K.B. Specialty Foods Co.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 740 The Kroger Co., d/b/a K.B. Specialty Foods Co. and United Food and Commerical Workers Union Local 700, a/w United Food and Commercial Workers International Union, AFL–CIO. Cases 25–CA–27730–1 amended, 25–CA–27875–1 amended, 25–CA–27897–1 amended, 25–CA– 27943–1 amended, 25–CA–27999–1, and 25–CA– 28110–1 amended July 16, 2003 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND ACOSTA On September 30, 2002, Administrative Law Judge Margaret M. Kern issued the attached decision. The Charging Party filed exceptions and a supporting brief. The Respondent filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, The Kroger Co., d/b/a K.B. Specialty Foods Co., Greensburg, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Michael Beck, Esq. and Rebecca Ramirez, Esq., for the General Counsel. Rodolfo R. Agraz, Esq. and Kevin S. Joyner, Esq., for the Re- spondent. Jerius M. Gilden, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE MARGARET M. KERN, Administrative Law Judge. This case was tried before me in Greensburg, Indiana, on June 17, 18, 19, 20, and 21, 2002. The consolidated complaint, which issued on May 21, 2002, was based on unfair labor practice charges and 1 The Charging Party has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 The Charging Party’s exceptions are limited: it argues only that the judge erred in finding that the General Counsel failed to establish that the Respondent condoned the acts of violence that occurred on June 27, 2001. amended charges filed on July 26, August 28, September 27, October 15 and 30, November 5, 6, and 13, and December 3 and 21, 2001,1 and on January 9, February 13, March 25, and May 14, 2002, by United Food and Commercial Workers Un- ion Local 700, a/w United Food and Commercial Workers In- ternational Union, AFL–CIO (the Union) against The Kroger Co., d/b/a K.B. Specialty Foods Co. (Kroger or KB or Respon- dent). It is alleged that from June to October, in response to an or- ganizing campaign, Respondent engaged in multiple acts of conduct violative of Section 8(a)(1) of the Act, including threats, interrogations, the creation of the impression of surveil- lance, and the promulgation of an unlawful no solicitation rule. It is alleged that on June 27 Respondent directed and encour- aged antiunion employees to use their vehicles to run over pro- union employees and union representatives engaged in hand billing. It is further alleged Respondent condoned antiunion employees threatening the prounion employees engaged in hand billing, throwing rocks and hot ashes at them, and setting fire to their literature in violation of Section 8(a)(1). Finally, it is alleged that Respondent discharged Barbara Danforth on November 15, and suspended and discharged Ruth White on December 1 and 3, because of their union activities. Respon- dent denies all of the 8(a)(1) allegations. It admits that it dis- charged Barbara Danforth on November 15, 2001, but claims it did so because she violated Respondent’s attendance policy, and not for any unlawful reason. Respondent denies that it sus- pended and discharged Ruth White for unlawful reasons, and avers that White was not employed by Respondent but rather by a temporary employment agency. FINDINGS OF FACT I. JURISDICTION Respondent admits, and I find, it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION STATUS Respondent admits, and I find, the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES A. Respondent’s Business Respondent is engaged in the manufacture of deli and bakery products at its facility in Greensburg, Indiana (facility). Re- spondent employs approximately 250 production and mainte- nance employees who work Monday through Friday on three shifts, 7 a.m. to 3 p.m., 3 to 11 p.m., and 11 p.m. to 7 a.m. Re- spondent admits and I find that each of the following individu- als are supervisors and agents of Respondent within the mean- ing of the Act: Rick Padgett, general manager; Richard Gibson, human resources manager; Rod Taylor, production manager; Vince Moeller, production supervisor; Doug Bohman, produc- tion superintendent; Bob Howard, first-shift supervisor; Mary 1 All dates are in 2001 unless otherwise indicated. 339 NLRB No. 88 K.B. SPECIALTY FOODS CO. 741 Kohlman, second-shift supervisor; and Tim Fleming, cake line supervisor. B. The Organizing Effort The Union began organizing Respondent’s employees in March and it is not disputed that Respondent’s managers and supervisors were aware of the organizing effort at all times relevant to this case. In May, Respondent’s attorneys conducted training sessions with managers and supervisors to educate them about proper and improper conduct during a union organ- izational campaign. C. June Informational Meetings 1. Facts Respondent conducted a number of informational meetings with employees about the union campaign over a period of months. Padgett testified that at the June meetings, he read and strictly adhered to a prepared text, and he used an overhead projector as an aid. He answered questions posed by employ- ees, and when he did so, he spoke extemporaneously. Padgett covered the topics of union dues and checkoff, union shops, bargaining, and strikes. Jennifer Turner, a second-shift employee in the bake cake area, testified that she attended two meetings in June conducted by Padgett a week apart. At the first meeting, according to Turner, Padgett said he did not want employees to vote for a union. He believed in the Company, he believed in the employ- ees, and he believed that the reason employees were there was to support their families. He said he did not want to see em- ployees lose anything that would hurt their families. Employee Lou Eva Taylor asked the question if there were a strike, and the issues could not be resolved, would the plant close. Padgett responded if nothing could be settled during the strike the plant would be closed. In response to another employee’s question, Padgett said that no employee would be allowed to cross a picket line and that the products manufactured at the facility would be manufactured by another company. Turner testified that at the second meeting she attended in June, Padgett said “basically the same thing.” Turner observed that at both meet- ings Padgett stood behind a podium and it did not appear to her that he read from a prepared text. Rather, it appeared to her that his remarks were “basically coming off the top of his head.” On cross-examination, Turner acknowledged that she had given three pretrial sworn statements, and in none of those statements did she mention attending a second meeting. She acknowledged that when Padgett spoke about strikes, he said that Kroger makes contingency plans and that part of those plans can be to move product around. Lou Eva Taylor testified that she attended a meeting con- ducted by Padgett, but could not recall if Turner was present at that meeting. Taylor asked a question about picket lines, but could not recall at the time of her testimony the exact question she asked or the answer given. She never heard Padgett say the plant would close. Padgett has either worked in or managed Kroger manufactur- ing facilities for over 28 years and he managed a unionized facility for 11 years. Padgett testified that at one of the em- ployee meetings, Lou Eva Taylor asked if there were a strike, could employees cross a picket line. He testified he told Taylor he could not answer that for her, but went on to explain “that in Kroger manufacturing, whenever there are strikes or threats of strikes, the Kroger Company puts together contingency plans whereby to meet our customer needs. We can shift production to other areas or be able to cover production in other areas, again, to meet our customer needs.” Padgett denied saying that employees could not cross a picket line. 2. Analysis Turner’s testimony was not credible. There was an inherent contradiction in her twin assertions that Padgett talked “off the top of his head” at both meetings, but repeated the same exact threats at both meetings. When coupled with the fact that she never mentioned the second meeting in three pretrial affidavits, her testimony is not believable. I credit Padgett’s more credible testimony that he did not threaten employees with plant closure, nor did he threaten employees with job loss if they selected the Union as their representative. Nor do I find that Padgett’s statements amounted to a threat to transfer production if employees selected the Union as their representative. In response to a question about a possible strike, Padgett stated that when there has been a threat of a strike in the past, Kroger has put together contingency plans, and those plans have included shifting production to other facilities in order to meet customer needs. Padgett’s comments were based on objective facts, i.e., Kroger’s past practice, and the shifting of production to other facilities was couched in terms of cus- tomer need and economic necessity. When considered in con- text, Padgett’s comments cannot be reasonably viewed as a threat of retaliation under the Supreme Court’s guidelines in NLRB v. Gissel Packing Co., 395 U.S. 575, 616–620 (1969). I therefore recommend dismissal of paragraph 5(c) of the com- plaint. D. June: Taylor/Adkins 1. Facts Deborah Adkins is a production clerk on the first shift. She testified that in her 23 years of employment, she has talked with other employees about “anything and everything,” during worktime and during breaks. The topics of discussion have included sports, television, movies, and children. To her knowledge, there has never been a rule prohibiting these types of nonwork-related discussions. In June, Adkins spoke to several employees, including Rose Bowen, about joining the Union. Bowen testified she went into the production office to get a marker. While there, Adkins asked her if she wanted to sign a card and if so, she would bring one in to give to her. Bowen reported this conversation to Rod Taylor. The next day, Adkins was summoned to Rod Taylor’s office where she met with Taylor and Moeller. According to Adkins, Taylor said he had heard she had been talking about “union stuff” to some people. As soon as he said this, Adkins immedi- ately said she wanted a witness present. Taylor said this was not a discipline. He told her that she could not do that on com- pany time and that he could terminate her for what she had done. He said he would not terminate her that day, but the next DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 742 time she did it, he would terminate her. Adkins said she would not do anything and left. Rod Taylor testified that Bowen came to him and told him Adkins had approached her on the production floor to sign a card. Taylor went to the human resources department and spoke with Richard Magnerd, from corporate human resources, and to Dick Gibson. The three discussed the situation and, according to Taylor, Magnerd told him that he needed to “sit [Adkins] down and tell her on working time, you know, she can’t do that.” Magnerd did not testify and Gibson, who did testify, was not asked about this conversation. Taylor testified that during his conversation with Adkins, he said it had come to his attention that she had asked for a signa- ture on a union card during working time. According to Taylor, Adkins jumped up and demanded a witness be present. Taylor said he was not there to take disciplinary action, and that all he was there to do was to let her know that she could not do that during working time on the floor. He told her that her break- time and her lunchtime was her time, but during working time, she could not do that. He added, if she continued to do this on working time he had the ability to seek further disciplinary action. Moeller’s account of this meeting was similar to Tay- lor’s account. Moeller testified that Taylor instructed Adkins that during working time there was to be no union activity. Breaktime and lunchtime was her time, but there could be no union activity on worktime. He too recalled Adkins asked for someone to be with her, but Taylor said that was not necessary because she was not being disciplined. Moeller denied that Taylor said anything about termination. Taylor has been employed by Respondent for 16 years. He testified that Respondent has always drawn a distinction be- tween employee solicitation on worktime versus nonworktime, and it is this distinction that he communicated to Adkins. Tay- lor admitted on cross-examination, however, that there was no written policy making that distinction, and he could give no specific instance when employees have ever been notified of that distinction. Taylor was asked the following: Q. Now the rule at KB is actually that you can’t solicit anywhere on the premises. Isn’t that it? A. I don’t know that. Q. You’ve never seen that rule posted anywhere at KB? A. Not to my knowledge. Taylor was then shown a photograph of a sign posted on Re- spondent’s fence that reads: “Solicitation, trespassing or distri- bution of literature by anyone in this parking lot or on these premises is prohibited.” Taylor testified he could not recall where that sign was located. When he was forced to admit that he drove past the sign on a daily basis as he entered the prem- ises to go to work, he testified, “If I’ve seen the sign I haven’t read the sign.” Mary Kohlman has been employed by Respon- dent for 17 years. Kohlman testified that for that entire period of time that she has been employed, that sign has been posted on Respondent’s fence. 