Gossen Co.

GOSSEN COMPANY Gossen Company, a Division of the United States Gypsum Company and Teamsters Local 344, Sales and Service Industry, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America Gossen Company, a Division of the United States Gypsum Company and Lynn C. Engel, Karl V. Hartmann, John F. Lampada, and Robert R. Beilke. Cases 30-CA-5170, 30-CA-5277, 30- RC-3545, 30-CA-5335, 30-CA-5335-2, 30- CA-5335-3, and 30-CA-5335-4 January 14, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On May 7, 1980, Administrative Law Judge Norman Zankel issued the attached Decision in this proceeding. Thereafter, the General Counsel and Respondent filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings,' find- ings, 2 and conclusions' of the Administrative Law I The Administrative Las Judge denied the General Counsel's motion to exclude certain testimony because Respondent's counsel had allegedly violated the sequestration arrangement by permitting prospective wit- nesses to read portions of the transcript. Under the particular circum- stances of this case, particularly since the parameters of the sequestration arrangement had not been precisely defined and since, in assessing credi- bility, the Administrative Law Judge was aware that some witnesses had read portions of the transcript prior to testifying, we agree with the Ad- ministrative Law Judge that it was not necessary to exclude the testimo- ny of such witnesses. However, in adopting the Administrative Law Judge's ruling on this point, we are not endorsing the proposition that showing portions of the transcript to prospective witnesses who have been sequestered is warranted as part of trial preparation. 2 Respondent and the General Counsel have excepted to certain credi- bility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judg's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. San- durd Dry Wall Products Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and ind no basis for reversing his findings. I The Administrative Law Judge's Decision in this case issued before Wright Line. A Division of Wright Line. Inc., 251 NLRB 1083 (1980), wherein the Board set forth a test of causation for cases alleging viola- tions of Sec. 8(a)(3) of the Act. In adopting the Administrative Law Judge's findings regarding 8(a)(3) allegations in the instant case, we have not relied on any findings or statements here that are inconsistent with Wright Line. and we have analyzed each of the 8(a)(3) allegations consis- tent with the causation test set forth in Wright Line In particular, we note that the General Counsel made a prima fac.· showing that employee James Parr's union activity wsas a motivating factor in Respondent's deci- sion to discharge him. We further find that Respondent failed to demon- strate that it would have taken the same action against Parr absent his union activity and that. therefore. Respondent's discharge of Parr iolat- ed Sec. 8(a)(3) of the Act. 254 NLRB No. 41 Judge and to adopt his recommended Order, as modified hereafter. The complaint alleges that Respondent violated Section 8(a)() of the Act when its supervisor, Redzinski, asked known union supporter Waubiness what the Union could do for him and in a separate conversation asked employee Bugni why he was wearing a union button or what the union button meant to him. The Administrative Law Judge found that Redzinski's questions regarding employ- ees Waubiness' and Bugni's views on the Union were not coercive as they were unattended by threats of reprisals or promises of benefits and therefore did not violate Section 8(a)(1) of the Act. We disagree. In PPG Industries, Inc., Lexington Plant, Fiber Glass Division, 251 NLRB 1146 (1980), which issued subsequent to the Administrative Law Judge's Decision, the Board found that a supervi- sor's questions regarding employees' union sympa- thies were coercive because such questioning "con- veys an employer's displeasure with employees' union activity and thereby discourages such activ- ity in the future. The coercive impact of these questions is not diminished by the employees' open union support or by the absence of attendant threats."4 Accordingly, we find Supervisor Red- zinski's questioning of employees Waubiness and Bugni violated Section 8(a)(1) of the Act. 5 Member Penello concurs in adopting the Administrative Law Judge's findings that the misrepresentations alleged in the Union's objections do not warrant setting aside the election. In so doing, however, he relies on the rationale set forth in his dissenting opinion in General Knit of Calhr- nia, Inc.. 239 NLRB 619. 624-632 (1978). 4 In finding such supervisory questioning to constitute unlawful inter- rogation in violation of Sec. 8(a)(l) of the Act, the Board explicitly over- ruled contrary precedent. I Member Jenkins agrees with Chairman Fanning that Supervisor Red- zinski's interrogations were coercive and violated Sec. 8(a)(1) of the Act In addition, Member Jenkins also finds that Supervisor Jeray's comments to his sister-in-law, Lynn Engel. were coercive and violated Sec. 8(a)(l) of the Act. The Administrative Law Judge found that, on the day after a union meeting. Jeray told Engel, a union activist. "I hear you're organiz- ing the Union." At the time of Jeray's comment, he was Engel's immedi- ate supervisor. Subsequently. Engel was transferred to another depart- ment. Sometime after the transfer, Engel confronted her new supervisor and complained about Respondent's failure to transfer her back to her former job. Jeray, who overheard her complaint, responded "What do you expect when you buck the system"" Because of the family and social relationship, the Administrative Law Judge found that Jeray's comments did not create the impression of surveillance or constitute a threat of re- prisal or an unlawful interrogation and therefore were not violative of Sec 8(a)(l) of the Act. Member Jenkins disagrees. and would find both of Jeray's remarks to Engel violated Sec. 8(aXI) of the Act In recom- mending the dismissal of allegations concerning Jeray's comments to Engel, the Administrative Law Judge relied on Federal Prescription Ser- vice. Inc.. and Drivex Co., 203 NLRB 975, 990 (1973), a case in which Member Jenkins participated, but he considers that case to he inapposite There. the employee initiated the conversation regarding union activity and the supervisor's response was limited to her personal nonemployment relationship with the employee. In the instant case, Jeray, a member of management, effectively communicated Respondent's displeasure with Engel's union activity; i.e., "bucking the system." Jeray's comnient in- formed Engel that Respondent's refusal to grant her transfer was a direct consequence of her involvement in union activity In addition, Jeray's un- Continud 339 DECISIONS OF NATIONAL LABOR RELATIONS BO(ARD AMENDED CONCLUSIONS OF LAW 1. Substitute the following for Conclusion of Law 1: "1. Supervisor Redzinski unlawfully interrogated employees Waubiness and Bugni." 2. Substitute the following for Conclusion of Law 3: "3. Except as found elsewhere, the Employer did not engage in any of the 8(a)(1) conduct alleged in complaint paragraph 5." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Gossen Company, a Division of the United States Gypsum Company, Milwaukee, Wisconsin, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph l(e) and re- letter subsequent paragraphs accordingly: "(e) Interrogating employees with regard to their union activities or desires." 2. Substitute the attached notice for that of the Administrative Law Judge. Ir Is FURTHER ORDERED that Case 30-RC-3545 be remanded to the Regional Director for Region 30 to open and count the ballots of James Magee and James W. Parr and to prepare a revised tally of ballots. If such tally shows a majority of votes in favor of union representation, a certificate of repre- sentative should be issued; however, if the Union fails to obtain a majority of the votes cast, the elec- tion results shall be set aside based on the meritori- ous objections and a second election shall be con- ducted at a time deemed appropriate by the said Regional Director. solicited comment about Engel's union organizing left Engel with the clear impression that Respondent was keeping tabs on her union activity. It is nteworthy that at the time of that comment Jeray wits Engel's im- mediate supervisor and was responsible for making recommendations re- garding wage increases and transfers. Further. Jeray's statements to Engel were made in the context of the commission of other serious unfair labor practices by Respondent, In these circumstances. here Jeray's com- mernts were unsolicited and impacted on Engel's employment opportuni- ties. Member Jenkins would not fitld that Jeray's family or social relation- ship with Engel diminished the coercive impact ofr the statement Morc- oser, subsequent to Engel's involsemcnt in union aclivities, her relation- ship with Jeray deterioratled and she no longer saw him socially. Accord- ingly, Member Jenikins would find that Jcray's commnents created the im- pression of surveillanlce and constituted an ulawful iterrogatiotn and a threat of reprisal in violation of Sec. 8(a)(1) of the Act. In disagreement with his colleagues, Member Iencllo would adopt he recommendation oif the Administrative Law Judge and finld that the ques- tiorning by Supervisor Redzinski was not coercive and did niot violate Sec 8(a)(l) of the Act. APPENDIX NOTICE TO EMPI.OYi.iES POSTED BY ORDER OFT HE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the oppor- tunity to present their evidence, it has been decided that we violated the law in certain ways. We have been ordered to post this notice to your attention. We intend to carry out the Order of the Board and to abide by the following: The National Labor Relations Act, as amend- ed, gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through represen- tatives whom they themselves select To engage in activities together for the purposes of collective bargaining or to act together in order to seek improvement in their wages, hours, working conditions, and other terms and conditions of employment To refrain from any and all such activi- ties. WE WILL NOT announce that we will sus- pend, nor will we unlawfully suspend, the op- eration of our merit evaluation and wage in- crease system, or any other benefit which we grant you on a regular basis. WE. WILL NOT discriminate against any of you by discharging you or giving you disci- plinary warnings because you engage in activi- ties on behalf of Teamsters Local 344, Sales and Service Industry, affiliated with the Inter- national Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT interrogate employees with regard to their union activities or desires. WE WILI. NOT in any other manner interfere with, restrain, or coerce you in the free choice of any of the rights set forth above. WE WIL.L immediately offer James Magee, James W. Parr, Gil R. White, and John S. Lavine full reinstatement to their former jobs with us or, if such jobs no longer exist, each of them will be offered a substantially equivalent position, without loss of seniority or other rights, privileges, and benefits previously en- joyed; and WE WILL make each of them whole, with interest, for all moneys each of them lost as a result of their discharges in 1979. 340 GOSSEN COMPANY WE WILL immediately reinstate and imple- ment our merit evaluation and wage increase system in a nondiscriminatory manner, and grant merit wage increases to each employee found eligible, retroactive to the date of our announcement of suspension of that system. WE WILL immediately remove all disciplin- ary warnings and records showing probation from the official personnel files of Lynn Engel and Karl V. Hartmann; and we will write to them that we have done this. GOSSEN COMPANY, A DIVISION OF THE UNITED STATES GYPSUM COM- PANY DECISION STArTEMENT OF THE CASE NORMAN ZANKEL, Administrative Law Judge: These cases were heard before me on various dates between December 3, 1979,1 and January 17, 1980, at Milwaukee, Wisconsin. The hearing evolved from an original charge in Case 30-CA-5170 filed on April 9 by Teamsters Local 344, Sales and Service Industry, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehou- semen and Helpers of America (hereinafter called the Union), against Gossen Company, a Division of the United States Gypsum Company (hereinafter called the Employer), and an election petition (Case 30-RC-3545) filed by the Union on April 12. The charge in Case 30- CA-5277 was filed by the Union against the Employer on June 22. Thereafter, the Regional Director for Region 30 of the National Labor Relations Board (hereinafter called the Board) issued a complaint and notice of hear- ing alleging that the Employer violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (hereinafter called the Act). On April 12, pursuant to a Stipulation for Certification Upon Consent Election, a Board-conducted election was held among the Employer's employees in the following bargaining unit: All full-time and regular part-time production, maintenance and warehouse employees including drivers, maintenance leader and warehouse leaders at the employers, 2030 West Bender Road plant and its 3701 Green Tree Road warehouse, excluding office clerical employees, sales employees, guards and supervisors as defined in the Act. 2 The Board-conducted election was held on June 14 and 15; 69 votes were cast for the Union and 69 votes were cast against the Union; 4 ballots were challenged, 3 by the Employer and I by the Union. All dates are 1979 unless otherwise stated. 2 It is undisputed, and I find, that the stated unit constitutes an appro- priate unit for purposes of collective bargaining within the meaning of Sec. 9(b) of the Act. On June 21, the Union filed 13 numbered objections to the election and withdrew its challenge. Thereafter, the Regional Director opened and counted that ballot. A re- vised tally of ballots issued showing 70 votes had been cast against the Union and 69 votes in favor of union representation. The remaining three challenged ballots were left for my determination. Specifically, James Magee, James Parr, and Timothy Burke had been chal- lenged by the Employer on the assertion that none was employed on the election date. Magee and Parr were al- leged in the instant unfair labor practice proceeding to have been discriminatorily discharged in violation of Section 8(a)(3) and (1) of the Act. Burke is not alleged as a discriminatee. At the instant hearing, the Union with- drew certain of its objections." Thus, all references here- after to the Union's objections refer only to those objec- tions still pending. On August 1, the Regional Director ordered a hearing upon the challenged ballots and objections to be heard in consolidation with the unfair labor practice issues in Cases 30-CA-5170 and 30-CA-5277. During the month of August, Charging Parties Lynn C. Engel, Karl V. Hartmann, John F. Lampada, and Robert R. Beilke filed individual charges against the Em- ployer in Cases 30-CA-5335 and 30-CA-5335-2, -3, and -4. Finally, on September 26, an amended consolidated complaint in each of the aforementioned unfair labor practice cases was issued by the Regional Director. That amended complaint alleged that the Employer engaged in a wide variety of conduct in violation of Section 8(a)(1), (3), and (4) of the Act. Those allegations were further ordered consolidated for hearing with the chal- lenges and objections to the election. At the hearing, the amended consolidated complaint was further amended to allege additional 8(a)(l) and (3) conduct. The Employer filed a timely answer to the amended consolidated complaint and to its amendments. Certain allegations were admitted but the Employer denied the substantive allegations and that it had committed any unfair labor practice. All parties appeared at the hearing before me. Each was represented by counsel and was afforded full oppor- tunity to be heard, to introduce and meet material evi- dence, to examine and cross-examine witnesses, to pre- sent oral arguments, and to file briefs. I have fully con- sidered the contents of the post-hearing briefs filed on behalf of the General Counsel and the Employer. Upon the entire record, and from my observation of the witnesses and their demeanor in the witness chair, and upon substantial, reliable evidence "considered along with the consistency and inherent probability of testimo- ny" (Universal Camera Corporation v. N.L.R.B., 340 U.S. 474, 496 (1951)), 1 make the following: ()hjectilons . 7, and 8 ecre entirely Aithdrawn They allege. rspec- lively, that the Employer impropcrly Ornitted certaill names front its EIr- celvior list. tailcd to comply , ith i Board polices and requcsts Io post elec- tion notlice. all told an cmploec Ilnot o oe hec;lau hc ould he chal- lenged 341 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS AND CONCI.USIONS 1. JURISDICTION The Employer, a Delaware corporation, has main- tained, at all times material herein, places of business in Milwaukee and Glendale, Wisconsin, where it has been engaged in production of plastic moldings. During the calendar year ending December 31, 1978, a representative period, the Employer sold and shipped from its Milwaukee and Glendale locations products, goods, and materials in excess of $50,000 in value direct- ly to points outside Wisconsin. The parties agree, the record reflects, and I find that Respondent is, and at all material times has been, an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. The parties agree, the record reflects, and I find that the Union is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. It. PROCEDURAI. MATTERS A. Adequacy of Complaint When the hearing opened, the Employer moved to dismiss the amended consolidated complaint. Essentially, the basis for this motion was stated, in the Employer's terms, to be "the absence of any reasonable prior notifi- cation of the testimony to be elicited or of the accusa- tions against [the Employer] and its agents violates Con- stitutional principles of fundamental due process." I de- ferred ruling on that motion. At the conclusion of the General Counsel's case-in- chief the aforesaid motion was renewed. In the alterna- tive, the Employer moved to strike those portions of the complaint which were unsupported by the evidence. I in- dicated I would issue a specific ruling regarding these motions at the conclusion of the entire proceeding. The instant issue arises from the following relevant facts. On August 3, the Employer filed a motion for a bill of particulars. That motion asserted that the com- plaint was deficient in that the allegations were so con- clusory that a "fair and expeditious hearing" was imped- ed. Thereafter, on August 16, the Employer submitted another motion for a bill of particulars. This motion claimed certain parts of the complaint were replete with conclusionary allegations. The Employer argued that the General Counsel's pleadings were not sufficiently ade- quate to allow the Employer properly to respond or to anticipate the nature of violations asserted against it. On September 7, then Associate Chief Administrative Law Judge Arthur Leff, upon consideration of both the Employer's motions, ordered the General Counsel to prepare and serve upon the Employer a bill of particu- lars amplifying the complaint in certain specific areas. Administrative Law Judge Leff denied the remainder of the Employer's motions on the ground the complaint otherwise complied with the requirements of Section 102.15 of the Board's Rules and Regulations. On September 21, the General Counsel responded to Administrative Law Judge Leff's order by filing a bill of particulars. That document was served concurrently upon the Employer. I find the General Counsel's bill of particulars satisfies the terms of Administrative Law Judge Leffs order. Moreover, I find the issues so clari- fied were fully litigated. It is noteworthy that the Employer's post-hearing re- newal of the claim it has been denied procedural due process addresses, for the first time in specific terms, complaint paragraphs not earlier mentioned. In particu- lar, the Employer asserts that complaint paragraphs 5(a)(iv), 5(b)(vi), and (5)(d)(i) [sic] are without sufficient specificity to permit the Employer to interpose an ade- quate defense. Employees White, Ziemek, LaVine, Boblin, and Hart- mann provided testimony relating to paragraph 5(a)(iv); employee Reckner testified relative to paragraph 5(b)(vi); and employee Gehrke gave testimony as to paragraph 5(d)(i). The hearing was divided into two segments, interrupt- ed by a recess between December 7 and January 15, 1980. Each of the General Counsel's witnesses who im- plicated the Employer's agents in the subject allegations testified before the December 7 recess. Thus, the evi- dence on which the General Counsel relies to prove the assertedly vague allegations was adduced 3 full weeks before the hearing resumed in January 1980. The bulk of the Employer's defense was produced after the hearing reconvened on January 15. In particular, the Employer's witnesses critical to these allegations testified during the January portion of the hearing. Thus, Supervisor Red- zinski testified on January 16, Supervisor Ihlenfeld testi- fied on January 17, and Supervisor Siegrest was never called as a witness by the Employer. I find any pleading deficiency, if it existed at all, was cured by December 7 with the introduction of the specif- ic evidence offered by the General Counsel's witnesses. It was then the Employer had full knowledge of the General Counsel's claim and supporting evidence during the 3-week hearing hiatus. Accordingly, I conclude no factual premise exists to support the Employer's present claim. It is not the function of a pleading to provide evi- dentiary matter. North American Rockwell Corporation v. N.L.R.B., 389 F.2d 866 (10th Cir. 1968); William H. Dixon, 130 NLRB 1204 (1961). Even if pleadings were designed to accomplish that purpose, the evidence ad- duced in December eliminated the need for further expli- cation. Thus, I conclude that the litigation of the Gener- al Counsel's evidence as to the disputed complaint para- graphs provided the Employer with more information than was its right. Moreover, the Employer fully partici- pated in the hearing after all the General Counsel's direct evidence had been presented and all parties had full opportunity to litigate all issues. In these circum- stances, I find the Employer's present claim that it was denied a fair opportunity to defend is without founda- tion. Accordingly, the Employer's motions to dismiss based on the assertion of denial of due process are denied. B. Sequestration Before any witness was called to testify, the parties en- tered a voluntary arrangement to sequester witnesses. It 342 GOSSEN COMPANY was agreed that the individual Charging Parties could remain in the courtroom without limitation; the Union. the Employer, and the General Counsel could have one individual with them to assist in the presentation of evi- dence; and all other witnesses were to be excluded. I ad- vised the parties it was their responsibility to police the terms of the sequestration of the arrangement. During presentation of the Employer's defense, it became evident that some of its witnesses had not com- plied with the terms of the parties' agreement. Thus, the Employer's counsel acknowledged the witnesses had been requested to read the testimony "involving the statements they have been accused to have made." Also, the Employer's production superintendent, Hoffman, tes- tified he completely read the transcript of the hearing en- compassing the first four hearing dates before the De- cember 7 adjournment; Employment Supervisor Schmidt testified to having reviewed some of the transcript to learn of the hearing procedure and read selected portions because she had been told they contained "good testimo- ny"; Supervisor Redzinski testified he read the testimony of employees who had worked for him and glanced through others to see if his name was mentioned; Super- visor Chouinard claimed he read parts of the transcript haphazardly; Supervisor Lesch testified he paged through the transcript and read what pertained to him; Supervisor Buck acknowledged he paged through the transcript looking for his name; Supervisor Jeray testified he read the testimony of employees Ziemek, Spingola, Fritsche, Czuppa, Engel, and that of Works Manager Bancroft; and Supervisor Ihlenfeld admitted reading transcript excerpts which pertained to him. Counsel for the General Counsel moved to strike the testimony of the aforementioned Employer's witnesses. That motion is founded on an asserted breach of the se- questration agreement. The General Counsel argues that the severe penalty requested is justified because the record shows the Employer's counsel cooperated in the alleged breach. The General Counsel cites United States v. Torbert, 496 F.2d 154, 158 (9th Cir. 1974), where the court stated "it is ordinarily an abuse of discretion to dis- qualify a witness [for failure to comply with a sequestra- tion order] unless the defendant or his counsel have . . . cooperated in the violation of the order." (Emphasis sup- plied.) Further, the General Counsel contends the pres- ent circumstances virtually mandate a total rejection of the testimony presented by employer witnesses who sig- nified they had read the transcript. In this connection, the General Counsel points to Braswell v. Wainwright, 463 F.2d 1148, 1152-53 (5th Cir. 