Photo-Sonics, Inc.

PHOTO-SONICS, INC. Photo-Sonics, Inc.; Instrumentation Marketing Cor- poration; Photo Digitizing Systems, Inc. and In- ternational Association of Machinists & Aero- space Workers, AFL-CIO. Cases 31-CA-8713, 31-CA-8861, and 31-RC-4259 January 14, 1981 DECISION, ORDER, AND DIRECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On June 24, 1980, Administrative Law Judge Joan Wieder issued the attached Decision in this proceeding. Thereafter, the Respondent, the Gen- eral Counsel, and the Charging Party filed excep- tions and supporting briefs, and the Respondent filed a brief in answer to the General Counsel's and the Charging Party's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge as modified below. We agree with the Administrative Law Judge that the Respondent violated Section 8(a)(1) of the Act by interrogating employees; threatening to dis- charge employees and to close the plant, 2 and threatening other economic reprisals; and promis- ing greater benefits. We also adopt the Administra- tive Law Judge's recommendation that the com- plaint's allegation that the Respondent violated Section 8(a)(l) and (3) of the Act by discharging employee Marshall be dismissed. However, al- though the Administrative Law Judge discussed and made credibility findings pertaining to the I The Respondent and Charging Party have excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incor- rect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing her findings. Inasmuch as the Administrative Law Judge discredited the testimony of Manufacturing Manager Clay regarding Vermeesch's alleged supervi- sory status, we find it unnecessary to pass on the Administrative Law Judge's statement, in fn. I I of her Decision, that testimony from Super- visor Holder, who was not called to testify, would have been "merely cumulative." Z The Respondent excepted to the Administrative Law Judge's finding that it violated Sec. 8(a(1) by threatening to close the plant if the em- ployees selected the Union as their collective-bargaining representative on the ground that it was not alleged in the Complaint We find, howev- er, that the issue of legality of such a threat is properly before us inas- much as the issue is closely related to and took place in the course of events which were alleged as unfair labor practices, and was fully liligat- ed at the hearing See Omark-CCI. Inc., 208 Nl.RB 469, 473 (1474) 254 NLRB No. 69 complaint's allegations that the Respondent violat- ed Section 8(a)(l) of the Act by confiscating an employee's union literature, refusing an employee's request to use a telephone on the basis of union considerations, and threatening employees that the selection of the Union as their collective-bargaining representative would result in strikes, layoffs, and reduced hours and benefits, she failed to draw any conclusions concerning whether these alleged acts were unlawful. We find merit in the General Coun- sel's and Union's exceptions to the Administrative Law Judge's failure to conclude that the Respon- dent committed unfair labor practices by this con- duct. I. The Administrative Law Judge found that in November 1978 employee Knight noticed that the union literature he had left overnight on the tool cabinet that he used was missing. Knight confront- ed his supervisor, Ominski, concerning the taking of the literature, and Ominski replied that he did not have to return the literature because the cabi- net was company property. The Administrative Law Judge, however, failed to make any findings as to whether the Respondent's taking of the litera- ture was unlawful. The Respondent did not have any written policies regarding nonwork-related lit- erature being left on company property, and there is no evidence, except for Ominski's testimony, which was discredited, that the Respondent re- moved such literature from its property. Accord- ingly, we find that the Respondent confiscated this union literature because it concerned union matters, and that the taking of the literature interfered with the employees' Section 7 rights to engage in and/ or be informed of the Union's organizing cam- paign, and thus violated Section 8(a)(l) of the Act. 3 2. The Administrative Law Judge found that, shortly after the union literature incident occurred, Knight asked permission from Ominski to make a telephone call and Ominski said no, "[B]ecause you are going to call those bastards over at the union hall." The Administrative Law Judge failed to make any finding with respect to the complaint's allegation that the refusal to permit the use of the telephone violated Section 8(a)(l) of the Act. We find merit to the General Counsel's and Union's ex- ceptions to the Administrative Law Judge's failure to so rule. The Respondent did not have any rules limiting employee use of the telephone, except for the need to first receive permission from a fore- man, and Knight and other employees had used the telephone during working hours in the past without Eihav rother RBg Ao',. Inc. 137 Nl.RB 1057, 1075 1962). efd 325 F 2d 3t) (6th Cir. 1963) 567 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any restriction concerning whom they were call- ing. Accordingly, we find that the Respondent vio- lated Section 8(a)(1) of the Act by denying em- ployees the use of the telephone because Respon- dent thought the employees might call the Union. 3. The Administrative Law Judge found that Su- pervisor Alonzo told employee Villalobos on two occasions that if the Union were selected by the employees there would be strikes. Alonzo told em- ployee Oceguera that if the Union came in there would be a lot of problems with strikers outside. The Administrative Law Judge further found that the Respondent's president, Kiel, in a series of meetings with the Company's Spanish-speaking em- ployees, stated through an interpreter, inter alia, that if the Union came in that there would be strikes, that there probably would be layoffs, that the employees would have less hours, and that there would be less overtime. The Administrative Law Judge failed to make any findings as to whether these statements constituted unfair labor practices. It long has been established that an em- ployer may predict to employees what effects he believes unionization would have on his company so long as the prediction is "carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control."4 Here, however, the Respon- dent's statements, which were made in the context of other unfair labor practices, were not cast as predictions of demonstrable economic conse- quences. Accordingly, we find that by these state- ments the Respondent threatened the employees with reprisals and the potential loss of benefits if they selected the Union as their collective-bargain- ing representative, and that as such, the statements violated Section 8(a)(1) of the Act. The Objections and Challenges in Case 31- RC-4259 The election in Case 31-RC-4259 was conducted on January 5, 1979, pursuant to a Decision and Di- rection of Election issued by the Regional Director on November 27, 1978. 5 The tally of ballots served N.L.R.B. v. Gi.ssel Packing Co. Inc., 395 U.S. 575 (1969) 5 The election was conducted in an appropriate unit consisting of: All production and maintenance employees employed by the Joint Employer in its Burbank, California, location, including tracking mount assemblers, Acme assemblers, camera assemblers, convention al milling machine machinists, numerically-controlled milling ma- chine machinist, conventional lathe machinists, numerically-con- trolled lathe machinists, turret lathe machinists, conventional job bore machinists, numerically-controlled jig bore machinists, cylindri- cal grinder machinists, surface grinder machinists, tool and cutter grinder nmachinists, engraver machinists, gear cutter machinists, tool- maker machinists, drill press machinists, deburring employees, tIol crib employees. numerically-cotrolled programmer. numnerically- controlled machine operator, relief iumerically-controlled machine operator, assistant purchasing agents, jlob shop employee, illustrators. on the parties after the election showed that of ap- proximately 166 eligible voters, 164 cast ballots of which 73 were cast for and 67 were cast against the Union, and that there were 24 challenged bal- lots, a sufficient number to affect the results of the election. Thereafter, both the Union and the Re- spondent filed objections. On May 18, 1979, the Regional Director issued a Supplemental Decision and Order Directing Hearing and notice of hearing sustaining the challenges to the ballots of two voters, ordering a hearing on challenges to the bal- lots of Victorine L. Vermeesch and Donald Mar- shall before an administrative law judge in consoli- dation with Case 31-CA-8713, and overruling the challenges to the ballots of 20 employees (which were to be opened and counted upon the comple- tion of proceedings herein). The Regional Director also dismissed the Respondent's objections and the Union's Objections I (insofar as it pertained to the discharge of employee Hughie Hampton), 2, 4, 6 (insofar as it pertained to the employment status of Warren Johnson), 9, and 10(b)(c), and (d). Further, the Regional Director ordered a hearing before an administrative law judge on the Union's Objections 7 and 10(a), Objection 1 insofar as it related to the discharge of employee Marshall, and the remainder of Objection 6. Finally, the Regional Director or- dered that, following the hearing and issuance of an administrative law judge's decision, Case 31- RC-4259 be transferred to the Board. Subsequent- ly, both the Respondent and the Union filed re- quests for review of the Regional Director's Sup- plemental Decision. The Board by telegraphic order dated July 18, 1979, denied the requests for review. We adopt the Administrative Law Judge's rec- ommendation that the challenges to Marshall's and Vermeesch's ballots be sustained. Further, the Ad- ministrative Law Judge found that the Respondent, by engaging in substantial violations of Section 8(a)(l) during the relevant period preceding the election and by having a supervisor act as its ob- server at the polls, interfered with the employees' free and uncoerced exercise of their right to vote as they chose in the election. Accordingly, she rec- ommended that the election be set aside and that the Regional Director hold a second election. technical writers, electronic technicians. aides and draftsmen, me- chanical draftsmen, purchasing clerks, supply clerks, inspectors, test employees, production control employees, inventory control clerks. receiving clerks, drivers, electrical assemblers, mechanical assem- blers, optical assemblers, raw materials cutters, Acme products lead- man, camera mo'enent leadman, electrical assembly leadman, test set leadman, watchman, maintenance employees, and jaritors, but ex- cluding all ffice clerical employees, cinfidential employees, guards, professional enployees, and supervisors as defined in the Act. 568 IPHOTO-SONICS, INC The Administrative Law Judge, however, failed to specify which of the Union's objections she rec- ommended be sustained, and the Regional Direc- tor, as noted above, dismissed certain of the objec- tions alleging conduct similar to that alleged in the complaint which the Administrative Law Judge found to be violative of Section 8(a)(i). Further, the Administrative Law Judge failed to rule on the conduct alleged in the Union's Objection 10(a); i.e., that the Respondent engaged in "other acts and conduct" requiring that the election be set aside. Inasmuch as we agree with the Administrative Law Judge's finding that Vermeesch was a super- visor, we sustain the Union's Objection 6 alleging that a supervisor, Vermeesch, acted as an observer for the Respondent at the polls.6 Further, since we adopt the Administrative Law Judge's finding that the Respondent violated Section 8(a)(1) by interro- gating employees as to their union sentiments, we sustain the Union's Objection 7 alleging that the Respondent engaged in such conduct during the relevant period preceding the election. Finally, in view of our findings that the Respondent violated Section 8(a)(l) during the critical period by prom- ising benefits and threatening that there would be strikes, picket lines, and a lack of benefits, we sus- tain the Union's Objection 10(a) 7 inasmuch as the Respondent engaged in other acts and conduct which interfered with the employees' exercise of their Section 7 rights. 8 Inasmuch as the 20 challenged ballots that were overruled by the Regional Director are sufficient in number to affect the results of the election, we shall order Case 31-RC-4259 severed from Cases 31-CA-8713 and 31-CA-8861; that it be remanded to the Regional Director who shall be directed to open and count those ballots and to issue a revised tally of ballots; and that the Regional Director issue a certification of representative if the Union receives a majority of the votes cast according to the revised tally. In the event that the Union did not receive such a majority, we shall direct that the Regional Director conduct a second election. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- 6 In agreeing with the Administrative Law Judge that it was proper to determine Vesweesch's supervisory status in this proceeding. Member Penello does not rely on Laymon Candr Company, 199 NLRB 547 (1972), which he considers to be inapplicable 7 Member Penello would overrule the Union's Objection 10(a) as he would not consider evidence of conduct not alleged in specific, timely filed written objections See his dissent in Daytron Tire and Rubbhr C, 234 NLRB 504 (1978). 