2. Analysis I credit the testimony of Adkins over that of Rod Taylor and Moeller. Adkins testimony was direct and to the point, and she was a credible, believable witness. In her 23 years of employ- ment, she freely discussed nonworked-related matters during working and nonworking time. After she spoke about the Un- ion, however, Taylor told her she could not talk about the Un- ion on “company time” and threatened to terminate her if she did. Taylor’s denial that he made these statements is not credi- ble. Taylor testified that Respondent’s established rule is that employees are allowed to solicit in nonwork areas during non- worktime. Taylor was directly contradicted by Moeller who testified that employees have always been free to talk about whatever they wanted to talk about during worktime as long as they worked. Taylor’s testimony was also contradicted by Re- spondent’s no-solicitation/no-distribution rule which has been posted on its fence for the past 17 years and which prohibits all solicitation, and all distribution, anywhere on the premises at any time. When Taylor was shown the photograph of the posted sign, he became somewhat flustered, at first denying that there was any such a sign, then claiming he didn’t know where the sign was, and then weakly protesting that if he saw the sign he never read it. This testimony was plainly not credible. Nor do I credit Taylor’s testimony that he spoke with Magnerd and Gib- son before talking with Adkins, and that they instructed him to use the term “working time” as opposed to “company time.” Magnerd was not called by Respondent to corroborate this tes- timony, and Gibson, who was called by both the General Coun- sel and by Respondent, was not asked about any such conversa- tion. I also discredit Moeller’s account of this meeting. Moeller was present at the meeting between Taylor and Adkins to serve as a witness for Respondent, and when he testified before me regarding this meeting, he did so in a manner designed to ad- vance Respondent’s interest. Moeller’s testimony that Taylor did not threaten to terminate Adkins for talking about the Union is not believable when juxtaposed with Adkins’ clear and credible recollection that such a threat was made. Taylor’s direction to Adkins that she could not discuss the Union on “company time” was not only an unlawful departure from Respondent’s established practice of allowing nonwork- related discussions during working and nonworking time, but was a facially overbroad prohibition. A rule prohibiting union solicitation on “company time” is overbroad and presumptively invalid because it is subject to the reasonable construction that solicitation at any time, including breaktimes or other nonwork periods, is prohibited. M.J. Mechanical Services, 324 NLRB 812, 813 (1997). Since Respondent has offered no evidence to rebut the presumptive unlawfulness of the rule, I find Taylor’s statement to Adkins violated Section 8(a)(1) of the Act. His threat to discharge Adkins if she violated the rule also violated Section 8(a)(1).2 2 The posted no-solicitation rule on Respondent’s fence is not the subject of a complaint allegation, and the General Counsel did not move at the hearing, or in his brief, to amend the complaint. Nor was the matter fully litigated since the posting of the sign was used essen- K.B. SPECIALTY FOODS CO. 743 Taylor’s statement to Adkins, that he had heard she had been talking about “union stuff” to some people, is alleged to have created the impression of surveillance. That Board’s test for determining whether an employer has created an impression of surveillance is whether the employee would reasonably assume from the statement in question that her union activities had been placed under surveillance. The Board looks not only to the words used, but the context in which they were expressed. Grouse Mountain Lodge, 333 NLRB 1322 (2001). I find Tay- lor’s words would certainly lead an employee to believe that management was peering over her shoulder, taking note of her involvement in union activities, and in what particular way. The context in which the words were spoken further adds to their coercive nature. This conversation took place in the midst of the Union’s organizing drive and the day after Adkins had asked Bowen to sign an authorization card. Adkins was called away from her duties and summoned to the office of a high- ranking member of management where she was warned that if she spoke about the Union again on companytime she would be discharged. Any employee in this position would reasonably assume that her union activities had been placed under surveil- lance. Taylor’s statement therefore unlawfully created the im- pression of surveillance and violated Section 8(a)(1). E. The Events of June 27 1. The facts a. The physical layout The facility is located at the intersection of Broadway and Seventh Street. A fence runs along the perimeter of the prop- erty. The main door to the building, and the main gate, are lo- cated on the Seventh Street side. There is a flagpole in front of the main door, and there is an area of shrubs to the right of the door.3 A distance of approximately 15 feet separates the shrub area from the main gate. There is a parking area to the left of the main gate, directly across from the front door and shrubs, and a larger parking area is located to the right of the main gate. b. General Counsel’s witnesses By the end of June, union organizers had received a number of signed authorization cards from employees from the first and third shifts, but had received fewer cards from employees on the second shift. At a meeting on June 26, lead organizer, Pat Taylor, asked for volunteers to handbill at the facility the fol- lowing night when second-shift employees were getting off work. First-shift employees Ruth Fulton and Ruth Linger vol- unteered. Fulton, Linger, and three union organizers, Pat Taylor, Jes- sica Leonard Gibbons, and Theresa Mertes arrived at the facil- ity sometime between 11 and 11:15 p.m. on the night of June tially as a means to impeach Taylor’s testimony. I therefore make no finding as to whether the posted sign violates the Act. 3 Some witnesses described events from the perspective of a person facing Seventh Street, others from the perspective of a person facing the building. To be consistent, I have summarized all the testimony from the perspective of a person standing on Seventh Street facing the building. 27.4 Third-shift employees were entering the facility to report to work, and second-shift employees were exiting the facility through the front door. (1) Testimony of Schwering and Holzback Dacia Schwering and Jennifer Dawn Holzback worked to- gether on the second-shift cake line. Holzback testified that as their shift was ending, Schwering told her there were union people outside, that the second shift did not want a union, and there could be trouble. As they were getting ready to leave, Kohlman was standing inside the front door and she and several employees were laughing about something. Holzback testified, “[Kohlman] told us that if they got in our way, that we could just run them over.” Schwering’s recollection was that it was Holzback who first mentioned running people over. Holzback asked Kohlman, “[D]o you want Eric to run over the union people with my car?” According to Schwering, Kohlman responded, “[Y]eah, if they get in your way, run them over.” Schwering replied, “I’m not running over anybody.” Holzback testified that after she left the building and was walking toward her car, she saw employees throwing rocks at the union representatives and she saw Kohlman sitting by her- self on the curb laughing. Schwering, on the other hand, testi- fied that when she and Holzback walked to their cars, Kohlman was still inside the building. Schwering heard employees talk- ing about throwing rocks but she did not see rocks thrown.5 (2) Testimony of Pat Taylor Pat Taylor testified that as soon as the second-shift employ- ees came through the front door they began cursing at the union representatives, calling them whores and bitches and telling them to go home. One employee, Lindsey Fonseth, came up to her where she was standing at the gate and said if she was still standing there when he got off he would run her over with his truck. Taylor then observed Fonseth drive through the gate, rev his engine, and fishtail the rear end of his truck. According to Taylor, the skidding truck “almost hit” Mertes.6 Taylor also observed employee Mike Raymer drive through the gate. When he got in front of the union representatives, he revved his en- gine for 3 to 4 minutes, creating a large amount of smoke and causing bits of asphalt to fly up. Taylor testified these events occurred prior to the time that Kohlman exited the building.7 According to Taylor, approximately 20 to 30 employees ex- ited the building before Kohlman came outside. When Kohlman did emerge, she walked toward the gate and asked the union representatives what they were doing. Fulton said they were hand billing and she offered a piece of literature to Kohlman. Kohlman did not respond, walked back toward the building, and sat down in front of the shrub area. Taylor then 4 In describing the events of that night, many witnesses referred to these five individuals as the union representatives and I have adopted that reference. 5 Both Holzback and Schwering were subsequently terminated for excessive absenteeism. Holzback was terminated the next day, June 28. Schwering was terminated in March 2002. 6 Mertes did not testify. 7 There are no complaint allegations regarding the manner in which Fonseth and Raymer drove their vehicles that night. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 744 observed three or four unidentified employees who were sitting and standing next to Kohlman throw rocks in the direction of the union representatives. According to Taylor, a total of three or four rocks were thrown. After the rocks were thrown, Taylor testified that employee Phillip Branum walked up to her and grabbed a stack of about 25 handbills out of her hand. She saw him walk over to the shrub area, wad the handbills, and make two piles. He then lit both piles and set two fires. After the fires were out, Taylor saw Branum take a shovel, scoop up the ashes, and walk toward the gate. She testified, “[H]e took the ashes and he brought them to me and said, I could throw it to the right or throw it to the left or I could throw it on you, but I am going to put it in front of you.” Branum then placed the still-smoking ashes at her feet, so close that she could feel the heat through her shoes. Taylor denied that she or any of the other union representa- tives yelled, raised their voices, or called employees “young and dumb.” They kept their voices to a conversational tone and tried to communicate the benefits of unionization to the em- ployees. (3) Testimony of Jessica Leonard Gibbons Jessica Leonard Gibbons is a general organizer for the Inter- national union. Gibbons testified that the second-shift employ- ees who came out of the building at around 11:15 p.m. were already “pretty hyped up.” They told the union representatives to leave, to go home, called them whores and bitches, and asked, “[W]here are the men at, you whores are out there.” Although Gibbons was present at the facility on June 27 for the entire period of time that Pat Taylor was there, Gibbons made no reference in her testimony to any comment by Fon- seth, nor to Fonseth skidding his truck in such a fashion as to almost hit fellow organizer Mertes. Gibbons did testify that five to seven employees threw between 20 and 30 rocks over a 10- minute period, and that in addition to rocks, employees threw lit cigarettes at the union representatives. Like Taylor, Gibbons testified it was Branum who grabbed the handbills out of Taylor’s hands, but she did not see who lit the fires. She did see two fires burning and, after the fires were out, saw Branum scoop the ashes and put them at Taylor’s feet. Although she was standing right next to Taylor, Gibbons could not recall whether or not Branum said anything as he was dumping the ashes. (4) Testimony of Ruth Linger and Ruth Fulton Linger and Fulton have both been employed by Respondent for over 20 years. Both were supportive of the Union’s organiz- ing effort, both signed cards, and both attended union meetings. Both women testified that as the second-shift employees left the building, they started hollering at the union representatives and calling them names. Whereas Linger testified that she did not hear any union representative call employees “young and dumb,” Fulton testified that there was “back and forth” between the employees and the union representatives and that Pat Taylor may have made the “young and dumb” comment and may have said that Kohlman had brainwashed the employees. Linger and Fulton recalled that Kohlman came over to where they were standing by the gate, and Linger testified that Kohlman said words to the effect that they “might as well leave.” Kohlman then walked over to the shrub area. Linger and Fulton gave estimates that from 10 to 30 employees stood near Kohlman when she was at the shrub area. Some of them threw rocks. Neither woman could say how many employees threw rocks or how many rocks were thrown. Fulton testified that when Fonseth came out of the plant, he walked past them and said if they got in his way he was going to run them over. Fulton and the other union representatives responded they were not blocking the driveway and if he wanted to leave, that was fine. According to Fulton, “he went and got in his car and he left.” Fulton was asked if it appeared to her that when he left he tried to run anyone over, and she responded, “[W]e didn’t stand in his way.” Linger testified that Fonseth drove through at a high rate of speed, swerving back and forth, and “had we not jumped out of the way I am sure someone would have been hit.” Fulton and Linger testified that Raymer drove through the gate and stopped his truck on Seventh Street, in front of where they were standing. He spun his tires for several minutes and that resulted in a large amount of smoke. Flying bits of asphalt struck them and caused minor burns that did not require medi- cal attention. During this incident, Kohlman was sitting at the curb. With respect to the fire-setting incident, Fulton testified that unidentified employees set handbills on fire in the middle of the parking lot, in the area between the shrubs and the gate. An unidentified male got a shovel and took the smoldering ashes out toward the gate. Mertes asked him what he was going to do with the ashes, and according to Fulton, “he said I am just go- ing to get rid of it, and he threw it out in front of us, you know, so it wouldn’t be in the parking lot.” When asked to identify on a photograph where the male threw the ashes, Fulton testified he threw the ashes in the middle of the travel portion of Sev- enth Street. Q. Did he throw them past you, or at you? A. I think he threw them past. Q. And was anyone standing in front of the place where he threw them? Was anyone standing at the spot— A. No. Q. —where he threw them? A. No, I don’t believe so . . . no. Linger testified that it was Branum who set the fire, and when it burned down, Branum got a shovel and scooped up the ashes. She testified: A. He brought them over to the gate and acted like he was going to throw them on us and I think Pat said, “I wouldn’t do that.” Instead he threw them at her feet, and he did that at least twice. Q. He made at least two trips with the shovel? A. Right. There came a point that night when the commotion ceased and the union representatives remained at the gate and hand- billed. This period of calm lasted for some period of time and employees gathered at the gate and discussed the pros and cons of unionization with the union representatives. There were no further incidents. K.B. SPECIALTY FOODS CO. 745 c. Respondent’s witnesses Eleven employee witnesses were called by Respondent, all of whom were still employed by Respondent at the time of the hearing. (1) Testimony of Rose Bowen When Rose Bowen exited the building, she saw Kohlman standing by the flagpole. She heard her tell employees to “go home, be safe, we’ve never had an accident so far.” According to Bowen, although Kohlman does not usually stand outside at night as employees are going home, she does regularly use the expression “be safe” with employees when they are working. Bowen walked past Kohlman, went to her car, and was the first employee to drive through the gate to go home. She saw the union representatives as she drove past them although it was dark because one of the street lights was out. (2) Testimony of Lindsey Fonseth and Hans Davis Lindsey Fonseth testified that he exited the building at ap- proximately 11:20 a.m. The union