1972), which decision, in turn quoted from United States v. Schaefer, 299 F.2d 625 (7th Cir. 1962), cert. denied 370 U.S. 917 (1962), where the Seventh Circuit declared a "witness should be disqualified . . . when he has violated the sequestration order with 'the consent, connivance, procurement or knowledge of the [defendant] or his counsel."' (299 F.2d at 631.) The Employer asserts that permitting witnesses to read the transcript does not violate the sequestration agree- ment. It urges that the purpose of a sequestration order is to prevent collusive corroboration of testimony among witnesses and that those who read the instant transcript did so simply to become aware of matters with which they had been charged. Thus, the Employer asserts, in essence, its witnesses read the transcript to enable them to meet more effectively the allegations against them. This purpose, the Employer claims, is not encompassed within the proscribed objective of sequestration. The Employer, by analogy, argues reading of the transcript by its witnesses is no different from its counsel orally in- forming them of the matters in which they had been im- plicated by the General Counsel's witnesses. According to the Employer, the latter procedure would be undis- puted as an exercise of a party's right to prepare its de- fense. In any event, the Employer urges that, at most, any violation of the sequestration agreement was unwitting. In this connection, the Employer also alludes to Braswell v. Wainwright, supra, where the court held that an appar- ently innocent breach on the part of a witness should not deprive a criminal defendant from the benefit of that wit- ness' defense testimony in a situation where there was no evidence of consent, procurement, or knowledge of the breach on the part of the defendant or his counsel. The General Counsel does not contend there is direct evidence that any of the Employer's witnesses tailored his or her testimony to that of other witnesses. My ex- amination of the record reveals no evidence that anyone who read the transcript discussed what e or she read with any other witness. In Holder v. United States, 150 U.S. 91, 92 (1893), the Supreme Court, early on, recognized the broad discre- tionary authority of a trial judge to disqualify witnesses for violation of a sequestration order. Also, see United States v. Willis, 525 F.2d 657 (5th Cir. 1976). The pur- pose of sequestration is to prevent one witness from hearing the testimony of another so as to reduce the risk of fabrication, collusion, and inaccuracy. Taylor v. United States, 388 F.2d 786, 788 (9th Cir. 1967). Rule 615, Fed- eral Rules of Evidence, incorporates these concepts. That rule, however, contains no remedial provision for failure to comply. The Supreme Court, in Holder, supra at 92, declared, in salient part: "If a witness disobeys [a sequestration order] . . . the weight of authority is that he cannot be excluded on that ground merely .... " In- stead, as already indicated, the Court left the remedy for disobedience to the "sound discretion" of the trial judge. Total exclusion of an offending witness' testimony is a harsh result. Although it is true, as the General Counsel argues, that the Torbert case totally excluded the testimo- ny of a witness who disobeyed a sequestration order, the Court noted "because of the availability of alternative sanctions to enforce the order . . . it is ordinarily an abuse of discretion to disqualify a witness" unless it is demonstrated that the defendant or his counsel somehow had cooperated in violation of the order. I find Torbert factually distinguishable from the instant case. In Torbert, the trial judge explicitly ordered all witnesses to refrain from discussing their testimony with other witnesses until all testimony was complete. In the present matter, the sequestration arrangement was negotiated among the parties in lieu of the issuance of an order by me. The pa- rameters of the parties' arrangement had not been pre- cisely defined among them. I issued only a generalized 343 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reminder that enforcement of their agreement was the parties' duty. In these circumstances, I find no justifica- tion for imposition of so exacting a penalty as requested by the General Counsel. I perceive merit to the Employer's argument that an interpretation as broad as the General Counsel seeks would have the inhibiting effect of preventing the Em- ployer from pursuing its legitimate defenses. I consider sequestration rules principally were designed to prevent communication between and among witnesses. The foun- dational theory for the rule is practical; namely, to mini- mize the operation of detrimental forces upon the candor of witnesses and the spontaneity of their testimony. Thus, the focal point of sequestration rules is the activity of witnesses among each other. In my view, the instant issue is directed toward differ- ent activity. The real issue has been subverted by the ar- guments of the contesting parties. Thus, what actually is at stake here is the ability of an attorney to prepare his witnesses in defense of a client. Where, as here, there is no evidence or suggestion that the witnesses under attack consulted with one another, it is the contact between counsel and the witnesses which surfaces as the alleged impropriety. The American juridical system authorizes and encour- ages pretrial communication between counsel and the witnesses he presents to testify. Whether an attorney may consult with a sequestered witness has been the sub- ject of differences of opinion. 6 Wigmore, Evidence, §1840 (Chadbourn rev. 1976). Clearly, to permit consul- tation admits to the possibility that unscrupulous persons might abuse the privilege. In this case it is not argued that such abuse occurred. Moreover, I find nothing in the record which even hints at the existence of such a situation. In the total context, I accept the Employer's assertion that the transcript of the first phase of the in- stant proceedings was made available to the Employer's witnesses as an expedient means of trial preparation. My analysis of the individual testimony of each of the Em- ployer's witnesses reflects no effort to alter, distort, or color any of their testimony or to adjust it to that of any other witness. Wigmore observes that "it would seem obvious to good sense that the perusal of journals reporting the tes- timony should be forbidden." However, Wigmore's trea- tise goes on to suggest that hypothetical formulations of the possible words given by a former witness permissibly may be imparted to a sequestered witness. The present situation does not call for the application of such fine dis- tinctions. As will be seen hereinafter, the General Coun- sel offered a parade of witnesses who gave testimony im- plicating a multitude of the Employer's managers and su- pervisors. In an otherwise noncollusive atmosphere I find the real versus the hypothetical distinctions impractical and the results of their application virtually impercepti- ble. Upon all the foregoing, I conclude, first, that there had been no violation of a sequestration order because no such order was issued; and, second, that though a lit- eral violation of the parties' agreement occurred, the record as a whole does not warrant striking or excluding the testimony of the Employer's offending witnesses. Ac- cordingly, the General Counsel's motions to strike the testimony of each of the Employer's witness who read the transcript are denied. Assuming arguendo my analysis is imprudent, and it is found the rule had been breached as the General Counsel asserts, I am nonetheless not persuaded that it is proper to grant the General Counsel's motion to strike the testi- mony of the witnesses who read the transcript. Instead, I conclude it appropriate to consider each such breach on a case-by-case basis. Accordingly, I would at most assess the actions of each witness in evaluating his/her relative credibility against that of opposing witnesses who testi- fied on the same issues. United States v. Binetti, 547 F.2d 265 (5th Cir. 1977), reversed on other grounds 552 F.2d 1141. 4 Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The alleged unlawful conduct emanates from the Union's second effort in as many successive years to gain representational rights for approximately 142 employees in the aforementioned bargaining unit. Carl Maahs, the union business representative, was assisted in this endeav- or around March 1979 by an in-plant organizing commit- tee. That committee included alleged 8(a)(3) discrimina- tees James Magee, James W. Parr, John Lampada, Lynn Engel, and Karl Hartmann (alleged to have received ex- cessive discipline), together with Gerald Bink, Doug Fogel, Kim Piotrowski, and Jane Prusko. (The Union's campaign a year earlier, in 1978, was apparently spear- headed by Magee, Lampada, and Bink. A Board-con- ducted election was held March 23, 1978. The Union lost. Magee and Lampada acted as union observers.) On March 16, 1979, Maahs met with Magee, Lampada, and Bink. They generally formulated the Union's re- newed organizational effort. Each signed an authoriza- tion card. Each took blank authorization cards from Maahs to solicit other employees. By letter dated April 3 Maahs informed the Employer of the beginning of the 1979 campaign. That letter was received by the Employ- er on April 4. Thereafter, and until the June 15 election, the Employer and the Union waged a vigorous cam- paign. The Union conducted a total of 12-18 meetings among the employees at a Holiday Inn, the union office, and Claude's Tavern. Also, the Union distributed at least 15 handbills among the employees. The Employer con- ducted two separate group meetings among the employ- ees. Attendance was mandatory. The first meeting series was conducted on March 20-24. The second series was held on June 6-12. Additionally, the Employer mailed at least five letters and distributed at least eight flyers. Fur- ther, the Employer distributed so-called contact sheets to its supervisors. These materials contained information de- signed to be imparted by supervisors to employees who 4 Such an assessment would not affect the credibility resolutions made infra. I shall delineate, where appropriate, the bases for resolution of credibility. I consider the stated criteria, in addition to my observations of witness demeanor, to be more reliable and convincing indicia of credi- bility than the fact that any employer witness whom I shall credit read the official transcript. 344 GOSSEN COMPANY asked questions regarding the campaign. Finally, supervi- sors were given an attitude survey form. That document cautioned supervisors not to make direct inquiry of the prospective voters. The stated purpose of the attitude survey was to elicit the personal opinions of supervisors as to the union sympathies of unit employees. 5 Bancroft learned, in March, that the Union's campaign was imminent. He conducted a meeting of all shift fore- men and superintendents. There, with Fliss' assistance, he instructed the supervisory personnel how to conduct themselves. Bancroft cautioned the supervisors not to coerce, threaten, intimidate, promise, interrogate, or oth- erwise harass employees during the campaign. Fliss then gave examples of the types of activity which are permis- sible and unlawful. The record amply demonstrates that, throughout the campaign period, the employees and their supervisors en- gaged in open and widespread conversation regarding the organizational unit. The myriad of 8(a)(1) allegations derive from those conversations. B. Credibility Credibility of the respective witnesses is the determi- native factor in resolving the instant issues. Virtually every critical element of the independent allegations of 8(a)(1) violation depends upon who of the witnesses is to be believed and who presented the most accurate ac- count of what occurred. Practically every statement at- tributed to the Employer's supervisors is directly disput- ed. The ultimate choice in making my findings of fact is based on my observation of the demeanor of the wit- nesses, the weight of the respective evidence provided by them, established or admitted facts, inherent probabil- ities, and reasonable inferences which may be drawn from the record as a whole. Northridge Knitting Mills. Inc., 223 NLRB 230 (1976); Warren L. Rose Castings, Inc., d/b/a V & W Castings, 231 NRLB 912 (1977); Gold Standard Enterprises, Inc., et al., 234 NLRB 618 (1978). Moreover, I have carefully weighed all the testimony, bearing in mind the tendency of witnesses in general to testify as to their impressions or interpretations of what was said rather than attempting to give verbatim ac- counts, and also bearing in mind that even the person testifying about his own remarks may well tend to eluci- date or express what he said or intended to say in lan- guage more explicit or clearer than he used in the actual speech or discussion. As noted, the issues before me challenge the propriety of virtually every word and deed of the Employer's managerial officials since the time they became aware of the Union's 1979 organizing efforts. As noted, the evi- dence presented is replete with instances of witnesses for each litigant providing testimony in direct opposition to that presented by those of opposing litigants. I shall not discuss all such conflicts, for to do so would unduly lengthen this Decision. On the other hand, I have not ig- nored such testimony, nor the arguments of counsel on it. a The conduct of the attitude survey is not separately alleged as a vio- lation of the Act. Numerous allegations of 8(a)( ) violations arise from the activities of the Employer's representatives during the two series of meetings conducted for groups of unit employees in March and June. (See complaint par. 6.) In the credibility contest between the Employer's wit- nesses who testified as to what occurred at those meet- ings and the witnesses presented by the General Counsel upon the same subject matter, a fair assessment of the testimony convinces me that the versions presented by the Employer's witnesses are more reliable. Specifically, I credit Works Manager Kenneth Bancroft, Production Superintendent Daniel J. Hoffman, Employment Super- visor Linda Schmidt, Personnel Supervisor Steven R. Fliss, and Warehouse Superintendent Thomas Roddy in their narrations of what occurred during those meetings. Essentially, Bancroft conducted all the meetings. His testimony concerning what he said to the employees was direct, certain, clear, and precise. His testimonial account is substantially supported by documentary evidence. Thus, the record contains copies of the notes from which Bancroft testified he read at the meetings. Schmidt forth- rightly confirmed Bancroft read from the notes in evi- dence during the second series of meetings (June) which she attended. Schmidt testified she had a copy of those notes with her during those meetings and followed along as Bancroft spoke. Roddy testified Bancroft appeared to read from notes. Fliss testified that Bancroft used notes at both the March and June meetings. Hoffman reaf- firmed Bancroft used notes during the March meetings and read from his prepared statement in June. In contrast, the General Counsel's witnesses who were interrogated regarding Bancroft's use of notes were vague, uncertain, and in some respects corroborative of the Employer's witnesses. Only six of the General Coun- sel's witnesses were questioned regarding Bancroft's use of notes. Thus, employee Bink testified he did not see whether or not Bancroft used notes; employee Hacker claimed she could not remember whether or not notes were used; employee Fritsche said Bancroft was "read- ing us that about unions"; and employees Bugni, Miners, and Waubiness testified Bancroft appeared to be reading. Upon the foregoing, I find that Bancroft indeed ad- dressed the employees during the March meetings using his notes as a guide, and read from his prepared text during the June meetings. As to other issues, I find that, in general, the General Counsel's witnesses were imprecise, exhibited selective recall, were generalized and conclusionary,' presented fragmented testimony, were self-contradictory, and sometimes even corroborated the narrations of the Em- ployer's witnesses. Some examples of testimony support- ing my finding follow. Magee admitted to having a poor memory. Employee Czuppa had a limited memory of what Bancroft said at the March meeting. Czuppa testified he only heard Ban- croft tell employees he was aware that authorization cards were being distributed, exhorted them not to sign, and said that the people passing cards were trying to make trouble. Employee Yahnke recalled, at the March meeting, only that Bancroft spoke of the Employer's his- tory with the Teamsters Union. Employee Roggenbuck's 145 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony about the March meeting was limited to re- counting that Bancroft urged employees not to sign au- thorization cards and that "basically that was said at the [March meeting]." Roggenbuck's recollection of the June meeting was similarly limited. He merely testified that Bancroft made a statement bearing the implication that, after the union campaign, some employees would be ter- minated. Employee Ziemek was patently poor on recall of when things occurred. He testified in an extremely generalized manner as to what occurred during the March meeting. When asked to describe the June meet- ing, Ziemek answered in a generalized fashion, "the same [as March] conversation basically." Employee Bink, in a limited way, corroborated some of Bancroft's testimony. In a like vein, employees D. Hodgson and Dotzauer also corroborated Bancroft. Employee Spingola was uncertain in recall. He testi- fied he attended three meetings conducted by the Em- ployer's representatives. As already observed, there were only two such meetings. His allusion to a third remains unexplained. Spingola's testimony regarding what was said during the March meeting was generalized and limited. He recalled only that the Employer's "track record" was discussed. Employee Reckner was patently prone to testifying as to her opinions rather than fact. She admitted her testi- mony was based on her own conclusions of what was said and done. The testimony of employee Stelcl was pervaded with confusion. As to the March meeting, Stelcl's testimony was limited to a claim that Bancroft announced there would be no wage increases until "this whole matter" was settled. Stelcl then asserted, "That's all I remember." Stelcl's account of what was said during the June meet- ing was similarly abbreviated. Employee Reschel admitted to limited and selective recall, testifying that all Bancroft said in March was that it would be in the employees' best interest not to sign cards and that Bancroft gave the reasons for his state- ment. However, Reschel conceded not being able to re- member any of the reasons purportedly given by Ban- croft. Reschel's description of the June meeting was vague and conclusionary. That meeting was described by her as one in which there were "tempers flaring on both sides." Reschel recalled only that the subject matter was the Union. Employee E. Hodgson was self-contradictory. After testifying during direct examination that at the March meeting employees were told if the Union were voted in the Employer would move out of State or go bankrupt, Hodgson acknowledged that his pretrial affidavit con- tains a different version. Thus, the affidavit indicates that what actually had been said was that if there were a strike the Employer could keep the plant open "no matter what." Also, after Hodgson first testified that Fliss said, during the March meeting, that those employ- ees on strike would be terminated, Hodgson agreed (during cross-examination) that what actually was said was that the employees could be replaced. Employee Guerke presented generalized testimony re- garding what was said during the March meeting. He claimed the main subject was "dues, delays and strikes." Guerke's account of what occurred in June has little pro- bative value because he was at the meeting only 5 or 10 minutes. Employee Hartmann provided generalized and limited testimony regarding what occurred during the March meeting. In some respects he corroborated Bancroft. Em- ployee Prusko exhibited confusion on the content of the meetings. She generalized, claiming the essence is that the Company could outlast any strike. Employee Bugni responded, "I don't remember any specifics of the meeting," when asked by the General Counsel to describe what occurred in March. As to the June meeting, Bugni provided limited testimony. He claimed only that there had been a distribution of docu- ments and the Teamsters record was discussed. Employee Bielke, testifying regarding the March meet- ing, was generalized and selective. He claimed the Em- ployer's officials were "throwing it all up for jeopardy if we voted the Union in." Bielke also testified in a general- ized way regarding the June meeting. He did, however, corroborate Bancroft as to Bancroft's assertion that he told employees that if there were a strike the plant would remain open. This is contrary to the testimony of some other of the General Counsel's witnesses who claimed Bancroft threatened to close the plant. Employee Boblin provided limited testimony as to the March meeting. He claimed Bancroft said that the Em- ployer would not negotiate and if the Employer could rid itself of Magee he (Bancroft) could calm down the (union) situation. So certain an account, however, is belied by Boblin's prehearing affidavit in which he said he did not listen too closely to what occurred during the March meeting because attendance was mandatory. As to his narration of what occurred at the June meeting, Boblin displayed a propensity to testify using biased con- clusions. Thus, he characterized that meeting as "they were more scare meetings." Then, when asked by the General Counsel to describe what was said, Boblin gen- eralized, testifying "it was about the same that was said at the first [March] meeting. It was a hashover." During his cross-examination Boblin showed his unreliability as a witness. He conceded his prehearing affidavit reflects that he had "pretty much turned myself off to what was happening." Finally, Boblin admitted he heard what he wanted to hear and those statements stayed with him. Employee Miners' account of the March meeting was generalized and limited. Similarly, Miners testified that the June meeting was "about the same thing." Employee Fossum admitted to having a weak memory of events. Employee Waubiness admitted he comingled the sub- stance of the March and June meetings. Additionally, he gave testimony which was contradictory to Magee. Thus, Waubiness said that in one of the meetings Ban- croft told the employees it would take at least a year to negotiate a collective-bargaining agreement. Magee (con- sistent with an allegation of 8(a)(l) violation) testified that Bancroft told the employees the Employer would not negotiate. Among all the General Counsel's witnesses, Engel was the most impressive. She was articulate and generally comprehensive throughout her testimony. Despite these 346 GOSSEN COMPANY attributes, she was not called on to provide a detailed ac- count of what occurred either at the March or June meeting she attended. I find Engel's limited description of what Bancroft said in March is supportive of Ban- croft's own version. Engel's narration of the June meet- ing throws less light upon what occurred. Her testimony, in part, comports with the Employer's version and mostly involves Engel's description of her personal active participation in the discussion at the second meet- ing. Accordingly, I find Engel's testimony regarding the Employer's meetings with the employees of little value in aid of the General Counsel's cause. Notwithstanding the foregoing, I do not totally dis- credit each of the above employees. Such a division of my credibility resolution is proper. A trier of fact is "not required to discount everything [witnesses] testified to because he did not believe all of it and nothing is more common than to believe some and not all of what a wit- ness says." Edwards Transportation Company, 187 NLRB 3 (1970), enfd. per curiam 437 F.2d 502 (5th Cir. 1971). 1 shall identify those matters where testimony of any of the above-mentioned, or any other, of the General Coun- sel's witness is credited. However, as already observed, a large number of incidents alleged as interference, re- straint, and coercion evolve from what was supposed to have been said at the March and June meetings. The above-noted examples of testimony presented on behalf of the General Counsel lead me to conclude that the General Counsel's formulation of what Bancroft and other employer officials actually said during those meet- ings is incomplete and imprecise. Although I draw no in- ference that these witnesses intentionally omitted or dis- torted what they heard, it is abundantly clear they simply were incapable of accurately relating with a modicum of precision or completeness all of what was said to them. I recognize that Bancroft and other super- visory personnel are similarly fallible. However, I am persuaded that their more comprehensive and direct tes- timony must be accorded more weight than the General Counsel's witnesses and provides the most reliable indi- cator of the facts. Accordingly, and particularly with ref- erence to what occurred during the March and June meetings, I adopt the accounts given by the Employer's witnesses. 