8 We overrule the Union's Objection I alleging that employee Marshall was discharged for engaging in union activities inasmuch as we adopt the Administrative Law Judge's finding that Marshall had riot been unla ful- ly discharged. lations Board hereby orders that the Respondent, Photo-Sonics, Inc.; Instrumentation Marketing Cor- poration; Photo Digitizing Systems, Inc., Burbank, California, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Coercively interrogating employees concern- ing union matters or organizing activities. (b) Threatening discharge, plant closure, and other economic reprisals, because of employees' union activities. (c) Promising greater benefits to employees for the purpose of discouraging them from supporting the International Association of Machinists & Aerospace Workers, AFL-CIO, or any other labor organization. (d) Confiscating union literature from employees. (e) Denying employees telephone privileges based on union considerations. (f) Threatening employees that the selection of the above-named Union or any other labor organi- zation will result in strikes, layoffs, reduced hours of work, and reduced benefits. (g) In any like or related manner interfering with, restraining, or coeorcing employees in the ex- ercise of their rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action to effec- tuate the policies of the Act: (a) Post at its premises in Burbank, California, copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other mate- rial. (b) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that Case 31-RC-4259 be, and it hereby is, severed from Cases 31-CA- 8713 and 31-CA-8861, and that it be, and it hereby is, remanded to the Regional Director for Region In the eenrlt that hi Order is enforced hb a Judgment of a Ulnted Stalte Court if Appeals, the words in the notice reading "Posted bh Order ofl the National l.abor Relations Boardl" hall read "Posted pursu- arll to Ji Judgllnlent of the Urited States Court of appeals nforclng an Order of the National lahbor Relations Board" DECISIONS OF NATIONAL LABOR RELATIONS HOARD 31 for further processing in accordance with the Direction below: DIRECTION It is hereby directed that, as part of the investi- gation to ascertain a representative for the purposes of collective bargaining with the Employer, the Regional Director for Region 31 shall, pursuant to the Board's Rules and Regulations, Series 8, as amended, within 10 days from the date of this De- cision, Order, and Direction, open and count the ballots cast by Anna M.D. Anaya, Daniel M. Aguinaldo, Ilan Barak, Phillip E. Bartlett, Douglas C. Brisky, Kent Cartwright, Joan DeAngelis, Tony Elemensdorp, Roy A. Johnson, Linda McCard, Larry L. Panthen, Casimer T. Penczar, Jody A. Perkins, Anthony H. Ralph, Joel M. Rochlin, Mi- cheline M. L. Scurlock, George E. Service, Linda K. Smith, Gina E. Vaisey, and Judith L. Wobser, and cause to be served on the parties a revised tally of ballots including therein the count of the above-mentioned ballots. Thereafter, the Regional Director shall issue a Certification of Representa- tive if the Union receives a majority of the votes cast according to the revised tally. In the event that the Union did not receive such a majority, it is further ordered that the election conducted on Jan- uary 5, 1979, be, and it hereby is, set aside, and that a new election be conducted in accordance with the following: [Direction of Second Election and Excelsior foot- note omitted from publication.] APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through represen- tatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT interrogate you concerning your and other employees' activities on behalf of International Association of Machinists & Aerospace Workers, AFL-CIO. WE WILL NOT threaten you with discharge or other economic losses or withdrawal of other benefits, or any other discriminatory action against employees, for supporting the above-named or any other labor organization. WE WILL NOT promise you economic bene- fits and or improvement in working conditions to undermine your support of the above- named Union. WE WILL NOT confiscate union literature from our employees. WE WILL NOT deny telephone privileges to our employees based on union considerations. WE WILL NOT threaten our employees that the selection of above-named labor union, or any other labor organization, as their collec- tive-bargaining representative would result in strikes, layoffs, reduced hours of work, and re- duced benefits. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of their Section 7 rights. PHOTO-SONICS, INC.; INSTRUMENTA- TION MARKETING CORPORATION; PHOTO DIGITIZING SYSTEMS, INC. DECISION STATIlMENT OF IHEI CASE JOAN WII I)IR, Administrative Law Judge: These con- solidated cases were heard at Los Angeles, California, on September 18, 19, and 20, 1979,' pursuant to charges filed by the International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union, in Case 31-CA-8713, on February 5, and amended on February 23, and April 20, 1979; and in Case 31-CA- 8861 on March 26, 1979, as amended on May 24, 1979. A consolidated amended complaint was issued on May 30, 1979.2 Objections to conduct affecting the results of a representation election were filed by both the Union and the joint employer,3 hereinafter referred to as Joint Em- ployer or Respondent, 4 in Case 31-RC-4259 which was Unless otherwise indicated, all dates herein refer to the year 1978 2 Respondent originally denied joint employer status as alleged in the complaint, bringing into question the sufficiency of service of the com- plaint. Inasmuch as Respondent admitted in later answers and its brief such joint employer status, service on Photo-Sonics only, is hereby found to constitute sufficient and satisfactory service See Clinch Valley Clinic IHospital a Division of Bluefield Sanitarium, Inc.. 213 NLRB 515 (1974). :' Photo-Sonics. Inc.: In.strumentation Marketing Corporation,' Photo Digi- tizing Systrms, Inc., as indicated aboe, are admittedly joint employers. 4 The Regional Director overruled all of Respondent's objections and a portion of the Union's objections On July 18 1979. the Associate Ex- ecuive Secretary of the Board denied both the Union's and Joint Em- Continued 570 PHOTO-SONICS. INC. consolidated, in part, with the unfair labor practice cases for hearing before an administrative law judge. The amended complaint alleges in substance that Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) and (3) of the National Labor Relations Act, herein called the Act. The objections, as here pertinent, allege that a ballot was cast by a supervisor within the meaning of Section 2(11) of the Act, and if it is found that that individual, Victorine Vermeesch, is a supervisor, then a new elec- tion is warranted inasmuch as she served as an observer on behalf of the Company, and the discharge of Donald Marshall was unlawful under the Act and therefore his ballot should be counted. The hearing also included union objections to the election based on the discharge of Marshall, the status of Vermeesch, alleged coercive interrogation and other alleged unlawful statements made by Respondent on or before the date of the election. Upon the entire record, including my observation of the demeanor of the witnesses, and having considered the timely filed post-hearing briefs, I make the following: FINDINGS OF FACT 1. THE UNFAIR l.ABOR PRACTICES A. Background Photo-Sonics, a California corporation, is engaged in the manufacture of photographic equipment at its princi- pal place of business, Burbank, California. 5 Included among Photo-Sonics officials and supervising personnel at the plant were John Kiel, president, Dave Clay, man- ager of manufacturing, Robert Alonzo, burr bench super- visor, and Richard Ominski, machine shop foreman. 6 The Union began an organizing campaign among Re- spondent's employees in August. Also in August, a peti- tion was filed by the Union, 7 a Decision and Direction of Election issued on November 27, and an election was conducted on January 5, 1979, under the direction and supervision of the Regional Director. 8 Objections to ployer's requests for review of the Regional Director's supplemental de- cision. Accordingly, all of Respondent's objections have already been liti- gated, Therefore, only the matters referred to below, which the Regional Director determined should be resolved by a hearing, will be considered herein. s Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act I These individuals are all supervisors within the meaning of Sec. 2(11) of the Act. Alonzo was found to be a supervisor by the Regional Direc- tor based, in general, upon his authority to hire, effectively recommend pay increases, schedule, and direct employees This determination was not appealed and was accepted by Respondent. I It is admitted. and I find, that te Union is a labor organization within the meaning of Sec. 2(5) of the Act 8 The unit found appropriate includes All production and maintenance employees employed by the Joint Employer in its Burbank, California, location, including tracking mount assemblers, Acme assemblers, camera assemblers, convention- al milling machine machinists, numerically-controlled milling ma- chine machinists, conventional lathe machinist, numerically-con- trolled lathe machinists, turret lathe machinists, conventional jig bore machinists, numerically-controlled jig bore machinists, cylindrical grinder machinists, surface grinder machinists, tool and cutter grind- er machinists, engraver machinists. gear cutter machinists, toolmaker machinists, drill press machinists, deburring employees, tool crib em- ployees, numerically-controlled programmer, numerically-controlled conduct affecting the results of the election resulted in approximately 20 challenged ballots which had not been opened at the time of this hearing. These proceedings arose out of alleged unlawful conduct occurring during the organizational campaign and the election. B. Alleged Unlawful Threats, Interrogations. and Promises of Benefit Three supervisors allegedly engaged in conduct viola- tive of Section 8(a)(l) of the Act. Each supervisor's con- duct will be discussed separately. 1. Alleged statements by Richard Ominski Ominski allegedly engaged in a plethora of conduct violative of the Act. Don Marshall 9 alleges that shortly after the union or- ganizing campaign commenced he signed an authoriza- tion card. A few days thereafter Ominski and Marshall had a conversation wherein Marshall claims he said he thought the Company needed a union. According to Marshall, Ominski replied: [H]e did not think the union would ever get into Photo-Sonics, but if it did, there would be a lot of people sorry. I [Marshall] asked him what he was going to do, make it rough on everybody? He [Ominski] said, "Yes, I am . . . it might be a good idea for you [Marshall] to spread the word around." Ominski denied having the described conversation. Marshall claims that although he never wore any union buttons or other indicia of his support for the Union Respondent knew of his proclivities because his union membership was discussed during his employment interview with Clay on October 10, 1977. Marshall fur- ther alleges that his support for the Union was known to management because two or three times he stood outside the plant gates next to union employees who were hand- ing out campaign literature at closing time and he was wearing a union button. The record failed to disclose whether Marshall's claimed activity occurred prior or subsequent to Ominski's alleged threat described above. Additionally, there was no testimony or other evidence of record indicating that Ominski or any other supervisor had observed Marshall the two or three times he stood next to the union employees who were distributing the machine operator, relief numerically-controlled machine operator, as- sistant purchasing agents, job shop employee, illustrators, technical writers, electronic technicians, aides and draftsmen, mechanical draftsmen, purchasing clerks, supply clerks, inspectors, test employ- ees, production control employees, inventory control clerks, receiv- ing clerks, dvers. electrical assemblers, mechanical assemblers, opti- cal assemblers, raw materials cutters, Acme products leadman. camera movement leadman. electrical assembly leadman, test set leadman, watchman, maintenance employees, and janitors Excluded are: All office clerical employees, confidential employees, guards, professional employees. and upers isv,rs as defined in the Act The unit description is substantially in accord with an agreement of the parties. ! Marshall. an alleged discriminalee, was a protolype milling machinist who earned $7.80 per hour, which Was one of the highest paid machinist salaries at lPholo-Soics 571 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD campaign literature.' ° Marshall did not personally dis- tribute any handbills. It is claimed that he did wear a union button while standing with those handbilling, but the size of the button and the location while worn were not matters placed in evidence, therefore susceptibility to notice cannot be assessed. Ominski refuted Marshall's version of the conversation claiming: [Marshall] started telling me about unions, how he disliked them, how he thought they were no good and how he hoped everyone in the shop would vote against it, if it came to that, because they didn't know what they were getting into and how he was going to tell everybody how poorly the unions were managed and how poorly they treated people. I Marshall admitted initiating the conversation and, based on: inherent probabilities; the failure to establish a coherent time frame between the union activity and the alleged threat and, hence, a causative nexus; demeanor; inconsistencies; and, other indicia, Ominski's refutation is credited. 2 Ominski says he did not reply to Marshall's comments. Another former employee who testified that Ominski engaged in conduct violative of Section 8(a)(1) is Porter Knight. Knight was a jig bore operator' and a designat- ed inplant organizer. Knight filed a charge with the Board claiming he left Respondent's employ because he was constructively discharged. The Regional Director concluded there was insufficient evidence to issue a com- plaint based on the charge. According to Knight, about 3 weeks after he commenced his handbilling activities at the main gate,l 4 he had a conversation with Ominski, his supervisor, and Ominski said, "Well, you just keep get- ting yourself in deeper and deeper" or "getting yourself into more trouble and more trouble" or something to that effect. Knight stated that he did not ask Ominski what he meant by the statement because Ominski told 'o Marshall was not a designated inplant organizer and does not claim to have had any official function during the organizing campaign " Ominski first stated this initial "union" conversation with Marshall occurred in July or August and then opined it occurred in September. The witness, in general, had difficulty recalling dates with certitude and it is hereby found that that deficiency, standing alone, is not probative of the witness's credibility 12 Only portions of Ominski's testimony will be credited herein, which is required under the circumstances of the case, and does not require crediting or rejection of his entire testimony. Carolina Canners. Inc., 213 NLRB 37 (1974). "Nothing is more common than to believe some and not all of what a witness says." Edwards Transporiation Company, 187 NLRB 3-4 (1970), enfd. per curiam, 437 F.2d 502 (5th Cir. 1971). Counsel for the General Counsel argues that Respondent's counsel violated the se- questration rule by reviewing other witnesses' testimony with his wit- nesses. The duty of counsel to prepare witnesses for a hearing is not com- pletely abrogated by imposition of the rule and such preparation herein has not been shown to warrant discrediting Respondent's witnesses. I3 Knight worked in the jig bore room which is glass enclosed and temperature controlled to permit machining within close tolerances. The room also is dust free but not to the extent of requiring special entry and exiting rituals. Some of the machinery in the room is operated through computer programming and some machines are manually operated. 14 Knight was very active in the organizing campaign and engaged in handbilling five or six times him he was talking about the Union,' 5 having made ref- erence to the fact that Knight was handbilling.' 