representatives were at the gate and about 15 second-shift employees were already in the parking area, both sides “hooting and hollering.” Kohlman was about 10 feet behind him leaving the building, and he heard her say, in a loud voice, “go home, be safe, don’t say anything.” Fonseth denied walking over to the gate and telling the union representatives that he was going to run them over if they got in his way. He got into his truck and he was the second car, after Bowen’s, through the gate. As he got to the gate, he put the truck in neutral and revved the engine. As he did so, one of the union representatives yelled, “[G]o, go, go.” When he got out- side the gate, he “spun a patch” about 4 or 5 feet long. When asked why he did this, Fonseth testified, “[B]eats me.” Hans Davis rode home with Fonseth that night. Davis testi- fied that Fonseth was ahead of him when he left the building and Kohlman was already by the shrubs. He recalled Kohlman calling to employees not to say anything to the union represen- tatives, to leave them alone, not to start anything, and to be safe. Davis recalled that Fonseth spun his tires twice, both times on Seventh Street, after he had fully passed through the gate. Davis made no reference in his testimony to any statement by Fonseth about running over the union representatives. (3) Testimony of Cathy Rice and Byron Caudill Cathy Rice was not working on June 27, but drove to the fa- cility to pick up fellow employee Byron Caudill. Rice testified that the windows in her car were open. She heard Kohlman tell employees to be safe going home, but she did not hear any yelling by anyone. Caudill, on the other hand, heard the union representatives call the employees young and dumb, and he testified there was screaming back and forth. Caudill drove Rice’s car to the gate, took a handbill from one of the union representatives, and tore it up. The union representative called him a “childish baby.” Caudill drove to the police station and told the police they should go to the facility, “in case something happened.” Caudill then went to a gas station, purchased a camera, and drove back to the facility where he took pictures of the activities still going on. When Caudill had the negatives developed, the photos did not turn out and he threw them away. (4) Testimony of Melissa Watson Melissa Watson testified that she saw Kohlman by the flag- pole and she heard her say, “go home and be safe.” Her stepfa- ther picked her up and she went home. She did not notice the union representatives at the gate. (5) Testimony of Philip Branum Philip Branum came out of the building at around 11:20 p.m. and he heard yelling back and forth. He heard the union repre- sentatives say the employees were young and dumb, and he heard the employees call the representatives bitches and ass- holes. He also witnessed Raymer spin his tires outside the gate on Seventh Street. Branum was standing close to the gate when he saw employee Matt Brossman snatch fliers out of one of the union representative’s hands. He heard Kohlman call his name, turned around, and saw a small fire. At Kohlman’s direction, Branum found a shovel, walked over to the fire, stomped on the ashes, and scooped them up. He walked to the left side of the gate, looked at the union representatives who were standing on the right side of the gate, and said, “[D]on’t worry, I’m not stupid.” He threw the ashes on a grassy patch. Branum testified that once the fire was put out the situation calmed down and employees gathered at the gate to talk to the union representatives. There was a question and answer period that lasted for a few minutes after which everyone left. (6) Testimony of Becky Stuart When Becky Stuart left the building, many employees were coming in, going out, hollering, cursing, and carrying on. She saw Kohlman by the flagpole and heard her telling employees, “just go on home.” Stuart was talking with a former employee, Joanie Jordan, who was there that night to pick someone up. They were standing in front of the shrub area, next to where Kohlman was sitting, and as they were talking, Jordan picked up a rock and threw it in the direction of the gate. Stuart did not see any other rocks thrown. Stuart testified she saw the employee who grabbed handbills from the union representative and set them afire, but she re- fused to identify that person. She was sitting next to Kohlman when the fire started, and she witnessed Kohlman holler, “[Y]ou can’t do that, put that out.” Stuart and other employees poured soda on the fire and she saw “someone” scoop the ashes with a shovel and put them on the grass to the left of the gate, opposite from where the union representatives were standing. (7) Testimony of Lydia Sue Ball Lydia Sue Ball testified that as she stood at the shrubs with other employees the union representatives yelled to come take their fliers, and said the employees were young and dumb. Ball, together with other employees, walked to the gate and everyone was “talking and cussing and screaming back and forth.” While Ball was at the gate, Raymer pulled through the gate and spun his tires. The smoke was so bad it made her sick and she walked back to the shrubs. She was standing next to Joanie Jordan in front of the shrubs when Jordan threw a rock in the direction of the gate. No one told Jordan to do it, no one com- mented on it, and no more rocks were thrown. Ball testified that when Jordan threw the rock Kohlman was sitting on the curb in DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 746 front of the shrubs, and a number of employees were standing around Kohlman. After the rock was thrown, Ball went to the large parking lot to get her car and when she drove back toward the front of the building, she saw employees putting a fire out. She heard Kohlman tell Branum to put the fire out, and she saw employ- ees pouring soda on the fire. Branum got a shovel and placed the ashes on the grassy area to the left of the gate. After the fire was out, Ball and other employees went to the gate and sat on the ground talking with the union representa- tives. Ball testified that several times that night she heard Kohlman tell employees to go home. (8) Testimony of Deanna Wilson Deanna Wilson testified that Jordan was 5 feet from Kohlman when she threw a rock, and that the fire was burning at the time the rock was thrown. Wilson saw Branum scoop the ashes and put them on the grassy strip to the left of the gate. Wilson heard Kohlman repeatedly tell employees to go home. (9) Testimony of Lou Eva Taylor When Lou Eva Taylor left the building, employees were standing at the gate talking with the union representatives. Kohlman was seated in front of the shrubs and Lou Eva Taylor asked her what was going on. Kohlman said the union people were there and everyone needed to go home. (10) Testimony of Mary Kohlman Kohlman testified between the second and third shifts, her supervisor, Doug Bohman, told her the Union was outside the facility. Bohman was the top management official at the facility that night. Kohlman called Gibson at home to advise him of what was happening, and Gibson told her to go outside and to make sure the union people did not block employees from en- tering or exiting the parking lot. Kohlman testified that Holzback and Schwering did not work under her supervision, and she did not see them on the night of June 27. Kohlman denied ever telling anyone to run over the union representatives. After speaking with Gibson, Kohlman walked toward the gate and saw the three union organizers, Linger, and Fulton. One of them yelled, “[H]ey Mary, you want a card, you want a flyer,” and they laughed. Kohlman walked back to the flagpole by the front door. She recalled that Rose Bowen was the first one out of the building, followed by Fonseth. Employees then followed in groups. She told them to “go home, be safe, we don’t need any conflict, just go home.” After the last of the employees exited the building, Kohlman went to the shrub area and repeated her instruction to employees, “[Y]ou guys need to go home.” She observed employees standing at the gate, yelling back and forth with the union representatives. She heard the union representatives say the employees were young and dumb and couldn’t think for themselves, that management had brain- washed them, and that Kohlman tells them what to do. She heard the union representatives say the Union could get them a $3 raise and free insurance. The employees yelled back and, by Kohlman’s description, it was like “verbal volleyball.” Kohlman saw Bowen drive her car through the gate, fol- lowed by Fonseth. She heard Fonseth rev his engine, but did not see Fonseth spin his tires. Raymer then drove through the gate and made the turn onto Seventh Street. He drove several car lengths down Seventh Street and spun his tires. She heard one of the union representatives say, “[T]hat’s impressive, now you are going to need new tires.” Kohlman did not recall seeing former employee Joanie Jordan that night, nor did she see rocks or cigarettes being thrown. After Raymer spun his tires, Kohlman observed former em- ployee Matt Brossman throw a stack of flyers on the ground and light them in the area of the parking lot between the shrubs and the gate. She jumped up and told him to put the fire out. Employees poured soda on the fire and Kohlman told Branum, who was standing right in front of her, to get a shovel. As he did so, Kohlman emphatically told employees, “[W]e can’t have this out here, you need to stop, you need to go home.” She radioed to Bohman and told him to come outside. Kohlman watched as Branum shoveled the ashes and walked toward the gate. She saw him look at the union representatives and heard him say, “I may be young and dumb, but I am not that dumb.” He walked to the left of the gate and dumped the ashes on the grassy area outside the gate. After the fire was out, the atmos- phere became calmer and about 20 employees walked to the gate and talked to the union representatives. The conversation lasted a few minutes and when the union representatives started walking down the road, the employees dispersed. Bohman ar- rived to see the discussion that was taking place at the gate and he saw the crowd disperse. Kohlman was asked why she repeatedly told employees to go home and be safe. She explained that a lot of them are young and don’t like unions. She also said that in the year 2000 her shift did not have a single accident which was a great achievement, and that in 2001 there had been only one acci- dent. She explained that since most of the employees on her shift had been employed less than 2 years it was an accom- plishment to have such an excellent safety record. d. Follow up to the events of June 27 On the night of June 27, Kohlman told Bohman what she had observed and she wrote a note to Gibson detailing the night’s events. The next day, Taylor, Gibson, and Padgett conducted interviews of Kohlman, Bohman, and Assistant Supervisor Trainee Attine Biehle. Padgett told Kohlman he was glad that the fire had been put out and they needed to make sure that something like this did not happen again. On June 29, counsel for the Charging Party addressed a letter to the General Counsel for Kroger. In that letter, counsel stated that union staff members and employees had been attacked by employees in the presence of supervisors, and that the attacks had taken the form of rock throwing, threats of physical assault, and the theft and burning of union organizing materials. On July 9 or 10, Padgett received a faxed copy of this letter from a lawyer in Kroger’s legal department. The lawyer asked Padgett to supply documentation as to what had occurred, including witness statements, which Padgett provided. At around the same time, the Indiana State Police came to the facility to con- duct an investigation based upon a complaint that had been filed. Rod Taylor was asked to provide the videotape from Re- spondent’s surveillance system for the night of June 27. Taylor K.B. SPECIALTY FOODS CO. 747 retrieved the tape and turned it over to the police.8 The police also came to the facility with a list of individuals they wanted to interview, including Kohlman. Those individuals went to police headquarters to be interviewed. On July 13, Padgett addressed a letter to all employees that read, in part: I want to be clear about a few things: 1. Employees have an absolute right to be opposed to the union. You have an abso- lute right to tell the union NO. We encourage you to exercise your right. Kroger Manufacturing employees have a long his- tory of respectfully telling unions that they are not interested. Physical confrontations have never been and will never be condoned by Kroger. They can quickly get out of hand and we do not need that here at K.B. After June 27, Taylor, Gibbons, and Fulton handbilled at the facility on several occasions without incident. On September 4, the Decatur County prosecutor issued a memorandum in which he concluded, based upon the police investigation, that no ac- tion by his office was warranted. Linger testified that on October 17, at a company meeting conducted by Padgett and Gibson, Padgett referred to the fact that unfair labor practice charges had been filed against the Company in connection with the events of June 27. He said he did not think anyone had done anything wrong. There might have been a little rock throwing, a little tire burning, and name calling, but nobody really got hurt so they were going to fight the charges. By the time of this meeting, Linger and the other four women who handbilled on June 27 had filed a civil lawsuit against Respondent.9 No employee was disciplined for the events of June 27. 