6 C. Interference, Restraint, and Coercion Complaint paragraph 5 contains no less than 42 sepa- rate allegations purportedly engaged in by 10 of Respon- dent's supervisory personnel. Additionally, in complaint paragraph 6 it is alleged that eight separate violations of Section 8(a)(1) occurred during the course of the March and June meetings chaired by Bancroft. In true perspective, the tone of the Employer's cam- paign was set by Bancroft during the March series of employee meetings. Thus, the following discussion first deals with the allegations of complaint paragraph 6, and follows chronologically insofar as practicable. 6 The impact of the various other testimony of the named (and other) employee witnesses upon the complaint allegations will be further expli- cated infra. The General Counsel, assuming, of course, the total reliability of his witnesses' testimony, contends that the plethora of unlawful activity reveals a studied effort by the Employer to defeat employees' statutory rights and provides the proscribed motivation to support the allega- tions that the Employer also engaged in discriminatory conduct. The Employer urges that the employee witnesses who described incidents of alleged 8(a)(1) statements present- ed inaccurate portrayals of what actually had been said; complains that the General Counsel has pleaded and argued his case out of context; and that, in any event, if any remarks were made which can be construed as un- lawful they were isolated and resulted from a pervading atmosphere of free and open discussion among employ- ees and occasionally overzealous supervisors. Complaint paragraph 6 contains sweeping allegations by which nearly every word and deed of Bancroft and other supervisory personnel who participated actively during the March and June meetings is challenged as un- lawful. Then the subject complaint paragraph alleges the Employer's officials made disparaging remarks about the Union, created the impression of surveillance, threatened futility in selecting the Union, predicted strikes, an- nounced frozen wages and benefits as the result of em- ployee attempts to have the Union represent them, threatened reprisals and the loss of economic benefits, threatened to refuse to negotiate, implied damage to em- ployees' automobiles was caused by the Union, and indi- cated selection of the Union would cause delays and pos- sible reduction in existing benefits. Evaluation of the Employer's conduct is guided by the following principles: ". . . the measure of coerciveness of 8(a)(1) misconduct is . . . whether such conduct rea- sonably 'tends to interfere with the free exercise of em- ployee rights' rather than whether it succeeded or failed in intimidating individual employees. N.L.R.B. v. Illinois Tool Works, 153 F.2d 811, 814 (C.A. 7 1946)...." cited in Burns International Security Services, Inc., 225 NLRB 271, 275 (1976). Also El Rancho Market, 235 NLRB 468 (1978); Impact Die Casting Corporation, 199 NLRB 268, 271 (1972); accord: N.L.R.B. v. Ford, 170 F.2d 735, 738 (6th Cir. 1948); N.L.R.B. v. Brown-Dunkin Company. Inc., 287 F.2d 17, 18 (10th Cir. 1961); Local 542, Interna- tional Union of Operating Engineers, AFL-CIO, [Giles & Ransom] v. N.L.R.B., 328 F.2d 850, 852-853 (3d Cir. 1964), cert. denied 379 U.S. 826. In addressing the issue of the bounds of permissible employer activity during an election campaign, the Su- preme Court observed, "an employer is free to communi- cate to his employees any of his general views about un- ionism or any of his specific views about a particular union, so long as the communications do not contain a 'threat of reprisal or force or promise of benefit.' He may even make a prediction as to the precise effect he be- lieves unionization will have on his company." N.L.R.B. v. Gissel Packing Co., Inc., et al., 395 U.S. 575, 618 (1969). 347 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. The mandatory meetings The March series of employee meetings were conduct- ed on March 20-24. The credited evidence shows the following occurred. Bancroft told the employees he heard a unionization campaign was in progress. As previ- ously noted, Bancroft credibly testified he spoke from notes. Those notes contain the following subjects. First, they indicate that United States Gypsum, the Employer's parent, has 60 plants. The Teamsters did represent em- ployees at two of the five plants which are unionized. The notes indicate that there were strikes at three spe- cifically identified locations in 1978 and 1979 and that the Unions involved settled their collective-bargaining agreements on terms previously offered the Union and, in one instance, less than those terms because of "guide- lines." Bancroft's notes refer to dental insurance. They indicate that none of the strikes referred to above result- ed in dental insurance. Also, no other U.S. Gypsum plant has such a benefit. The notes further reflect that two unionized U.S. Gypsum plants have not yet received the increased group insurance benefits already in effect at the instant Employer. Bancroft's notes refer to the Teamsters dues. The notes state "dues were approximately $12/month or 7 cents hour or 2% of wage if earning is $5/hr." Bancroft's notes refer to "delays," "strikes," and "pos- sible restrictions." As to delays, it could be 3 months before a representation election. "If union wins, could be 10 months or more for negotiations." On strikes, the notes state "if Union is voted in a strike could happen; top managers and union representative will be payed [sic]." Employees are not eligible for unemployment benefits. Insurance premiums are not paid. Regarding re- strictions, "when employees have a union, the Company has the same union. Contract is a legal and binding docu- ment, we cannot treat an employee on an individual basis. The Company cannot do better than the contract says." Finally, the March notes review a Paperworkers union organizational effort among the subject employees in April 1976 and indicate that effort did not engender suf- ficient interest even to hold an election. The Union's 1978 organizational effort was reviewed and resulted in the Union being rejected "by overwhelming odds." Bancroft's notes end with the observation that "em- ployees did not see a need for a union at those times and now, another year later, the Teamsters Union is back. With 200 plus employees they see a good opportunity for income from your dues money. We haven't changed that much from March 1978 until now and our employ- ees didn't see a need for a union. I am wondering what the problem is." Fliss also spoke during the March meetings. Accord- ing to Fliss and Bancroft, the employees' existing benefits and health and safety were reviewed by Fliss. At the conclusion of their presentations, employees asked ques- tions. The second series of employee meetings were held on June 6-12. As indicated, I find Bancroft read from a pre- pared text (Resp. Exh. 33). Thus, Bancroft opened his speech saying he was not going to speak about unions in general. He said he would discuss "this particular union at this particular plant and, based on their record and the records of similar unions at other U.S.G. plants, what [the employees] could expect to happen here if they were elected." Bancroft said that "the record of this union at U.S.G. plants is very poor." He referred to ear- lier employer campaign propaganda in which he chal- lenged the Union to answer certain questions about its record. Bancroft then reviewed the questions and pro- vided the answers. I have carefully reviewed that materi- al. In essence, the questions and answers portray the Teamsters as an ineffective employee representative at U.S. Gypsum plants. The notes indicate that "dues and delays and strikes hurt the employees and their families far more than it could possibly hurt the Company or the Union"; that Teamsters used to represent U.S. Gypsum employees at 12 plants, but currently only represented employees at 2 of its locations; that after an effort to ne- gotiate a union-security and checkoff provision failed at U.S. Gypsum's Boston location, the Union abandoned its representation role; that the Teamsters was voted out of some of U.S. Gypsum plants; that the Teamsters dis- claimed representational interest at two other plants after a full year of unsuccessful negotiations; and that the Union is not as democratic as it advertises. Bancroft then said, "If there is a strike here, I will keep our plant running." He indicated that the employ- ees would suffer loss of wages. He stated "that unfortu- nately, violence is no stranger to a strike scene," and that "the striking employees can lose their jobs through re- placements or discharge if they attempt to stop the re- placements from working by violence-or for any other so-called unprotected activity." With reference to delays, Bancroft said that "unions make many demands, all of which have to be negotiated. No changes are made until there is a complete agreement and this can take lots of time. Some U.S.G. first contract took a year or more from election to signing. This means employees wait on wage increases and any other benefits while the Union holds meeting and negotiations. I heard of cases where employees have waited up to 32 months for wage increases under similar circumstances." (Em- phasis supplied.) Regarding dues, fees, and assessments, Bancroft said he did not know what those costs were for "this particu- lar union." He did say, however, that "paying them every month is equal to a reduction in take-home pay-a wage decrease . Bancroft discussed restrictions. He indicated an em- ployer becomes less flexible in dealing with its employees and their working conditions. Bancroft said that none of the five union contracts at U.S. Gypsum plants, "includ- ing the two Teamsters contracts," have arbitration clauses, straight seniority, or dental plans, "or any of the things the Union promised here." He indicated that the employees had equal or better benefits, including insur- ance and pension, than at any of U.S. Gypsum's union- ized plants. Bancroft concluded his remarks saying, "I'm opposed to the Teamsters at our plant for the same reasons you should be, and those are the reasons I have given you." 348 GOSSEN COMPANY He exhorted the employees to consider "what is [the Union's] track record? How good are they at their job? What is their performance at other U.S.G. plants?" Fliss also spoke to the assembled employees at the second group of meetings. He generally discussed the Employer's and the Union's campaign literature and showed the employees two collective-bargaining agree- ments which U.S. Gypsum had with Teamsters unions at other of its locations. Near each meeting's end employees were encouraged to ask questions. 7 The General Counsel contends that the Employer used the March and June meetings "to bombard employees with veiled threats of economic reprisals, and anticipa- tory refusal to bargain and predictions of strikes, vio- lence and plant closure, if the Union came in." This theory is formulated upon the testimony of the employee witnesses whom I have found unreliable sources regard- ing what was said during this meeting. Thus, the General Counsel's post-hearing brief cites abstracts of the testimony of employees Bink, Ziemek, D. Hodgson, Magee, Waubiness, Roggenbuck, Czuppa, Engel, Boblin, Hartmann, Yahnke, Miners, Stelzel [sic], Spingola, Bueilke, Gehrke [sic], Dotzauer, Prusko, Haecker [sic], Paul, and Fritschie [sic]. I have already commented on the nature of the testi- mony regarding the mandatory meetings given by each of the above-named employees except Paul, Hacker, and Fritsche. I find their testimony more corroborative of the Employer's position than supportive of the General Counsel's cause. The instances where they presented evi- dence in support of the complaint allegations are weak- ened by generalizations and selectivity. Thus, Paul pre- sented a limited version of what occurred at the meet- ings. Indeed, he corroborated the Employer's version. Paul claimed Fliss said, in relevant part, if the Union won an election there could be a strike. Paul is the only witness who attributed such a remark to Fliss. All others who testified on this subject indicated the strike remarks were made by Bancroft. In fact, Bancroft's June notes contain a reference to a strike virtually identical to Paul's testimony. Paul indicated Fliss also said the Employer would have to negotiate and negotiations could last a long time. She also testified the employees were told that the Employer would not be able to give raises until "that" was settled. In accordance with what is contained in Bancroft's June notes, I find that Paul was in error as- cribing such remarks to Fliss. It was Bancroft who actu- ally made such remarks. As to the wage increases, Paul's recollection falls short because Bancroft's notes reflect that Bancroft said more. Bancroft explained that those increases must await the outcome of negotiations. Hacker testified, in a generalized way, that the Em- ployer's representatives at the meeting she attended said, "We couldn't get a raise-that you don't get a raise while the Union is pending and a strike could last a long time." Comparing her testimony with Bancroft's notes, I 7 It is neither alleged nor asserted that any of the statements made at the March and June meetings, or in the Employer's written propaganda. comprise misrepresentations actionable under the current applicable pre- cedent enunciated in General Knit of C'ahfornia. Inc., 23.19 NRB 619 (1978). conclude Hacker's narration is founded more upon her personal perception than actual fact. Fritsche's recount of the meetings was conclusionary and generalized. In essence, he claimed the employees were told "everything would be frozen." (As earlier noted, Fritsche confirmed that Bancroft read from his notes.) I have scrutinized Bancroft's meeting notes and the contents of both the Union's and the Employer's written propaganda issued throughout the campaign. The respec- tive campaigns, in their totality, reveal each party en- gaged in an uninhibited program of persuasion. Particu- larly with reference to what was said at the March and June meetings, I can find nothing which exceeds the bounds of permissible employer free speech protected by Section 8(c) of the Act. I cannot subscribe to the sinister significance attached to the statements of the Employer's representatives by the General Counsel. Many of the Employer's letters contain acknowledgments of a bar- gaining duty. They do not reveal a regressive attitude on the part of the Employer. I consider them representative of a hard-fought battle to induce employees to vote against the Union. Statements bearing the import of those made at the meetings have been found lawful. For example, it has been held an employer may advise employees they may be required to pay union dues (S. S. Kresge Company, 197 NLRB 1011, 1012-13 (1972)). As to strikes, Bancroft's March notes contain only a speculative reference to such activity. Thus, the notes bear the words "if Union wins could be a strike." Similarly, Bancroft's June speech is phrased in speculation. Those notes read, "If there is a strike, I'll keep the plant running." (Emphasis supplied.) I conclude neither of those statements is proscribed. Ref- erence to possible strikes, in analogous contexts, is lawful. Liberty Nursing Homes, Inc. d/b/a Liberty House Nursing Home, 236 NLRB 456 (1978); American Clay Forming Plant, Electro Division, Ferro Corporation, 238 NLRB 1052 (1978); C & J Manufacturing Company, 238 NLRB 1388 (1978). There is nothing in the cited ver- sions of what transpired at the meetings which I find foretells the inevitability of strikes. Bancroft did make certain statements concerning eco- nomic loss to employees. For example, he indicated that economic strikers could lose their jobs. Specifically, he said they could be replaced or subjected to such result if they engaged in strike misconduct or other unprotected activity. Such a warning is permissible. See American Clay, supra. The General Counsel urges the references to delays in wage increases form part of the Employer's plan to blame the Union for the admitted suspension of the Em- ployer's merit review and wage increase practices. 8 I find no merit to this contention. Bancroft's notes reveal he said wage increases could be delayed. However, that reference is carefully tied to the results of negotiations. Properly viewed within the context of all the campaign literature to which the General Counsel makes no allu- sion, I cannot adopt his formulation. The Employer's I The Employer's announcement of such a suspension will he separate- ly discussed. infra. 349 DECISIONS OF NATIONAL LABOR RELATIONS BOARD campaign literature gives meaning to Bancroft's oral re- marks at the meetings. For example, the Employer's June 11 letter to employees states, in salient part, "when a plant manager has decided that a wage increase is war- ranted but he is faced with having to negotiate it and the rest of the contract with a union, he often must wait and use the wage increases to help him reach the contract"; in a June I letter to all warehouse employees, the Em- ployer stated that there were "delays in making wage in- creases due to long negotiations .... " at other Team- sters-represented plants of U.S. Gypsum; the Employer's June I letter to all production department employees contains a similar reference; and in the Employer's May 22 letter to all employees, after factually outlining appar- ently actual negotiating experiences at other U.S. Gypsum plants, Bancroft concludes stating "based on the past experience of U.S.G. people in general, I believe that voting for [the Union] could mean . . . costly wage delays might very well be experienced." In sum, I con- clude the remarks concerning wage increases made at March and June meetings, intertwined with negotiations, are merely a legitimate prediction of possible conse- quences of unionization. I reject the argument that these remarks, in the total circumstances herein, are thinly veiled with threats or the "fist in the velvet glove" con- templated by N.L.R.B. v. Exchange Parts Company, 375 U.S. 405 (1964). The General Counsel argues that a theme of unlawful disparagement of the Union pervaded the meetings. I dis- agree. Bancroft did call the employees' attention to the Teamsters "track record." This activity was not conduct- ed only at the meetings. Various of the Employer's writ- ten campaign materials discussed Teamsters representa- tion at other U.S. Gypsum plants. As indicated, there has been no challenge to the truthfulness of those of the Em- ployer's claims. Moreover, documentary evidence sup- ports them. Thus, the contracts in evidence and the Union's financial reports (also in evidence) attest to their accuracy. It is true, as the General Counsel contends, that the Employer's campaign may be characterized as one emphasizing "dues, delays, and strikes." Nonetheless, in its entirety, I cannot conclude the employer's orches- tration rises to the level of illegality. Even where an Em- ployer engages in the name calling, the Act has not nec- essarily been violated. See, e.g., Serv-U-Stores, Inc., 225 NLRB 37, fn. 7 (1976); Fayette Cotton Mill, 245 NLRB 428 (1979). Herein, I simply cannot equate hard-nosed, but otherwise factual, presentations by the Employer with the type of activity commonly acknowledged to be unlawful disparagement. In any event, in the instant en- ergetic campaign atmosphere apparently fully exploited by the contesting parties, whatever characterization of the Union which seemingly casts it in a negative light readily could be evaluated by the electorate. Fayette Cotton Mill, supra. Finally, because I fully credit Bancroft's testimony about the meetings and the trustworthiness of his notes over the General Counsel's witnesses who claimed he said the Employer would not negotiate, I find that the Employer did not tell employees it would refuse to ne- gotiate with the Union. Buttressing this finding is the fact that virtually every piece of the Employer's written campaign material literally suggests that the Employer would recognize its bargaining obligation, albeit with a strong, firm managerial posture. In fact, there are letters in evidence (Resp. Exhs. 24 and 25) which invite the Teamsters local which had represented U.S.G. employ- ees at its Morrow, Georgia, plant to resume bargaining. Superficially, the General Counsel's arguments relative to the events at the March and the June meetings are ap- pealing. However, I find they virtually ignore the broad scope of the parties' intervening campaigns. Thus, the General Counsel's otherwise extensive and helpful post- hearing brief apparently omits consideration of the impact of the plentiful oral discussions between employ- ees and supervisors, the literature of the contesting par- ties, and the several meetings conducted by the Union for employees. In short, I conclude the allegations which emanate from the mandatory meetings are fallaciously set forth out of context and from an assumption, which I find unwarranted in the instant circumstances, of the reli- ability of supporting witnesses' testimony. Upon all the foregoing, I conclude no merit attaches to any portion of the allegations contained in paragraph 6 of the com- plaint. 2. Other 8(a)(l) allegations I now turn to the remaining 8(a)(l) allegations within complaint paragraph 5. That paragraph, in microscopic terms, contains no less than 75 separate assertedly unlaw- ful incidents. In order not to prolong this already ex- tended Decision each such allegation is not separately discussed. I have considered each. Those omitted reflect my conclusion that what was said and done was not as depicted by the General Counsel's witnesses. The myriad of 8(a)(l) allegations comprise an exten- sive array of misconduct in general terms. Each matter was litigated with clarity and specificity. Nonetheless, in many instances, the General Counsel's brief for the first time contains a distinct explanation of each theory of violation. Regarding the relative reliability of the opposing wit- nesses, wherever conflicts exist I credit the Employer's witnesses. Each of the General Counsel's witnesses pre- sented his/her account in a more conclusory and frag- mented manner than those of the supervisors they impli- cated. I reject the General Counsel's assertions that much of the employee testimony is uncontradicted. These assertions are true only in a literal sense. The su- pervisors, in large part, provided self-serving general denials. The uncrystalized character of the allegations engendered such responses. I consider the denials effec- tively answer all allegations and I credit those denials. In general, the demeanor of each supervisor was im- pressive. I have considered also the Employer's precam- paign instructions relative to supervisory conduct during the campaign. I have weighed the probability that super- visors would not be likely to violate the directives of su- perior managerial officials against the fragmented and imprecise testimony of the General Counsel's witnesses. From this I conclude the employees' testimony was founded more upon his/her personal predilections and selectively born from their prounion enthusiasm. On the 350 GOSSEN COMPANY whole, I also find the supervisors' testimony more inter- nally consistent than that of the employees. 9 Redzinski, Ihlenfeld, Jeray, Siegrest,' ° Chouinard, Roddy, Johnson, Lesch, Buck, and Hoffmann are the Employer's supervisors, managers, and agents who are alleged to have committed the 8(a)(l) violations of com- plaint paragraph 5. The General Counsel's witnesses who gave testimony in support of those allegations are Hart- mann, Prusko, Weinmann, Boblin, Ziemek, White, Wau- biness, LaVine, Fritsche, Czuppa, Spingola, Reckner, Beilke, Paul, E. Hodgson, Engel, Roggenbuck, Guerke, Lampada, P. Dotzauer, Yahnke, Magee, and D. Hodg- son. In general, the allegations involve unlawful interroga- tion, solicitation of grievances, general disparagement of the Union, predictions of dire consequences of unioniza- tion, creation of impressions of futility of selecting the Union and berating it, threatening economic reprisal, threatening to close the plant, engaging in unlawful sur- veillance of union activities, threatening employees with discipline, and unlawfully announcing a wage freeze. Some of the alleged 8(a)(l) incidents are noteworthy. For example, underscoring the open and candid charac- ter of the election campaign, Waubiness testified he had 10 conversations regarding the Union with Redzinski, Jeray, and Ihlenfeld. During one such conversation with Redzinski which occurred, according to Waubiness, at the end of March, Waubiness claimed Redzinski asked him "what I thought the Union could do for me." Wau- biness responded better wages, insurance, and a healthier attitude toward employees by supervisors. Waubiness was wearing a union button at the time. Assuming the remark was made as stated, interrogation as to what em- ployees expect to gain from a union is, on its face, un- coercive where unattended by threats of reprisal or promises of reward. Whittaker Knitting Mills, Inc., Div. Whittaker Corp., 207 NLRB 1019, 1022 (1973). Waubi- ness' own version of this remark shows he already had declared himself a union supporter by wearing his union button. The above-quoted statement of Redzinski consti- tutes Waubiness' complete testimony on the subject alle- gation. Thus, it is not asserted Redzinski coupled that remark with any explicit or implied threat or promise. In the free flow of discussion about unionization which clearly prevailed in the instant campaign, I do not find Redzinski's remark unlawful. ' In assessing credibility I have also considered that some of the most damaging testimony against the Employer was presented by alleged dis- criminatees. While not dispositive of their credibility. this is a factor which may he considered. Local 38. International Brotherhood of Electrical Workers. AFL-CIO Robert R. Cutler d/b/a Bob Curler Signs). 