6 Knight could not recall Ominski's exact words and admitted that it is possible that Knight commingled the content of two conversations in his testimony on this issue.'7 Ominski does not recall having any conversations with Knight during August and specifically denies ever having a discussion with Knight during the union orga- nizing campaign where the subject of Knight getting into more or deeper trouble was discussed. Ominski did ob- serve Knight handbilling, wearing a union button, and wearing a union T-shirt. The second conversation Knight recalled allegedly oc- curred within the plant near a place referred to as the "tool crib," sometime in November. Knight stated that Ominski asked him to come into the tool crib to discuss the Union. Knight refused to go inside but offered to dis- cuss the matter "right there." Ominski, according to Knight, asked how the Union "could help me [Knight]." I told him, "Well, it might not do anything for me, but I am hoping for better benefits and whatnot." Ominski also inquired, "how Knight would like it if he owned a com- pany and someone tried to unionize it." Knight said he replied, "I wouldn't know because I have never owned a company, but I know if I was treated the way we have been treated around here, I would certainly expect the Union in, have them try to get one in anyway." Knight further alleges that Ominski then told him, "I wasn't long for there." t' Ominski denies the "tool crib" conversation. The only part of Knight's recitation he concurred in was his inqui- ry regarding Knight's views of the organizing campaign based upon the assumption Knight owned the company. According to Ominski the conversation occurred at his desk when Knight came to him to: complain about something and him asking me and complaining about why we were all concerned about having a union. And I asked him at that time if he were an owner of a company, would he like to have the union in the shop. And his answer to that was, I don't know, I have never owned a company. Is The testimony regarding Ominski's reference to union activity, spe- cifically handbilling, was made on cross-examination only. is Later in his testimony Knight said Ominski was getting in deeper and deeper because he was handbilling. After further questioning, Knight said that Ominski specifically mentioned the union literature he was pass- ing out and for that reason Knight knew what Ominski was referring to when he said that Knight was getting into more or deeper trouble. i7 In response to a question on cross-examination, Knight also said that "Ominski did not take any steps to prevent him from handbilling." Exact- ly what the term "steps" referred to was not explained and, therefore, this testimony is not considered persuasive. Additionally, Knight testified that he handbilled with Burl Driscoll. who is still employed by Respon- dent, Doug McGuire, who was discharged for cause. Jose Delgado, who is no longer employed by Respondent, and Hampton, who is no longer employed by Respondent. As in the immediately preceding finding no ad- verse inference or persuasive weight is attached to this testimony for the basis for Hampton's and Delgado's departure from Photo-Sonics' employ is not a matter of record and McGuire's discharge was for a nondiscri- minatlor) cause and not violative of the Act l" This alleged threat was testified to after some prompting on direct examination 572 PHOTO-SONICS, INC. According to Ominski, that was the extent of the con- versation, the conversation did not include any threats of discharge, or discussions of the need for a union and Re- spondent's treatment of its employees. Knight further claims that he had another conversa- tion with Ominski in November outside the jig bore room where Knight was asked, "why are you doing this to us?" According to Knight, he inquired what Ominski was referring to and alleges Ominski said, "trying to get this goddamn union in here." Knight stated that he indi- cated he did not wish to discuss the matter further and walked back to his work station. Ominski denies that he ever engaged in this or any similar conversation. Another incident involved the removal by Ominski' 9 of some union literature from a tool cabinet used solely by Knight. According to Knight, he confronted Ominski about the taking of the literature, 20 which was left over- night, and requested its return. Ominski, Knight avers, replied that he did not have to return the material be- cause the cabinet is company property. Knight said he replied, "Okay, then I will find out about it," and then returned to his work station. Ominski said the conversation occurred in November, in the plant, and no one else was present.21 Ominski as- serts that he told Knight that he did not take the litera- ture, admitting at the hearing that he did in fact take the material, and that the representation of innocence to Knight at the time of the incident was false. Respondent argues that Ominski's version should be credited based on his candor exemplified by his admis- sion that he lied to Knight regarding his taking the mate- rial, 22 that the location of the material, as described by Ominski and unrefuted by Knight, makes it much more probable that the loss was discussed in the morning; Knight's failure to explain how he knew the identity of the culprit makes Ominski's version wherein Knight ac- cused Ominski more probable, not, as Knight contends, initially demand the return of the material rather than asking if Ominski did take the material; and finally, the failure to call Hampton, an alleged witness, to corrobo- rate Knight's version. Ominski denied that he told Knight that the literature was on company property and hence did not have to be returned. He then testified that he could not recall if he told Knight that the cabinet belonged to the Company. If Ominski had denied the taking of the material there was no need to discuss ownership of the cabinet or the '1 Knight stated that he did not observe Orinski taking the literature but demanded that Ominski return the 40 to 50 pamphlets. He did not ask Ominski if he took the literature. The pamphlets bore no identification indicative of ownership other than the union logo. The basis for Knight's knowledge or belief that Ominski took the literature was unexplained, stating he "just knew Ominski took it." 20 Knight testified that Ominski did not deny taking the union materi- al. According to Knight, the conversation occurred at Huey Hampton's machine and in his presence. Hampton did not testify. 21 Other differences in their testimony are that Knight said the consver- sation occurred in the afternoon and Ominski said it occurred in the morning; according to Ominski's version. Knight accused him of taking the literature and that the material was in the tool cabinet on top of the blueprints of the work in progress; while Knight did not say that work in progress blueprints were under the literature. 22 The admission of prevarication is a two-edged sword, it could also be argued. as the General Counsel has. that this admission establihshes a propensity to lie and is demonstrative of a lack of credibility contents thereof, placing into further question Ominski's candor. Furthermore, Ominski stated that management removes other types of written material unrelated to Re- spondent's business, such as newspapers, magazines, and risque pictures. However, when asked if Photo-Sonics had any policy regarding the keeping of nonwork related material in the employee's work station Ominski did not initially respond directly but answered that there is no reason to have any type of literature other than blue- prints. Later he admitted that there is no written policy and no other employee, supervisory or otherwise, cor- roborated the claim that all or most nonwork related ma- terial is routinely confiscated. Ominski did not explain why he lied to Knight, but if it was standard policy to confiscate all material not related to work, there would be no need for prevarication. Accordingly, Knight's ver- sion of the conversation is credited. About I hour after the union literature incident, Knight said he went to Ominski and, in the presence of Huey Hampton, requested permission to use the tele- phone. Ominski, according to Knight, told him no be- cause "you are going to call those bastards over at the union hall." Knight claims he assured Ominski that he was not calling anyone at the Union, but Ominski still denied him use of the phone and when Knight inquired why only he was denied access to the telephone, Ominski again said he could not use the phone and in- structed him to return to his work station. According to Ominski, immediately after Knight said he wanted the union literature returned he asked to make a telephone call. Ominski said he told Knight he was placing and receiving too many phone calls and he was to use the phone on his own time. Ominski denies telling Knight he could not use the phone because he was going to call the Union and denies referring to the Union or anyone else as "those bastards." It is unrefuted that the Company had no written policy regulating utilization of the telephone. Respondent has not offered any evidence of an unwritten policy, as a matter of general knowledge or otherwise, regarding the making of phone calls. Also, there is unrefuted testimony that Respondent does not have formal break times, but rather, due to its long stan- dard work day, 10 hours, there is great flexibility in taking breaks 2a and taking leave to accommodate em- ployees' needs. There was no assertion that Knight was not on break when he sought permission to use the phone. Prior to this incident, it is unrefuted that Knight had used the phone many times during working hours. Respondent proffered no rules, written or otherwise, limiting the use of the telephone during working hours other than the admitted need for the employee to first gain permission of the foreman before placing a call. Knight could not recall if he ever used the telephone after this incident. In refutation of Ominski's testimony Knight claims that no comment regarding his receipt or placing of an inordinate amount of telephone calls was made during the conversation and he denies ever receiv- ing or placing a call to the Union while employed at 2: Seseral emplo,es tletified, without contradiction, that the can take breaks schenener the) felt a need and that there ere no formalled breaktinms, 573 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Photo-Sonics. Based on the considerations discussed above, I credit Knight's testimony. Two or three weeks before the union representation election, Knight received a written warning for making a mistake in reading a blueprint and boring some holes in- correctly. According to Knight, Ominski told him to sign the warning slip. Knight asked why he was being warned and he was told he messed up a bunch of cam- eras. Knight read the warning slip, admitted he made the error, and for that reason said he would sign the warning slip but inquired how the items got past three inspectors, were sent to another company to be anodized, and that none of the employees responsible for the inspection re- ceived warnings. Ominski replied, "they are not one of those son-of-a-bitches that is trying to get a union in here." Ominski admitted giving Knight a warning about the misboring of equipment but claims it was a verbal warn- ing and he believes the incident occurred in September in the presence of two employees, John Sheftik and Burl Driscoll.24 It was a verbal warning given when he asked Knight if he had any reason for mislocating the holes in his jig bore operation and that Knight had no explana- tion and could not understand why he bored the holes in the wrong location. Knight, Ominski recalls, also in- quired how the parts reached assembly without the in- spectors catching the error and why the inspectors were not given a "chewing out." Ominski said he replied that the inspectors had already been "chewed out," 2 5 as he was chewing out Knight, so the error would not happen again. According to Ominski, there was no document presented to Knight and there was no mention of the Union during the conversation. 2 6 No warning slips issued to Knight during his employ at Photo-Sonics were placed in evidence. The absence of a warning slip is not considered dispositive of the credibility issue on this matter because Respondent failed to completely comply with subpenas for such evidence. Another incident, according to Knight, began when he asked to talk to Ominski and Ominski indicated that Knight seemed to have forgotten a number of things and said, "I remember when you was hired that you came straight out of the penitentiary with a nigger counselor and we hired you . . . . and you are doing this to us." 2 7 Knight said he replied that he had only one vote which he did not think would sway the election one way or the other. Ominski assertedly replied, "Well, if you switched over to our side, then we'd have beat the Union hands down." Knight represented that he replied that he had to 24 Sheflik did not testify and Driscoll did not give any testimony about the incident. 25 Knight asserts that Ominski never informed him that the inspectors had been reprimanded. 2s As noted in Respondent's brief, Ominski testified that the inspector who inspected the parts was William Liebig, whom Ominski believed was "a heavy union supporter" based on rumors circulating in the plant. Therefore, it is argued, it is unlikely that Ominski would say he was not reprimanding the inspector because he was not a union supporter. Liebig did not testify and Ominski's statements on this point were not refuted. 27 According to Knight, prior to the commencement of the union or- ganizing campaign, Ominski never mentioned Knight's admitted back- ground of being hired directly out of the penitentiary The nature of Knight's offense was not placed into evidence and, therefore, it can rnot be found relevant to the credibility resolutions made herein. act in a manner he believed to be in his best interests. Ominski was said to have started to get angry and Knight admitted he also was becoming a little angry and they had a few words which he could not recall. After being prompted, Knight recalled Ominski saying, "We would repay you." Knight asked who the "we" were and Ominski just said, "Go back to your machine." Knight indicated he complied with the instruction and about 2 minutes later Ominski followed him into the jig bore room and said, "Why don't you quit?" Knight re- plied that the only way the Company was going to get him out before the election was to fire him to which Ominski averredly replied, "I am working on it." Knight claims that he had many conversations with Ominski wherein Ominski told him that he was finished but could not specifically identify the conversations. One reported conversation asserted that Ominski stated that if the Union did not prevail then "Knight was finished," which was a sentiment assertedly expressed by Ominski on more than one occasion although Knight did not know if the same exact words were used every time. One incident Knight said he recalled occurred about 3 days after the election.2 Ominski started the conversa- tion by stating: [S]omething like "You are through." I asked him, "are you firing me?" He says, "No, but I am going to make you wish you were fired." I told him, "If that be the case, then I will have to take the after- noon off and go look for a job." And he said, "Good. Beat it." And I took off and went to look for a job. Knight said that prior to the commencement of the union organizing campaign Ominski never told him that he wished he would quit. Knight does not claim that Ominski fired him and ad- mitted that he obtained a new job prior to giving notice that he was leaving Photo-Sonics. The new job was at a substantially higher rate of pay. Ominski did recall having a discussion with Knight on the subject of his background and the circumstances under which he was hired by Photo-Sonics. The conver- sation occurred sometime in November when Knight ap- proached Ominski at his desk to complain about the Company including inquiring why the Company had such poor insurance benefits. Ominski said he asked: Porter, you come in here with a black woman from a prison asking for a job and for us to give you a job in our shop so that you could get out on parole. At which time we reviewed your background which didn't give us too much of a background, but you had taken an interest in machinery and we felt at that time we could possibly train you to do a job for us .... I told him, I said, I can't see where you can complain too much about a company who did so much for one person to allow him and to help him and to give him decent job as that he could have the things he wanted to have, and to get s Ihe election was held on January 5, 1979. 