2. Analysis a. Credibility Eighteen witnesses testified to the events of June 27 and not a single witness was wholly consistent with another. It is fair to say that witnesses exaggerated the seriousness of the events if they were disposed favorably to the Union, or minimized the seriousness of the events if they were disposed favorably to the Company. The clearest example of this is the rock throwing that occurred and the number of rocks supposedly thrown. The truth, no doubt, lies somewhere between the lone projectile launched by an exemployee as testified to by Respondent’s witnesses, and the meteor shower testified to by the General Counsel’s witness, Gibbons. I have credited some witnesses over others, and have credited portions of a single witness’s testimony while discrediting other portions. The central figure in these events is Mary Kohlman. The ac- tions that she took, or did not take that night, are pivotal to the determination of whether Respondent is responsible for any acts of misconduct that might have been engaged in by the antiunion employees toward the prounion employees. I have carefully considered Kohlman’s testimony and her demeanor on the witness stand, and I find Kohlman to be a believable and 8 It was discovered that the taping system had malfunctioned and there was nothing on the tape. 9 It is not clear the date the lawsuit was filed. credible witness. Her testimony was responsive, direct, and to the point. She impressed me as a calm, almost placid individ- ual, who had a strong sense of her responsibilities as a first-line supervisor, but without an air of self-importance. She made a notable concession against Respondent’s interests when she readily admitted that Respondent has had an unlawful no- solicitation/no-distribution rule posted on its fence for the past 17 years, a fact that was denied by her superior, Rod Taylor. This enhanced her credibility in my view. The most credible of the General Counsel’s witnesses was Ruth Fulton. Unlike Pat Taylor and Jessica Gibbons who were so clearly given to exaggeration as to render their testimony almost wholly unreliable, Fulton was measured in her account of what happened. Fulton appeared to be testifying from her honest recollection which, at times, did not advance the posi- tion of the General Counsel and the Charging Party. This fact enhanced her credibility in my view. Having thus identified Kohlman and Fulton as the two most credible witnesses, I have used their testimony as a benchmark for assessing other witnesses’ testimony and in determining what happened on the night of June 27. b. Kohlman’s alleged direction to employees to run over the union representatives Bohman was the most senior management official at the fa- cility that night. He advised Kohlman that the Union was out- side, and he remained available to Kohlman via radio. Kohlman called Gibson for instruction, and Gibson told her to go outside and to make sure that employees were able to leave and enter the premises. Kohlman was aware that many of the employees on her shift were against the Union, and she was alert to the fact that tensions were running high. I credit her testimony that she repeatedly told employees as they exited the building to be safe and to go home. I discredit Schwering and Holzback’s testimony that Kohlman told them if the union representatives got in their way to run them over. Such a remark would have been completely out of character for Kohlman who had a dem- onstrated safety record at the facility. Kohlman had been told by Gibson to make sure that employees were able to freely come and go, and it is wholly improbable that having been charged with that responsibility, Kohlman would have encour- aged employees to engage in assaultive, criminal behavior. I further discredit Holzback’s testimony that that when she left the building she saw employees throwing rocks and Kohlman laughing. Schwering testified that she was walking right next to Holzback at the time and that Kohlman was still inside the building. I note that Holzback, who gave the most damaging testimony against Kohlman, was terminated the very next day, June 28, for excessive absenteeism and that her discharge was approved by Kohlman. I credit Kohlman’s testimony that she did not direct or en- courage employees to use their vehicles to run over the union representatives, and I recommend that paragraph 5(b)(i) of the complaint be dismissed. c. Fonseth’s threat to run the union representatives over I credit Fonseth’s testimony that when he left the building he heard Kohlman say, in a loud voice, “[G]o home, be safe, don’t DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 748 say anything.” I also credit Fulton’s testimony that, notwith- standing this instruction, Fonseth proceeded to walk past the union representatives and threatened to run them over if they got in his way. Fonseth demonstrated quite convincingly on the witness stand that in this excitable situation he lacked a certain degree of impulse control. When asked why he spun his tires that night, he candidly quipped, “beats me.” Based upon Ful- ton’s credible testimony, I find Fonseth did in fact threaten to run the union representatives over if they got in his way. There is no evidence that Kohlman was aware that Fonseth was intending to threaten the union representatives. Nor is there evidence that Kohlman heard Fonseth make the statement, or that the statement was reported to her after the fact. d. Rock throwing Many witnesses testified about rock throwing that night. On one end of the spectrum, Respondent’s witnesses, Stuart, Ball, and Wilson, testified that a former employee picked up a single rock from the shrub area near to where Kohlman was sitting, and threw it in the direction of the gate. On the other end of the spectrum, Gibbons testified that five to seven employees lo- cated throughout the parking lot threw 20 to 30 rocks over a 10- minute period. Pat Taylor testified that four rocks were thrown, Linger testified that “quite a few” rocks were thrown, and Ful- ton testified she did not know how many rocks were thrown but it was more than one. There is no evidence that Kohlman was aware, before the fact, that employees were intending on throwing rocks at the union representatives. Nor is there any direct evidence that Kohlman saw the rocks being thrown. The General Counsel would have the trier of fact draw the circumstantial inference that she had to have seen the rocks being thrown based on the fact that more than one rock was thrown by employees who were standing in close proximity to where Kohlman was sitting. I am, however, unable to draw that inference for several rea- sons. Kohlman denied seeing rocks thrown that night and as I have already indicated, I found Kohlman to be an entirely credible witness. Her denial is made plausible by the fact that there was a great deal of commotion going on at the time the rocks were thrown. This was not a static situation. Employees were yelling at the union representatives and the union repre- sentatives were yelling back. Employees were exiting the build- ing and Kohlman was instructing them to go home and be safe. Employees were driving through the gate to go home at the same time that employees were driving through to come to work. At least one witness testified that the fire was burning at the same time the rock(s) were thrown. Kohlman’s attention may easily have been drawn to these other occurrences at the time the several rocks were thrown. Kohlman was seated on the curb in front of the shrubs and Fulton and Linger testified that between 10 and 30 employees were standing around her when the rocks were thrown. It is therefore entirely possible that Kohlman’s vision was blocked. This is a close issue and one that merits careful consideration. The General Counsel bears the burden of proof, and I am unable to conclude that the Gen- eral Counsel has proven, by a preponderance of the evidence, that Kohlman saw the rocks being thrown or that she was made aware, after the fact, that rocks had been thrown. e. Fire setting The evidence establishes that an employee of Respondent set fire to a stack of union handbills in the area of the parking lot between the building and the gate.10 I credit Kohlman when she testified that she immediately jumped up, told the employees to put the fire out, and said, “[W]e can’t have this out here, you need to stop, you need to go home.” She radioed to Bohman for assistance and after employees poured soda on the fire to put it out, Kohlman told Branum to get a shovel and take the ashes outside the gate. f. Disposal of the ashes There was varying testimony on where Branum put the ashes. According to Pat Taylor, Branum threatened to throw the ashes on her and then put them so close to her feet that she could feel the heat through her shoes. Gibbons, who was stand- ing next to Taylor, heard no such threat but did testify Branum put the ashes at Taylor’s feet. Linger testified that Branum made two trips with the shovel, a fact not attested to by any other witness. Respondent’s witnesses, Branum, Stuart, and Ball, testified that Branum put the ashes on the grassy strip on the opposite side of the gate where the union representatives were standing. This was one of the few areas where Fulton and Kohlman’s testimony varied to any significant extent. According to Fulton, when Branum was asked by Mertes what he was going to do with the ashes, Branum said he was just going to get rid of them. Branum then walked past the union representatives and put the ashes in the roadway. Kohlman testified she recalled Branum said, “I may be young and dumb, but I am not that dumb,” and then dumped the ashes on the grassy patch. Accept- ing either of these versions as the honest recollections of credi- ble witnesses, Branum did not threaten to throw the ashes on Taylor. Nor did he imperil her safety by placing the ashes at her feet.11 Relying on either Fulton or Kohlman’s account, Branum placed the ashes a safe distance from all of the union represen- tatives. g. Summary of findings and positions of the parties I find that three acts of employee misconduct occurred on the night of June 27: Fonseth’s threat to run over the union repre- sentatives, the throwing of several rocks, and the setting of union handbills on fire. The General Counsel takes the position that by Kohlman’s inaction on the night of June 27, together with Respondent’s failure to later conduct an investigation or to take disciplinary action against the employees who engaged in misconduct, Re- spondent condoned these acts and is liable for them. Respon- dent makes five arguments in its defense: first, Respondent contends it had no legal duty to prevent off-duty employees or nonemployees from engaging in the type of misconduct al- 10 It is unnecessary to resolve the issue of who set the fire since it is clear that it was done by an employee. I do find that only one fire was set, and I discredit Pat Taylor and Gibbons’ claim that two fires were set. 11 Pat Taylor’s dubious claim that the ashes, which had been soaked with soda and stomped on, were so hot that she could feel the heat through her shoes merits no further discussion. K.B. SPECIALTY FOODS CO. 749 leged; second, Kohlman took legitimate, responsible measures to prevent misconduct; third, the situation was resolved on June 27 and there was no need for later discipline; fourth, Respon- dent notified employees after June 27 that it does not condone physical confrontations during union campaigns; and fifth, union representatives and employees handbilled at Respon- dent’s facility after June 27 without interference. h. Discussion The Act imposes an affirmative duty upon an employer to insure that its obligation to maintain discipline in the plant and to provide its employees with the opportunity to work without interference from their coworkers is not delegated or surren- dered to any union or antiunion group. Newport News Ship- building Co., 236 NLRB 1499, 1506–1507 (1978). An em- ployer who participates in, ratifies, approves, or condones threats of physical violence or assaults by employees on other employees because of their union or antiunion sympathies vio- lates the Act, Newton Bros. Lumber Co., 103 NLRB 564, 569 (1953); Fred P. Weissman Co., 69 NLRB 1002 (1946), enfd. 170 F.2d 952 (6th Cir. 1948), cert. denied 336 U.S. 972 (1949), and liability may be found even when the misconduct occurs off the employer’s property. Goodyear Tire & Rubber Co., 21 NLRB 306 (1940), enfd. 129 F.2d 661 (5th Cir. 1942), cert. denied 319 U.S. 776 (1943). Responsibility does not depend on the employer having advance knowledge that the conduct will be engaged in, but does arise if the employer is immediately advised of the conduct and does nothing to prevent its continu- ance. Detroit Gasket & Mfg. Co., 78 NLRB 670 (1948). There is no per se criteria for determining whether an employer has ratified or condoned misbehavior, and it is the totality of cir- cumstances that must be considered. Cross Co., 143 NLRB 1005, 1012 (1963), enfd. 344 F.2d 171 (D.C. Cir. 1965). Applying these principles, Respondent’s initial argument that it had no legal duty to prevent off-duty employees from engag- ing in the type of misconduct alleged can be quickly dispensed with. An employer’s obligation to protect its employees from threats, intimidation, and assault is not diminished because the offenders are off-duty employees or even nonemployees. There is no credible evidence that Kohlman, or any other su- pervisor or manager, was aware ahead of time that the depart- ing second-shift employees were going to threaten Fulton and Linger, throw rocks at them, or set fire to their handbills. Kohlman was aware that tensions on the second shift were running high against the Union. That is quite different, how- ever, from her being aware that the second-shift employees were intending on engaging in acts of intimidation and physical violence. Kohlman had no advance knowledge that such acts were about to occur. Of the three acts of misconduct that I have found occurred on June 27, Kohlman was made immediately aware only of the setting of the fire. Upon seeing the fire, she immediately or- dered employees to put the fire out. She emphatically told them, “[W]e can’t have this out here, you need to stop, you need to go home.” She also radioed to the top management official on site to come to the parking lot. The fire was put out and the situation was brought under control. The employees, who remained in the parking lot, went to the gate and engaged in a question and answer discussion with the union representa- tives, and shortly thereafter everyone left. The General Coun- sel’s argument that Kohlman ratified and condoned the setting of this fire is devoid of any factual basis. She promptly had the fire extinguished and forcefully told employees that this behav- ior had to stop and they had to go home. After she gave this direction, there were no further incidents. The General Counsel’s argument that Respondent failed to conduct an investigation into the events of June 27 is similarly with factual foundation. Before Kohlman left the premises that night, she prepared a written memorandum of her observations, and the next day she, Bohman, and Biehle were interviewed by Taylor, Gibson, and Padgett. The investigation continued 2 weeks later when Padgett received a copy of the Union’s letter alleging, inter alia, that rocks had been thrown at the union representatives and that they had been threatened with physical harm. Respondent’s counsel directed that witness interviews be conducted and statements obtained. In addition, Respondent cooperated with the criminal investigation conducted by the Indiana State Police by handing over the surveillance videotape from that night and by making its supervisors and employees available for questioning. The evidence therefore establishes Respondent did conduct an investigation into the incidents of June 27. Following that investigation, Respondent addressed a letter to all employees warning that physical confrontations would not be condoned. The General Counsel places particular emphasis on the fact that no employee was disciplined by Respondent. I agree that the Board has considered the failure of an employer to disci- pline employees who have engaged in misconduct as evidence of the employer’s condonation of that misconduct. As to the rock throwing, no one was able to identify anyone other than a former employee who threw a rock. As to the threat made by Fonseth, Fonseth denied making the threat and there is no evi- dence that Respondent was ever made aware of the fact that the threat was made. Respondent was aware, however, that Matt Brossman set fire to the handbills