155 NLRH 1147, 1150 (1965). Additionally. I have evaluated all the teslimon) i the light of the fact that some evidence of violation was provided hb some witnesses currenl- ly employed hy the Employer whose testimony is not likely to be false. Shop-Rite Supermarket. Inc.. 231 NLRB 500 (1977); Georgia Rug Mill. 131 NLRB 1304. 1305 (1961), modified on other grounds 308 F2d 89 (5th Cir. 1962). '0 Siegrest, an admitted agent of the Employer, did not testify at the hearing. I conclude there is no testimony regarding Siegrests' activities which is violative of Sec. 8(a)(1I). This is so, based on the entire record. even if the testinmony of the employees is full) crcdited. A trier of fact may, based on a credibility resolution, find contrar Io what a uncontra- dicled witness testified .L.R.RB. v Walton .MtIjanucluring Companr and Loganville PanIs Co., 369 U.S. 404 (1962). Bugni claimed that 6 weeks before the election Red- zinski spoke to him at his work station. Observing that Bugni wore a union button, Redzinski asked what it meant to him or why he was wearing it. Bugni testified he explained, and Redzinski responded he could accept and respect Bugni's views. That conversation then ended. As with Waubiness, Bugni's account provides no evidence Redzinski's comment was attended by any threat or promise. I conclude this conversation is within the purview of the Whittaker case. supra. Reshel testified that, I week before the election, Red- zinski asked him how he thought the election would turn out. Reshel replied he thought the Union would win. Redzinski then speculated the election would result in a narrow margin for the victor but did not specify which party he thought would win. I consider Redzinski's com- ment is not unlike a supervisory inquiry as to how the union "stuff" would come out. Such a remark was held lawful in York Division, Borg-Warner Corporation., 229 NLRB 1149 (1977). Accordingly, I do not find this remark of Redzinski unlawful. Hartmann testified that Redzinski once asked him whether he thought the Union had a chance to win the election. This is asserted as unlawful interrogation. I dis- agree. An identical question was held lawful in York Di- vision, Borg-Warner, supra at 1152. Hartmann, Prusko, Waubiness, and other General Counsel's witnesses testified, in varying versions, that Redzinski and other supervisors at various times told them the Employer would not negotiate with the Union if it won an election. While Fritsche claimed Ihlenfeld made such a remark, employee Reckner testified Ihlen- feld spoke of limitations which arise from bargaining and signing of a contract. Thus, even Fritsche acknowledged Ihlenfeld showed him correspondence between U.S. Gypsum and another Teamsters local which showed the Teamsters failed to respond to bargaining requests made by Gypsum. Also, Yahnke recalled Johnson and Lesch telling him negotiations would ensue and the employer has the power to remain steadfast in its position. Thus, I find the evidence presented by the General Counsel's witnesses confusing and self-contradictory. Indeed, care- ful analysis of the manner in which each of the General Counsel's witnesses vocalized this alleged violation clear- ly demonstrates the tendency to interpose personal inter- pretations. With reference to the variety of alleged unlawful inter- rogations, I cannot conclude that the Employer engaged in a campaign of unlawful systematic interrogation. Where interrogation is undertaken for a proscribed pur- pose such as determining the source and breadth of em- ployee support for a union, it is unlawful. Twilight Haven, Incorporated, 235 NLRB 1337 (1978). In the instant case, I conclude the questions posed by supervisory personnel were part of an ongoing dialogue of campaign rhetoric. The record amply demonstrates that employees persis- tently asked pertinent questions to which the supervisors responded by reference to their contact sheets and sup- porting documents. Moreover, as narrated by the Gener- al Counsel's witnesses, the supervisors' comments were described out of context and frequently so distorted as to 351 DECISIONS OF NATIONAL LABOR RELATIONS BOARD render them unreliable as a basis for evidentiary findings. The casual nature of the campaign is further demonstrat- ed by Fritsche's testimony that he had 15-20 union con- versations with Ihlenfeld, LaVine's testimony that he spoke with Redzinski about the Union 10 times, and Spingola's revelation that he and Jeray had 30-40 union conversations. As to the assertions that the Employer disparaged the Union, I conclude that the "disparagement" is a theoreti- cal conclusion derived from a variety of supervisory statements. Even where a supervisor was explicit in tell- ing an employee he could not understand how the em- ployees could be so stupid as to allow union representa- tives whom he named bargain on their behalf, the Board adopted pro forma an administrative law judge's recom- mendation to dismiss an allegation alleging unlawful derogation of the union negotiators in Television Wi:scon- sin, Inc., 224 NLRB 722, 764 (1976). 1 find none of the statements ascribed to the supervisory personnel in the instant case even approximates the depth of derision con- tained in the cited case. Inasmuch as there is no claim that the Employer's campaign literature contained misrepresentations, I reject the General Counsel's suggestion that there is anything unlawful in the distribution of those documents or dis- semination of their contents in the instant atmosphere of free and open discourse between supervisors and em- ployees. For this reason, I consider the assertions that the Employer's representatives issued statements of futil- ity of selecting a union are actually personal impressions resulting from reading the literature and selective listen- ing. The alleged threats of economic reprisal arise from conversations during which supervisors commented on the possibility of strikes and the general results of the Union being selected as the employee's bargaining agent. For example, Fritsche testified Ihlenfeld said that, if there were a strike, the Employer would keep the plant going "no matter what"; Roggenbuck testified Jeray said the Employer could run the plant with a couple of su- pervisors; Fritsche testified Jeray said if there were a strike Jeray would get paid but Fritsche would not. Also, employee witnesses testified to several instances of supervisors discussing the adverse impact of union dues upon their take-home wages and if the Union were elect- ed the supervisors opined it would not inure to the bene- fit of employees. I find all such remarks, in the entire context of this case, privileged within the free speech provision of the Act. Liberty Nursing Homes, Inc., S. S. Kresge Co.: American Clay,: C. & J. Manufacturing Com- pany, supra. Also Wex-Tex of Headland, Inc., 236 NLRB 1001 (1978). Concerning anything which might have been said susceptible of an interpretation that employees might lose their jobs, I consider the context in which such remarks were made reflects only that the Employ- er's officials were expressing the law as to reinstatement rights of economic strikers and those remarks are permis- sible. Decaturville Sportswear Co., Inc., et al., 205 NLRB 824, 827, fn. 2 (1973). It is alleged that Redzinski unlawfully solicited griev- ances. Employee Weinmann testified that Redzinski asked him "what's wrong with the Company." There is other evidence suggestive of grievance solicitation, but it is not specifically argued to be such by the General Counsel. Thus. Hoffmann candidly acknowledged that throughout the election campaign he continued his prac- tice of many years of making informal inquiries of em- ployees as to what could be done to improve plant oper- ations. Such inquiries give rise to a rebuttable presump- tion of illegality. Uarco, Incorporated, 216 NLRB I (1974). I conclude that Hoffmann's uncontroverted testi- mony that he did no more during the campaign than his past practice effectively rebuts the unlawful presumption in the instant case. No employee witness claimed Hoff- mann made any explicit promise to correct inadequacies. I find nothing in the record to support the proposition that Hoffmann implied such corrective action. In my opinion, to infer an unlawful implication in the present circumstances would be a distortion of the record as a whole. Additionally, I find the rather isolated Redzinski question of Weinmann out of context and ambiguous. Weinmann stated that Redzinski asked him the question shortly after Weinmann began wearing his union button. In essence, Redzinski's inquiry amounts to asking what Weinmann expected to gain from unionization. This question has been held lawful. Whittaker Knitting, supra. This analogy is justified by Weimann's response to Red- zinski, to wit: "Job security." I find no merit to the allegation of unlawful surveil- lance and creation of impressions of surveillance. Thus, Engel credibly testified that Jeray, her brother-in-law, said, "I hear you're organizing the Union," on the day following a meeting held by the Union for employees at the Holiday Inn. Jeray admitted he made the quoted statement. Engel and Jeray shared an apparently close, amiable family relationship. They visited and drove to and from work together. On the other hand, Jeray was Engel's immediate supervisor during the latter part of 1978 and into early 1979. Documentary evidence shows Jeray submitted recommendations for wage rate in- creases for Engel. The General Counsel contends the family relationship between Engel and Jeray is irrelevant and the admitted remark clearly creates an impression of unlawful surveil- lance of union activities. The Employer urges Jeray's statement is lawful because of his relationship to Engel. The Employer cites the cases of Federal Prescription Ser- vice, Inc., etc., 203 NLRB 975 (1973), and Wagoner Water Heater Co., Inc., 203 NLRB 518 (1973), in support of its position. In Wagoner the interrogation occurred between individuals who had a working relationship for many years. However, the supervisor who spoke had no role in labor relations, there was no evidence that the com- ment had been transmitted to other employees, and (in the absence of election objections) there was no record evidence of adverse impact. Moreover, the administra- tive law judge explicitly stated he had reservations re- garding his recommendation for dismissal. Nonetheless, he did so recommend, noting the above-described con- text and that the remark appeared isolated. I find the Wagoner case distinguishable from the instant matter. Federal Prescription is more apposite. There, an em- ployee asked her supervisor why her attitude apparently 352 GOSSEN COMPANY cooled toward her. The supervisor answered it was be- cause she was disappointed that the employee, a union supporter, was following people on whom she would not have wiped her feet in the past. This supervisor and em- ployee were "Obviously close friends." In recommend- ing dismissal, the administrative law judge, 203 NLRB at 990, aptly observed, "Strong feelings frequently make for bitter words, but in my opinion, this exchange was of a personal nature between the two [close friends] and con- tained no elements of coercion." I find this is a close issue and not free from doubt. The record shows Engel was among the leadership of union activities. Jeray clearly had authority to function, and did so, in matters relating to personnel actions. No matter how well-intentioned or innocent, his comment suggests he kept a watchful eye over employee actions. However, there is wisdom in the language quoted from Federal Prescription. Even recriminatory language be- tween supervisors and employees, in certain circum- stances, does not rise to the level of unfair labor prac- tices. In the total context of this case, I am impelled to conclude that Jeray's subject comment to Engel is not an 8(a)(1) violation. In addition to the general campaign at- mosphere which I have found free and open, the record reflects that Jeray and Engel enjoyed such a relationship between themselves. Thus, the record contains evidence of yet other conversations between Engel and Jeray in which he gave her personal advice. They commonly en- gaged in frank and candid discussions regarding work and personal matters. Such an atmosphere persuades me that Jeray's comment was casual rhetoric. In so finding, I note the absence of an alleged program of surveillance. The other example of such alleged conduct is disposed of in the paragraph immediately below and, in my opinion, lends support to one of the Employer's overall assertions that its campaign was governed by policies which en- couraged only lawful activity among its supervisors. Union Business Representative Maahs and employee Hartmann testified that at an organizing meeting at Claude's Tavern sometime in April they saw Supervisor Buck. On that day Hartmann had been scheduled to work mandatory overtime. Instead, he called in sick. On his next work day, Redzinski inquired "why was [Hart- mann] well enough to go to a union meeting, but too sick to come to work?"'' Buck admitted being at the tavern. He credibly testi- fied he had been invited there by employees on his shift to share a beer with them, but claimed he had been un- aware of the union meeting. Buck claimed he customar- ily visited that tavern for such purposes. There is no pri- vate meeting room in the tavern which is, undeniably, a place customarily visited by the public. Not all instances where employer representatives are at or in the vicinity of the union activities of their subor- dinate employees amount to unlawful surveillance. Thus, where purely fortuitous circumstances bring such parties together there is no dogmatic legal principle by which the employer would be declared to have violated the I This remark is not specifically alleged as having unlawfulls created an impression of surveillance. Apparently the General Cunsel's brier refers to Redzinski's comment as the basis for inferring tiuck's presence at the tavern was not accidental. Act. For example, in Atlanta Gas Light Company, 162 NLRB 436, 438 (1966), the Board overruled a regional director's conclusions that an employer engaged in im- proper surveillance. There, the employer representative was present in the only bowling alley within the commu- nity in which a union meeting was held. He had patron- ized the bowling alley before the night of the meeting. Some of the employees invited him into the meeting. He remained there without incident for a brief period of time and left upon the request of the union representa- tive. The remainder of the evening was spent bowling with a friend. The Board concluded that the employer representative was free to patronize the bowling alley. The Board further stated that "his mere presence, absent more specific evidence it was not for a legitimate pur- pose, or that it was for the purpose of observing the meeting, establishes neither surveillance of the meeting by him, nor a reasonable basis for an impression of sur- veillance in the minds of employees in attendance at the meeting." The instant case is virtually identical with Atlanta Gas. I place no relevant significance to Redzinski's expression of awareness that Hartmann was at the meeting. Rather than reflecting a heinous activity, I deem it more reflec- tive of appropriate management concern for attendance obligations of its employees. As noted, Hartmann feigned illness to attend the union meeting. 2 Redzinski's com- ment, in this context, simply is a reminder of that obliga- tion. Engel's credible testimony shows that she had request- ed a return to a former job classification during the spring. Her request was denied. She confronted Ihlenfeld and complained. Jeray apparently overheard her com- plaining. He said to her, "what do you expect when you buck the system?" The quoted statement is alleged as a threat of reprisal. There is no evidence that Jeray played any part in the transfer denial. When he made the remark, he was no longer Engel's immediate supervisor. I concede that Jeray's statement may be interpreted as bearing the implication that the denial of transfer was connected to Engel's notorious union activities. In isola- tion, then, this remark has the tendency to discourage such activities. Despite this, I conclude that the familiar and social relationship between Engel and Jeray (de- scribed above) effectively diminishes the proscribed effect of his remarks. It is alleged in complaint paragraphs 5 and 6 that the Employer violated Section 8(a)(l) of the Act by an- nouncing that wage increases were frozen.'a Several su- pervisors are alleged to have told employees that no wage increases could be granted because of the Union or the union activities. The relevant facts regarding wage increases are sum- marized as follows: 4 Bancroft acknowledged that the I here i no evidence hc was disciplined for this indiscretionll " Complilnt par 1t)() separaely alleges that Spingola ,was discrimin- atorily denied a wage increase, and par I0(h). added at the hearing. al- leges that since late March the Employer discriminalorily refused to) grant "normal wage increases." all in %iolalion of Sec. 8(a)(3) of Ihe Acl '4 Erployce wit(nesses uniformly testified to) their history of wage in- creases. I'heir tIctinllony. though sometlmci, contlriling and the product of ()nttillied 353 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer gave no wage increase to unit employees since the beginning of the organizing efforts. Whenever em- ployees asked when or whether they would receive in- creases they were told that wages were frozen during the Union's campaign (Jeray); "at this time everything is froze-I do not want to get accused of buying votes" (Roddy); raises could not be given until "that was set- tled" (Paul); raises would not be given until "the Union business is through the courts" (Yahnke); "no raises until [the tie vote] was settled" (P. Dotzauer); and raises could no longer be given because of union activity (Spingola). Some of the employees acknowledged having been told that the wages could not be increased because it could be considered bribery (Geurke and Stelcl). The Employer maintained two types of wage in- creases: Merit and group increases. Merit increases are based on subjective periodic evaluations of employee performance and on economic conditions. Group in- creases, also subjective, are granted to maintain neces- sary manpower level and depend on economic condi- tions. In practice, it appears merit increases were granted at generally regular intervals within the first 90 days of employment. Thereafter, there was no regularity to such increases. Group increases were not awarded at regular intervals. They were principally dependent on general business conditions. However, Bancroft admitted that group increases were provided in 1975, 1978, and 1979. The 1975 increase apparently was across the board. The 1977 and 1978 group increases were granted only in par- ticular departments. Upon the foregoing, I find the merit wage increase system remained an active program sys- tematically, albeit not with regularity, applied to reward worthy employees for good job performance. On the other hand, I find the more generalized group wage in- crease assumed no such consistency. During an organizational campaign an employer must proceed as it would have had the union not been on the scene. Stumpf Motor Company, Inc., 208 NLRB 431, 433 (1974); Sinclair & Rush, Inc., 185 NLRB 25 (1970); The Gates Rubber Company, 182 NLRB 95 (1970); McCor- mick Longmeadow Stone Co., Inc., 158 NLRB 1237 (1966). The Board holds that granting of wage increases during the critical preelection period is proscribed where granted to affect election results and that it is an unfair labor practice to change an established benefit practice in circumstances which interfere with the exercise of their statutory rights. For example, see, Colonnade Hotel, 235 NLRB 1362 (1978); The Goodyear Aerospace Corporation, 234 NLRB 539 (1978); Holyoke Nursing Home, Inc., 219 NLRB 1041 (1975); LaMarche Manufacturing Company, 238 NLRB 1470 (1978). The Employer urges that sus- pension of the merit increase system was a necessary in- gredient of its legal obligations during the instant cam- paign. To this end, the Employer's representatives ad- vised employees that granting of wage increases could be considered a bribe. admittedly poor recall. substantially conforms to the description of wage increase policy provided by the Employer's witnesses. No rebuttal evi- dence was offered to the latter testimony. Accordingly. my recitalion of wage policy is based on an adoption of the Employer's evidenlce on this subject. The Employer has cited cases which it claims supports its position that the merit system increases properly were discontinued. I find those cases distinguishable. Thus, in The Singer Company, Friden Division, 199 NLRB 1195 (1972), there was no evidence that the withheld benefits had been expected by the employees. Herein, I have found the merit wage system had been perpetually imple- mented. In essence, it assumed a pattern based on reward for good work. Thus, I conclude there was a reasonable expectation among the employees that such a program would continue. Also, in Singer, there was no general an- nouncement that the benefits involved were being with- held. There, only the employees who inquired were told of Singer's policy. In the instant case, there was general publicity regarding the suspension of wage increases. Respondent also cites Heckethorn Manufacturing Co., 208 NLRB 302 (1974). In that case there was no evi- dence that the employer used the delay of an annual wage increase until after the resolution of a question con- cerning representation. In Heckethorn no announcements of the delay or the reason for it were made. It was gen- eral knowledge among employees that it would have been illegal to grant the increase while an election was pending, Thus, the rationale underlying the finding of no violation in Heckethorn was that the record did not show the employer connected the withheld increase to the advent of the union. In the case at bar, I find the Em- ployer's actions and various statements concerning the wage increases persistently tied their suspension to the current election campaign and to the union activities. Thus, there is herein a distinguishing basis upon which it can be inferred that the reasonable message derived by the instant employees was that their reviews and atten- dant wage increases had been delayed because of the union activities. Clearly, such an effect discourages union activity. Finally, I find the Employer's references to Union Hos- pital of Cecil County, 229 NLRB 91 (1977), only helpful to delineate the operative guidelines relating to imple- mentation of wage increases during the critical preelec- tion period. The cited case, borrowing from Mallory Controls Company a Division of P. R. Mallory Co., Inc., 214 NLRB 616 (1974), identified the criteria for resolu- tion of such cases. I find Union Hospital does not enlight- en the instant issue. The inherent vice leading to findings of violation in the McCormick Longmeadow and Gates Rubber cases, supra, is the employer's action in leading employees to believe the expected wage increases would be forthcom- ing but for the union. Herein, the Employer did not remain silent. Whenever employees were informed, in some form or another, that the merit review system was being held in abeyance because of the Union's presence, the campaign or union activities were mentioned. Thus, the message conveyed to the employees is one from which they readily could conclude that to obtain their merit increases they first would have to abandon the Union. The instant situation is virtually identical with that in General Motors Acceptance Corporation, 196 NLRB 137 (1972). There, the employer had a longstand- ing policy of evaluating employee performance and re- 354 GOSSEN COMPANY warding such performance with wage increases. There, as I have found herein, the merit review program as im- plemented became a term and condition of employment regularly expected by the employees. Further analogous is the factor, as herein, that the merit reviews contained an element of discretion. In holding the suspension of the merit wage increase system a violation of Section 8(a)(1), the Board declared (at 137), "Respondent could have continued this program as it did in the past and not have violated the law. Instead, upon the advent of the Union. it suspended merit increases which it would otherwise have given to its employees." To be sure, General Motors contained evidence of other unfair labor practices. How- ever, the Board's opinion does not refer to such unlawful conduct as a predicate for its finding that the suspension of the merit increases was unlawful. Upon all the foregoing I find that, by suspension of the operation of its merit wage review and increase system, and by blaming the Union for the suspension, the Em- ployer violated Section 8(a)(1) of the Act, as alleged.'5 In sum, I find the record does not establish by a pre- ponderance of credible evidence that the Employer vio- lated Section 8(a)(1) in any manner alleged in complaint paragraph 5, except with regard to announcing a suspen- sion of the merit wage increase policy. D. Discrimination-in General Despite my findings that the bulk of the alleged inde- pendent violations of Section 8(a)(1) did not occur as the General Counsel alleges, it is nonetheless possible that the requisite discriminatory intent for finding violations of Section 8(a)(3) actually prompted the alleged discrimi- natory activity. It is not essential, in order to find such motivation exists, that the conduct be attributed solely to the employees' union activity. It is sufficient to find a violation of the Act, notwithstanding a valid cause may have existed justifying the employer's conduct, so long as a substantial or motivating ground for the conduct was union activity. N.L.R.B. v. Whitin Machine Works, 204 F.2d 883, 885 (Ist Cir. 1953). On the other hand, while action taken against, or disci- pline imposed upon, employees may appear extreme, it does not follow that the ascribed reason for such action or discipline is pretextual. If an improper motive is not involved, "the Board cannot substitute its judgment for that of the employer as to what constitutes reasonable grounds for [those actions]. . . . The question of proper discipline of an employee is a matter left to the discretion of the employer." Corriveau & Rourhier Cement Block, Inc. v. N.L.R.B., 410 F.2d 347, 350 (Ist Cir. 1969), citing N.L.R.B. v. Ogle Protection Service, Inc., 375 F.2d 497, 505 (6th Cir. 1967), cert. denied 389 U.S. 843. "Direct evidence of a purpose to discriminate is rarely obtained, especially as employers acquire some sophistication about the rights of their employees under the Act." Corrie Corporation of Charleston v. .L.R.B., 375 F.2d 149, 152 (4th Cir. 1967). The burden of proving such motive rests squarely upon the General Counsel and that burden never shifts. The burden is satisfied when the " I further find that the uspension of the operalion of the Ny.tem is violative of Sec. (a)( 3), a alleged. record as a whole contains a preponderance of evidence. N.L.R.B. v. Glenn Raven Silk Mills. Inc., 203 F.2d 946 (4th Cir. 1953). The Board in adhering to this principle declared that "the National Labor Relations Act does not require that an employer act wisely, or even reason- ably; only, whether reasonable or unreasonable, that it not act discriminatorily." Paramount Metal & Fitishing Co., Inc.. and Paramount Plating Co.. Inc.. 225 NLRB 464, 465 (1976). The present issues of discrimination call upon me to determine, from the totality of evidence, whether the as- serted reasons for the alleged discriminatory activity are the ones which actually motivated them. Signal Deliverv Service, Inc., 226 NLRB 843 (1976). Respondent argues that the record is devoid of evi- dence of union animus. My findings that the alleged 8(a)(1) activity did not, in the main, occur lend support to the Employer's position. However. the Supreme Court has noted "specific evidence of intent to encour- age or discourage [union] is not an indispensable element of proof of violation of Section 8(a)(3)." Radio Officers' Union of the Commercial Telegraphers Union AFL [A.H. Bull Steamship Company] v. 