574 PHOTO-SONICS, INC himself reestablished in life after being in prison. I could not understand why he felt so strongly against the company who had done him such a thing as to get him out of prison and give him a job in which we trained him in just about everything. According to Ominski, Knight in reply just turned around and walked away. Ominski claims that the Union was not discussed at all during this conversation. Ominski also denies that Knight said he had only one vote. Also denied were: The alleged discussions regard- ing the possibility of switching sides; ordering Knight back to his machine; saying to Knight you forget what I remember or words to that effect; calling the black woman counselor a nigger counselor; suggesting to Knight that he should quit or seek employment else- where; telling Knight they would repay him; and telling Knight he was finished. Knight's testimony is herein credited based on Omins- ki's admitted prevarication to Knight, demeanor, inher- ent probabilities, and the other matters discussed herein- before, such as Ominski's testimony that he denied taking the literature and then discussed the ownership of the cabinet, which would be inconsistent with such a denial. Several of the General Counsel's witnesses testified that Ominski restricted the movements of union support- ers after the commencement of the union organizing campaign. Knight stated he recalled one incident in par- ticular which occurred I to 3 weeks prior to the elec- tion. Knight's version is as follows: Ominski initiated the conversation which occurred in an aisle, where no one else was present, by asking Knight what he was doing away from his machine and Knight responded that he was seeking the tape for one of the computerized ma- chines in the jig bore room. Ominski replied, "You as- shole, you stay by your machine." Knight replied, "okay, but how am I going to make my machine work without the tape." Ominski then gave him permission to get the tape. Knight went to the programmer and got a defec- tive tape which the programmer was correcting. As Knight was talking to the programmer about the prob- lem with the tape Ominski came in and asked what Knight was doing there. Knight explained there was something wrong with the tape and he was having it fixed. Ominski then said if you can not be nice do not come in here. Knight asked what he was talking about to which Ominski replied, "I am sick of you." Knight told Ominski that he was pretty sick of him. Ominski then sent Knight back to his machine. Knight cannot recall discussing the Union during this conversation. To Knight's knowledge Photo-Sonics did not have any rules regarding leaving work stations. Ominski's version of the incident is: Knight was at- tempting to get a tape for a machine he was working on"1 and Knight was giving the planner John Kocki3 2 a 2 As will be seen from subsequent testimony insurance benefits ere an important issue in the union organizing campaign Jo Ominski reasserted his claim that he described her as a "black woman. 31 Ominski could not recall the date or the month of the incident but could recall it occurred in the prograriming or "planlling room 32 Kocki did not testify should have programmed the tape differently. Knight was using foul language. ": Ominski told Knight that if he could not act in a civilized manner to go back to his work station and Ominski would handle the problem. Knight then stormed out of the room which ended the incident. He denied that they were verbal combatants or that they were sick of each other. Knight admitted that he felt that Ominski tried to overpower him with force of personality, size, and bear- ing which Knight resented. Ominski stated he liked Knight. Ominski's testimony regarding his conversations with Knight is not credited, based on lack of candor, in- consistent statements, and inherent probabilities. For ex- ample, Ominski's statement that he liked Knight is viewed against Knight's admission that he felt Ominski did give him hell and he tried to give Ominski hell in return. Knight viewed his troubles with Ominski as per- sonal and did not feel that Ominski treated him unfairly or was riding him. Knight also admitted that his person- ality conflict with Ominski preceded the union campaign. When asked had he tried to give Ominski hell, Knight replied, "Try working for him." Knight admitted yelling at Ominski on occasion and calling him names; for exam- ple, he called Ominski an asshole. Knight's description of their working relationship with Ominski was corroborat- ed by William D. Wilkes. a4 Knight's claim that Ominski afforded him less freedom of movement after the commencement of the union orga- nizing campaign is similar to claims made by McGuire," Driscoll, and Marshall McGuire stated that he could recall two occasions in November, after the union orga- : Knight as described as saying. "Ihis fucking tape is no i x Damn good What makc y ou thing that )ou knot hos to program this machine to make this fickiig thing ork Knight's unrefuted teslimons s Ihal foal langAgi e is 1nol tulcmnmi al hoto-Sonuls Knight did not deny using he asscrted language :' Respondeit claims that Wilkes' testimony should inot be credited on several grounds Wilkes admitted he lied in an affidavit gien a Board agenllt on the issue of McGuire's attendance and the reason for Mc'iuire's discharge and his demonstrated anti-company feelings and the fact that his affidavit was taken by a Board agent without notifying counsel for Responldent. Wilkes as a supervisor at the time therefre. Respondent urges that the testimony should be stricken since the affidait as taken in violation of established Board procedures, citing Sec I0056 5 of the NL.RB Field Manual Respondent was asked to indicate if Respondent was cooperating in the Region's investigation. was making supervisors available for inter iew ,ith reasonable promptness, and that the supervi- sor did not come forward voluntarily Respondent failed to meet all these criteria. See The Singr (Company. 176 NIRB 1086 (1969) Howsever in an abundance of caution. the General Counsel \Ras precluded from using the affidait for impeachment for past recolleclon recorded or for admis- sions. Respondent soluntarily chose to use the affidait for these pur- poses hereby waiving the previously imposed restrictions. See fronitgiom try Ward and Co., Incorporated. 187 NLRB 95h (197)) Respondent's other arguments go to the weight to be accorded W'dlkes' testimony and it is concluded that Wilkes' admitted prevarication in the affidavit does adsersel affect his credibility but not sufficiently to completely disquali- fy his testimony from all consideration. The demeanor of the itness the candor of his teslimonLt, particularly in light of the seriousness of the ad- missiolls, and the fact that the sitnesses were sequestered, that i'llkes' testimony corrtoborated Knight's claim that he disliked ()minski intensely. that he harassed Ominski by calling him a faorne profane suord." that Knighlt as ioften trying to "get under ()minsks skin," and that they "harassed each oither back and forth quite a bit." leads me to credit W kes :" It is undisputed that McGuire was Ione of the leading Inplanl orga- uilers and a srtring proponenit of unionii ig Respondcnt's employees. 575 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nizing campaign commenced, when Ominski told him that he should not be in the jig bore room talking to Knight and Driscoll,3 6 that he had no business there, and he should return to his machine and stay there.3 7 McGuire 38 stated that Ominski's actions were uncalled for and that prior to the campaign he frequently talked to people on the early shift to ascertain the kind of work he was going to be doing or merely to socialize. Accord- ing to McGuire, prior to the union organizing campaign, the Company had a very liberal policy regarding talking or being away from your machine. As previously indi- cated, the Company had no break periods and the em- ployees took time when they desired to have a cigarette or coffee. McGuire stated, "most of the employees help each other out on jobs and similar endeavors or they talk about social things.... The policy was quite liberal." The claimed liberal break policy was not refuted. McGuire candidly admitted that he might have personal- ly increased the number of times he went into the jig bore room and discussed nonbusiness related matters, in- cluding the Union, more frequently after the organizing campaign began. There were occasions, during the normal course of performing his job duties that he would need to go to the jig bore room, for example, to ascer- tain if parts necessary to performing his job had been prepared .3 9 McGuire also stated that employees did not leave their work stations more frequently during the union organiz- ing campaign because the foremen were stricter regard- ing the employees' movements, "they watched their people working more often." It is not claimed by McGuire that the Company was enforcing a rule more strictly, for he asserts that Photo-Sonics basically does not have written rules, and there is no published or posted policy dealing with employees remaining in their work areas. McGuire admitted that he and Ominski "had strong words together" on the subject of insurance and McGuire's competence as a machinist. The conversations described by McGuire wherein insurance was discussed were initiated by McGuire. McGuire contends that it was after these "heated and argumentative conversa- tions" that he was told not to leave his work station. The first conversation occurred in early November. 4 " McGuire inquired about an insurance policy at Photo- Sonics and opined that the policy was outdated and needed revision. Ominski, it is averred, then asked if that 3 On the first occasion, it was claimed that Bob Daniels and someone named "Jack" were also present. Neither of these individuals testified 37 It is noted that at the time of these incidents Ominski was not McGuire's supervisor McGuire worked a later shift and these conversa- tions occurred before the end of Ominski's, Knight's, and )riscoll's shift and before McGuire's shift began. 3 McGuire was hired as a new machinist and progressed to the posi- tion of numerically controlled milling machinist He was initially super- vised by Ominski and then Wilkes S9 McGuire asserts that these occasions were nt isolated but the actual frequency of his job-related visits to the jig bore room was not described The only explanation McGuire offered was that he was "'bounced from machine to machine on whatever job was hottest," hence, he came in early regularly to confer with the employees on the earlier shift to determine the nature of the project he as to swork on 4O No one other than the principals. ()minski and McGuire, was pre- sent during this discussion. was the reason McGuire was so involved in "the Union business." McGuire replied, "yes." McGuire asserted that Ominski then said that the insurance policy that Photo-Sonics utilized was chosen by the employees and "that was all they were going to get . . . at that time." The second conversation occurred around Thanksgiv- ing. 4 ' McGuire stated that he began the conversation by handing Ominski a pamphlet describing an insurance policy given by the Company which employed McGuire's wife, stating that it was a more up-to-date policy. Ominski briefly reviewed the pamphlet, com- pared it, and said that the policy was really not any dif- ferent or any better than that provided by Photo-Sonics. According to McGuire, Ominski then said, "if you and another guy I know would drop this union business, then the campaign would fail." McGuire testified that he did not say too much after that comment, 4 2 but believes that Ominski did take the insurance pamphlet to Kiel for comparison. Ominski did recall having "some" conversations with McGuire in early November involving a comparison of McGuire's wife's insurance coverage with Photo-Sonics' policy, but h denies that the Union was mentioned and specifically denies stating that if McGuire and another person withdrew their support the union drive would fail. Ominski further recalled that McGuire was informed that he could discuss the matter with Kiel and McGuire admits that he did in fact talk to Kiel about the Compa- ny's insurance policy. The reason Ominski gives for re- ferring McGuire to Kiel is that Ominski had no power to alter insurance benefits and so referred the inquiries to the individual with such authority. Ominski also recalled one incident involving McGuire talking to people in the jig bore room. It is claimed that he told McGuire that: even though he was clocked in . . . that he was not on Company time but that his presence in the jig bore room and his conversations with the men working in that room were keeping them from per- forming their duties, that the men in the jig bore room were on working hours and McGuire was not . . . . McGuire was: [getting the people in] the jig bore room in trouble by engaging in conversation and keeping them from getting in work . . . he advised [McGuire] that it was not a good practice to come in early and pre- vent other people from doing their work who were on working time and advised him not to do it in the future. That was the only discussion, according to Ominski, with McGuire concerning his presence in the jig bore 41 Again, onlly McGuire and Ominski were present during the convser- satlion 2 he similarity of this alleged comment to the allegations of Knight is noted, aind McGuire's testimony, on this pint nly, is credited The rest of McGuire's testimony is not credited based on demeanor and the fact that McGuire admitted initiating the cnversations and admitted oftienl atlirnpling to provoske Ominski 576 PHOTO-SONICS, INC. room.4 a There was no testimony or other evidence de- scribing what the employees of the jig bore room were doing when McGuire was diverting them. 44 Wilkes, who admitted that his close friendship with McGuire led him to lie in his affidavit, as discussed above, 45 indicated that McGuire had a personality con- flict with Ominski, did not like Ominski, and delighted in "doing things to get under Ominski's skin .... quite often." Burl Driscoll 4 6 testified that prior to the union orga- nizing drive employees at Photo-Sonics were permitted to talk to each other away from their work areas. After the organizing campaign began in August it seemed to Driscoll that the company policy changed "for some em- ployees" and that those employees involved in union ac- tivities were more restricted in their freedom of move- ment than others. It seemed to Driscoll that the employ- ees involved in union activities were observed more closely and Ominski asked them to return to their work areas. These individuals were Knight, McGuire, and Marshall. Driscoll did admit that during the campaign there was a tendency to make more friends among certain individ- uals, giving rise to the inference that friendships evolved among the union supporters who then spent more time together, but Driscoll specifically denied that McGuire came into the jig bore room "a lot more frequently than he had previously." Nor would Driscoll say that during the campaign there was a lot more nonbusiness-related discussions in the jig bore room. McGuire did have busi- ness reasons to be in the jig bore room and all his visits to the room were not only to discuss union matters. No supervisor ever told Driscoll personally to go back to his machine but, Marshall states: [H]e was given a hint in many cases .... If a dis- cussion was going on Ominski would come over, walk up beside him as they were talking and ask them what the matter was and what was going on, and from that they took the indication that they were doing something wrong and were to return to their work stations. Marshall also states that, to his knowledge, Photo- Sonics did not have any rule about employees talking to one another during working hours. He did admit, how- ever, that an employee could not wander around all day. He stated that the policy regarding employees leaving 4" It is not alleged that Respondent had a no-distribulion or no-solicitia- lion rule, valid, invalid, or otherwise McGuire did indicate that near Ihe end of the shift employees do engage in cleanup activities, for which they were paid, but he did not claim that the people he was colnversing wsilh on the days he claims he was told to leave or not enter Ihe jig bore room were engaged in cleanup. Therefiore, the inference that regular employees of the jig bore room were not engaged in production work will not he drawn. 