and it is undisputed that Brossman was not disciplined. The failure to discipline Brossman is not, however, the controlling factor in assessing Respondent’s liability since it is the totality of circumstances that must be considered. Respondent conducted a full investiga- tion into the events of June 27 and cooperated in the criminal investigation conducted by the State police. It sent a letter to all employees condemning physical confrontations specifically in the context of union activities. There is no evidence that Re- spondent rewarded or promoted any offending employee, nor is there any evidence that Respondent communicated to anyone, in any manner, that it approved of what occurred on June 27. There has been no repeat of employee misconduct. Under all these circumstances, I find Respondent did not condone, ratify, or approve the three acts of misconduct engaged in by employ- ees on June 27. I therefore recommend paragraph 5(b)(ii)(A) through (D) be dismissed. F. August: Kohlman’s Alleged Threat of Plant Closure At the beginning of every shift, Kohlman hands out work schedules on the production floor and tells employees, “to be safe.” Steve Mayse testified that during one of these daily pre- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 750 shift “safety meetings” an employee named Brent had a shirt with a union logo on it. Kohlman pointed to the shirt and com- mented to Rose Bowen who was standing near her, “[Y]ou know if they were to get in here, this place would probably close.” Approximately 40 employees were present when this remark was made, at least 5 of whom were standing as close to Kohlman as Mayse was. No other witness was called to cor- roborate Mayse’s account, and Bowen and Kohlman denied that Kohlman ever made such a statement. Managers and supervisors, including Kohlman, conduct weekly team meetings in the cafeteria, and safety items are sometimes discussed. At one of these meetings Bowen pointed to an employee wearing a union T-shirt and said if the Union got in there the Company had the right to shut the doors. Bo- wen testified that Mayse attended the same weekly team meet- ings that she attended, and was present when she made this comment. I credit Kohlman’s testimony that she did not make the statement attributed her by Mayse either at a daily preshift meeting or at a weekly team meeting. Kohlman’s credibility was tested in this case in a variety of factual settings, and she gave a credible account in each of them. Mayse’s testimony was brief, uncorroborated by any other witness, and contra- dicted by Kohlman and Bowen. I credit Kohlman and Bowen over Mayse and recommend dismissal of paragraph 5(e) of the complaint. G. August: Kohlman/ Combs David Combs was employed by Respondent from July to October. Combs testified that Kohlman was his supervisor and that in mid-August, she asked him if he had thought about join- ing the Union and he told her no. Combs acknowledged during cross-examination that in two pretrial affidavits, one given to the Union and the other to the General Counsel, he made no mention of this conversation. In early September, Combs’ cousin, Steve Mayse, gave Combs an authorization card while they were working on the production line. Kohlman was not present when Combs ac- cepted the card, nor was any other supervisor or manager. The next day, Kohlman approached him on the line and asked him if he had gotten a union card and if he had signed it. Combs told her it was none of her business, but if she needed to know he had not yet signed the card. Kohlman said if he signed the card he would be working weekends. According to Combs, in the remaining month of his employment, Kohlman asked him once or twice every week if he had turned the card in. These interrogations took place on the production line and in the pro- duction office. Combs quit his job in October because he was about to be fired for having another employee clock him out. Kohlman testified that Combs did not work directly for her and that Tim Hughes supervised Combs on the cake line. In August, Hughes told Kohlman he was having problems with Combs and asked if Kohlman would take him for 2 weeks on the deli side. Kohlman agreed and assigned Combs to a packag- ing job. During the 2-week period that Combs worked for Kohlman, Combs came into the production office one day and told Kohlman that Mayse had given him a card while he was working on the line and wanted Combs to sign it. Combs said he did not appreciate what his cousin had done. Kohlman told Combs to put the card away, that she would discuss the matter with Hughes, and that someone might talk to Mayse about pass- ing out cards on worktime. The next day, Kohlman posted a list for mandatory Saturday overtime. Combs was upset about hav- ing to work on the weekend and he told Kohlman that he was still considered cakes and he should not have to work. Kohlman said he was working on the deli side for the 2-week period and that he had to work on Saturday. Combs pulled out his wallet, took a union card out of it, and told Kohlman he had not signed the card yet but if she would let him out of working Saturday he would not sign it. Kohlman told him to put the card away, go back to work, and that he had to work on Saturday. The next day was the Thursday weekly production meeting, and at that meeting Kohlman read off the work schedule for the mandatory Saturday overtime. After the meeting, Combs again spoke to Kohlman and asked if there were any way he could get Satur- day off. Kohlman said no. Combs again said he would not sign the union card if she would let him off on Saturday. Kohlman said she was telling him for the final time that he had to work Saturday. Kohlman denied threatening Combs and denied ques- tioning him about joining the Union. Combs was misleading in his testimony when he said that Kohlman was his supervisor when, in fact, for 10 out of the 12 weeks that he was employed, Hughes was his supervisor. This is significant because of Comb’s claim that Kohlman interro- gated him once or twice every week in September and that some of these interrogations took place on the line. For this to be true, Kohlman would have had to have left the deli side, her area of supervision, and gone over to the cake side, where Combs was working, in order to interrogate him. Combs’ testi- mony is also seriously called into question in view of the fact that in two pretrial affidavits, he never mentioned the first al- leged interrogation that supposedly occurred in mid-August. Kohlman’s testimony was credible in all respects. Combs was a problem employee who was placed under Kohlman’s supervision for a 2-week period. He was not happy about Kohlman’s insistence that he work Saturday overtime while under her supervision, and Combs used the unsigned authoriza- tion card as leverage to get out of the assignment. I credit Kohlman that she never interrogated Kohlman, or threatened him with overtime if he signed a card, or created the impression that his union activities were under surveillance. I therefore recommend that paragraphs 5(f), (g)(i), and (ii) be dismissed.12 H. September: Moeller/Roberts Daniel Roberts has been employed for 3 years. Sometime in September, Roberts engaged in a heated conversation with a fellow employee about the Union. Moeller separated Roberts from the other employee and pulled him aside. According to Roberts, Moeller said he did not like to walk in on conversa- tions like Roberts was having with the other employee. One thing led to another and the two began talking about the Union at a nearby plant in Greensburg called KS Bearings. Moeller 12 In view of my recommendation that that par. 5(f) be dismissed, there is no need to reach the issues raised by Respondent’s motion to dismiss that paragraph. K.B. SPECIALTY FOODS CO. 751 said KS was closing its doors and the Union could not do any- thing for the employees. Roberts agreed that the Union could not do anything with KS closing its doors. Moeller asked, “[T]hen what good is a union? It is no good to nobody at that point. Why are they shutting the doors?” Roberts said it was because of poor management. Roberts summarized the conver- sation as follows: “He more or less stated that the union was closing the place down.” Moeller did not recall ever having a conversation with Roberts about the Union and denied ever making the statements attributed to him by Roberts. I credit Roberts that this conversation did, in fact, take place. Roberts is an uncomplicated individual and he did not impress me as a person who would invent an entire conversation. It is entirely plausible that Moeller separated Roberts from the em- ployee with whom he was having a verbal altercation, and in the process of calming Roberts down, engaged in a conversa- tion about what was happening at a nearby plant. This is par- ticularly so given the fact that managers and supervisors had been told in their attorney-training sessions that they were free to give their personal opinions about the Union, and I find that is what Moeller did in his conversation with Roberts. Since Moeller had no recollection of this conversation, I credit Rob- erts’ account of what was said. I rely on Roberts’ recollection of the words spoken, and not his impression of what was said. Moeller told Roberts that KS Bearings was closing and the union could not do anything about it. When Roberts agreed, Moeller observed that a union was not much good if it could not do anything when a company closed. Moeller did not say that a union was the cause of KS Bearings’ closing, only that once the decision was made to close, there was nothing a union could do about it. Nor did Moeller make any reference to Re- spondent closing or possibly closing. There was no threat, ex- press or implied, in Moeller’s words that Respondent would take action on its own to close if employees selected the Union as their bargaining representative. See Parts Depot, Inc., 332 NLRB 670, 679 fn. 1 (2000). I therefore find Moeller’s com- ments constituted permissible speech under Section 8(c), and I recommend paragraph 5(h) of the complaint be dismissed. I. October 17: Taylor/Ferrill Delores Ferrill has been employed for 21 years. On October 17, she attended a company informational meeting about the union organizing campaign, and she asked a question about the comparability of insurance benefits. After the meeting, Taylor approached Ferrill and asked her if she had gotten the answer to her question. The topic of conversation turned to the closing of the KS Bearings plant. Ferrill testified Taylor said the reason that plant was closing was because of the union there. Ferrill said that from what she had read in the newspaper the closing had to do with management and with the property on which the plant was located. Taylor then said that Kroger had closed one of its meat plants in Indianapolis and moved the plant to Shel- byville because the union in Indianapolis had wanted too much money. He said that KB had also moved a warehouse to Shel- byville and that the merged facilities were known as CSI. Fer- rill pointed out that CSI had “gone union anyway” and Taylor agreed. Taylor admitted speaking with Ferrill about KS Bearings and CSI, but could not recall if it was part of one conversation or two separate conversations. With respect to KS Bearings, Tay- lor testified that he commented to Ferrill that a union plant in Greensburg was closing. With respect to CSI, Taylor testified that Ferrill asked about employees of KB who were leaving to go to CSI, a union facility in the area. Taylor said it was not just KB employees who were leaving to go to CSI, but that employees from union facilities were also going to CSI. He said employees had left two Kroger meat plants to go to CSI and that CSI was a consolidation of three different facilities de- signed to better service Kroger. Ferrill gave a coherent account of a conversation that had a discernible beginning, middle, and end, and there was a logical flow to the subject matter discussed. Ferrill was also certain that this was all part of a single conversation with Taylor. Tay- lor was more vague in his recollection, unable to say whether this was one conversation or two. Taylor also claimed that his statement about the closing of the unionized KS Bearings plant was not linked to the conversation about Kroger employees transferring to CSI. If true, the statement about KS Bearings was made out of context. A high ranking member of manage- ment does not go up to a rank-and-file employee, state that a local plant is closing, and then walk away. The statement had to have been made as part of a larger conversation, and Taylor’s failure to recall that conversation was not the result of an inabil- ity to recall the conversation, but rather, in my view, an unwill- ingness to recall the conversation. I therefore find Ferrill’s ver- sion of this conversation more credible than Taylor’s version. An employer is free to predict the economic consequences it foresees from unionization so long as the prediction is carefully phrased on the basis of objective fact to convey its belief as to demonstrably probable consequences beyond its control. NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969). Without the necessary objective basis, such statements are not protected by Section 8(c), Quamco, Inc., 325 NLRB 222, 223 (1997). An employer’s statement must be viewed in context, and the total- ity of circumstances considered. Mediplex of Wethersfield, 320 NLRB 510, 471 (1995); Ebenezer Rail Car Services, 333 NLRB 167 fn. 2 (2001). Applying these principles, and based upon the credible tes- timony of Ferrill, I find Taylor violated Section 8(a)(1) by im- pliedly threatening Ferrill with closure of the facility if employ- ees selected the Union as their collective-bargaining representa- tive. I agree with Respondent’s statement that the Board has found, under some circumstances, an employer’s reference to plant closures by other employers does not necessarily violate the Act. In this conversation, however, Taylor referred specifi- cally to Kroger and to KB. Taylor’s comments must be viewed in context. He started out by reminding Ferrill about the company meeting and Re- spondent’s strong opposition to the union representing the em- ployees of KB.13 It is not clear who introduced the topic of the closure of KS Bearings, but once the topic was raised, Taylor 13 Padgett testified Respondent was “100 percent” against unioniza- tion. The company informational meetings were the primary vehicle by which Respondent communicated that position to employees. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 752 said the plant was closing because of the Union. Having, thus, introduced the idea that a union caused a plant closure by a stranger employer, Taylor focused his remarks closer to home. He said that Kroger had closed one of its meat facilities in Indi- anapolis, and transferred the work from that facility to Shelby- ville, because the union in Indianapolis had asked for too much money. Narrowing the focus of his remarks even further, Tay- lor said that KB had also moved a warehouse to Shelbyville to create a consolidated facility with the meat plant. Taylor did not offer to Ferrill, nor did Respondent offer in this case, any objective basis for Taylor’s opinion that a union’s too high-priced demands was the reason for the closure and transfer of the Kroger meat plant. Consequently there is no basis upon which to conclude that Taylor’s assessment was factually accurate. Nor is there evidence that KB’s employees had ever been told before that the future of their plant in Greensburg was in doubt or that Respondent had any economic reasons for considering closing or moving the plant. The net effect of Taylor’s remarks was to imply that the same fate of plant closure and the transfer of work that befell Respondent’s meat plant and warehouse employees, could well befall Re- spondent’s employees in Greensburg if the employees there chose union representation. See Quamco, Inc., supra. His re- marks therefore violated Section 8(a)(1) of the Act. J. October 31: Gibson’s Statement at Informational Meeting Daniel Roberts attended a company informational meeting on October 31 at which Gibson talked about the process of negotiations and collective bargaining. Roberts testified on direct examination that Gibson did not appear to be reading from anything when he told employees that if negotiations were to take place employees would “start negotiating with nothing.” On cross-examination, Roberts acknowledged that there were papers in front of Gibson when he spoke and that he read from slides that were projected on an overhead. He also acknowl- edged that Gibson had cited court cases stating that there were no guarantees in bargaining. When asked if Gibson led the employees to believe that they would start negotiations from nothing, or if he actually said they would start with nothing, Roberts testified, “[H]e led people to believe this.” Gibson testified that he read from a prepared text at the Oc- tober 31 meeting and that his presentation lasted about 30 min- utes. He reviewed a series of Board and court cases on collec- tive bargaining, and used an overhead projector in his presenta- tion.14 Gibson denied stating that employees would start nego- tiations with nothing. Rather, he said that if the Union got in there would be negotiations and they could bargain up, bargain down, or bargain away. Padgett corroborated Gibson’s testi- mony. I credit Gibson and Padgett’s testimony over Roberts in this instance. I have no doubt that Robert’s was telling the truth as he understood it, but I do not think he appreciated the nuanced distinction between bargaining from nothing on the one hand, and bargaining up, bargaining down, and bargaining away on the other. Roberts acknowledged as much when he testified 14 The text of this speech was provided to the General Counsel pur- suant to subpoena, but was not introduced. Gibson did not actually say that employees would bargain from nothing, only that he “led people to believe this.” I credit Gib- son and Padgett’s recollections that Gibson never told employ- ees they would start negotiating with nothing, and I recommend paragraph 5(k) of the complaint be dismissed. K. Barbara Danforth 1. The facts a. Activities on behalf of the Union Barbara Danforth worked for Respondent from September 1991 until she was discharged on November 15, 2001. In the course of her 10 years of employment, there were three union organizing attempts at the facility. Danforth was heavily in- volved in the two campaigns previous to the one in this case, and she testified her activities were well known to Respondent. In this case, Danforth began distributing cards on May 1. She wore union T-shirts, buttons, and hats on a daily basis. She had union stickers and signs on the car she drove to work, and stickers on her locker. She wrote a letter in support of the Un- ion that was published in a local newspaper on October 25. She also distributed numerous copies of this letter at the facility, placing them on coat hooks, benches, in the smoking and non- smoking breakrooms, on a bulletin board outside the women’s locker room, and in the employee picnic table area. b. Events of October 31 On October 31, Danforth attended a company informational meeting at which Padgett, Gibson, and Rod Taylor were pre- sent. According to Danforth, “outdated cases” were discussed in which employees had tried to form a union and “bad things had happened.” Danforth testified she asked Gibson to “please read me the dates of the cases because I wanted to know if it was before Norma Rae or after Norma Rae.” Danforth testified she challenged a statement by Gibson that the Union had a private jet and paid a pilot to fly it. Danforth said the Union had sold the plane, and Gibson said he was just giving information from public documents. Danforth then said she was being treated like the enemy and Padgett said she should not feel that way. Danforth testified that she believed that Padgett was coerced into saying she was not the enemy by a group of men wearing suits who were standing in the back of the room. She believed these men were an antiunion bust committee sent out by Kroger. Danforth testified, “They were professionally dressed . . . . I just took from Mr. Padgett’s actions . . . from his body language, that he took directions from somebody behind me, since I was at the back of the room, and he was speaking to me, but he was looking behind me.” When asked how the meeting ended, Danforth said that Padgett became visibly upset at the questions she was asking and abruptly told employees to go back to work. Padgett and Taylor testified that there were no men in the room fitting Danforth’s description. Later that day, Danforth left her work area to look at some ongoing construction at the facility. Taylor approached her and asked her what she was doing out of her work area. She said she was curious about the new additions. According to Dan- forth, Taylor said he really wasn’t supposed to talk to her about K.B. SPECIALTY FOODS CO. 753 the Union but he wanted to know why she supported the Union. She said because she wanted fair rights for everybody and consistency. Taylor said she seemed to be the only one striving for that and that everyone else he had approached said they wanted better wages and benefits. Following up on Danforth’s observations at the earlier informational meeting, Taylor said that it didn’t matter what the dates of the cited cases were. She asked if the cases were before or after Norma Rae and Taylor said he was unfamiliar with Norma Rae. Taylor said she would get him the videotape. Taylor said if the Union came in, he could no longer talk to her one-on-one and that she would have to get somebody else to do the talking for her. They talked about her pending divorce and he said he would not be able to do any more favors for her. He also asked her to talk to other employees to find out what it would take to make them happy. Taylor’s version of this conversation is that after he asked Danforth what she was doing out of her work area, he asked her how things were at home. Taylor had seen her crying 2 weeks before when she told him about problems with her husband and the possibility that they would divorce. As a followup to that conversation, he asked her how she was and she said things were not better at home or at work. Taylor told her she needed to get back to God and they talked about setting up prayer groups after work. Danforth said she had been at a roundtable meeting with Padgett and she felt Padgett had cut her off. Tay- lor pointed out some of the things Padgett had done for em- ployees including pay increases. The topic of Norma Rae came up and Taylor said he didn’t know who that was and Danforth said she could fill him in. c. Danforth’s discharge In late October, Danforth told her supervisor, Bob Howard, that she had a school event to go to on October 30 for one of her children. She asked if she could work around it to avoid having to take time off from work. Howard allowed Danforth to leave work to attend the event, and then to punch back in to complete her hours. Danforth testified that by November, as a result of her per- sonal problems, she was unable to eat or sleep and she became ill. On November 7, she went to the emergency room and a doctor prescribed an antibiotic, an asthma medication, and a pain medication. Danforth did not advise Howard or any other supervisor of manager of this visit to the hospital. Respondent has a lateness and attendance policy that pro- vides employees with 6-paid days each year that can be used for any reason. Once those 6 days are exhausted, employees begin to incur “instances” if they are late or fail to report for work. If an employee is late or fails to report for up to 4 hours, a half-instance is incurred. If the employee is late or fails to report for more than 4 hours, a full instance is incurred. Super- visors carry clipboards and fastened to those clipboards is an attendance report that is generated every Tuesday. The report shows the number of paid days and instances used by every employee. An employee may only incur 3-1/2 instances; on the accumulation of the fourth instance, the employee is terminated. Respondent’s policy is to issue a writing warning when an employee reaches two instances, and a final written warning when the employee reaches three instances. When an the employee reaches three instances. When an employee is out, the supervisor fills out a sheet and submits it to the payroll department. Payroll enters the information and then forwards it to Jane Badgley in the human resources department. When an employee reaches two instances, Badgley puts that employee’s individual attendance calendar in the supervisor’s mailbox. The supervisor then issues the first written warning. When the em- ployee reaches the third instance, the same process is followed. Badgley testified that when she is not at work, no one fills in for her. She catches up on her responsibilities, including super- visor notifications of those employees who have accumulated their second and third instances, when she returns to work. Respondent also has a medical leave policy. A medical leave consists of being out of work for 7 consecutive days under the care of a physician. On the 8th day, if medical documentation is provided, the employee begins receiving compensation under the medical sick leave plan. If an employee has been charged instances for days missed because of an illness, and if human resources approves the medical leave, those instances that oc- curred during the leave, but prior to the approval, are removed. If an employee is out ill for less than 7 days, but provides a doctor’s note, they are charged with one instance for the period they are not at work. According to Respondent’s records, Danforth accumulated her second instance on November 7, and another half instance on November 8. Badgley was on vacation on November 8 and 9. Since she was not at work, she did not notify Howard that Danforth had reached her second instance. On November 12, Badgley returned from her vacation and sent Howard notification that Danforth had accumulated her second instance. Howard testified he picked up the notification from his mailbox sometime that afternoon. That same day, Danforth approached Moeller and asked him where she was on her attendance. Moeller referred to the weekly attendance re- port on his clipboard and told her she had used 1-1/2 instances as of November 6, the date of the report. On Tuesday, November 13, Danforth was out of work the entire day. She testified she woke up late and then discovered her car battery was dead. She worked all day Wednesday, No- vember 14, but Howard took a vacation day that day and did not issue the first written warning. On Thursday, November 15, Danforth again woke up late. She was scheduled to report for work at 7 a.m. and at 7:45 a.m. Howard noticed she was missing and told Moeller she was not at work and she was out of days. Moeller, Taylor, and Howard all testified that the discharge of an employee who has accumu- lated four instances is automatic and the notification to the employee is usually delivered by the immediate supervisor. In this case, Howard was called away at 11:30 a.m. to attend to a matter at his child’s school, so it fell to Moeller, Howard’s superior, to advise Danforth that she was terminated. Danforth arrived at the facility at 11:20 a.m. She testified that she wanted to find Moeller as soon as possible because she had accumulated 3-1/2 instances and she wanted to see if she could be transferred to a later shift because she couldn’t wake up in the morning. When she saw Moeller, he said he wanted to talk to her and he took her to Rod Taylor’s office. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 754 Taylor told Danforth she had reached four instances and was terminated. Danforth disputed the figures, saying she had used only 3-1/2 instances. Danforth said there was no way she could lose her job and she begged Moeller to tell Taylor that she had not used up all her instances. Moeller refused to make that statement and Danforth was told to clean out her locker. At no time during this meeting did Danforth say she was ill, that she was under a doctor’s care, that she was taking prescription medications, or that she needed a medical leave. After she left the facility, however, she decided “the best bet would be to fly home, call Mr. Taylor, tell him I will get a medical leave.” She left a message for Taylor to call her, but he did not return the call. Danforth made an appointment to see her doctor Monday, November 19, and the doctor diagnosed her as suffering from anxiety and depression. The doctor was going to date the medi- cal leave form that day, November 19, but Danforth asked if she could back it up to November 14. According to Danforth, the doctor said that was not a problem because Danforth had been suffering from these illnesses since that time. On November 20, Danforth went to the facility and Taylor and Gibson agreed to speak with her. Danforth said she was suffering from anxiety and depression and that she felt she was entitled to a medical leave. According to Danforth, Gibson said that anxiety and depression was not a valid medical excuse. Danforth said she was sick, mentally, and Gibson said the com- pany did not recognize mental illness as a basis for a medical leave. Gibson asked why Danforth only went to the doctor after she was fired, and Danforth admitted telling Gibson that she was doing the only thing she knew she could do in order to keep her job. Danforth also acknowledged that Gibson and Taylor questioned the fact that the doctor had said she was sick as of November 14, but that Danforth had reported for work on November 14 and worked the entire day. Danforth explained to them, “[I]t could be a 3:01 thing, that if I got off work at 3:00, why couldn’t a doctor put me off at 3:01?” Gibson testified he told Danforth that had she requested a medical leave before her termination, he could have worked with her, but her request was being made after the fact. The meeting ended with Taylor and Gibson saying they would get back to her. The next day Gibson called Danforth and told her the Company had a strict attendance policy that had to be consistently applied and that he was sorry but the