'V.L.R.B., 347 U.S. 17, 44 (1954). The Ninth Circuit Court of Appeals observed that in 8(a)(3) cases: . . .the trier of fact may infer motive from the total circumstances proved. Otherwise no person accused of unlawful motive who took the stand and testified to a lawful motive could be brought to book.... If he finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer desires to conceal-an un- lawful motive-at least where, as in this case, the surrounding facts tend to reinforce that inference. [Shattuck Denn Mining Corporation (Iron King Branch) v. IN.L.R.B., 362 F.2d 466, 470 (1966).] See also Heath International. Inc., 196 NLRB 318 (1972). The Shattuck Denn principle was expressly adopted by the Board in Atlantic Metal Products. Inc., 161 NLRB 919, 922 (1966). In addition to the foregoing, the following principles govern the disposition of the instant issues of discrimina- tion. As to each such allegation, the Employer interposes the existence of seemingly valid causes for its actions. They are not dispositive. Discrimination is unlawful if it is only partially motivated by discriminatory animus. Florida Medical Center. Inc. d/b/a Lauderdale Lakes General Hospital, 227 NLRB 1412 (1976) N.L.R.B. v. Dant. et al., 207 F.2d 165, 167 (9th Cir. 1953). It is well established that, even if a partial reason for alleged dis- crimination is one proscribed by the Act, a violation must be found. .V.L.R.B. v. Tom Wood Pontiac, Inc., 447 F.2d 383 (7th Cir. 1971); Dilene Answering Service. Inc., 222 NLRB 462 (1976). Thus, even if activity of some, or all, of the alleged discriminatees normally constitutes sufficient ground for disciplinary action, the issue is not necessarily resolved. Support for a finding of unlawful motivation "is aug- 355 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mented [when] the explanation of the [discipline] offered by the Respondent [does] not stand up under scrutiny." N.L.R.B. v. Bird Machine Company, 161 F.2d 589, 592 (Ist Cir. 1947). 1. James Magee Magee was suspended on April 9 and discharged on April 30. He had been employed approximately 10 years. In that time he received only three or four disciplinary warnings. The most recent warnings, January 11 and March 22, were verbal.' 6 Both warnings were for leav- ing his assigned work area. Magee had generally good work appraisals and received merit increases. Magee was a leading union supporter. He was part of the group that initiated the Union's campaign. Thus, Magee attended preliminary precampaign meetings with Maahs, served on the in-plant organizing committee, and actively solicited employees' signatures on union authori- zation cards. The Employer acknowledged its awareness of Magee's union activities. " On April 6, Bancroft received a report that employee Robert Stoller'8 had complained that Magee had threat- ened to set fire to Stoller's automobile. That threat alleg- edly was made during the course of solicitation of Stoller to sign an authorization card. Bancroft testified he under- took an investigation. Thus, on April 9 Bancroft inter- viewed Magee. He confronted Magee in general terms regarding the threat. Magee denied he threatened anyone. Magee testified, without contradiction, that he volunteered to take a lie detector test. Bancroft, howev- er, told Magee he was suspended pending completion of the Employer's investigation. Bancroft advised Magee he would have to make a decision on what to do upon the available information forthcoming from his "investiga- tion." ' 9 Bancroft then spoke to Stoller who reaffirmed that Magee threatened to set fire to his car. Stoller gave a written statement confirming the incident. During his conversation with Bancroft, Stoller indicated that em- ployees Guzman and Ziemek may have been in the gen- eral area where Magee is alleged to have issued his threat. On April 11 Bancroft interviewed Guzman. Ban- croft asked whether Guzman issued any threat and whether he heard Magee doing so. Guzman responded in the negative to both questions. On April 16, Bancroft again conferred with Magee. He asked Magee whether he would take a lie detector test. Magee refused. (He had been advised to decline the test by a union representative.) He repeated he had not threatened anyone. Bancroft then informed Magee of the specific assertion against him. Bancroft said it was Stoller who reported the threat. The meeting ended with Ban- 16 Record is made of such warnings by supervisors, although employ- ees are not necessarily aware anything has been recorded in writing. The Employer also maintains a system of wrinen warnings which employecs are required to sign. 17 The Employer also agreed it was aware of the union activities of Parr and Burke. £8 Stoller did riot testify at the hearing. I make no adverse inference from this omission Stoller was equally aailable both to the (General Counsel and the Employer 19 The quotes are my personal interjection, not reflective f actual tes- timony. croft telling Magee he would investigate further and contact Magee. On April 18, Stoller took a lie detector test. The re- sults were inconclusive. The independent agency con- ducting the test asked whether Stoller had a history of mental problems. On April 23 Bancroft interviewed Ziemek. Ziemek was told that Stoller provided the Employer a written complaint alleging that he (Ziemek) had threatened to set fire to Stoller's car. Ziemek denied this. Bancroft ad- mitted that he did not ask Ziemek whether he heard Magee making such a threat. Apparently in pursuit of its investigation regarding threats, employees Hacker, Weinmann, and Yahnke were asked by their supervisors or the Employer's attorney whether they had been the recipients of threats regarding signing an authorization card. Each responded in the negative. On April 26, Bancroft again met with Stoller. Stoller authenticated his original statement. During his inter- view, Stoller expanded upon the nature of Magee's threat. Thus, Stoller now claimed that Magee also threat- ened to bump him off his job and to burn his house. Magee was not again interviewed. Bancroft testified he decided, on the basis of the evi- dence before him, to discharge Magee for threatening to set Stoller's car on fire. Bancroft wrote Magee a letter informing him that the discharge was effective April 30. No reason was given Magee for this discipline. The Employer contends Magee exhibited a proclivity toward threatening violence. Thus, Bancroft testified that in 1974 he spoke with Magee about a threat that Magee reportedly made to Supervisor Leardi. When so con- fronted, Bancroft testified Magee admitted having made such a threat, apologized, and promised it would not be repeated. At the time of this alleged incident, John W. Lucas was warehousing supervisor. Lucas was supposed to have been a party to that occurrence. He testified2 0 that he reported the incident orally to Bancroft. Bancroft testified that he, in turn, recommended to the Employer's president that Magee be discharged. According to Ban- croft, that action was not taken because the Employer felt sorry for Magee and did not want to alienate Magee's wife, then also an employee, who the Employ- er's representatives felt was a capable employee. Also, Robert J. Simon, the Employer's division sales manager, testified. He claimed that, on April 7 when touring the plant with prospective wholesalers, he saw Magee driving his forklift truck very rapidly, abruptly jump off of it, and grab an individual. There is no evi- dence this incident had been reported immediately. On rebuttal, Magee denied the existence of the Lucas- Leardi incident. He also denied he ever drove the forklift truck at an excessive speed, jumped off it, or grabbed an- other employee. I credit those denials. Although Magee, Lucas, and Simon each presented self-serving testimony regarding the incidents in which each is supposed to have been mutually involved, the evidence presented by Lucas and Simon defies probability. The precise date on 2' Leardi did 1lit appear as a w\itness. 356 GOSSEN COMPANY which the Employer's verbal/written warning system took effect is uncertain. It may not have been implement- ed at the time of the alleged Lucas-Leardi incident. Nonetheless, I consider it unlikely that the matter, if it occurred, was not memorialized in writing somewhere. Based on its defense, it is clear the Employer considers a threat of bodily harm and/or property damage to a fellow employee valid cause for discipline. Surely then, a similar threat to a supervisor merits disciplinary action. However, there is no evidence that any discipline less than termination was wrought on Magee for the Lucas- Leardi incident. By Bancroft's own version, he simply admonished Magee and extracted an apology. The verbal/written warning system clearly was in effect at the time of the alleged incident with Simon. The record is replete with documentary evidence show- ing verbal warnings were issued freely for numerous types of indiscretions. A sampling shows the following verbal warnings: T. Burke-smoking out of area 9-21- 78; employee Conway, out of work area 9-27-78, and sleeping 9-9-78; Engelbert, smoking in unauthorized area, 9-21-78; and Fossum, hit garage with forklift 11- 25-78. There is no evidence that any concurrent report, written or oral, was made concerning the alleged Simon- Magee matter. In the context of the manner in which the verbal written warning system had been implemented, I find it reasonable to presume some record would have been made of the Simon incident if it had actually oc- curred as described by him. No such record is reflected. In contrast, Magee's litany of denials was presented in a direct, low-keyed, moderate fashion. His general bear- ing was impressive and calm. He was unshaken in the denials of these assertions against him. I find the record contains no ostensible basis for disbelieving him as to these matters. Whatever other testimonial discrepancies the record reflects concerning Magee are, as I have earli- er noted, due to perceptual differences. Hence, I find them irrelevant to his general veracity. 2 1 I conclude that the reason asserted by the Employer for Magee's discharge is pretextual. First, I find the Em- ployer's investigation into Stoller's report he had been threatened to be shallow and contrived. Thus, the Em- ployer relied on an apparently unreliable source of infor- mation. Stoller was a relatively new employee. At the time of the alleged incident, he had been employed only about I year. Bancroft admitted Stoller was "very agitat- ed-very nervous." That instability was manifest in the results of his lie detector test. These circumstances demand more than perfunctory attention to his asser- tions. The Employer made a pretense of doing so. How- ever, I find only cursory attention was given to that task. Thus, when Ziemek was interviewed, he was not asked to confirm or to deny whether he heard Magee issue the alleged threat. For this reason, involving Ziemek in the "investigation" had no valuable purpose. It merely dem- onstrates the rather cavalier character of the "investiga- tion." The involvement of Hacker, Weinmann, and Yahnke yields similar results. To interrogate them regarding al- " In making this credibility assessment, I place little significance on the testimony of Maahs, Engel, and Lampada who, in relevantl part, gave testimony of Magee's general character leged threats, in general terms, comprises an unwarrant- ed expansion of the "investigation." That activity was to- tally unnecessary because only the threat allegedly made by Magee came to the Employer's attention. Finally, the "investigation" ended abruptly, without cogent explana- tion. No effort was made to reinterview Magee after Stoller expanded on the nature of the alleged threat. Direct evidence of discriminatory motivation is not necessary to support a finding of discrimination. Such intent may be inferred from the record as a whole. Heath International, Inc., supra. In effect, I must make such an inference to find Magee's termination discriminatory. I am required to disentangle the motives of another's con- duct in a situation where the motive is frequently un- known even to the actor himself. Another element which I consider in this regard is the failure of Bancroft to have stated the reason for Magee's discharge. Bancroft ad- mitted that reasons for such discipline normally are pro- vided employees. The failure to do so has long been held an indication of discriminatory intent. N.L.R.B. v. Griggs Equipment, Inc., 307 F.2d 275 (5th Cir. 1962). Finally, if credited, the Employer's allusion to the Lucas-Leardi and Simon incidents demonstrates the Em- ployer's effort to shift its reasons for the discharge. Ar- guably, that evidence provides a background to find Magee had a propensity toward threats and violence. Apparently, this is why the Employer adduced such evi- dence. However, Bancroft testified that the decision to terminate Magee was based on his unsubstantiated threat toward Stoller. Later, Bancroft testified "there was no other reason in Magee's work history." If this were true, there is no logical reason to refer to the purported prior misconduct. To do so, as does the Employer, looms as an effort to shift its reasons for the termination. Such shifting of reasons is indicative of discriminatory intent. Tyler Pipe and Foundry Company, 132 NLRB 1187 (1961); Buss Machine Works, Inc., 170 NLRB 928 (1968); Greyhound Taxi Co., Inc., 234 NLRB 865 (1978). It was at the instant hearing that, apparently for the first time, the Employer proffered the Leardi-Lucas and Simon in- cidents as any part of the reason for Magee's discharge. In this circumstance, I cannot subscribe to the Employ- er's claim that such evidence was simply background. In drawing my conclusions concerning Magee's dis- charge, I have considered the element of timing. As indi- cated, he was a known union proponent. The discharge occurred at the height of his activity during the 1979 campaign. Coincidence in union activity and termination of employees is a strong factor supporting an inference, which I make, of unlawful motivation as to Magee. McGraw Edison Company v. N.L.R.B., 419 F.2d 67 (8th Cir. 1969); N.L.R.B. v. Harry F. Berggren & Sons, Inc., 406 F.2d 239, 245 (8th Cir. 1969), cert. denied 396 U.S. 823. The discharge of leading union adherents is a classic and effective method of undermining organizational ef- forts. N.L.R.B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003, 1006 (5th Cir. 1965). The record, in its totality, persuades me that the Em- ployer grasped upon an untested and speculative asser- tion of employee misconduct as a subterfuge to disguise its true motivation in discharging Magee. Upon all the - 357 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foregoing, I find that Magee's discharge on April 30 was discriminatory within the meaning of Section 8(a)(3) of the Act, as alleged.2 2 2. James W. Parr Parr, another initiator of the 1979 union campaign and a member of the in-plant organizing committee, was dis- charged on May 23 by Bancroft. Parr's discharge letter informed him that discipline was imposed for destruction of company property and violation of safety rules. Orally, Bancroft testified the decision to terminate Parr was based on a violation of safety rules, willful destruc- tion of company property, and "for his past perfor- mance." On May 22, Ihlenfeld reported to Jeray that coins had been run through an embosser and caused an imprint in the vinyl molding. Parr and Engel were at the end of that particular production line when the incident oc- curred. Ihlenfeld spoke with Engel who denied she dam- aged the molding. Jeray confronted Parr. He admitted running the coin through the embosser. The incident was reported to Hoffman who suspended Parr on May 22. Parr apologized to Hoffman who suggested Parr submit the apology in writing. However, when Bancroft learned of the problem he wrote Parr, discharging him. Parr spoke with Bancroft concerning the discharge. During that conversation Bancroft said the discharge was im- posed for "destruction of Company property, and plac- ing himself [Parr] in an unsafe position." No reference was made to Parr's past job performance. The Employer admits prior knowledge of Parr's union activities. Parr had been employed since September 1975. During 1977-1979 Parr received a total of 22 verbal and written warnings. These were for a variety of reasons. None was designated a final warning. Parr's most recent perfor- mance appraisal in February 1979 reflects that he "satis- fies most" or "meets" his job requirements. Additionally, Jeray testified Parr "was pretty talented, but his work performance was up and down since the day he was hired." Bancroft testified that the sporadic nature of Parr's past performance contributed to his decision to discharge Parr. The Employer's safety rules are distributed to employ- ees when hired. Clearly, those rules express the Employ- er's concern for safe conditions. Moreover, the Employ- er's rules governing employee conduct provide for sus- pension or peremptory dismissal for "willful violation of safety rules." Thus, the Employer submits that Parr's ad- mission that he ran coins through the embosser virtually mandates the discipline imposed on him. There are, however, other factors which make signifi- cant inroads upon the Employer's position. First, there is evidence strongly suggestive of a discriminatory motive underlying Parr's discharge. Engel forthrightly and di- 2 The facts recited in this, and in subsequent, sections which contain discussions of the individuals alleged as discriminatees contain a compos- ite of the credited testimony, together with that material which otherwise appears uncontradicted. Where variations deemed material exist. they are discussed and resolved. Only the facts, arguments of fact and law, and decisional precedent considered relevant to the issues are recited for the sake of brevity. Nonetheless, I have considered all matters litigated aid arguments of counsel made upon them. Thus, omitted matter is deemed irrelevant, superfluous, distinguishable, or not credible. rectly testified that after Parr's discharge she confronted Ihlenfeld with her belief that Parr had been treated un- fairly. According to Engel, Ihlenfeld said that, if "it" had been someone else, Parr would not have been fired. Ih- lenfeld denied making this comment. I credit Engel on this issue. I have already commented that Engel was the most credible of all the General Counsel's witnesses. Ad- ditionally, I find Engel's description of what Ihlenfeld said more logical than Ihlenfeld's denial. Ihlenfeld, during testimony as an adverse witness, agreed that there was general talk in the plant to the effect that it was unfair to discharge Parr. Accordingly, it is not unreason- able that Engel and Ihlenfeld had a conversation about Parr. Also, Ihlenfeld's denial is inconsistent with docu- mentary evidence which, I conclude, shows Parr's dis- charge comprises disparate treatment. Thus, the records in evidence reveal, in part, that employee Fossum hit a garage door with a forklift and received a verbal warn- ing in November 1978; V. Ward pushed and shoved other employees in April 1979 for which she received a verbal warning and wore no safety shoes in November 1978, a dereliction which resulted in a verbal warning in November 1978; H. Thompson had a forklift accident in October 1978 for which he was given a verbal warning, a second forklift accident in November 1978 for which he received a verbal warning, and a third forklift acci- dent in November 1978 which resulted in a written warning and his removal from operation of forklifts. Fur- ther, Bancroft admitted that B. Sippy put a hole in a wall with a forklift and received a warning but was not sus- pended; and J. Arbinger ran into a woman with his fork- lift and caused her personal injury. Bancroft admitted Arbinger received only a verbal warning. In this context, it is reasonable that Engel would have complained about her perception of unfair treatment toward Parr. Logic compels the reasonable inference that such a context of apparent disparate treatment belies Ihlenfeld's denials that he made the statement Engel attributed to him. Indeed, Ihlenfeld's response as recanted by Engel is con- sistent with what the Employer's warning slips in evi- dence actually show; namely, that transgression of its safety rules, even where attended by personal injury, had not in the past resulted in the dire consequences imposed on Parr. These conclusions are buttressed by the parties' stipulation (G.C. Exh. 45) which shows none of the rule violations mentioned above was used as grounds for dis- charge of the offending employees. Thus, I conclude that Ihlenfeld's comment to Engel constitutes an accurate re- flection of the ostensible manner in which the Employer previously dealt with its employees. Next, the apparent disparate treatment accorded Parr is viewed as evidence of discriminatory motivation. Such treatment assumes significance in the backdrop of the nu- merous warnings previously given to Parr. As noted, he received nearly two dozen warnings in the 2 years imme- diately preceding his discharge. His immediate supervisor testified, and performance evaluations confirm, Parr was somewhat less than an average worker. Despite this, the Employer obviously countenanced his lackluster perfor- mance until the incident which is the source of his dis- charge. I conclude that the record reasonably supports 358 GOSSEN COMPANY an inference that the Employer tolerated Parr's barely satisfactory performance until his union activities became notorious and persistent. Finally, as with Magee. I note that the Employer "shifted" its reasons for terminating Parr. When he was discharged, the Employer did not allude to his past per- formance. However, during the hearing, Bancroft assert- ed Parr's work history as a contributing factor to the dis- cipline. Such shifting is circumstantial evidence of a dis- criminatory motive. I concede the Employer has established the existence of valid justification for taking the action it did against