44 Respondent does not claim that the jig bore room emplosees were working on a rush job '4 Wilkes was not a personal friend of Marshall, therefore, his teslimlo- ny about Marshall is allegedly not similarly colored "n Driscoll is currently emnployed by Photo-Sonics as a machinist in the jig bore room His immediate supervisor is O()minski Driscoll became an inplant organizer tosward the end f e campaigil Hie worked for Photo-Sonics about years and during the election he was he uanion oh- server tie is currently employed h Respondenl their work areas was not strict. Marshall contends that prior to the commencement of the union organizing cam- paign, no supervisor ever discussed with him the fact that he was talking to other employees "away from his machine," however, approximately I week after he signed an authorization card47 Ominski told Marshall that he was spending too much time at the machine of Albert Herrera.4 8 At the time of the incident, Marshall and Herrera were not discussing the Union, Ominski just stated that he was spending too much time at Herrera's machine, no reference was made to the Union. Marshall claims he replied that Ominski requested that he assist Herrera with "his setups and checking his parts." Ominski reportedly responded: "Someone else will have to help him do that from now on . . . the %work you are working on is hot.We need the work out."4 9 According to Marshall, this incident occurred about I month after he was asked to help Herrera. Ominski claims that he counseled Marshall that he was spending too much time at Herrera's machine. Marshall replied to this statement by stating that Herrera requested Marshall's help. Ominski claims he replied that he, as foreman. could give Herrera all the help he needed. Marshall was off work due to illness from August 15 until September 15.5 ° Several weeks after his return to work he claims that Ominski rescinded his instructions not to assist Herrera because Herrera was experiencing problems in making his setups and checking his parts. Marshall claims that he reminded Ominski that he was told he spent too much time at Herrera's machine. s Ominski assertedly replied, "I can't be everywhere in the shop at the same time. I would like . . . I got a lot of people to take care of. I would like for you to help me." Ominski testified that he never requested or instructed Marshall to assist Herrera. He said that such assistance was his, the foreman's, job. The next conversation Marshall recalled5 2 occurred about I week before his discharge in the jig bore room. Ominski began the conversation by asking why Marshall was in the room, to which Marshall replied that he was looking for a fixturesa which the fixture room attendant 4 H[e cstimales sometime bltween August I and 14. 4 Herrera was a known union supporter Herrera did not teslly 4 I-he teril "holl is used to refer to rush jobs s' Marshall claims that he had emphysema aid a lung nfection No supportinlg drcumenar or other evidence was submitted Marshall also asserts that he spoke with Onilnski three or four times while he was sick abolt hiti illetess According to Malrhall. hen he first became ill, he tele- phoned ()minski and nfornied him that he had the flu Omniskt told him that he could stay honle anrid requested that Marshall inform him when he was Aell enough to return Ito work. A few days later, Marshall says he saw his phy ician and was infiorned he had a lung ifectioln which r- quired hospitalizatioln Marshall telephonically informed Ominski that he was going t be hospitalized and also called Ontinski from the hospital once (n)milski ill his testimony, a well as inferences drawtn frnom his re- spnises Ito seceral qulestlons, delnlonstraled a lack of know ledge r under- standing ahbot NMiar hall' aerled illness " Marshall eimated hat he spell I to 1-1/2 hours a day issillng Herrera;, cscr day. ad onlectinles more :' Also present, ac clrding It Marshall, ere Knight [)riscL II. and all indisldual named Bob hose last na;le he could nolt recall I he alleged · itriesse to this conll ersilion did riot iestif~ regardiig the dcsl ionll ,rld ro explanaitioll filr (Asuch flliuiirc is offered it ltLure, erc inecCssary ;Lctiltr nltirt to the prfiornance of Mar- shill jh 577 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thought might be in the jig bore room. Marshall was then told by Ominski to return to his machine. Ominski did not mention the Union or indicate that Marshall could not discuss the Union. Marshall could not recall what he was discussing with the other employees in the jig bore room and admitted that almost every time he en- tered the jig bore room "something was said about the Union and something was said about the Company." 54 Marshall further admitted that he diverted Driscoll and Knight from their work. Based on the admissions that friendships developed among union supporters and that conversations about the Union increased, it is concluded that there was an in- crease in nonwork-related conversations. The lack of any statements that Ominski's requests to return to work were in any way related to the substance of those con- versations and the lack of persuasive evidence that the requests were in reprisal for certain employees' union support, it is concluded that the General Counsel has failed to show that a privilege was withdrawn rather than the abuse or such privilege curtailed, or that such curtailment constituted a threat because of union activity. Accordingly, no violation of Section 8(a)(l) of the Act is found on this ground and it is recommended that this charge be dismissed. 2. Alleged statements of Roberto R. Alonzo Alonzo is a supervisor in the burr bench department.5S Two employees, Luis Oceguera and Jesus Villalobos,5 6 allege that Alonzo made preelection statements violative of Section 8(a)(l) of the Act. Villalobos 5 7 claims that he had two conversations with Alonzo, who was his supervisor, during the orga- nizing campaign.5 8 The first conversation allegedly oc- curred about I week prior to the election with Alonzo initiating the discussion by asking, "what do you think of the Union." " Villalobos said that he replied that he thought it was good to have the Union for the Union would assist the employees in securing more benefits 54 It is noted that when later asked if his cotiversation was iotally un- related to acquiring the fixture. Marshall replied. "no." which is inconsis- tent with his prior testimony. "r It is noted that Alonzo and the two nontsupervisory employees testl- fying on this issue, Jesus Villalobos and Luis ()eeguera, all gave their ts- timony through an interpretor. 59 VillalObos was an inplant organizer for the Union. s7 Villalobos worked for Photo-Sonics from 1973 until approximnately April 1979. The reason for his change in employment wvas not placed il evidence. s" At some unspecified time. Villalohbos switched jobs and worked im the "lapping room." Villalobos stated the second conversation occurred after he was switched to the lapping room. The confusion i ltestimnnT, appears to be attributable, at least in part, to communication problems en gendered by the need to translate the questions from English to Spanish and then translate the responses from Spanish to English Furthermore, Villalobos appeared to have difficulty recalling dates. which could he at tributable, in part, to translation problems since idiomatic difficulties were exhibited in sonie of the testimony. 5' Villalobos contends that Jose Delgado and Miguel Fimbres were present during the conilsersaiion neither of these alleged wtilesses \'as called to testify and their absence was nol explained Inasmuch as neitlher of these employees was alleged to be a supervisor, the failure to call them does not warrant the making of an ads erse inference See I.ocal 259 United .4utomobhil, Alero.puce. and lgrilculurul Irnplerent Wiorker oJ America [Atherion Cadillac. Inc.] v. .L R B.. 95 I.RRM 3011. 2 I C "119001 (2d Cir. 177), enfg as modified 225 NlRB 421 (1976) "and it would help us more." Then, Alonzo assertedly said, "it wasn't convenient because there was going to be strikes and that we would still have the same benefits ... . that we would have to pay for fees, dues." According to Villalobos, the second conversation "oc- curred some days before the election" and involved much of the subject matter of the first conversation, his views on the Union and the benefits to be derived. Alonzo allegedly said, "we were going to suffer because we were going to pay the fees and in the long run in re- ality that it wouldn't be convenient to us .... that there was going to be strikes and that we were going to lose money." The basis for Alonzo's statement that there were going to be strikes was unexplained. Alonzo denies all the allegations made by Villalobos; however, Alonzo's testimony is not credited on this matter because it was full of inconsistencies 6 ° and lacked candor. Oceguerafi worked for Photo-Sonics, under the super- vision of Alonzo, for about a year. He alleges that he had two conversations about the Union with Alonzo. The first conversation occurred about I week before the election, 62 and it is averred that Alonzo said: The Union would not be convenient for me be- cause it would create problems and if the Union was to go in the Company, that the Company would close, that we would have a lot of problems with strikers outside and we would not be able to collect any money, that we would have to pay fees for the Union. The second conversation allegedly occurred on the day of the election before voting started, with Alonzo starting the conversation by asking Oceguera to "think about what he told me." 6" Alonzo, similar to his denial of the Villalobos allega- tions, denies discussing the Union with Oceguera before the election, then stated Oceguera told him he did not want the Union.i 4 For the reasons stated above, Alon- zo's testimony is not credited. "" For example. Alonlzo stated that he did not have the "confidence" Io has e all) kind of conlsersatioll with Villalobos about the Union. then he aldmitted talking with Villalobos once or twice about the Union, how the ULnion sometirtes promises things and Ihent they do not fulfill all the promises Also, Alonzo said Villalobos would tell Alonzo he did not saiit tIe tlniotu bhul then adnmitted lihe kne Villalh(s was i favor of the Union I' t is noted that Oceguera had great difficulty testifying, he appeared to have poor language skills resulting in his having difficulty understand- ilg the translator. hence he had difficult) in replying to the questions as Iratislaed az No (lne else was present ':; While the estimnony is confusing, it is also found that Alonzo asked ()ceguera how lie felt about the Unilon Oceguera said he had a had memnory silce he cannot read either Spanish or English. Hlowever, when asked how lie could recall those lonsersattonis with Alonzo, he stated. very conlvincingly "Because we sould work very hard and they' would make fuln of us hen we wxould ask for raises and tllhel hat was when we were trying to better ourselses anid we would hide all that. we were keeping that." '- Alonzo admitted that his brother Robert uis went to union meet- lgs anild told hin eerythig that would occur at the mneetings Aloto' li superisoir was ()thinnski 578 PHOTO-SONICS, INC. The affidavits of Villalobos and Oceguera were taken with the assistance of a translator but only an English written version was initially prepared and signed. Short- ly before the hearing, Spanish translations were prepared and given to these witnesses for their affirmation. Oce- guera in particular would not agree that his affidavits were reflective of his statements at the time they were prepared because he could not read and therefore could not ascertain their contents. Villalobos could not say the Spanish version did not conform to the English version for he cannot read English. While the procedure adopted by the General Counsel in these instances was less than ideal, it is concluded that substantial prejudice was nei- ther claimed nor did it occur. It is further concluded, however, that due to the method employed in taking these affidavits, they are not reliable bases for credibility findings. However, for the reasons stated above and in Northridge Knitting Mills, Inc., 223 NLRB 230, 235 (1978), including the fact that both Villalobos and Oce- guera stated Alonzo mentioned strikers and inferred loss of income due to the need to pay dues, their testimony is credited. 3. Alleged statements of John Kiel The same two employees who testified about Alonzo's statements alleged that John Kiel made statements which were violative of Section 8(a)(l) of the Act. Kiel 6 5 ad- mitted that during the course of the union organizing campaign he conducted meetings with the Company's Spanish-speaking employees, approximately 2 to 3 weeks before the election. Kiel stated that he prepared the speeches and hired an interpretor 66 to translate his re- marks to the employees. 67 There were two meetings that were attended by Oceguera, 68 one on December 27, 1978, and the other on January 3, 1979. 69 Kiel claims that he followed the prepared text word for word and merely inserted "transition statements." According to Villalobos, he recalls Kiel stating that if a union: was to come in, that we were going to have strikes and it wasn't convenient for us because Photo- Sonics never had layoffs and that if the union was to come in, that we would probably have layoffs .... He also said not to believe that we were going to have the benefits that the union was offer- ing because they would not be able to afford the dues .... ' I also remember he showed us a lb Kiel has been president of Photo,-Sonics since about 1957 66 The interpretor was certified and came from a "linguist agency" 67 The translator did not testify. Kiel stated that prior to giving the speeches, he spoke to some English-speaking employees and had the in- terpretor attend Additionally, the interpretor had a copy of the speech. Kiel testified that he cautioned the interpreter to be extremely careful to make an accurate translation due to the nature of the meeting as union related. 66 Villalobos attended only one meeting which was held 2 or weeks before the election. 