termination would stand. Gibson testified that employees have been granted medical leaves on the basis of anxiety, stress, or depression, and Re- spondent’s records show that from November 2000 to Decem- ber 2001, four such medical leaves were granted. Respondent’s records also show that from January 1999 to May 2002, 140 employees were terminated for excessive absenteeism. Gibson testified that although it is Respondent’s policy to issue written warnings when employees reach their second and third in- stances, there have been times when the policy has lapsed and the warnings were not issued. Respondent presented evidence that in the period March 1999 through the end of June 2001, eight employees were terminated for excessive absenteeism without receiving one or both of the written warnings. Six of these terminations predated the union organizing campaign in this case. One employee, Angela Mitchell, was not terminated for ex- cessive absenteeism even though she had reached her fourth instance when she became ill. On June 3, 2002, Supervisor Thomas Schebler noticed Mitchell standing against a wall, red- faced holding her chest. She said she was having chest pains and believed she might be having a heart attack. It was the end of Mitchell’s shift and she left for the hospital. Three or four days later, Mitchell called Gibson and said the doctor had put her off for 4 or 5 days. Gibson told Mitchell if she missed 4 or 5 days and she brought in a doctor’s note, she would be charged with one instance. Mitchell said she had no more instances left and Gibson said he was unaware of that fact. Mitchell asked Gibson what her options were and he said unless she got a medical leave she would be terminated. On June 11, Mitchell gave her doctor Respondent’s medical leave form, and he com- pleted and returned it to her on June 14. Mitchell returned to work on June 17, and was granted a medical leave for the entire period that she was out of work. She was not charged with an instance. Gibson testified that he distinguished Danforth’s posttermi- nation request for a medical leave from Mitchell’s request for a medical leave. In Mitchell’s case, she told her supervisor that she was ill. Several days later, she called Gibson and said she was under a doctor’s care. She obtained Respondent’s medical leave form, had the form completed by her doctor, and submit- ted it to human resources. In Danforth’s case, she reported for work on November 15 and was ready and willing to work. When she was told that she was terminated for exceeding the attendance policy, she argued that she had not exceeded her number of instances. She did not say she was ill or under a doctor’s care, nor did she ask for a medical leave. Gibson ex- plained: Ms. Danforth had every opportunity up to the last day of com- ing to my office and asking me. If Ms. Danforth would have come to me and said I’m sick, prior to the day she was termi- nated, and she needed to see a doctor, I would have said no problem. See a doctor. And if you can get a medical leave, it will cover your attendance. We wouldn’t have this issue with Ms. Danforth. Gibson testified that he has never before been confronted with a situation where an employee was terminated for having accumulated four instances and then, after the termination, produced documentation for an illness that caused the fourth instance. 2. Analysis a. Credibility Danforth was a sympathetic but unreliable witness. An ex- ample of her inability to accurately perceive events was her testimony that at the October 31 informational meeting, Padgett was being silently coerced by a group of professionally dressed men standing in the back of the room. There were no men fit- ting this description in the room that day. Danforth was also willing to engage in a certain degree of exaggeration, bordering on fabrication, in order to advance her interests. On direct ex- amination, she testified that several days prior to her discharge, Moeller told her she had 1-1/2 instances left. On cross- K.B. SPECIALTY FOODS CO. 755 examination, however, when she was being confronted with her absenteeism record, she said that Moeller had told her that she had “many days left.” When Gibson asked her how she could have been medically disabled on November 14 when she had worked her entire shift that day, Danforth’s response was that she was well at 3 p.m., but sick at 3:01 p.m. Danforth was a highly emotional witness; her voice trembled throughout much of her testimony, and on one occasion she lost her composure completely. Given her testimony, and her demeanor on the witness stand, I found Danforth to be an unreliable witness and I have credited her testimony only where specifically noted. b. October 31 conversation with Taylor On October 31, Danforth had a one-on-one conversation with Rod Taylor when he observed her away from her work- station. Because I find Danforth to be an unreliable witness, there is insufficient credible evidence that Taylor interrogated Danforth during this conversation, or threatened her with more onerous working conditions. I therefore recommend dismissal of paragraphs 5(l)(i) and (ii) of the complaint. c. Danforth’s discharge In Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board established an analytical framework for deciding cases turning on employer motivation. To prove that an employee was discharged in violation of Section 8(a)(3), the General Counsel must first persuade, by a preponderance of the evi- dence, that an employee’s protected conduct was a motivating factor in the employer’s decision. If the General Counsel is able to make such a showing, the burden of persuasion shifts “to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct.” Wright Line, supra at 1089. See also Manno Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996). The elements commonly required to support a finding of discriminatory motivation are union activ- ity, employer knowledge, and employer animus. Farmer Bros. Co., 303 NLRB 638, 649 (1991), enfd. 988 F.2d 120 (9th Cir. 1993). In determining whether the General Counsel has met the ini- tial burden of proving that an employee’s protected activity was a motivating factor in an employer’s decision to discharge the employee, the Board has held that in the absence of direct evi- dence motive may be inferred from the total circumstances proved. Further, the Board has found that evidence of a blatant disparity is sufficient to support a prima facie case of discrimi- nation. In addition, timing alone may suggest antiunion animus as a motivating factor in an employer’s action. Sears, Roebuck & Co., 337 NLRB 443 (2002). Applying these principles to the facts of this case, I find, based on the record as a whole, that the General Counsel has failed to establish Danforth’s union activity was a motivating factor in her discharge and therefore has not met his initial bur- den under Wright Line, supra. The General Counsel concedes that Respondent had a preexisting nondiscriminatory absentee- ism policy that provided for the termination of any employee who incurred four instances. The General Counsel further con- cedes that Danforth incurred her fourth on November 15, the day she was terminated. The argument that Danforth’s union activity motivated her termination stems from three supposi- tions: first, that Danforth was treated disparately by not having been issued the two written warnings which would have alerted her to the fact that she was close to exceeding her instances; second, that Danforth was treated disparately by Respondent’s refusal to grant her a medical leave after she was terminated; and third, Respondent’s expressions of animus toward employ- ees’ union activities. The General Counsel first supposition that Respondent’s failure to issue the written warnings to Danforth was the result of disparate treatment, is unfounded. Respondent’s failure to issue the two written warnings to Danforth was the result of three individuals, Danforth, Howard, and Badgley’s, all taking time off from work at the same time. Danforth incurred her second instance on November 7, and another half instance No- vember 8. Badgley, the person responsible for generating the paperwork upon which warnings are issued, was on vacation November 8 and 9. Badgley returned to work on November 12 and forwarded the paperwork to Howard, Danforth’s immediate supervisor and the person charged with the responsibility for actually issuing the warning. Howard testified credibly that he did not receive Badgley’s report until that afternoon. Howard and Danforth’s shift was over at 3 p.m. meaning that Howard was in possession of Badgley’s report for, at most, several hours that day. There is no evidence upon which to conclude that his failure to issue the warning that same day, in that short period of time, was motivated by antiunion animus. It is a fair inference that Howard had planned on issuing the warning to Danforth the next day. Danforth was absent the next day, how- ever, and when she returned to work on November 14, Howard was off. When Danforth reported late to work on November 15, she had reached her fourth instance. Respondent’s failure to issue the warnings to Danforth was the direct result of Badgley and Howard taking successive vacation days, and Danforth incurring instances in rapid succession. Moreover, Danforth was a 10-year employee and she was fully familiar with Re- spondent’s absenteeism policy and the significance of accumu- lating four instances. Danforth was obviously aware that she was close to her limit when she asked Moeller on November 12 how many instances she had left. This was further evidenced by Danforth’s testimony that when she came in late on November 15 her fellow employees were upset with her and she wanted to talk to Moeller right away. I discredit her explanation that she wanted to speak to him because she had used up 3-1/2 instances and was going to ask for a shift change. The reason she wanted to speak to Moeller right away, and the reason her fellow em- ployees were upset with her, was because they all knew she had reached her fourth instance, knew she would be fired, and Dan- forth was going to try to talk her way out of it. Finally, there have been instances in the past where Respondent has failed to issue warnings to employees for having reached the second and third instances. In the period January 1999 to May 2002, Re- spondent terminated 140 employees for excessive absenteeism. In eight of those cases, employees did not receive either or both warnings. While this is not a large number, it does establish that on at least some occasions the issuance of warnings has been overlooked. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 756 The General Counsel’s second supposition, that Respon- dent’s failure to grant Danforth a medical leave after she was terminated was discriminatorily motivated is similarly without factual support. Out of the 140 employees terminated for exces- sive absenteeism, the General Counsel points only to the ex- perience of Angela Mitchell as evidence that Danforth was treated differently. Gibson credibly explained the elemental difference between Mitchell and Danforth: Mitchell requested a medical leave before she was fired, Danforth asked for one after she was fired. I credit Gibson’s testimony that had Dan- forth requested a medical leave before she was fired, and had she provided medical documentation of her condition, he would have granted the leave. I discredit as wholesale fabrication Danforth’s testimony that Gibson told her Respondent does not recognize mental illness as a basis for medical leave. Respon- dent has granted medical leaves on the basis of mental illness in the past and would have granted Danforth such a leave had she provided timely documentation. In addition, Gibson testified credibly, and without contradiction, that in his experience as human resource manager, Danforth was the only employee who ever requested a medical leave after being terminated. There is no basis upon which to conclude, then, that Danforth was treated disparately from similarly situated employees. Finally, I find, that Danforth attempted to invoke Respondent’s medical leave policy as a last ditch effort to save her job. On her way home after being fired, Danforth decided, “the best bet would be to fly home, call Mr. Taylor, tell him I will get a medical leave.” When Gibson later asked why she only went to the doctor after she was terminated, Danforth admitted it was the only thing she knew she could do in order to keep her job. Gib- son justifiably looked askance at the doctor’s note provided by Danforth which said she was medically disabled from working as of November 14 when Danforth in fact reported for work on November 14 and 15. It should be made clear that I do not pass on the question of whether Danforth was in fact medically dis- abled from working; maybe she was, maybe she wasn’t. I do find that Danforth did not provide Respondent with documenta- tion of an illness prior to her termination, and that she at- tempted to invoke the medical leave policy as the only means by which she could get her job back. The General Counsel’s third supposition, that Respondent’s demonstrated animus toward employees’ union activities was the motivation for Danforth’s discharge, is also without merit. In ten years of employment, Danforth was openly supportive of three union organizing efforts and there was not a single occa- sion when Respondent expressed animus toward her for those activities. In the organizing campaign at issue in this case, Dan- forth wrote a letter supporting the Union that was published in the local newspaper on October 25. On October 30, 5 days later, Howard allowed her to leave work during her shift to attend to personal business, and further allowed her to make up the time so that she would not have to incur an instance. Nor is the timing of Danforth’s discharge suggestive of animus. Dan- forth incurred her fourth instance on November 15 and she was discharged the same day, a fact that the General Counsel con- cedes is consistent with Respondent’s absenteeism policy. The complaint alleges that on 10 separate occasions, agents of Respondent engaged in 8(a)(1) conduct. I have found merit to only two of these allegations, Rod Taylor’s conversation with Adkins in June, and his conversation with Ferrill on Octo- ber 17. While it is true that Taylor was a high-ranking man- agement official, these were discrete, isolated instances involv- ing two employees out of 250 employees, and this conduct was not repeated in any other of Respondent’s numerous interac- tions with employees concerning the union. Nor is there evi- dence that Taylor’s remarks were disseminated to other em- ployees. An expression of animus does not per se result in a finding that an employee’s discharge violates Section 8(a)(3). Animus must have been a substantial or motivating factor in the discharge, and in this case, I find there is no evidence that ani- mus played any role in the decision to discharge Danforth. For all these reasons, I find Danforth was terminated for vio- lating Respondent’s well-established and nondiscriminatory absenteeism policy. The General Counsel has not satisfied