Parr. However, that justification does not conclude the issue. If a substantial or motivating ground for the dis- charge was union activity, there is a basis for finding the discharge violated Section 8(a)(3). Winkel Motors, Inc., 178 NLRB 627 (1969), affd. 443 F.2d 38 (9th Cir. 1971). I conclude that the totality of the instant record demon- strates that a substantial and motivating ground for Parr's discharge was his union activity. Apparently Parr only became intolerable as an employee after he became a vi- gorous union proponent. In sum, I conclude there is sup- port in this record for finding the alleged violation. N.L.R.B. v. Elias Brothers Big Boy, Inc., 325 F.2d 360, 366 (6th Cir. 1963). Upon all the foregoing, I find that the Employer dis- criminatorily discharged Parr in violation of Section 8(a)(3) and (1) of the Act. 3. John Lampada Various of the Employer's actions relating to Lampada are the subject of a multifaceted attack. Thus, complaint paragraphs l0(d)(i-v) allege Lampada was discriminator- ily transferred to a different job on July 30; that from on or about that date to September 18 the Employer har- assed him by assigning more onerous tasks than previous- ly performed; that he was unlawfully suspended between September 18 and 26; that he was given an unexcused absence on September 26 and a verbal warning on Octo- ber 3. All of the above is alleged to violate Section 8(a)(3) and (1) of the Act. As background, the record shows Lampada had been a principal union proponent during its unsuccessful 1978 campaign. Lampada was a member of the 1979 in-plant organizing committee. He actively solicited signatures of other employees on authorization cards and served as a union observer during the June election. In early 1978, Lampada was transferred from the night shift at the Employer's Bender warehouse to the day shift at its Green Tree Warehouse. That transfer was ne- cessitated by the elimination of the Employer's third-shift operation. At that time only two employees were work- ing on that night shift. Upon Lampada's transfer to the Green Tree Warehouse he was required to help establish it as a functional entity. When the initial work was com- pleted, the Employer's entire warehouse operation was moved from Bender to Green Tree. Before Lampada became involved in the 1979 cam- paign, he asked Warehouse Supervisor Roddy for a transfer from his warehouseman job to driving. That re- quest was granted. As a result, Lampada was given a pay increase. Lampada worked as a driver at Green Tree for ap- proximately 4 months. William Schultz, who had been a driver for approximately 2 years before Lampada became a driver, continued his driving functions. Roddy's uncontradicted testimony indicates that a de- crease in business dictated the elimination of some driv- ing operations. Bancroft approved Lampada's transfer from driving to the warehouse operation. This occurred on or about July 26. Roddy told Lampada of the transfer and said it was because there was not enough truckdriv- ing work. At that time, three employees were driving; Lampada, Schultz, and Jeff Mann. It appears that Mann's driving duties were different from Schultz and Lampada. Mann handled raw materials while Schultz and Lampada handled finished products. Also, Mann was under Hoff- man's supervision whereas Roddy supervised Schultz and Lampada. Roddy's uncontradicted testimony reflects that Schultz and Lampada would have needed 15-20 days of training to perform Mann's job. Although Lam- pada no longer was a driver after the July 26 transfer, he retained the driver's higher wage rate. After his return to the warehouse, Lampada testified his working conditions were "kind of rough." Thus, he testified that when he previously worked in the ware- house he had been required to stock, board, load, or "pull" orders in the alternative. According to Lampada, upon his return to the warehouse work he was expected to perform all these tasks concurrently. Additionally, Roddy asked him to pull large volume orders because Roddy desired to relieve female employees from that dif- ficult function. Roddy's uncontradicted testimony shows that Lampa- da's return to the warehouse coincided with a warehouse reorganization implemented pursuant to recommenda- tions of a management consultant. The transfer occurred during the plant shutdown. Admittedly, things were in a confused state, a situation which Roddy analogized to moving one's personal residence. The reorganizational functions took approximately I month. Roddy testified, without contradiction, that after the reorganization was completed Lampada's warehouse duties reverted to those formerly performed by him at the warehouse. Indeed, Roddy testified that the various reorganizational adjust- ments made Lampada's job easier. This assertion stands unrefuted. Although working the warehouse, Lampada occasion- ally drove a truck. On September 18 he was assigned to drive a tractor and trailer to the Employer's Ocon- omowoc, Wisconsin, plant. Lampada went about this task. The husband of a woman whose automobile pur- portedly was struck by a truck of the Employer reported the alleged accident to Roddy. Roddy was given a regis- tration tag number of the truck allegedly involved. Roddy determined that the registration number would identify the truck being operated by Lampada that day. Roddy telephoned the Oconomowoc plant manager, Wilfred Johnson, and asked him to check Lampada's truck for evidence of a collision. Roddy confronted Lampada and told him he was alleged to have hit an- other vehicle with his truck. Johnson conducted an in- spection of the vehicle and found marks on the right rear 359 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tires of the trailer. Lampada testified he saw tire smudges. Lampada returned to Green Tree. Roddy spoke with him. Lampada explained he was not aware of an acci- dent. Lampada then gave a statement to police officials. He maintained he did not know of an accident. He did report that he had stopped at a fast food restaurant to purchase cigarettes. He found the restaurant closed, walked back to his tractor, and proceeded to Ocon- omowoc. Lampada testified he told the police he had not been pursued by anyone and did not learn of the alleged accident until Johnson advised him of it. Lampada was not cited by the police for a hit-and-run violation. Later, Lampada met with Bancroft and repeated his story. Bancroft suspended Lampada. At that time, Ban- croft had not seen the police report which apparently in- dicated no citation had been issued. The next day Bancroft obtained the police report. He observed Lampada was not cited for a hit-and-run acci- dent. However, it did indicate that Lampada had left the scene of an accident. On September 25, having determined that Lampada bore no culpability, Bancroft sent Lampada a mailgram. Lampada was requested to report to Bancroft's office at 10 a.m., September 26. (Bancroft tried unsuccessfully, on September 24, to contact Lampada by telephone. Also, Bancroft reached Lampada's home by phone on Septem- ber 25 but was advised Lampada was out of town.) On September 26 Lampada reported to Bancroft at the plant. Bancroft again asked Lampada to describe what happened on September 18. Lampada said he believed the accident was not his fault. He did admit that he hit a car. According to Lampada, Bancroft said he could return to work that day. Lampada said he could not work that day and Bancroft allegedly permitted his return on September 27. Lampada testified he told Ban- croft he could not report that day because he had been driven to the plant by his brother. (In fact, Lampada had arranged a job interview elsewhere for that day.) Roddy had been earlier informed by Bancroft that Lampada would be recalled effective September 26. When Lampada did not report to work that day Roddy placed an absence card on Lampada's timecard. Lampada reported to work on September 27 at the regular designated time. He asked Roddy why he had been given an absentee card. Lampada testified Roddy answered that Lampada should sign it and not worry. Roddy, on the other hand, testified he told Lampada the September 26 absence was unexcused.2 3 Lampada was paid for each day of his suspension except September 26, the day of the unexcused absence. The Employer's re- cords contain no permanent indication Lampada's sus- pension was disciplinary in character. Lampada worked without incident from September 27 until October 3. On the latter date, Lampada and em- ployee Ken Marchand were assigned to pull cartons 23 In accordance with the Employer's regular practice, the designation of whether or not the absence was excused was not physically placed on the absentee card until after the employee signed it. I do not find it nec- essary to resolve this conflicting testimony because all parties agree the ultimate result is that the Employer had not excused the September 26 absence. from storage racks and place them onto skids. The lead- man reported to Roddy that Lampada and Marchand were standing around talking and the work had not been completed. Roddy issued a verbal warning to Lampada and Marchand. Lampada testified that, when Roddy spoke with him on October 3, Roddy said that Lampada had been responsible for low warehouse morale and that he was a chronic complainer. Lampada testified, also, that Roddy said he was to speak with employees only about company business. Roddy testified he told Lam- pada "I do not want chit-chat during the working time, only work-related comments or conversations." With respect to employer knowledge of Lampada's union activities, Roddy admitted knowing Lampada was a union supporter. However, Roddy characterized Lam- pada as "closed-mouthed" about the Union. The Employer contends that Lampada's return to the warehouse from duties as a driver was based on sound business considerations. As to the allegation Lampada was subjected to more onerous working conditions im- mediately after the transfer, the Employer admits there was at that time a period of confusion in the warehouse during the implementation of the consulting firm's rec- ommendations for warehouse changes. Overtime statis- tics were introduced into evidence. The General Counsel claims those statistics refute the Employer's assertion that business had decreased. The Employer asserts those statistics are misleading. I agree with the Employer. The overtime hours worked show that after Lampada's trans- fer Schultz and Mann averaged slightly more than 13 overtime hours during each pay period. Additionally, the evidence shows Mann was used to cover Lampada's former Oconomowoc run. Finally, the record shows Lampada occasionally was called upon to drive a truck. I accept the Employer's argument that Mann's over- time is irrelevant. As noted, Mann's driving functions regularly differed from those of Lampada and Schultz. Admittedly, comparatively little time (15-20 hours) was needed to train either Schultz or Lampada to do Mann's work. However, to impose such an obligation upon the Employer would effectively interject the Board into the realm of managerial judgment. It is clear neither Mann nor Schultz had the extensive warehouse experience that was possessed by Lampada. Conversely, it is equally clear Schultz had considerably more driving experience. Assuming, arguendo, such interjections were appropriate, I conclude the overtime hours reflected by the Employ- er's records are not so numerous that the work entailed would keep another full-time employee completely busy performing the driving work which had been the exclu- sive province of Lampada. At best, the General Coun- sel's theoretical formulation of violation creates suspi- cious circumstances. These, alone, are not a sufficient basis for a finding of discriminatory treatment. Lyn-Flex Industries, Inc., 157 NLRB 598, 599 (1966). Moreover, as will be shown infra, there exist other factors which mili- tate against finding the presence of a discriminatory motive for Lampada's transfer. As noted, after Lampada was transferred he received the drivers' higher wage rate. The General Counsel argues, though, that Lampada worked 2 hours less in the 360 GOSSEN COMPANY warehouse than he did as a driver. Also. the General Counsel asserts that Lampada received "hardly any over- time" after his transfer. From this. the General Counsel surmises Lampada's weekly paycheck decreased. I find no record evidence to support this conclusion. Even if this were true, I consider such condition only an element of suspicion. I am more persuaded by the fact that no action had been taken to reduce Lampada's hourly rate. In my view it is more reasonable that an employer har- boring discriminatory intent would have taken advantage of the apparent need for a transfer to impose a simulta- neous wage reduction. As observed within my discussion concerning the allegations of independent 8(a)(1) viola- tion, I have concluded that the record as a whole does not support the conclusion there existed a generalized at- mosphere of discriminatory motivation. The web of sus- picious circumstances argued by the General Counsel does not affect my conclusion. The General Counsel contends there is evidence of discriminatory motive in Lampada's attitude survey. On that survey Roddy wrote "hard core union." I agree that notation is some evidence of unlawful motive. Weighing this factor against the entire circumstances as to Lam- pada, I am more persuaded by the evidence showing jus- tification for the Employer's actions. 24 Upon all the foregoing, I conclude that the record fails to establish by a preponderance of evidence that Lampa- da's July transfer to the warehouse was in violation of Section 8(a)(3) and (1) of the Act. Similarly, I conclude that the evidence does not sup- port the allegation that Lampada was discriminatorily subjected to onerous working conditions immediately after his transfer to the warehouse. The record contains no evidence which effectively rebuts the Employer's as- sertions that the warehouse reorganization caused initial confusion. I conclude the record establishes that the as- signment of extraordinary duties during the transitional period is one of the normal consequences of reorganiza- tional activity. Indeed, even Lampada conceded that his warehouse work became more routine when the situation became stabilized. Accordingly, I find insufficient evi- dence to sustain the discriminatory allegations based on asserted "onerous conditions." Lampada's September suspension presents a close issue. Balancing all the relevant factors, I conclude that discipline was not discriminatory within the meaning of the Act. When Bancroft imposed the suspension, he knew only that an employer's driver had been charged with involvement in an accident. Bancroft had not yet read the police report. Contrary to the General Coun- sel's claims, I consider Bancroft's response to the infor- mation at hand a normal reaction. The General Counsel argues I should infer a discriminatory motive from Ban- croft's apparent delay between the date Bancroft re- ceived the police reports (September 19) and the date on which he made his first telephone effort to recall Lam- pada on September 24. I agree that the delay is unex- plained on this record. However, in the absence of ex- 24 Engel's case, discussed infra, is distinguishable. There, the attitude survey is considerably more probative. It fills the void created by the lack of cogent explanation for Engel's warnings in the face of apparent disparate treatment. trinsic evidence of discriminatory motive relating to Lampada, I place little significance on the delay. Factu- ally, I do not consider the delay an inordinate amount of time. The police report was not received by Bancroft until Wednesday, September 19. He first telephoned Lampada on Monday, September 24. Thus, at most only 3 working days elapsed between those events. As a further basis for making a discriminatory infer- ence, the General Counsel points to what is asserted to be the Employer's variation from previous reactions to the receipt of accident reports. Thus, the records in evi- dence reflect that employees H. Thompson, E. Pogo, J. Arbinger, F. Wondracheck, B. Sippy, and T. Mongary had been involved in vehicular accidents. None was sus- pended pending investigation. Bancroft explained that Lampada's suspension was based on a report that Lam- pada had purportedly left the scene of an accident. Not one of the accidents in which the other named employ- ees had been involved was of such a character. More- over, when Bancroft interviewed Lampada, he (Lam- pada) acknowledged that he had stopped his vehicle one block after making a right-hand turn onto Green Tree Road and, after observing that nobody pursued him, con- tinued to Oconomowoc. Thus, I conclude that Bancroft was confronted with circumstances suspicious in nature. That suspicion, in my judgment, provided reasonable grounds for thought. In general, then, I find Lampada's situation sufficiently distinguishable from those cited by the General Counsel as to render them unfair compari- sons for purposes of the instant evaluation. On this record, I cannot conclude that Bancroft's delay in recall- ing Lampada was unreasonable. Upon all the foregoing, I find that the record does not contain the requisite preponderance of evidence to sup- port the allegations that Lampada's suspension was dis- criminatory in violation of Section 8(a)(3) and (I) of the Act. That Lampada's failure to report to work on Septem- ber 26 was unexcused also presents a close issue. On bal- ance, I find it nondiscriminatory. Roddy had been in- formed that Lampada was to be recalled effective Sep- tember 26. When Lampada did not report that day, Roddy completed the absence slip pursuant to normal practice. The General Counsel's theory of violation is founded on the clear, virtual impossibility of compliance with the recall notice. The recall date was incorporated in Bancroft's September 25 mailgram. However, because of the conference between Lampada and Bancroft on September 26, Lampada could not possibly have re- turned to work until almost 4 hours into the shift. As noted previously, Bancroft and Lampada gave differing versions as to whether Bancroft had been advised that day that Lampada could not report because his brother had driven him to the plant and whether Bancroft autho- rized Lampada to start work on September 27. I have not resolved these testimonial differences because I con- clude that resolution would not necessarily dispose of the issue. Failure of internal communication between man- agerial personnel looms as the basis for Roddy's action. It is uncontroverted that, from the available information, Roddy simply conformed to existing supervisory proce- 361 DECISIONS OF NATIONAL LABOR RELATIONS H()OARD dure. In the absence of more direct evidence of discrimi- natory motive I will not infer an unlawful one. Assum- ing, arguendo, that I credit Lampada's testimony that he informed Bancroft of his inability to work on September 26 and Bancroft authorized him to come to work the next day, the record as a whole persuades me Bancroft's approval of the unexcused nature of the September 26 absence is unreasonable. However, such arbitrary action does not necessarily give rise to, or nurture, a discrimina- tory intent, absent other evidence of unlawful motiva- tion. Accordingly, I find that the imposition of the Sep- tember 26 unexcused absence on Lampada was not dis- criminatory. I also find that the October verbal warning was not in violation of Section 8(a)(3) and () of the Act. In this connection, Lampada testified that, when Roddy accused him of being the source of low warehouse morale, Roddy also said that he would hold Lampada personally responsible. According to Lampada, Roddy said, if morale did not improve, Lampada would receive a writ- ten warning. These remarks, coupled with Roddy's ad- mitted admonition that Lampada should discuss only work-related comments or conversations, are urged by the General Counsel as the basis for an inference of dis- criminatory motivation. I decline to make such an infer- ence. There is absolutely no evidence that Roddy's re- marks (crediting Lampada's version) were related to union activities. Neither the Employer nor the General Counsel adduced any evidence of the content of the con- versation between Lampada and Marchand. Likewise, there is no evidence to reflect that Roddy even suspect- ed they were discussing union-related matters. Thus, I conclude that Roddy's warning merely reflects supervi- sory concern for attentiveness of employees to their work. In sum, I have found that the Employer did not dis- criminate against Lampada in any way alleged in the complaint. As previously indicated, I conclude that the totality of the record does not establish an overall atmo- sphere of discriminatory intent. To find an unlawful motive reasonably applicable to Lampada requires me to use suspicious circumstances and innuendo which I find unwarranted. 4. Robert Beilke The complaint alleges that the Employer discriminated against Beilke since on or about April 1 by giving him a series of verbal and written warnings and by discharging him on September 18. Beilke solicited union authorization cards, distributed union buttons, wore a union button, and exhibited his support and union affiliation during conversations with fellow employees. Beilke started his employment in late August or early September 1978. On December 5, he received a written warning for substandard work; on January 3, 1979, he was given a verbal warning for tardiness; and on Febru- ary 4, Beilke received a verbal safety warning. Despite these warnings, Beilke was rewarded with three wage in- creases, the last one being received in March 1979. The March increase was based on Ihlenfeld's performance evaluation. From September 1978 until approximately January 1979 Beilke was a warehouse employee. On the latter date, he was transferred to production work as an ex- truder operator, apparently at his request for more money and better hours. From April until his discharge, Beilke received numer- ous warnings. Thus, on April II he was given a verbal warning for leaving his assigned work area for extended periods of time; also on April I I he received a verbal warning after he had been told several times not to read magazines on the production line; on April 16 he was given a verbal warning for taking a break in the cafeteria while two other employees in his job category also were taking a break; on April 23 he received a written warn- ing for failing to clean up his lines at shift's end-this warning cautioned that repetition of the infraction could result in discharge; on April 12, a verbal warning for tar- diness, on May 17, a verbal warning for not checking his color, an act which resulted in excess scrap; on May 18, a verbal warning for using profane language; on May 18, a verbal warning for failing to change color; on May 26, a written warning for an unexcused absence on a sched- uled overtime day-this warning cautioned possible dis- charge; on May 30, a written warning for failing to check color with a supervisor which resulted in 2 hours of off-color material-this warning cautioned future vio- lations could lead to discharge; on June 10, a verbal warning for unexcused tardiness; and on July 22 a final written warning for overall poor work performance, re- sulting from a failure to clean his line at shift's end. After this last warning, Beilke was placed on 60-day probation. He was warned that "violations of any type could lead to immediate discharge." Beilke provided extensive testimonial explanations of the circumstances surrounding each warning. I have ana- lyzed each situation and conclude that each warning had foundation. Although I might not have engaged in such stringent application of company rules had I been Beilke's supervisor, I cannot impose my methodology upon Ihlenfeld and Jeray who issued Beilke's warnings. It appears that the General Counsel has done this. Thus, the General Counsel's post-hearing brief claims the warn- ings were given for what the General Counsel character- izes as "insignificant infractions, which normally would have gone unnoticed." Examples of some of the evidence demonstrate the basis of my conclusion that the warnings were not given without cause. Thus, with respect to the April 16 warn- ing for taking a break with two other employees, the evi- dence clearly shows the Employer maintained a policy prohibiting three employees in Beilke's job classification from simultaneously taking a cafeteria break. Engel, one of the three employees in this incident, advised him of that policy as he entered the cafeteria. Beilke was the third employee to arrive. Beilke was not singled out for this warning. Engel and employee E. Hodgson also re- ceived verbal warnings resulting from the April 16 inci- dent. There is documentary and testimonial evidence to the effect that not every infraction forming the subject of Beilke's warnings resulted in similar warnings to other 362 GOSSEN COMPANY employees. However, examination of the whole record also shows that other employees had been the recipients of identical or similar discipline. Scrutiny of the record in its entirety satisfies me there is insufficient evidence warranting a conclusion that Beilke was treated in a dis- parate manner. Accordingly, I place little probative value on the quantity and variety of warnings given Beilke after the Union's campaign began. Even assuming that Beilke's warnings constitute cogent evidence of disparate treatment, there