69 While at the outset of his testimony, Kiel stated with certitude the portions of the prepared speeches he read, he later admitted that he could not recall with such certainty which portions were read, particularly at the December 27 meeting 70 Villalobos very apparently did not understand what Kiel was saying about benefits and dues for he thought that Kiel was explaining that report out of the newspaper that he was reading where it showed some strikers .... That they wouldn't be able to get rid of the union because . . once you were in .... " He also recalled Kiel saying that the employees should not believe that once the Union was in the Company could not fire anyone. Oceguera remembered the interpreter beginning the first speech by: saying that for us to think very well what was coming up, that it was almost one week before the election. He told us at the meeting that he was going to give us more holidays and better benefits for our families, better raises and in that way we would be better without the union .... He also said that we would be in some strikes .... That we would be outside, out in the street and for him it would be much better if we voted for the company ... . If the union was to come in, that the union would bring more employees to get more fees, dues and we would have less hours .... If the union was not to come in the company, that he would lend us money without paying any fee. Present at the second meeting, in addition to Oce- guera, Kiel and the interpreter, were Jose Alonzo and Antonio Alonzo, 72 Jaime Vega, Dave Clay and Roberto Alonzo. 7 Oceguera stated that the translator said the same things during the second meeting as were said in the first meeting. He also said, "to think very carefully about what he had told us and if there was anything that we had to say to him, for us to tell him that same day be- cause tomorrow might be too late." The drafts of Kiel's speeches support many of the alle- gations made by Villalobos and Oceguera. For example, portions of a newspaper article discussing a strike at Lockheed,74 the statement regarding less overtime was contained in a portion of Respondent's Exhibit 16, marked part 3, page 2, and reads: [A]s a matter of fact, I would like to see any con- tract that goes so far as to have a guaranteed regu- lar work week or more than 40 hours and, as a matter of fact, if I was a union official, I might be interested in fewer hours and more employees who are dues paying members. Quite frankly, the real Photo-Sonics could not afford the union dues because it was not a large cornpany like McDonnell Douglas or other large companies his confu- sion is not outcome determinative since the test in a violation of Section 8(a)(1) is not subjective See L R. v. Aero Corporation. 581 F2d 511 (5th Cir 1978) 7 Interest 72 The hrolthers of Roberto Alonzo who did not testify. :' Roberto Alonzo and Clay did not refute Oceguera's allegations Kiel claims that the above-named gentlemen attended the first meeting 74 Villalobos referred to McDonnel Douglas however, Kiel does admit reading portions of the newspaper article including quoltes from Lockheed employees discussing the inadequacy of strike benefits It is hereby cncluded that Villalobos confused the two aircraft manufactur- ers. Additionally. Resp Exh 17 indicates that Klel read from a report issued b Ihe Center for Urban Education, which is not 11 evidence and therefore canlrot support any refutalion of the emplo ees' claims 579 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issue regarding overtime is just what we've dis- cussed. It is why I think voting for the union, if you really think they can change the overtime here, will harm you by working against your basic interests. It boils down to whether you want to give your bar- gaining rights to the AM. 75 Kiel also explained, apparently according to his under- standing of collective bargaining, stating: [The Union] is in effect asking you to vote for it without knowing what the Union will ask for .... The Union, during the time before the election usu- ally makes a lot of so-called promises about what they would get you. They try to create the impres- sion that present benefits are guaranteed, and that only upward adjustment would take place. Do not be misled. Unions can, and have, bargained away benefits, in return for other items they prefer .... Another example supporting the employees' claims is part 5, page 4, where Kiel addressed the impact of voting for a union just to give it a try, stating: If you think the Union fights hard to get in, you don't want to live through the battleground they create when employees try to throw them out. And in the meantime you would still be stuck with three to four years of dues and other assessments and fines the union has the authority to levy. And you would also be stuck with the contract and I think we have very carefully demonstrated to you that workers covered under the IAM contract in busi- nesses similar to ours have lost money. And while again discussing the potential impact of unionization upon overtime in the final speech, on page 5, Kiel stated: In other words, if the union could cause us to have people to do your overtime work, they win more members and dues, the company loses its productiv- ity and cost control, and you lose the option to make more money. In other words, I relate the company's success and your success to being non- union. Considering these quotes, as well as other statements contained in the exhibits discussing the same or similar subjects the employees said were discussed and the fail- ure to indicate that translations of the statement could not have resulted in statements the same or similar to those claimed by the employees cojoined with demeanor and Alonzo's failure to refute, the testimony of Villalo- bos and Oceguera is credited. The translator was hired by Kiel, and his remarks are attributable to Kiel who em- ployed him to translate remarks, under the principles of ?s As previously indicated, Kiel initially stated he read onrly specified portions of these statiements and later admitted he was unsure whether he read some portions In the absence of clear and convincing evidence that only segments of Resp Exhs. 16 and 17 were read to employees the entire exhibit will be considered in reaching conclusions relative to Kiel's statements However. even assunming arguendo that only the portions Kiel initiall) stated were read. the conclusions would be the same agency. See, in general, Emily Tweel Jacobs. et al., d/b/a L. Tweel Importing Co., 219 NLRB 666 (1975). Addition- ally, as found above, the same theme appeared in Alon- zo's statement about strikes, the loss of overall benefits, etc. 4. Discharge of Marshall Marshall was discharged on December 19, 1978, after being given a termination notice which stated "inefficient and too slow" as the reasons for the action. The General Counsel contends that the reasons are pretextual and that the action was taken, at least in part, because of Mar- shall's union activities and/or sympathies. Marshall stated in his testimony that he only discussed the Union with Clay when he was hired on October 10, 1977.76 All the other discussions Marshall claims to have had with supervisory personnel prior to his discharge oc- curred solely with Ominski. As previously indicated in the section discussing statements made by Ominski, Mar- shall claims that Ominski told him that: the Union would never come into the shop and that if it did, he . . . was going to be pretty rough on everybody. We are going to be watching every- body pretty closely, especially those that are for the Union and that goes for Burl [Driscoll] and Porter Knight. Marshall is not credited nor is his assertion that he talked to other employees constantly about the Union.7 7 There was no instance alleged that a supervisor observed this conduct or learned of this conduct. Marshall further stated that he signed an authorization card and attended two union meetings. These activities were not conducted on Respondent's premises and there was no showing that Alonzo's brothers or others in- formed Ominski of Marshall's activities. It is also claimed that Marshall twice stood at Photo-Sonics' gate doing handbilling. 7 8 Marshall did not engage in such activities himself, he just accompanied union organizers. There is no indication that supervisory personnel observed this activity.7 9 As previously found, not one of Photo-Sonics' supervisors was observed leaving the plant any of the two times Marshall states he was standing next to the or- ganizers who were handbilling and Marshall did not wear a union button or other indicia of his asserted union proclivities while in the plant during the organizing cam- paign. There were also many instances, Marshall claims, wherein the supervisors distributed literature relative to the union campaign, and as he was handed each such dis- tribution at his machine, he made the following smart remark: "What do you know, more toilet paper." He does not allege that any supervisor reacted in any 'i Marshall told ()rninski and ClaN, atl th the lie as hired, that he was a member of Ihe lntri;latillal Association of Machinists, District 94 17 Not one coworker substantiated this claim 7. Marshall later claimed he accompanied the handbillers three times. 7!' Th 55-hour standard A orkcek at i'hluto-Sloncs resulted i many clnplhoyces ,, orkiig past the end of shift here as rno, clear testimony of what the supervisors did as a practice As Marshall admitted. he nlorilmally worked unlil 7 or 7 30 p in , so he did not see an employees handhilling. 580 PHOTO-SONICS, INC. manner to the comment or that he was instructed to stop making the comments.8 0 Marshall's allegation was not substantiated by any other witness. I confirm the prior finding that Marshall's testimony regarding his conversations with Ominski about the Union and other statements relative to the issue of knowledge are not credible, for the above stated reasons as well as the large number of inconsistencies in his testi- mony. ' Respondent's witnesses, including Ominski and Clay, deny any knowledge of Marshall's union activity or leanings. Respondent asserts that Marshall's claimed union ac- tivities were not known, no less considered, in the dis- charge discussion. Photo-Sonics claims that the sole reason for Marshall's discharge, and the only matter con- sidered, was his work performance, which, in December, deteriorated to such a degree that discharge was re- quired. Respondent, primarily through Ominski and Clay, allege that during the month of December Marshall per- formed very poorly on three different jobs.A2 The first assignment was to machine nine mirror mounts8 3 according to Ominski and Clay. Ominski stated that it should have taken less than a week, without diffi- culty, to finish the job, which had a shipping date sched- uled within a short period of time making it a very "hot" 8 4 job. Marshall allegedly represented to both Ominski and Clay that the parts would be finished short- ly, but were not completed until the end of the second week. Ominski considered the amount of time Marshall spent to be totally outrageous 5l and spoke to Clay about the matter. Clay agreed. Ominski estimates that a reason- able amount of time to complete the job would be about 36 hours. Ominski next assigned Marshall "brass keys," which took him 14 hours to process, which was, it is asserted, much too long.8 6 Ominski again discussed Marshall's al- leged inefficiency with Clay. It is also claimed by Ominski that on December 15 he gave Marshall a verbal warning regarding the amount of time he was spending to complete his work after this NO Clay recalled distributing literature about the Union to the employ- ees but did not specifically remember Marshall's comment. Clay stated "Comments came from several employees " o For example, contrary to prior and subsequent testimony. Marshall stated that he never told Ominski he was for the Union. Hte also un- equivocally stated he told Ominski he was going to union meetings and then modified his testimony to the effect that he took it for granted that Ominski knew he was going to the meetings for he kiss such meetings were being held. here are many other inconsistent statements too nu- merous to cite 82 The jobs Inmolved are a matter of dispute between the partlies The parts being machined by each enplhrye are identified only by camera type so that the individual parts worked on are not dispositively identifi- able oni any documents. sa Also referred to as lens mounts. 84 Rush. 85 It was 69 regular hours and 22 overtime houtrs a8 Ominski states that the job could hae reasonably been perfoirmed in 4 to 5 hours. The part is one frequently produced by the Company and iI normally takes about one-third of the time Marshall spent tro complete the assignment After lthe first Decemiber assignment look so long, Ominski claims, he noted the date and time Marshall ,as, given aind corn pleted the subsequent assigllmerlt second assignment was completed.8 ' The second job was also considered by the Company to be a "hot" job."8 The third job Ominski said involved comparatively simple operations involving three parts. It was deter- mined that Marshall spent 7-1/2 hours89 on the project, failed to get the requisite first article inspection, and the parts had been improperly machined, hence had to be scrapped. Ominski, upon estimating that the items had been machined incorrectly, told Marshall of the mistake and further informed him that due to his poor perfor- mance, including inefficiency, he decided to discharge Marshall. Ominski then proceeded to process the termi- nation papers. Clay's version of these events follows Ominski's closely. On December 18, prior to the completion of the third job, according to Ominski, Marshall asked for a medical leave of absence. Ominski inquired if he had a doctor's appointment which Marshall said he had the following Ihursday; therefore, Marshall was requested that if the doctor felt that such leave was necessary Marshall should bring the Company some information stating the need for medical leave and a decision would be made after receipt of such information. Ominski claims Mar- shall agreed to these conditions. Marshall was terminated a day or two before his doctor's appointment. Marshall gives a substantially different version of the events leading up to his discharge. For example, Mar- shall claims that most of his December activities in- volved the machining of approximately 100 "pull down arms" on which Herrera had performed the first oper- ation incorrectly.t ° Consequently, Marshall alleged, it took him at least four to five times longer to repair the parts rather than running the "first mill operation" him- self. Marshall testified that when he first received the parts from Herrera, he complained to Ominski, and was told to "do the best lie could." Then, in apparent contra- diction to his above-quoted testimony, Marshall said he ran the first operation over again. If he had run the first operation over again that would have placed him in the same position as he would have been if Herrera had not performed the job "incorrectly" and does not clearly ex- plain the undue length of time expended on the project. Furthermore, Marshall's testimony does confirm Respon- dent's claim that he spent an unusually long time on the assignment. ,0 Ominski stated thlat he keeps a norlehok wherein he records the de tails of verhal warnings The written document was not offered in es- dence after an ohjection as voiced by the General Counsel on te grounds that the doiumetllt uas subject to a subhrna bu was no pro ',ded thereunder. Respondent stated he failure to comply lth tillhe ,ut pena was an ioversighlt Ihere bias no motion to strike Omnskls t'stirl- ny relative to his noteblok Respondenlt ,ilas