, a single No vote would not have affected the results of the election. Thus, Nelson’s remark, even if objectionable, was isolated and in- significant. Gold Shield Security, 306 NLRB 20 (1992.) C. Recommendations Based on the foregoing, I recommend that the Board over- rule Objections 2, 3, 8, and 14, that it sustain Objections 1, 5, 7, and 11, and that the Board set aside the March 5, 1993 election in Case 11–RC–5894 and direct that a second elec- tion be conducted. CONCLUSIONS OF LAW 1. By engaging in various acts, from January 20, 1993 through mid-February 1993, constituting interference, re- straint, and coercion of its employees, Respondent AutoZone has violated Section 8(a)(1) of the Act. 2. By freezing its pay adjustment process because the Union filed a representation petition on January 7, 1993, in Case 11–RC–5894, Respondent AutoZone has violated Sec- tion 8(a)(3) and (1) of the Act. 3. The unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. AutoZone artificially interrupted its processing of the wage adjustment process for its Greenville, South Carolina dis- tribution center, while continuing with it for its other dis- tribution centers, because on January 7, 1993, the Union filed a representation petition in Case 11–RC–5894. As of the time AutoZone ceased its wage adjustment process for its Greenville facility, the preliminary indication was that a weighted increase would exceed 5 percent at Greenville. AutoZone must be ordered to complete its wage adjustment process, as if the Union had not appeared on the scene, and implement whatever wage increase is, in good faith, ap- proved, retroactive to January 3, 1993—the date it would have been effective had one been implemented at Greenville. (4:842–843.) Atlantic Forest Products, 282 NLRB 855, 859 fn. 21 (1987); Otis Hospital, 222 NLRB 402, 405 (1976.) The money due shall be computed at the compliance stage. Interest, likewise computed at the compliance stage, shall be 146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 5 If 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 Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ computed in accordance with New Horizons for the Re- tarded, 283 NLRB 1173 (1987). The backpay so computed shall be due to all eligible employees, including any eligible employees who have since left AutoZone’s employment. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended4 ORDER The Respondent, Autozone, Inc., Greenville, South Caro- lina, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Removing prounion literature from canteen bulletin boards while leaving posted anitunion literature. (b) Imposing a gag order on all working-time talk about unions (supporting or opposing) while permitting employees to discuss other nonwork topics during working time. (c) Threatening employees with closure of the Greenville, South Carolina facility if they select the Teamsters Union as their bargaining representative. (d) Threatening employees with loss of jobs if they select the Teamsters Union as their collective-bargaining represent- ative. (e) Telling employees that a pay raise is being withheld because the Teamsters Union filed a representation petition. (f) Freezing the wage adjustment process because a labor organization has filed a petition to represent employees for the purposes of collective bargaining. (g) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Complete the wage adjustment process for the distribu- tion center at Greenville, South Carolina, which process was frozen at Vice President Dennis Roberts’ level in early Janu- ary 1993 on the filing of the petition in Case 11–RC–5894, and implement the pay increase there effective January 3, 1993, with interest. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Greenville, South Carolina facility copies of the attached notice marked ‘‘Appendix.’’5 Copies of the no- tice, on forms provided by the Regional Director for Region 11, after being signed by the Respondent’s authorized rep- resentative, shall be posted by the Respondent immediately on receipt and maintained for 60 consecutive days in con- spicuous places including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that complaint paragraphs 8(a), (b), (c), (e), (h), (i), (l), (m), (r), and 10, 11, and 12 are dis- missed. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these protected concerted activities. WE WILL NOT remove prounion literature from canteen bulletin boards while leaving posted antiunion literature. WE WILL NOT impose a gag order prohibiting, during working time, all talk about unions (supporting or opposing) while permitting employees to discuss other nonwork topics during working time. WE WILL NOT threaten you with closure of the Greenville, South Carolina facility if you select the Teamsters Union as your bargaining representative. WE WILL NOT threaten you will loss of jobs if you select the Teamsters Union as your collective-bargaining represent- ative. WE WILL NOT tell you that a pay raise is being withheld because the Teamsters Union filed a representation petition. WE WILL NOT freeze the wage adjustment process because a labor organization has filed a petition to represent employ- ees for the purposes of collective bargaining. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaran- teed you by Section 7 of the Act. WE WILL complete the wage adjustment process for the distribution center at Greenville, South Carolina, and WE WILL implement the pay raise retroactive, with interest, to January 3, 1993 for all eligible employees, including eligible employees who no longer work for AutoZone. AUTOZONE, INC.