is scant evidence such treatment was related to the union cam- paign or to Beilke's union activities which were com- paratively unextraordinary. In this connection the Gener- al Counsel makes two points. First, the post-hearing ar- guments are pervaded with suggestions of impropriety in reducing the verbal warnings to a written document placed into Beilke's personnel file. Thus, as to many warnings, the General Counsel specially observes that Beilke had not been told he would receive a warning at the time his supervisor orally reprimanded him. Contrary to the General Counsel's suggestion, I place no probative value on such omission. The Employer's witnesses who testified on the subject, and Engel, uniformly said it was common practice for oral reprimands, within supervisory discretion, to be memoralized on the Employer's "disci- plinary warning" form. Also, routinely, the offending employee's signature was not required on that form if it were designated a verbal, rather than written, warning. The voluminous documents in evidence support that tes- timony. There is no evidence that supervisors regularly advised employees that their oral reprimands were to be reduced to writing in such circumstances. Therefore, I do not find it strange or significant that Beilke had not been explicitly told his oral admonitions and criticisms would be reduced to writing and made part of his record. Second, the General Counsel alludes to a conversation between Jeray and Beilke in mid-April to demonstrate the Employer's hostility toward the Union and toward Beilke in particular. Beilke, wearing a union button, en- tered the supervisor's office where Ihlenfeld and Jeray were present. Beilke asked Ihlenfeld if he knew of any good locations to fish in the Milwaukee area. Jeray ex- claimed, "I know where you can catch all the fish, but I can't talk to you with that union button on." I concede that Jeray's comment is some evidence of hostility. How- ever, given the free and open atmosphere relative to the Union's campaign and the fact that Beilke was not prominently active in union activities, I consider this remark too isolated to support the discriminatory allega- tions regarding him. This is especially true in the context of Beilke's various admissions he actually engaged in the variety of acts for which he received warnings, some- times repeating conduct for which he had received earli- er warnings. Additionally, I note the complete absence of any evidence that the Union, its campaign, or Beilke's sympathies and affiliations were discussed during the course of any discipline given to him. Third, the General Counsel urges the Employer's ad- mitted close surveillance of Beilke between August 9-26 forms another element of discriminatory motivation. I disagree. Bancroft testified that between the stated dates Ihlenfeld recorded a detailed account of Beilke's con- duct. Bancroft's uncontested testimony shows such sur- veillance25 was initiated after Beilke's July 22 final writ- ten warning as part of a counseling program during his 60-day probationary period. In this context, I conclude that the unusual scrutiny of Beilke's activities does not give rise to an implication of unlawful motivation. To the contrary, the counseling program is readily suscepti- ble to the conclusion the Employer engaged in means by which Beilke could be salvaged as an employee. There is support for this proposition. Thus, the July 22 final warning contains the notation "will be looking for sub- stantial improvement." I am impressed by the Employer's apparent forebear- ance regarding Beilke. The May 30 written warning warned of possible discharge for any future violations. Despite this, Beilke was placed only on probation on July 22. Thereafter, he permitted his top coat pot to run out on August 9, permitted his color to run improperly on August 10, and took an excessive break on August 21. These errors obviously occurred during his probationary period. Nevertheless, the Employer did not terminate him. I consider the Employer's apparent tolerance sub- verts the General Counsel's claim of the existence of a discriminatory motive toward Beilke. Upon the forego- ing, I find the series of warnings to Beilke were not dis- criminatorily motivated and were lawful. On September 13, Beilke testified that he and Engel were working together. They were talking about Parr's discharge. Beilke testified he took a coin from his pocket, intending to imitate the situation for which Parr asserted- ly was terminated, and touched the backside of a mold- ing. He saw Ihlenfeld approach, and closed his hand around the coin. (Ihlenfeld later said he thought Beilke might have caught his fingers in the machine.) Ihlenfeld asked Beilke what he was doing. When Beilke replied "nothing," Ihlenfeld opened Beilke's hand. The coin was discovered. Ihlenfeld suggested both Beilke and Engel submit to a polygraph test. Beilke requested Ihlenfeld also do so. Ihlenfeld said he would take the test. Ban- croft testified Ihlenfeld later took a lie detector test re- garding this incident. Bancroft claimed he did not press Beilke to submit to the test because Beilke had admitted placing the coin on the molding. Personnel Supervisor Schmidt interviewed Beilke on September 13. She said she received the incident report from Ihlenfeld. She asked Beilke to take a lie detector test. Beilke declined. Schmidt suspended Beilke.2 6 On September 18, Bancroft met with Beilke. Bancroft asked Beilke to describe the September 13 incident. Beilke admitted touching the coin to the molding. Ban- croft discharged Beilke, telling him the action was based upon both his past performance and the September 13 safety violation. There is no evidence that the Union or Beilke's union activities and sympathies were discussed. I find Beilke's discharge lawful. As previously noted, the Employer's published rules express justifiable con- cern for safety. Beilke's job performance in the several a5 This surveillance is not alleged as an independent 8(a)X) violation. 26 Schmidt was involved because Bancroft was absent from the prem- ises. 363 DECISIONS OF NATIONAL LABOR RELATIONS BOARD months immediately preceding his discharge was indis- putably fraught with indicia of inattentiveness. Bancroft credibly maintained throughout the hearing that he com- monly used work history as a factor in making termina- tion decisions. I have concluded there is little and weak evidence of discriminatory motive regarding Beilke. On the discharge date, Beilke was still on probation. Ac- cordingly, I conclude that the record fails to establish by a preponderance of credible evidence that Beilke's dis- charge was discriminatorily motivated. I have considered my findings that Parr's discharge, under similar circumstances, was in violation of the Act. However, the situations are distinguishable. Parr's dis- charge was not identical. While Parr was told one of the reasons for his discharge was destruction of company property, no such assertion was made as to Beilke. Addi- tionally, I have observed that there exists strong evi- dence of unlawful motive in Parr's situation. Thus, there was direct evidence, through Engel's testimony, that a supervisor stated Parr's situation would have been han- dled differently if another employee had been involved. Also, Parr's case shows evidence of disparate treatment and shifting reasons. Neither of these elements exists as to Beilke. In one instance, Beilke's work history parallels Parr's. The Employer countenanced poor work perfor- mance of each for a considerable period of time. Howev- er, Parr's termination was precipitous compared to Beilke's. There is no evidence that the Employer at- tempted to rehabilitate Parr as a valuable employee, as it did with Beilke. All these factors convince me there is no inconsistency in my contrary resolution of these two discharges. Upon all the foregoing, I find that neither Beilke's dis- charge nor his warnings constitute discrimination within the meaning of Section 8(a)(3) and (1) of the Act. 5. Gil White and John S. Lavine It is alleged that on August 9 the Employer discrimin- atorily discharged White and Lavine. Both White and Lavine described the incident leading to their discharges. They substantially corroborated one another. White was more candid and comprehensive than Lavine. I adopt his version of the incident. On August 8, Lavine was sitting in the break area drinking a soda and having a cigarette. The break area is located in the center of the production area. White testified he took a drink from the nearby water fountain. White then came near Lavine's location. White testified, "I said we should have a water fight, so I splashed him [Lavine] with the water and he was drinking soda. He had ice left in the cup, and he threw that at me and I went back to fill it up. He [Lavine] came up to the bubbler with me and knocked my cup over, and then we were-like had the bubbler on we were just hitting the water back and forth." Lavine testified he "got mad and threw [his] soda at [White]." Redzinski observed the incident. He took Lavine and White to Hoffman. Redzinski apparently reported what he had seen. Hoffman told White and Lavine they could have been hurt. Hoffman told them they were suspended indefinitely. There is no evidence that anyone said any- thing about the Union or Lavine's and White's affiliation or sympathies to it. The next day White and Lavine received telegrams stating they were discharged. The reason ascribed for this discipline was "horseplay and unsafe conditions." The Employer's safety rules provide "horseplay and practical jokes are not permitted. Horseplay, fighting and/or practical jokes in the plant or in the yard area are cause for dismissal of all employees involved." The Em- ployer contends water on the floor creates a safety hazard. Neither Lavine nor White was notable in union activi- ties. Each signed an authorization card, wore unions but- tons, and engaged in discussion of the Union's organiza- tional campaign. The evidence shows that their work history for the Employer was generally good. Lavine re- ceived two verbal warnings: On March 16 for making scrap and on July 19 for horseplay with packers. It is noteworthy that the July 19 warning contains the legend "next time written warning." (Emphasis supplied.) That warning contains the signatures of Redzinski, Hoffman, and Schmidt. Also, Bancroft's signature appears on it, signifying his approval. White testified, without contradiction, that he told Redzinski early in the campaign that he planned to vote against the Union. White further testified that later, in April, he told Redzinski he would vote for the Union. White had been employed since about August 1978. His first recorded warning is dated April 12. Thereafter, and until his discharge, he received nine other warnings, two of which were written and the others verbal. Bancroft made the decision to discharge both employ- ees. Bancroft claimed that horseplay and safety violations were the sole reason for his action. Bancroft specifically disclaimed White's work record as a reason for dis- charge. Various documentary evidence shows other employees such as Boyd (two verbal warnings for no safety glasses), Conley (one written warning for sword fighting), Engel- hauser (for safety shoes and wearing ring), Freeman (no safety glasses), Kennedy (no safety shoes), Lanzillo (slid- ing down stairs), D. Miller (horseplay), Piotrowski (safety), and D. Ward (horseplay) were given only warn- ings patently for safety reasons and horseplay between September 1978 and the date White and Lavine were dis- charged. Ziemek received a warning on April 22 for fooling with a firehose which opened a water valve and caused water to "leak on the floor." The Employer prof- fered no explanation for why any of these named em- ployees had not been suspended or terminated. On the evidence relating to White and Lavine, I am impelled to conclude their terminations were unlawful. The unexplained failure to account for the obviously dif- ferent handling of their situation creates a critical void. I concede the Employer's legitimate concern for mainte- nance of high safety standards normally justifies a termi- nation for breach of its safety rules. However, the pre- sent situation is far from normal. The incidents of horse- play and safety violations which did not result in such severe discipline as discharge render nugatory the Em- ployer's asserted reasons for the subject discharges. As 364 GOSSEN COMPANY previously noted, a finding of unlawful motivation "is augmented [when] the explanation [for discipline] offered by [the Employer does] not stand up under scrutiny." N.L.R.B. v. Bird Machine Company, 161 F.2d 589, 592. I cannot give credence to the Employer's contentions. They are exaggerations. White credibly testified there was a leak in the water bubbler; that there "always" was water on the floor. In such a situation I may, and do, infer that the terminations of White and Lavine were dis- criminatorily motivated. Atlantic Metal Products, Inc., 161 NLRB 919. Accordingly, I conclude that the real reason for the discharges was the desire to retaliate against White for having declared his change of intention to vote against the Union. I find the asserted reasons for these terminations pretextual. I find Lavine was dis- charged to promote the disguised reason for White's. Upon all the foregoing, I find, as alleged in the com- plaint, that the Employer violated Section 8(a)(3) and (1) of the Act when it discharged White and Lavine on August 9. E. Excessive Discipline Complaint paragraphs 8 and 9 allege that the Employ- er disciplined Engel and Hartmann on and after April 1 by giving them a series of warnings. This conduct alleg- edly interfered with, restrained, and coerced employees in violation of Section 8(a)(l) of the Act. 1. Lynn Engel At the time of the hearing, Engel had been employed approximately 15 months. Jeray was her supervisor until early 1979, when she came under Ihlenfeld's supervision. At Jeray's recommendation, Engel received four wage increases. A fifth wage increase was recommended by Ihlenfeld on March I and granted. From the beginning of her employment until April 1979, Engel received no warnings. It is uncontested that Engel was one of the Union's strongest advocates. She solicited authorization cards, was a member of the in-plant committee, enthusiastically vocally promoted the Union's cause among other em- ployees and supervisors, and served as an election ob- server. In May, Hoffman identified her with the Union. Thus, during one of the many conversations regarding the Union's campaign, Hoffman asked her whether she was aware of the contents of union contracts at other U.S. Gypsum plants. He described them and suggested she confirm his remarks with "your people." Also, as previously noted, Jeray had indicated his awareness of her union activities. In addition, Ihlenfeld wrote "leading pack for the Union" on Engel's attitude survey. Between April 16 and August 10, Ihlenfeld issued eight warnings to Engel. The General Counsel contends the warnings were imposed to discourage Engel's union activity. The Employer asserts each warning was for cause and not at all union connected. Engel received warnings as follows: April 16, a verbal warning for taking a cafeteria break with two other em- ployees in her category; April 23, a written warning for not having cleaned her lines; May 12, a verbal warning for off-color material causing "possible" scrap; June 27, a verbal warning for having had three unexcused absences; August 2, a written warning for excess scrap; August 9, a verbal warning for having no guards on her machine; and August 10, a final written warning for permitting her top coat pot to run out. Immediately following the August 10 warning, Hoffman imposed a 60-day proba- tion upon Engel. Hoffman told her that further substan- dard work could lead to her termination. At the conclu- sion of the 60 days, Engel's probation was removed. Ap- parently, thereafter, she reverted to her customary em- ployee status.27 Engel presented explicit testimonial explanations of the activities which formed the basis for each warning. I find those explanations establish that the incidents for which she was cited actually occurred. Nevertheless, there is also cogent evidence highly suggesting that Engel was treated differently from other employees regarding her work errors. For example, the May 12 warning was the very first of that type given by Ihlenfeld to any employ- ee between July 1, 1978, and April 1, 1979. Employees J. Prusko and Weinmann testified without contradiction that they ran scrap every day with the knowledge of their supervisors but received no warning for such a reason. As to the August 9 warning, the Employer's re- cords show Ihlenfeld had given only one other warning for the same reason. Thus, E. Hodgson received a warn- ing on January 10 for having a guard off his machine. Yet Weinmann credibly testified he left the guard off his machine once a week; his supervisor knew of this and merely told him to replace the guards. Weinmann was not warned for these derelictions. Regarding Engel's final warning for permitting her top coat pot to run out, there is similar evidence of disparate treatment. Thus, Czuppa testified without contradiction that, in the 6 months immediately preceding the instant hearing, he ran scrap three or four times but received no warning. Although Czuppa was uncertain whether Ihlen- feld knew of his errors, he testified that on one occasion he ran scrap for 2 to 3 hours. It is reasonable to presume, as I do, that such a condition surely would have been de- tected by the clearly responsible supervision Ihlenfeld (and the other supervisors who testified) represents. Engel's job history is relevant. The four wage increase recommendations by Jeray reflect that Engel was "doing a good job overall." On March 1, Ihlenfeld recommend- ed Engel for a wage increase. In doing so, he wrote: "Has completed over 5 months of service and performs all duties in a proficient manner." Ihlenfeld's recommen- dation was made shortly before the Union's campaign began in earnest. As previously noted, Engel received no warnings until April. Ihlenfeld then imposed his eight warnings within the next 4 months. This scenario poses the question: What caused the apparent sudden change in supervisory perception of Engel's performance? On the whole, the surrounding circumstances, including the vi- gorous nature in which Engel declared her union sympa- thies, persuade me Ihlenfeld desired to retaliate against Engel. Clearly, he viewed her as a staunch opponent. Ih- lenfeld's comment on Engel's attitude survey acknowl- 27 Engel was still employed during he instant proceeding. 365 DECISIONS OF NATIONAL LABOR RELATIONS BOARD edges this point. Certainly, whatever Ihlenfeld thought about Engel's union stance reasonably provides the only evidentiary explanation, on the state of this record, for the apparent precipitous and frequent warnings he im- posed upon her. The Employer's brief has not explicitly addressed the question I have propounded. The Employ- er simply argues that the evidence sustains its contention each incident for which Engel had been warned actually occurred and, therefore, it was privileged to warn her as it did. Having conceded above that the incidents did occur, I nonetheless cannot ignore the evidence of dispa- rate treatment, the character of violations charged, or their uncanny timing. Additionally, the numbers of warnings given employ- ees before and after the beginning of the union campaign are illuminating. A comparison of the attitude surveys to the employee warnings in evidence shows the following. Before the campaign (7-1-78-3-1-79), those employees whose attitude surveys identified them in favor of, or leaning toward, the Union received a total of 44 warn- ings. In the same period of time those employees whose attitude surveys showed them against, or leaning against, the Union received a total of 50 warnings. The total number of warnings given after the campaign started (3- 1-79 to 11-30-79) to employees showing favoritism toward the Union was 96, whereas a total of 67 warnings was given during that period to employees who were identified as being opposed, or potentially opposed, to the Union. The period after the campaign started from which these statistics are derived is I month longer than the period characterized as "before" the union campaign. This extra month does not significantly affect the com- parison because only 10 warnings were given in Novem- ber 1979. Thus, even eliminating those 10, the records show a total of 86 warnings given to those favoring the Union and 67 total warnings given to employees identi- fied as against the Union. Thus, the difference of 19 more warnings given to employees in favor of the Union than to those against it since the campaign began com- pares with a difference of only 6 warnings given employ- ees favoring the Union over those against it during the precampaign period. Although these statistics are not dis- positive I consider them relevant, especially because the records show a large number of the warnings given after the campaign started were imposed on fewer individuals than the warnings given before the campaign started. I acknowledge that the warning system is highly indi- vidualistic; that is, within certain parameters, each super- visor acts subjectively according to his personal stan- dard.2 8 Regarding Engel, Ihlenfeld exhibited the applica- tion of his standard when he recommended her for the March I wage increase. Though the disparity in warn- ings described above may be attributed to the personal- ized nature of the warning system, that fact does not ac- count for Ihlenfeld's obviously changed perception of Engel's performance. Although he appeared as a witness, 28 This observation is one factor in my rejection of the General Coun- sel's theory that there existed systematic discrimination in issuing warn- ings while the representation proceedings were pending. This theory of the General Counsel is most notably applied to Beilke's case. Thus, I have analyzed each situation of alleged discriminatory disciplinary warn- ings on a case-by-case basis. Ihlenfeld offered no precise explanation for his changed position. Indeed, his testimony regarding Engel's situa- tion was limited and brief. His testimony concerning Engel simply shows the activities having given rise to the warnings actually occurred. As noted, Engel conced- ed this point. The fair inference from all the relevant circumstances surrounding Engel's warnings is that her work perfor- mance was satisfactory only until she became a union ac- tivist. On this record, I consider it plausible to conclude that Ihlenfeld's judgment of Engel's work performance was altered by the interjection of the Union's campaign and her participation in it. Possessing such a motive, it follows that the warnings were given Engel to interfere with, and retaliate for, her union activities. Such con- duct, in the instant circumstances, had the effect of dis- couraging Engel and other employees from engaging in those activities. Engel, perhaps the most outspoken em- ployee favoring unionization, would be deterred from such pursuit fearing similar reprisals. Upon the forego- ing, I find that the disciplinary warnings imposed on Engel are violative of the Act.2 9 2. Karl V. Hartmann Hartmann's case is alleged together with Engel's in one paragraph of the complaint. That paragraph alleges a violation of the Act by issuance of allegedly discrimina- tory "series" of warnings. (Emphasis supplied.) In fact, Hartmann's case involves only one warning. On July 31, Supervisor Chouinard issued Hartmann a verbal warning for "out of assigned work area, and taking unauthorized equipment from maintenance." On that day, Hartmann came to work and detected smoke in the vicinity of his work station. He complained to Chouinard and Red- zinski and asked for corrective action. The supervisors told him there was nothing they could do. Hartmann then went into the maintenance department. There, he obtained an extension cord so he could plug in a fan to blow the smoke away from his work area. Ralph Ban- croft, maintenance supervisor (not to be confused with Works Manager Bancroft), asked Hartmann to replace the cord. Hartmann declined. Instead, Hartmann took the extension cord to his work area. He then connected a fan. Later, that day, Hartmann visited the tool-and-die area. He asked employee Miners for some parts he needed. Miners helped Hartmann obtain the parts. Chouinard entered the tool-and-die area. Chouinard told Hartmann he was not supposed to be out of his work area; he informed Hartmann he would receive a warning for being in the tool-and-die area. Hartmann returned to his work station. Hartmann credibly testified that he visited the mainte- nance and tool-and-die departments frequently during his service with the Employer. He claimed, without contra- diction, that his supervisor had been aware of those visi- tations. Hartmann claimed he had not received permis- sion to visit those areas, nor had he been warned he Z9 Because of the tendency to discourage union activities, I find, though not alleged, the Employer's conduct toward Engel constitutes a violation of Sec. 8(a)(3). 