instructed at tile tilile of the discoslery of the failure to comply to check ll records to determine it other documents were not upplied pursuant to ts subpenia A total of three such documents were discovered No motions were niade regarding Ihese three locuinlents " Marshall's imecard contains a change in the ob designation of thll Ireni hich O)rmiki made stating t Mrshull miude a error Mrshall Ilid not believe he made an error blt c11id nll recall petcficall lthe camera model or job number he worked ,on " Omi nsk etinmaled he ob holid ha ie laken about 4 1/2 hours and Ira t;ll I Lt nman eventually machlned these part i .ibohu 4 1 /2 hiurs "' Marshall alleges that "the malor dltialeter uis ltoo mall arid manls were as ninlertlr " 581 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Marshall also vaguely recalled a discussion with Clay during the first week of December involving the amount of time it took him to complete a job; he could not recall what Clay said. 9 ' This testimony tends to support Clay's statement that he was concerned about a "hot item" Marshall was producing in early December and inquired about the completion date. Marshall also admitted that he machined several parts that had to be scrapped.9 2 Marshall could not recall what the part was. As to the third item assigned Marshall in December, he had no idea what the part was, but noted that Ominski changed the camera designation on Marshall's timecard. He testified he never received any warnings because of slow or inefficient work. Later, Marshall claimed he never received any warnings prior to his signing a union card. Marshall then admitted being repri- manded for spending too much time away from his ma- chine; albeit, the warnings recalled were given after he signed the union card. Although Marshall contends that his work product was of an acceptable level, he claims that upon his return in September and immediately prior to his termination illness impacted adversely upon his ability to concentrate and, hence, upon his work, and that he so informed Ominski 9 3 both of these times. On December 15, Mar- shall claims to have informed Ominski that he returned to work prematurely, that the doctor warned him the ill- ness would return, that the illness had returned, and that additional time off was needed. According to Marshall, Ominski replied that there was no way he could release Marshall, that they had too many hot jobs, and could not get along without them.9 4 The second conversation Marshall alleged to have had with Ominski relative to his health was said to have oc- curred on December 18. Assertedly, Ominski replied to Marshall's request for time off due to a recurrence of his illness, "I can't let you go, Don, I need you. There are too many hot jobs to do." Marshall said he replied that he could not work anymore. "I can't concentrate on my work. I am sick. I have to take some time off." Ominski then asked when Marshall was to see his doctor,9 5 and instructed him to secure a slip saying, "I was too ill to work and bring it to him and we would discuss it." 9 6 91 Marshall also said he might be able to remember something, "but I am not going to volunteer information. I mean I want to know what job you are talking about and maybe I could tell you." This quote indicates that he could recall some of the details of the conversation and contra- dicts his denial of recollection. 92 It is a job, Marshall states, he worked on for 4 hours, he admitted putting a groove in the part on the wrong place. 91 Ominski denies being so informed. 94 As in the case with other allegations by Marshall, this testimony is confusing inasmuch as Marshall also testified that a couple of weeks after his return to work he began to feel better and then in December his ill- ness returned. There is no evidence that Marshall ever consulted a doctor in December. Also. Marshall did not miss any workdays in December due to illness. Marshall was, prior to the events considered herein. admit- tedly guilty of taking leave without authorization. 9s Marshall told him next Thursday, which was December 21: 2 days after his termination. 6 Ominski denies discussing a medical leave of absence with Marshall on December 15 As previously discussed the discussion of December 18, according to Ominski, was initiated by Marshall stating he would like a medical leave of absence and admitting he had not been to a doctor but indirectly that he had an appointment that Thursday. Marshall was told that the doctor, if he felt such leave was needed, should provide the com- This testimony substantiates Ominski's version of the conversation, which is credited; not only because of such substantiation, but also because of Marshall's failure to provide any documentation that supports his claimed ill- ness or explain how he could work full time up to and including the day of his discharge while ill, and also claims that such illness impacted adversely on his work, yet asserts that his work was not slow or otherwise un- acceptable. 9 7 After his discharge, Marshall testified about several conversations with Clay which allegedly support his claim that the discharge was initiated by anti-union animus. Clay denies making these statements. For the reasons stated above, Marshall's testimony is not cred- ited.9 8 II. ANALYSIS AND CONCLUSIONS A. Interference, Restraint, and Coercion The General Counsel contends, contrary to Respon- dent's denials, that Photo-Sonics violated Section 8(a)(l) of the Act by engaging in interrogations, threats, impos- ing harsher working conditions on union adherents, and promising benefits if employees would not vote for the Union. Section 8(a)(1) of the Act prohibits an employer from interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. The findings of fact hereinabove, establish that su- pervisors Ominski and Alonzo interrogated employees about whether they held any union affinities and/or why they supported the Union. While such interrogation is not a per se violation of the Act, such questioning can "be a very subtle weapon for interfering with employee rights." Ridgewood Manage- ment Co., Inc. v. N.L.R.B., 410 F.2d 738, 740 (5th Cir. 1969), cert. denied 396 U.S. 832 (1969). "Any interroga- tion by the employer relating to union matters presents an ever present danger of coercing employees in viola- tion of their 7 rights." Texas Industries, Inc. v. N.L.R.B., 336 F.2d 128, 133 (5th Cir. 1964). The reason for the questionings was not given, nor were assurances against pany with "some information so that they could determine if the inedical leave of absence should be granted." Ominski claims Marshall agreed to his request 97 This finding not crediting Marshall's testimony includes his assertion that Ominski, when he terminated Marshall, stated, "things were going to get rough in the shop, and that they were going to be watching every- body who was for the union closely, especially Burl [Driscoll] and Porter Knight" UN In support of Marshall's claim that his work was of high quality, Wilkes testified that he never found anything wrong with Marshall's work or heard a negative comment about the work from Clay or Ominski. In fact, he states he heard Clay and Ominski comment about Marshall, saying they liked his work and that he did pretty good work. When these comments were made was unstated The failure to demon- strate that the asserted comments were made during the union organizing campaign or subsequent to Marshall's alleged illness, which admittedly resulted in poorer work, cojoined with the failure to demonstrate that Wilkes inspected a sufficient sample of Marshall's work to render his opinion persuasive, leads me to not credit his testimony Additionally, Wilkes never supervised Marshall and did not contend he had broad knowledge of Marshall's abilities or his facility to produce good work ef- ficiently. Therefore, his testimony is not found to be supportive of Mar- shall's claim even if credited 582 PHOTO-SONICS, INC. reprisals offered. Furthermore, the employees were not advised that they had a right to refuse to answer Alon- zo's and Ominski's questions. See N.LR.B. v. Cement Transport, Inc., 490 F.2d 1024, 1028 (6th Cir. 1974), cert. denied 419 U.S. 828 (1974). The interrogations occurred in the context of the Company's admitted opposition to the Union's organizing efforts. In view of these consider- ations, I find that this questioning of the employees did tend to interfere with, restrain, and coerce employees with respect to their free exercise of Section 7 rights in violation of Section 8(a)(1) of the Act. Alonzo's threats that the plant would be closed, that there would be strikes, etc., Ominski's threats to Knight, and Kiel's statements to employees about the would-be adverse effects of electing the Union as their collective- bargaining representative, discussed in detail above, when examined in the "context of its labor relations set- ting" 99 and the absence of a showing that these supervi- sors' statements were predictions based on demonstrated probabilities beyond management control or caused by previously made decisions, 0 0 ° ° lead me to conclude that these statements were coercive and not protected by the First Amendment. The employee meetings and Alonzo's and Ominski's statements clearly contained the message that the employees would suffer detrimental changes in working conditions and possibly even loss of employ- ment through plant closure or discharge, in reprisal for supporting the Union;' °' and conversely, offering in- creased benefits if the union representative was not elect- ed constituted activity violative of Section 8(a)(l) of the Act. B. Marshall's Discharge Section 8(a)(3) of the Act provides in pertinent part: "It shall be an unfair labor practice for an employer . . . by discrimination in regard to hire or tenure of employ- ment or any term or condition of employment to encour- age or discourage membership in any labor organization Based on the credited testimony, it is found that Mar- shall was repeatedly criticized for wasting time, ineffi- ciency, and being too slow in producing parts. Marshall's attempt to demonstrate mitigation because of illness is unpersuasive inasmuch as a discharge based on such ill- ness, standing alone, would not be violative of the Act. Rather, the admission that the illness impacted adversely upon his work pattern corroborates the contentions of Respondent that Marshall was discharged because of in- efficiency and for producing parts too slowly. This deci- sion to discharge Marshall was consistent with Respon- dent's past practice. The record demonstrates that Mar- shall was repeatedly warned, both prior to and subse- quent to the commencement of the union organizing campaign, about wasting time. Accordingly, it is con- "" N.LR.B. v. Gissel Packing Co., Inc.. et a, 395 U.S. 575, 617-619 (1969). 00 See Textile Workers Union v. Darlington Mfg. Co., 380 U.S. 263, 274, fn. 20 (1965). 101 See Tom's Supermarket. Inc., 157 NLRB 1278 (1966). Mock Road Super Duper. Inc,, 156 NLRB 983 (1966); 726 Seventeenth. Inc.. /a Sans Souci Restaurant, 235 NLRB 604 (1978); Rabco Metal Products Inc., 221 NLRB 1230 (1975); Thomas Merger d/b/a Farmers Grain Elevator. 226 NLRB 564 (1976). and Kur-Kasch. Inc., 239 NLRB 1044 (1978) cluded that the General Counsel has failed to establish that the asserted reason for Marshall's discharge was pre- textual, as previously indicated, Marshall's use of illness as an excuse supports Respondent's allegation and the de- cision was not shown to be disparately harsh. Also as previously indicated, the facts do not clearly demonstrate that Marshall engaged in union activities of a significant nature or in a manner indicating that such activities were known to Respondent. That Respondent had general knowledge that employees were engaging in union activities does not necessarily require a specific in- ference of knowledge of a specific employee's union ac- tivities or interest as discussed above, the surrounding facts are inadequate to support a finding that Respondent had knowledge of Marshall's alleged union activities.' 0 2 See K & B Mounting Inc., 248 NLRB 570 (1980). The timing of the discharge, about 3 weeks before the elec- tion, has not been shown as probative of unlawful motive or to be otherwise remarkable. Therefore, Ominski's demonstrated union animus, standing alone, is inadequate to justify the finding of a violation. In view of the foregoing, it is concluded that the Gen- eral Counsel has failed to establish that Respondent dis- charged Marshall because of his union activities and the facts are insufficient to support a finding that Respondent had knowledge of Marshall's union activities and that the discharge was partially or entirely due to his alleged pro- tected concerted activity. It is therefore recommended that the allegation in the complaint of unlawful discharge be dismissed. Ill. THE REPRESENTATION CASE Referred and consolidated with the foregoing unfair labor practice cases are the previously described chal- lenges and objections to election. Some of the objections to the election are encompassed by the subject matter of the alleged unfair labor practice violations discussed her- einbefore. As found above, Marshall was disciplined for being slow and inefficient, therefore the objection based on his discharge is held not to have merit and it is rec- ommended that it be overruled. A. Background The Union, Petitioner herein, filed a representation pe- tition on August 22, and on November 27, 1978, the Re- gional Director issued a Decision and Direction of Elec- tion resulting in an election, by secret ballot, being con- ducted under his direction and supervision on January 5, 1979. The tally provided each party showed that 164 bal- lots were cast:' 0 3 73 for the Union, and 67 against, of which 24 were challenged. The result of the election could be affected by the challenged ballots.' 04 On May 18, 1979, the Regional Director issued a Supplemental Decision sustaining two challenged ballots, overruling the challenged ballots of 20 employees, and ordering that '02 Standing next to handbillers two or three times and talking to other employees about the Union. ":' There were about 166 eligible employees 104 The Union and Joint Employer filed objection% to conduct affect- ing the matter of the election on Januar) 12. 