his initial burden under Wright Line, supra, and I recommend para- graph 6(a) of the complaint be dismissed. L. Ruth White 1. The facts a. Activities on behalf of the Union Ruth White began working for Respondent on October 1. She was referred to the job through an employment agency called PMI,15 and her supervisors were Howard and Moeller. She attended five or six union meetings during her 2 months of employment and signed a card. She wore union buttons on her sweatshirt and a union sticker on her wallet that she carried around with her at work. On one occasion, she came back late from her morning break. Howard asked her where she had been and she said she and other em- ployees had been talking about the Union in the breakroom. Howard said breaks were 15 minutes and lunch was 30 min- utes. When asked if he had inquired of White if she was for or against the Union, Howard testified, “[N]o, I didn’t even ask. . . . To me, honestly, I don’t care.” On November 28, as White was driving out of the parking lot after work, Mertes came up to the car and handed her an envelope. White did not observe any supervisors or managers in the vicinity. b. October 16 conversation On or about October 16, at about 1:15 p.m., White was on a break in the smoking breakroom. She testified that Tim Flem- ing was already in the smoking breakroom when she arrived. When all the other employees left, and it was she and Fleming alone, Fleming asked if she worked in production. When she said yes, he asked if anyone had spoken to her about the Union. She said she had heard people talking about it. Fleming asked what her opinion was and White said she agreed with the Union and had worked at two unionized companies and never had a problem. Fleming said he did not agree with the Union. Ac- 15 The General Counsel contends White was a regular full-time em- ployee of Respondent. Respondent contends White was an employee of PMI. Because I find White was not discriminated against when she was discharged, it not necessary to reach this issue. For the purpose of this analysis, I have assumed she was an employee of Respondent. K.B. SPECIALTY FOODS CO. 757 cording to White, she had never before spoken to Fleming, and never spoke to him again. That evening White attended a union meeting. She told Leo- nard of her earlier conversation and Leonard prepared a written statement. White testified she was positive it was Fleming she spoke with that day, that she told Leonard it was Fleming, and that Leonard wrote down that it was Fleming. White also testi- fied that she read the statement before she signed it. White was then shown the statement and was compelled to admit that she had stated that the supervisor whom she had spoken with was Tom Schebler, not Tim Fleming. White was asked: JUDGE KERN: Now do you know who Tom Schebler is? A. No. JUDGE KERN: That’s the name in Respondent’s 49, your affidavit. A. I see that but I don’t even—I can’t pronounce the last name. I never even met that person. JUDGE KERN: Did you read the statement before you signed it? A. I don’t remember. I don’t know if I did or didn’t. I just remember signing my name because that is my signa- ture. Fleming, who is no longer employed by Respondent, testi- fied that White worked under his supervision for 1 day. He spoke to her about her work assignment, but he never had a conversation with her about the Union. Fleming said he does not smoke, and when he was employed by Respondent, he did not take his breaks in the smoking breakroom. Schebler testified that he does smoke and did have a conver- sation with White in the smoking breakroom sometime in Oc- tober. Schebler knew that White was new and he asked her what she thought of KB so far. She said it was all right and the people were fairly nice to work with. Schebler testimony con- tinued: I then told her that—said, I don’t know if someone has talked to you about the union, but I would like you to know my opinions. I kind of told her that as a supervisor I liked the one- on-one ability to work with employees on job-related issues. She said no one had talked to her about it and that she had worked for a union before and the union had gotten a fairly good contract. That was the end of the conversation. I did not ask her what her opinion was of the union. c. White’s discharge On November 15, White told Moeller that her father was un- dergoing surgery in a few days and that she wanted to be with him but she had used up all her instances. Moeller approved the leave request and White was able to spend the day with her father in the hospital. White testified that Moeller also told her that if she needed more days off to call him and he would make the arrangements. On November 29, White was given a certificate recognizing her “for the efforts given during the week of Nov. 11 thru Nov. 17, 2001 to achieve PRs of 83% on the 1# Salad Line, and 86% on the 3# Salad Line.” Padgett testified that in the fall of 2001, Respondent implemented a productivity plan called “I-85,” the goal of which was to operate each production line at 85-percent reliability. The program was highly successful, and employees were given certificates of appreciation for their efforts. Ac- cording to Padgett, 99 percent of all employees in the facility received a certificate of appreciation. The certificate that White received on November 29 was one such certificate. On November 30, White reached 300 hours of employment at the facility. White testified that when she had first been re- ferred by PMI, she was told by Mandy Poling, the PMI repre- sentative, that after 300 hours she was guaranteed full-time employment. Poling testified, however, that she never made such a statement to White. Gibson concurred that permanent full-time status is not automatically extended to every PMI referral, although it is extended 95 percent of the time. Howard testified that 2 weeks after White started in October, he assigned her to work the salad commissary. White said she didn’t want that job. He asked what was wrong and she said she did not like to work there because it was too fast. Howard ac- commodated White and reassigned her. A few days later, he gave her another assignment and she again said she didn’t want that job. Howard took White into his office and asked her what the problem was. She said she did not like to work where he had assigned her. Howard told her she was not always going to be able to do the jobs she wanted to because he had to schedule employees where he needed them. Howard told her she needed to show him some initiative and that she wanted to work. Nev- ertheless, Howard reassigned her a second time. Howard also made a contemporaneous record of his conversation as was his habit. On November 21, White told Howard she did not want to work where she had been assigned. She said she couldn’t keep up with the line and wanted to work alongside her exhusband. Howard refused to move her but told her he would assign someone to help her if she needed it. On Saturday, December 1, Howard scheduled White to work in the glaze pack-off area. According to Howard, White said she did not want to work in that area. Howard told her she was being sent home for refusing to do her job and he told her to report back to PMI. White’s version is that she did not refuse to do the job Howard has assigned her, nor did she object to it. White testified she was half asleep, just looking at the work schedule when Howard said she had an attitude, that she threw a fit whenever she didn’t want to work with someone, and that she should go home for the day. White said she was too tired to argue and went home. White testified that on Monday, December 3, she reported for work. According to White, Moeller saw her and asked to speak with her. They went into his office and she took her coat off, displaying the union buttons. Moeller said that he and Howard had evaluated her chart and that she could not get along with others, that she had a bad attitude, and that she had used too many hours. White objected and said she had just gotten a certificate for good production and that she had per- mission to spend time with her father in the hospital. She also said she got along well with other people. Moeller said she should go to PMI and find another job. Moeller testified that it was Howard, not he, who terminated White and that he was not present when she was terminated. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 758 2. Analysis a. Credibility Howard was an entirely credible witness. He was candid, forthright, and had an open, even-tempered demeanor. He was as cooperative a witness on cross-examination as he was on direct. When he testified that he frankly didn’t care what White’s opinion was about the Union, he just needed her to do her job, I found him entirely believable. White, on the other hand, was far less impressive. She was “positive” that it was Fleming who spoke to her in the breakroom, and testified it couldn’t have been Schebler because she didn’t know who he was and couldn’t even pronounce his name. When shown the statement she had given the union within hours of the conversa- tion in which she stated that it was Schebler with whom she spoke, White resorted to the excuse that she didn’t read the statement, she only signed it. White was similarly not credible when she testified she was told by Poling that she was guaran- teed employment at Respondent once she worked 300 hours. Poling credibly denied that she never made such a statement, and Poling’s testimony was corroborated by Gibson who credi- bly testified that employment with Respondent is never guaran- teed. For these reasons, and based upon my observation of White and her demeanor on the witness stand, I credit her tes- timony only where indicated. b. October 16 conversation Schebler admitted that he had a conversation with White in the smoking breakroom in October. Crediting Schebler’s ver- sion of this conversation, I find he did not interrogate White, as alleged in the complaint. Moreover, Schebler was not alleged as a supervisor or agent of Respondent in the complaint, and the General Counsel has not moved to amend the complaint in its posthearing brief.16 I therefore recommend paragraph 5(i) of the complaint be dismissed. c. White’s discharge Applying the Wright Line principles to the facts of White’s discharge, I find, based on the record as a whole, that while the General Counsel has established Respondent’s knowledge of White’s union activity, he has failed to establish that the activ- ity was a motivating factor in her discharge. He therefore has failed to satisfy his initial burden under Wright Line. There is no evidence that White was treated disparately from similarly situated employees. The General Counsel argues in his brief that White was discharged just as she was reaching 300 hours of employment which would have made her eligible for permanent employee status and therefore, eligible to vote in any future election. To the contrary, the credible evidence es- tablishes that White was not guaranteed a permanent position upon her attainment of 300 hours, nor was any other PMI- referred employee. It is true that White received a certificate for her work on a production line, but so did 99 percent of all the employees employed at the facility. In a 60-day period, White refused two work assignments and was reassigned; refused a 16 The General Counsel was asked during the hearing if he wished to amend the complaint to allege that it was Schebler who spoke with White, not Fleming. The General Counsel declined. third work assignment and was not reassigned; refused a fourth assignment, and was fired. The General Counsel offered no evidence of other employees, whether referred by PMI or not, who were able to retain their employment after refusing four work assignments. Nor is there evidence that Respondent harbored animus for White’s union activity. There was no expression of animus toward White, and as previously discussed in connection with Danforth’s discharge, I have found only two isolated instances of 8(a)(1) conduct by Rod Taylor, and neither of those incidents played any role in Howard’s decision to terminate White. Respondent terminated White because she repeatedly refused work assignments, and not because of her activities on behalf of the union. I therefore recommend complaint paragraphs 6(b) and (c) be dismissed. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and has engaged in unfair labor practices affecting commerce within the meaning of Sections 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. In June 2001, Respondent, by Rod Taylor, violated Sec- tion 8(a)(1) of the Act by telling an employee she could not discuss the Union on company time, and by threatening her with discharge if she violated that rule. 4. In June 2001, Respondent, by Rod Taylor, violated Sec- tion 8(a)(1) of the Act by creating the impression that an em- ployee’s union activity was under surveillance. 5. On October 17, 2001, Respondent, by Rod Taylor, vio- lated Section 8(a)(1) of the Act by threatening an employee with plant closure and relocation if employees selected the union as their collective-bargaining representative. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended17 ORDER The Respondent, The Kroger Co., d/b/a K.B. Specialty Foods Co., Greensburg, Indiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Telling employees that they cannot discuss the Union on company time. (b) Telling employees that they are subject to termination if they discuss the Union on company time. 17 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. K.B. SPECIALTY FOODS CO. 759 (c) Creating the impression that employees’ union activities are under surveillance. (d) Threatening employees with plant closure and relocation if employees select the Union as their collective-bargaining representative. (e) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Within 14 days after service by the Region, post at its fa- cility in Greensburg, Indiana, copies of the attached notice marked “Appendix.”18 Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility in- volved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Respondent at any time since June 1, 2001. (b) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed inso- far as it alleges violations of the Act not specifically found. 18 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this no- tice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist any union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT tell you that you cannot discuss the United Food and Commercial Workers Union Local 700, a/w United Food and Commercial Workers International Union, AFL–CIO (UFCW), or any other union, on company time. WE WILL NOT tell you that you are subject to termination if you discuss the UFCW, or any other union, on company time. WE WILL NOT create the impression that your activities on behalf of the UFCW, or any other union, are under surveillance. WE WILL NOT threaten you with plant closure or relocation if you select the UFCW, or any other union, as your collective- bargaining representative. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. THE KROGER CO., D/B/A K.B. SPECIALTY FOODS CO.