366 GOSSEN COMPANY should not go there. Also, Hartmann credibly testified he had previously taken an extension cord and set up a fan but had never received a warning for those activities. Employees Waubiness, Weinmann, Prusko, and Bugni testified they, too, often visited the tool-and-die and maintenance departments without their supervisors' per- mission. In some instances, they said, their supervisors knew of that activity. They received no warnings. Final- ly, Miners, a tool-and-die employee, credibly testified he saw many employees, including Hartmann, in his depart- ment "six to eight times a day for some purpose." Al- though Hartmann testified he had not been previously warned regarding his visits to the maintenance area, he acknowledged that Maintenance Supervisor Bancroft, who was not Hartmann's supervisor, had admonished him not to take equipment. The Employer contends that Hartmann violated prior instructions not to enter the maintenance area and take equipment. According to the Employer, when Hartmann violated this instruction the July 31 warning was justi- fied. The General Counsel contends the subject warning was discriminatory. 30 There is direct evidence which forms the basis for an inference of discriminatory motive regarding Hartmann. Shortly before the Board-conducted election, Hartmann prepared and distributed two letters to prospective voters. He signed each. (G.C. Exhs. 37 and 38). Both let- ters are strongly antiemployer. Each contains specific al- legations that Bancroft misrepresented his campaign pre- sentation. Both documents solicit a vote for the Union. Hartmann testified that after the first letter was issued Redzinski spoke with him about it. According to Hart- mann, Redzinski asked what he expected to gain by it and whether he intended to be "head honcho" for the Union. 3 Redzinski's comments are evidence of the Employer's knowledge of Hartmann's union activities and sympa- thies. Hartmann's 7-year work record prior to this inci- dent is rather exemplary. The record is relatively clear of warnings. Hartmann admitted to having received some warnings in 1977. The records in evidence show no warnings whatever to Hartmann between July 1, 1978, and the warning presently under consideration. Further, the record shows that Hartmann had been a leadman at one time. Also, at the time of the subject warning Hart- mann had a pending application to become a supervisor. No questions were asked of any of the Employer's wit- nesses regarding Hartmann's prounion campaign litera- ture other than the Redzinski remark. The question is: Why was so highly competent an em- ployee as Hartmann formally disciplined for an activity which, as the record shows, he and other employees pre- viously engaged in with relative impunity? In the instant context, the Employer's reliance on a violation of a di- rective does not withstand scrutiny. I have considered that the subject warning was not given until at least 6 weeks before Hartmann's campaign literature was distrib- 30 In this context, I am at a loss to understand why the complaint al- leges this incident violated Sec. 8(a)(1) only. "3 For the reasons contained, supra, regarding the independent 8(a)(1) allegations, I do not find these particular comments of Redzinski indepen- dently violative of the Act. uted. (Hartmann's documents were published before the June 14-15 election.) This length of time does not dimin- ish my reliance on the timing of the warning as an ele- ment of unlawful motivation. Given Hartmann's com- parative exemplary work history, it is not unreasonable that such a time lapse would have ensued. Clearly, Hart- mann was not prone to make errors. It is reasonable to conclude, as I do, that the July 30 indiscretion presented the first opportunity for the Employer to express its dis- dain toward Hartmann's notorious union activities. Clearly the Employer was disappointed in Hartmann's attitude. During a conference on August 8 between Hart- mann and Hoffman, Hoffman's question allowed whether Hartmann's union activities might detract from supervi- sory responsibilities and questioned him concerning his attitude toward the Employer and present supervisors. I find that Hartmann's warning had the reasonable effect of interfering with employees' Section 7 rights. His prounion sentiments were blatant. The discipline he re- ceived was easily recognizable as a signal to other em- ployees that they too were subject to discipline for en- gaging in union activities. That the election had already been conducted when Hartmann received his warning does not vitiate the coercive impact because the instant objections to the election were pending. Because I have inferred that the warning was motivated by antiunion considerations, I conclude that it was discriminatory. Upon the foregoing, I find the July 21 warning to Hart- mann violated Section 8(a)(1) and (3) of the Act. F. The Challenged Ballots As noted in the introduction of this Decision, the bal- lots of Magee, Parr, and T. Burke were challenged by the Employer. The revised tally of ballots reflects the challenged bal- lots are determinative of the election's outcome. As I have found that Magee and Parr were discrimina- torily terminated in violation of Section 8(a)(3) and (1) of the Act, I now find they are eligible to vote in the elec- tion. Our-Way. Inc./Our Way Machine Shop. Inc., 238 NLRB 209, fn. 4 (1978). Accordingly, I shall recommend that the challenges to their ballots be overruled. Burke did not testify at the hearing. As earlier noted, he is not alleged as a discriminatee in the unfair labor practice case. In addition to the fact that Burke's ballot was challenged, the Union's Objection 9, inter alia, as- serts Burke's discharge as a ground for setting aside the election. 32 Bancroft and Supervisor Dennis A. Johnson presented mutually corroborative testimony regarding Burke. It is undisputed that Burke was discharged shortly before the election. Johnson saw Burke in possession of alcoholic beverages on company premises. Burke had with him Pink Champale and a six-pack of Pabst Blue Ribbon beer. Johnson saw Burke drinking from one of the Champale bottles. Burke was summarily dismissed. The record contains no evidence of Burke's union activities. The Employer's safety rules provide for the discharge of an employee for "introduction, possession or use of in- 32 Objection 9 will be disposed of. infra. 367 DECISIONS OF NATIONAL LABOR RELATIONS BOARD toxicating liquors on Company property." I find it unre- futed that Burke was discharged for violation of these rules. Accordingly, and inasmuch as Burke was no longer an employee on the election dates, I conclude he was ineligible to vote. Plymouth Towing Company, Inc., 178 NLRB 651 (1969); Greenspan Engraving Corp., 137 NLRB 1308, 1309 (1962). Accordingly, I recommend that the challenge to Burke's ballot be sustained. G. The Objections As noted in footnote 3, supra, Objections 1, 7, and 8 were entirely withdrawn. Accordingly, I need make no disposition of those objections. Objection 2 alleges, in salient part, that the Employer interrogated employees "respecting their union activities on individual bases . . . and in coercive circumstances tending to instill . . . fear of discrimination." This objec- tion is coextensive with the complaint allegations of un- lawful interrogation. No merit has been found to those allegations. Accordingly, this objection should be over- ruled. Objection 3 alleges that the Employer's campaign was conducted "in contravention of its non-solicitation rules, policies and practices." I can find no evidence which di- rectly supports this objection. The General Counsel's post-hearing brief properly does not discuss the objec- tions.33 As previously noted, the Union filed no brief. Accordingly, I find no merit to this objection. Objection 4 asserts that the Employer campaigned with false and misleading election propoganda containing material misrepresentations. As previously observed, the General Counsel has not addressed such alleged misrep- resentations. As it is incumbent upon the party filing ob- jections to provide a prima facie case in their support, and inasmuch as no such evidence has been presented, I find this objection lacks merit. Objection 5 is coextensive with the complaint allega- tions of alleged unlawful threats of plant closure and statements of futility. Because no merit has been found to those allegations, I conclude there is no merit to this ob- jection. Objection 6 asserts that "the Employer indicated in posted notices that wage increases would be withheld if the Union were voted in." No precise evidence support- ing this allegation appears in the record. However, I conclude that this objection was inartfully drafted. In my opinion, the language of this objection is broad enough to encompass the evidence which supports my finding that the merit wage increases had been unlawfully sus- pended. I find that violation supports this objection. Ac- cordingly, Objection 6 should be sustained. Objection 9 alleges that the discriminatory discharges of Parr, Burke, and T. Lewandowski affected the elec- tion results. The Union's counsel withdrew Lewan- dowski from this objection. As previously noted, I have concluded that Burke was discharged for cause. Thus, this objection, as to Burke, lacks merit. However, inas- much as I have found Parr was discriminatorily dis- charged, so much of this objection as alleges Parr's dis- 33 I is the duty of the objecting party to furnish supporting evidence. Berea Publishing Company, 140 NLRB 516 (1963). charge was objectionable is meritorious. This objection should be sustained as to Parr and overruled as to Burke. Objections 10 and 11 are coextensive with complaint allegations that the Employer engaged in a variety of in- dependent 8(a)(1) violations. Inasmuch as I have found no merit to those allegations, I shall recommend that Ob- jections 10 and II be overruled. Objection 12 alleges unlawful and coercive surveil- lance of employees' union activities. This objection is co- extensive with the complaint allegations of surveillance which I have found unsupported. Objection 12 should be overruled. Objection 13 asserts "by these and other acts" the Em- ployer interfered with the election results. I consider this objection sufficiently broad so as to encompass my find- ings that the Employer committed unfair labor practices by discharging White and Lavine and issuing warnings to Engel and Hartmann. Accordingly, I find merit to Objection 13. It should be sustained. In sum, I have found merit to Objections 6, 9, and 13. That conclusion is derived from the unfair labor practice findings. Since conduct which violates Section 8(a)(1) is a forriori interference with representation elections (St. Anne's Home, Division of DePaul Community Health Center, 221 NLRB 839, 848 (1975), and cases cited there- in), I recommend that Objections 6, 9, and 13 be sus- tained. H. Recommended Disposition of the Representation Case Upon the foregoing discussion of challenged ballots and objections I recommend that the overruled chal- lenged ballots of Magee and Parr be opened and counted and a second revised tally of ballots then be issued. If such tally shows a majority of votes in favor of union representation, a certification of representative should be issued; however, if that tally results in a majority vote against representation by the Union or in a tie vote, then the election results should be set aside based on the meri- torious objections and a rerun election be conducted at a time deemed appropriate by the Regional Director for Region 30. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Redzinski did not unlawfully interrogate Waubiness in early April (as alleged) or in March (as claimed by Waubiness). 2. The Employer did not engage in any of the unlaw- ful conduct alleged in complaint paragraph 6 during the March and June mandatory meetings. 3. The Employer did not engage in any of the 8(a)(1) conduct alleged in complaint paragraph 5. 4. The Employer interfered with, restrained, and co- erced its employees, and discriminated against them in March-April 1979, by announcing a suspension of its merit evaluation and wage increase system and by actual- ly suspending it for the duration of the proceedings in the instant representation case, all in violation of Section 8(a)(l) and (3) of the Act. 368 GOSSEN COMPANY 5. The Employer unlawfully discriminated against em- ployees by discharging James Magee on April 30, 1979, in violation of Section 8(a)(3) and (1) of the Act. 6. The Employer unlawfully discriminated against em- ployees by discharging James W. Parr on May 23, 1979, in violation of Section 8(a)(3) and (1) of the Act. 7. The Employer did not violate the Act by transfer- ring John Lampada to a warehouse position in July 1979. 8. John Lampada was not discriminatorily subjected to more onerous working conditions after his July 1979 transfer to a warehouse position. 9. The suspension of John Lampada in September 1979 was not discriminatory. 10. The unexcused absence given John Lampada in September 1979 was not in violation of the Act. 11. The verbal warning given John Lampada in Octo- ber 1979 was not discriminatory within the meaning of Section 8(a)(3) or (1) of the Act. 12. The warnings given to Robert R. Beilke between April 1 and September 1979 and Beilke's September 18, 1979, discharge were not discriminatory in violation of Section 8(a)(3) and (1) of the Act. 13. The Employer discriminated against its employees by discharging Gil R. White and John S. Lavine in August 1979, in violation of Section 8(a)(3) and (1) of the Act. 14. The Employer interfered with, restrained, and co- erced its employees, and discriminated against them, by issuing a series of warnings to Lynn Engel between April and August 1979, in violation of Section 8(a)(3) and (1) of the Act. 15. The Employer interfered with, restrained and co- erced its employees, and discriminated against them, by giving Karl V. Hartmann a warning on July 31, 1979, in violation of Section 8(a)(3) and (1) of the Act. 16. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 17. Gossen Company, a Division of the United States Gypsum Company, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 18. Teamsters Local 344, Sales and Service Industry, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica, is a labor organization within the meaning of Section 2(5) of the Act. THE REMEDY Having found that the Employer violated Section 8(a)(3) and (1) of the Act, I shall recommend that it cease and desist from engaging in such conduct in the future and affirmatively take such action as will dissipate the effects of its unfair labor practices. Inasmuch as I have found that the Employer unlawful- ly announced a suspension of its merit evaluation and wage increase system, and unlawfully suspended it, the recommended Order shall require the Employer to im- plement immediately its previous merit evaluation and wage increase system, operate it in a nondiscriminatory manner, and grant such increases retroactively to the date of the system's suspension to all those employees whose evaluations will show they are eligible for such increases. Because I have found that the Employer discriminator- ily discharged James Magee, James W. Parr, Gil R. White, and John S. Lavine, the recommended Order shall require the Employer to offer each of them immedi- ate and full reinstatement to their former or substantially equivalent jobs, without prejudice to the seniority or other rights and privileges to which each was entitled, and to make each of them whole for any loss of earnings he may have suffered as a result of the discrimination by payment, with interest, of a sum equal to that which he would have earned absent the discrimination. The back- pay and interest pursuant to this Order shall be comput- ed as prescribed in F W. Woolworth Company, 90 NLRB 289 (1950), plus interest as set forth in Florida Steel Cor- poration, 231 NLRB 651 (1977).3 4 HIaving found that the Employer discriminatorily issued warnings to Lynn Engel and Karl V. Hartmann, the Employer shall be required to cease and desist from discriminatorily imposing disciplinary warnings upon them and any other employee, to physically expunge the warnings found discriminatory from the Employer's offi- cial records, to physically expunge Engel's August 10, 1979, probation from its official records, and to advise Engel and Hartmann, in writing, with a copy to the Re- gional Director for Region 30, that the Employer has complied with the order to expunge the discriminatory material. The General Counsel has requested an award of ex- traordinary remedies. See United Dairy Farmers Cooper- ative Association, 242 NLRB 1026 (1979). In essence, the General Counsel contends that the Employer's unfair labor practices are so outrageous and pervasive that ex- traordinary remedies are necessary to dissipate and coun- teract their effects for the conduct of another election. In F.WI.L. Lundy Bros. Restaurant, Inc., 248 NLRB 415 (1980), the Board entered an order under the United Dairy Farmers rationale. In Lundy Bros. Restaurant, the employer was found guilty of extreme and extensive unfair labor practices. Those unfair labor practices coin- cide with the allegations of the instant complaint. Thus, in Lundy Bros., the employer violated the Act by dis- criminatory discharges, suspensions and transfers, threats of economic reprisal, ridicule and scorn of the union, im- position of a discriminatory no-solicitation rule, coercive interrogation, unlawful creation of impressions of surveil- lance, and circulation of a petition seeking the discharge of a union activist. In the case at bar, I have not found there exists the scope and breadth of violations found in Lundy Bros. In United Dairy Farmers the underlying rationale for granting extraordinary remedies was expressly intended to "restore an atmosphere in which employees are given a meaningful opportunity to exercise their Section 7 rights in an election." (242 NLRB at 1028.) The viola- tions I have found encompassed the merit wage system, discharges, and discriminatory warnings. Although there is some efficacy to the General Counsel's prayer for ex- :' Sec. generall) Ilis Plumbing & liating Co., 13.18 NIRB 716 (1962). 369 DECISIONS OF NATIONAL LABOR RELATIONS BOARD traordinary remedies, on balance I conclude that the conventional Board remedies, in the circumstances herein, will dissipate insofar as possible the effect of the Employer's unfair labor practices. The absence of the in- dependent 8(a)(1) violations and my findings that a free and open campaign atmosphere existed throughout the preelection period persuade me that the instant case is distinguishable from Lundy Bros. Buttressing this conclusion is the Board's Decision in Hickmort Foods, Inc., 242 NLRB 1357 (1979). There, the Board considered whether to enter a narrow or a broad order. The Board declared that automatic adoption of broad orders is not warranted. Hickmott involved a dis- criminatory discharge. Nevertheless, the Board com- mented that only subsequent violations of identical char- acter might result in a broad order. The Board noted a broad order may be warranted where a respondent en- gaged in other severe conduct violative of Section 8(a)(1). In conclusion, the Board observed, in Hickmot, that "repeat offenders and egregious violators of the Act" are subject to broad orders. The instant record contains no history of unfair labor practices. However, the General Counsel's brief cites three Board Decisions which found U.S. Gypsum previously engaged in unfair labor practices. I take official notice of those decisions. They are reported at 200 NLRB 305 (1972), 200 NLRB 1098 (1972), and 221 NLRB 530 (1975). None of those cases involved the instant Gossen Com- pany. None of the previously found unlawful conduct occurred at Gypsum's facilities involved in the present case. The prior violations involved refusals to provide an incumbent union with bargaining information, the failure to process a grievance, surface bargaining which pro- longed a strike, a unilateral withdrawal of recognition based on an arguable legal issue (see former Chairman Miller's dissent, 200 NLRB 1098, 1101 [sub nom. Wal- Lite Division of United States Gypsum Co.]), and unilateral changes in working conditions based on Gypsum's inter- pretation of the legal issue. Apparently, no independent 8(a)(l) or 8(a)(3) conduct similar to those I have found unlawful was alleged or proved in the previous cases. The above, coupled with the notorious fact that U.S. Gypsum maintains and operates numerous facilities throughout the United States, leads me to conclude that the record fails to establish there is sufficient evidence that the Employer has engaged in widespread flaunting of the Act. Thus, I find the earlier unfair labor practices do not support the claim for extraordinary remedies. In fact, those offenses actually address the issue of the breadth, not the character, of the present order. I have considered a final element which I find relevant to the request for extraordinary remedies-the Union's facility to communicate with employees and conduct an extensive campaign. As noted, the Union was able to hold numerous meetings among employees and distribute considerable literature. Additionally, prounion employees were able to address the election issues, even with their supervisors, in a virtually unencumbered fashion. Given the fact that the instant Order shall require the Employer to post an appropriate notice at all locations where unit employees work, it is reasonable to assume that the Union and the employees will be able to explain fully the effect of my findings. Thus, there is ample opportunity for dissipation of the detrimental effects of the unlawful conduct. Upon all the foregoing, I decline to provide the ex- traordinary remedies requested by the General Counsel. Despite the foregoing, and in accordance with the lesson of Hickmott Foods, the Order shall be couched in broad terms. As noted, Hickmont involved only a single discharge. In the instant case four employees had been discriminatorily terminated. In addition, Engel's discrimi- natory warnings were imposed over a 4-month period. Finally, potentially every employee was directly affected by the suspension of the merit wage system. The totality of these circumstances convinces me that the Employer committed such egregious conduct as to warrant broad language. Accordingly, the Order shall require the Em- ployer to refrain from in any other manner interfering with, restraining, and coercing its employees in the exer- cise of their Section 7 rights. Upon the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER3 s The Respondent, Gossen Company, a Division of the United States Gypsum Company, Milwaukee, Wisconsin, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Unlawfully announcing the suspension of, and sus- pending, its wage increases derived from operation of its merit evaluation and wage increase system, or any other benefits regularly granted its employees. (b) Discharging its employees for engaging in union activity. (c) Unlawfully issuing disciplinary warnings to its em- ployees because they engage in union activity. (d) Discriminating in any way against its employees because they engage in union activity. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them in Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer James Magee, James W. Parr, Gil R. White, and John S. Lavine immediate and full reinstatement to his former job or, if that position no longer exists, to a substantially equivalent position of employment, without prejudice to the seniority or other rights and privileges enjoyed by each; and make each whole in accordance with the formula described, supra, in the section entitled "The Remedy," for loss of pay and other benefits offered by reason of his discriminatory discharge. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all :'- In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall he deemed waived for all purposes. 370 GOSSEN COMPANY payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (c) Immediately reinstate and implement its merit eval- uation and wage increase system in a nondiscriminatory manner, and grant merit wage increases to each employ- ee found eligible. The implementation of the merit wage increase system shall be retroactive to the date of the Employer's March-April 1979 announcement of suspen- sion of that system. (d) Immediately physically expunge from its official re- cords all disciplinary warning notices, and notations of them, pertaining to Lynn Engel and Karl V. Hartmann which have been found to be discriminatory; expunge all references to Engel's discriminatory August 10, 1979, probation; and forthwith advise Engel, Hartmann, and the Regional Director for Region 30, in writing, that the Employer has fully complied with this Order to expunge. (e) Post at all its plants and other facilities in which employees in the unit eligible to vote in Case 30-RC- 3545 are employed copies of the attached notice marked "Appendix." 3 6 Copies of said notice, on forms provided a8 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by by the Regional Director for Region 30, after being duly signed by the Employer's authorized representative, shall be posted by the Employer immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees eligible to vote are custom- arily posted. Reasonable steps shall be taken by the Em- ployer to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps the Employer has taken to comply herewith. IT IS FURTHER ORDEREI) that all allegations contained in the consolidated amended complaint found herein not to constitute unfair labor practices are dismissed. Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 371