1979 583 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a hearing be held regarding the challenged ballots of Marshall and Vermeesch. B. Supervisory Status of Vermeesch Section 2(11) of the Act defines a supervisor as any person: having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, dis- charge, assign, reward, or discipline other employ- ees, or responsibly to direct them, or to adjust their grievances, or effectively recommend such action, if . . . such authority is not of a merely routine or clinical nature, that requires the use of independent judgment. In essence, Respondent contends that Vermeesch is not a supervisor for she was not authorized to exercise independent judgment rather, she merely acted as a con- duit for her superiors by relaying their orders or gather- ing information for them, in assigning work, informing employees they were discharged, preparing the discharge papers, informing employees they were promoted or re- ceived raises, asking employees if they wanted to assume leadmen's jobs, and initially testing job applicants. Con- versely, the Union argues that she is a supervisor having authority to exercise independent judgment in recom- mending who was to be hired and in directing other em- ployees. In resolving this issue, it is the person's power to act as an agent of the employer in relations with other employees and the individual exercise of independent judgment of some nature that establishes the status of su- pervisor. The exercise or authority to exercise any of the above functions may classify one as a supervisor even if most of their time is spent performing normal production or maintenance duties.'10 The fact that a person may be only a part-time supervisor does not detract from his su- pervisory status. Swift & Company, 129 NLRB 1391 (1961). Additionally, the definition of supervisor in the Act sets forth the enumerated powers in the disjunctive; hence, supervisory status may be conferred on an indi- vidual based on the possession of any one of these powers. N.L.R.B. v. Magnesium Casting Company, 427 F.2d 114, 117 (Ist Cir. 1970), affd. 401 U.S. 137 (1971). Vermeesch has worked for Photo-Sonics approximate- ly 10 years and claims she is currently the lead person of the tracking mount and PDS sections of the electrical as- sembly area' ° 6 and estimates that approximately 75 per- cent of her workday is spent assigning work to other em- ployees. According to Vermeesch, there is great variety in the type of work she assigns. According to Clay, the priority of work is determined by production control and Vermeesch cannot alter priorities.' 7 Clay also asserts ob Vermeesch admittedly devoted very little of her workday to actu- ally producing parts personally o10 The supervisor of the electrical department is Bob Holder Holder did not testify Respondent did not give any reason for its failure to call Holder, however, inasmuch as Clay testified about Vermeesch's duties as well as Holder's, such testimony would have been merely cumulative and drawing an adverse inferenlce is therefore unwarranted. lo07 Clays testimony on this point was undisputed. However, there witas no showi g thait Itoldr. an admitted supervisor, would or could alter the that Vermeesch is one of several lead persons, none of whom are supervisors.'08 The failure to detail all the duties and/or responsibilities of all of the lead persons renders their argument unpersuasive. Two former coworkers testified that Vermeesch was their supervisor, Leona Montgomery'09 and Shirley Blunt. 0 Vermeesch worked at a desk, not at the bench with the other assemblers. Blunt and Montgomery assert that Vermeesch did not do assembly work. While Respon- dent contradicts their testimony, it is credited based on demeanor and Vermeesch's own admission that 75 per- cent of the day is spent making assignments and portions are devoted to assembling work kits, filling out paper- work, and consulting with Holder. Very little of the day is left for performing assembly work. Also, Driscoll, who has previously been found to be a credible witness, testified that Vermeesch did not perform the work of an assembler. In assigning work, Vermeesch initially claimed that the individuals are chosen after consultation with Holder. She admitted that in assigning jobs skill level and aptitude are necessary considerations. Later in her testimony she admitted that she normally ' assigns deli- cate work using her own judgment as to who is the most qualified and capable to preform the work. It is claimed that Holder would, on rare occasions, ask whom she would recommend to perform a difficult job and he fol- lows her recommendations. Based on this testimony, it is concluded that Vermeesch has the authority to assign work or effectively recommend such action. There has been no showing or even a bare allegation that such as- signments are merely routine or of a clerical nature." 2 Another indicia of status discussed by Montgomery and Blunt are the powers to hire and promote. Ver- meesch admitted she gave soldering tests to all job appli- cants being considered for employment in the electrical assembly department. Although Vermeesch and Clay list of priorities set h production control it Ille authorizatiorl from an- other Therefore. Clay's testimony on the point is not considered persua- Sis C. "ul Fihe ballot of aother lead person. Larry Plaltheil. was challenged by he Uion, and the Regional t)irector concluded in his Supplemental Decision that Panrthen was not a supervisor Inasmuch as the issue of Panthen's status was previously determnied ino collateral attack on such decision was permitted herein. Additionally all the duties and activities of 'Panthen were ilot fully ad fairly tried it the proceeding currently under considerationl and the decision regarding Panthen's status is not de- ternlialtive of Vermeeschh's status "'o Montgomery worked for Photo-Sonics front August 1976 to Feh- ruary 1'178 as an lectrical assembler Respondent moved to strike her tsltilnoll since she was not working for Respondent at the time of the evelts hereunder consideration. tIh motion was denied as past practices and responsibilities have probhative alue. particularly here, whcre there has been no indication that past practices have been altered m Blunt vwas eiployed at Phot-Sl tiics from October 1977 through December 1978. Initially, she was all assembler and in September or Oc- tobehr 1978 she was Ilmade a lead person aid ciainls her supervisor was Vicky Vermeesch even though, when she was elevated to lead person. she sas told she was in charge of calmera assembly and Vermeesch would be in charge of tracking mount assembly Vermtneesch defined "normnally" as 95 to 99 percent of the time I 2 It is noted that Vermeesch earns more than the employees she oversees. ad she receives the same paid holidays, vacation benefits, lunch period, andl insurance plan (opltilns as other hourly employees 584 I'HOTO-SONICS, INC claim that she merely administers the test t and does not play a decisive role in the determination to hire, Ver- meesch admitted she did ask questions relating to the prospective employee's work experience; review the job application individually and with Holder, including eval- uating the applicant's performance on the soldering test, taking into consideration their experience, and partici- pates in the recommendation to hire. She further ad- mitted that when she discussed potential new hires with Holder, she would opine whether the individual should be offered a job, and if she made a recommendation against hiring, the matter would be dropped and the person not hired. The only persons Holder discussed with Clay, or potential new employees, were applicants both he and Vermeesch felt should be hired, admittedly 9 out of 10 of these persons so recommended were in fact hired. Based on these admissions, it is concluded that Vermeesch has the authority to effectively recommend hiring an individual. The testimony relating to promo- tions is similar to the evidence regarding hiring proce- dures.l1 4 Accordingly, it is concluded that Vermeesch has the authority to effectively recommend promotions. One of the most strongly disputed issues was whether Vermeesch had the authority to fire. Montgomery saw Vermeesch filling out what appeared to be termination papers, but she did not know whether such activity was pursuant to instruction or not. All she knows is that after the papers were filled out, Vermeesch would "go and get the person and they would be gone." Vermeesch also told her two different times she was going to have to fire someone, would "fill out the paper," then Vermeesch "would go get the person and they would be gone." The two people "let go" were discussed by Vermeesch with several other persons prior to their discharges; Ver- meesch said: "I tried to teach them, but they just don't seem to want to learn so I have to let them go." Mont- gomery does not know if Vermeesch's effectuation of these terminations was pursuant to another's instructions or if Holder played any role in the discharge discussions. Blunt did not know if Vermeesch had authority to ter- minate any employee, none were terminated by her or Vermeesch during Blunt's tenure at the Company. Sever- al termination slips were introduced into evidence that were signed by Vermeesch. These documents, General Counsel's Exhibits 2 through 4, were purloined by McGuire by breaking into Vermeesch's desk, 5 remov- ing the documents, photocopying the papers, then re- turning them to the desk. 6 a Blunt, who allegedly had a similar job with the same responsihil- ities, never administered a soldering test. nor was it shown that Blunt's replacement had such duties. 114 Vermeesch does discuss job performance with Holder and Clay. contradicting Vermeesch. admitted that he consulted her when consider- ing awarding raises greater than the norm Vermeesch's denial is nlot credited and the lack of candor was not atypical of her testimony I" The termination papers of former employees Janice Couch, Ken- neth Dowghty, and Boris Albrego were the documents remosed and photocopied. 1 1 McGuire adnitted breaking into the desk. photocopying the mate- rial and delivering the material to a union represeitatire: "he heliesed he did not explain the circumstances under which he obtained those docll- ments to the union representative" There was no shosing that the Union knew of or participated in McGuire's decision to purloin the documents Respondent moved to strike the Union's objections and challenge to the election and to dismiss the petition based on the argument that McGuire was acting as the Union's agent when he purloined the documents and, therefore, the Union should not be permitted to benefit from the illegal action. The rulings on the record admit- ting the documents, and denying the motions to strike and dismiss, after reconsideration of the record, the briefs and cases cited therein, are hereby affirmed. Vermeesch admitted that she filled out and signed ter- mination notices on the line designated supervisor's sig- nature. However, she denied making the decision to ter- minate any employee, claiming that Holder made the de- cision and directed her to fill out the termination papers. This testimony is not credited based on her admission that she was the individual who pointed out to Holder that Albrego was not qualified to do the work, she filled out the papers without specific instructions as to the rea- sons for the action, and she admitted signing the termina- tion slip prior to having it reviewed by Holder. 7 She then claims that she turned all the material over to Holder because she was not responsible for personnel files which is inconsistent and irreconcilable with the fact that the documents were found in her desk. The discrep- ancies between her assertions and the admitted facts were unexplained. Based on the credibility findings, the admission that Vermeesch initially passed upon the ques- tion of Albrego's competence, the inherent probabilities and Montgomery's testimony, lead me to conclude that Vermeesch has the authority to discharge or effectively recommend such action. Based on these findings it is concluded that Vermeesch is a supervisor ithin the meaning of Section 2(11) of the Act. ' I Respondent argues that the issue of whether Ver- meesch is a supervisor is improper at this juncture for the issue was resolved when the Regional Director found her eligible to vote in the Supplemental Decision and the request for review was denied. The Regional Di- rector referred the question of Vermeesch's supervisory status to the Administrative Law Judge for a de noa de- termination and did not make any finding thereon; thus, the argument is found to be without merit. t 9 C. Effect of Supervisory Status Previously Found Violations of the Act on the Election and Challenges Based upon the finding that Marshall's discharge was not violative of the Act, I conclude that it was effectuat- ed prior to the election and was not on the payroll during the designated payroll period, and that he was not I 'I'he s itness was inconsistenl in her testiniony regarding hen she signed the terminliatin slips, saying that the slip wvas signed h her onls after Holder resvewed the document and at other imes stating that he signed the material prior to such review This is just one area of iltconsis- tenc i her testlinony and i one of the reasons she i not creditcd ] Ihere are other indicia of supervisory status in this case. but the finding of authori to hire, fire, direct and assign, or t, efiectieli rec- ornmend such actiion is sufficient to reach a cnclhuil, i and rlenders unl necessar a si milarl detailed discussion about her aut.hit I to promote and re.rd work. discipline, or to effectively reciommenld uch action hich hased ,rl thle rc.ord, are also powers Vermcecch is flund I.) hold and are fuirther bases to find suipersisor status mt" See. for example. I.ray,,mn Cand, (Crnpun. l19' N R 547 11972) and .: tW (rarinngr Inc. 2107 NlRB (i1t 1"971) 58X DECISIONS OF NATIONAL LABOR RELATIONS BOARD eligible to vote, and I recommend that the challenge to Marshall's ballot be sustained. Inasmuch as I have found that Respondent-Employer engaged in substantial violations of Section 8(a)(1) which occurred during the relevant period between the filing of the petition and the holding of the election, I conclude that those unfair labor practices interfered with the em- ployees' free and uncoerced exercise of their right to vote as they chose in the election. 120 Therefore, it is rec- ommended that the election herein be set aside and that the Regional Director hold a second election to deter- mine the question of representation when he deems that a fair election can be held. Another basis for recommending the setting aside of the election is that Respondent had a supervisor as an observer at the polls which also interfered with the free choice by the employees in the selection of a representa- tive for the purpose of collective bargaining. 2 ' It is es- tablished Board policy that supervisors may not act as observers for an employer. 2 2 120 See Dal-liex Optical Company. Inc., 137 NLRB 1782, 1786 (1962). The holding of employee meetings, the number of violations, the size of the unit, and other relevant factors require a finding that the employees' free choice was substantially hampered in the election. See also Super Thrift Markets, Inc., 233 NLRB 409 (1977), and Sambos Restaurant, Inc., 247 NLRB No. 122 (1980). '12 The Employer does not assert that it did not know supervisors were not eligible to act as observers or that the Board agent or Union knew of Vermeesch's supervisory status and approved the designation. 1'2 See Peabody Engineering Company, 95 NLRB 952 (1951); The .4nn Arbor Press, 88 NLRB 391 (1950); Burrows & Sanborn, Inc., 84 NLRB 304 (1949); and Parkway Lincoln-Mercury Sales, Inc., 84 NLRB 475 (1949) THE REMEDY Having found Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)(l) of the Act, I recommend that Respondent cease and desist therefrom and post a notice to its employees. Having found by numerous, serious unfair labor prac- tices and by its assignment of a supervisor to act as its election observer, Photo-Sonics prevented a free and fair election, I shall recommend that the election be set aside and a second election held at a time the Regional Direc- tor for Region 31 finds appropriate. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(l) of the Act by coercively interrogating employees about union matters; threatening discharge, plant closure and other economic or work-related adverse reprisals for union activities; promising benefits for the purpose of discouraging em- ployee support of the Union. 4. The foregoing unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent has not been shown to have engaged in any other violations of the Act. [Recommended Order omitted from publication.] 586