Pilliod Of Mississippi, Inc.

PILLIOD OF MISSISSIPPI, INC. Pilliod of Mississippi,, Inc. and United Furniture Workers of America, AFL-CIO and. Le', West- moreland. Cases 15-CA-9159, ,15-CA-9212-2; -and 15-CA-9242 - - 28 June 1985' " - " - DECISION AND ORDER - - , BY CHAIRMAN -DOTSON AND MEMBERS. HUNTER AND DENNIS On 29 August 1984 Administrative Law Judge Howard I. Grossman issued the attached decision. The Respondent filed exceptions and a ,supporting brief, and the General Counsel and the Charging Party Union filed answering briefs. . . The Board has considered the decision and , the record in light of the exceptions and briefs and has decided to affirm, as modified, the judge's rulings, findings," and conclusions2 and to adopt the;. rec- ommended Order as modified.3 - ' ' 1. The judge found that the Respondent's .overall election campaign violated Section 8(a)(1) of the Act. In so doing, he relied not only on the speech- Following issuance of the judge's decision , the Charging Party Union filed with the Board a request to withdraw its objections in Case 15-RC- 7021 On 25 March 1985 the Board granted the motion and certified the results of the election Accordingly, we do not address the judge's find- ings 'with regard to the Respondent's alleged objectionable conduct. In adopting the judge's finding that the Respondent did not 'effectively repu- diate its unlawful conduct by distributing "job guarantees" to employees or by the 3 November. 1983 statements of;Plant Manager Clark, we rely on the fact that the Respondent's communications did not'specifically and unambiguously disavow any of the conduct we find "to have violated the Act. Thus, we agree that the communications did not effectively repudi- ate the Respondent's unfair labor practices The Respondent , has'eacepted to some of the'judge's credibtht -find- ings The Board's established policy is , pot, to, overrule an, administrative law judge's credibility; resolutions, unless . the clear -preponderance of all the relevant evidence convinces us that they are 'incorrect Standar'd'Dry Wall Products, 91 NLRB -544 '(1950),' ehfd ' 188 F 2d 362 (3d Cir '1951). We have carefully examined the record and find no- basis - for_reversing the findings t;- p , ;_, In adopting the judge's finding that the Respondent violated Sec4 8(a)(1) of the Act by enforcing its rio-solicitation/distribution rule against prounion employees while allowing antiunion solicitation, we:place +no.re- liance on the judge's finding that supervisors were permitted to-campaign against the Union during worktime while unit employees were prohibited from soliciting during such ' time-. NLRB 'v 'Steelworkers (Nutone, 'Inc.); 357 U S. 357 (1958) , 2 We do .not conclude, as did the judge, that Supervisor Hopkins',ques- tionmg of employee Donaldson in October 1983 as to Donaldson 's feel- ings toward the Union violated Sec 8(a)(1) of tlie'Act - In this regard, we note that Donaldson ` openly demonstrated his support for the Union by, inter .alia, wearing union buttons, shirts, and. hats ; While at- work Under the circumstances, we conclude that Hopkins' inquiry, would not,reason- ably coerce Donaldson in the ' exercise of nghts under the Act Rossmore 11 , House, 269 NLRB 1176 (1984) P;.. 8 Having found that the Respondent violated Sec 8(a)(3) and (1) of the Act by.discnminatonly refusing to-transfer Le' Westmoreland out of the finishing department from 'about 23 October 1983 to about 4 January 1984, the judge ordered , inter alia,' that the' Respondent- compensate Westmoreland for all medical expenses attributable to its unlawful' con- duct. Rather than provide 'a specific order for reimbursement of medical expenses, we shall provide ,a general make-whole remedy as customarily applied in cases of this type We shall leave to the compliance stage of this proceeding whether Westmoreland incurred medical expenses attrib- utable to the Respondent's'conduct 799 es given by 'Plant Manager Clark'and Chief Indus- trial: Engineer Bailey,' =but also 'on 'the Respondent's posters and 'campaign literature, which the judge found 'unlawfully emphasized 'the 'inevitability" of strikes and, threatened plant: closure ' and 'the' loss of strikers' jobs. ,Inn addition, '-the` judge; relied on the fact. that the. Respondent's ;campaign statements were made in the, context of other - conduct viola- tive. of Section 8(a)(1). of the,^Acti'-including state= ments by supervisors' which the judge' found also emphasized ` the inevitability of strikes;-and threat= ened employees with plant closure and loss `of_jobs. While'we "adopt the judge's finding that Plant. Man- ager Clark's statements violated . the Act and, except as modified herein, his findings- regarding the conduct of-.the Respondent's supervisors,-'we do not adopt his, fmdings regarding - the.-Respondent's overall election campaign. In finding the Respondent's campaign unlawful, the judge discussed several "of the Respondent's let- ters -and leaflets - to : employees, including, those stat- ing, inter alias that = a union -=could ' compound the Company's probl'ems;-that the Union-had a-propen- sity for strikes and violence;" and that'other 'union- ized plants -had''expenenced -loss,'of jobs-and em- ployee benefits: ' We -note; however', that none of the campaign ' literature was _ specifically alleged, to be, unlawful and,'we -find that such literature , is not coercive, nor did. it exceed the- bounds of permissi- ble campaign propaganda. :Ac^orclingly, . we do not find that the Respondent_,violated Section- 8(a)(1) ;of the; Act- bycits,overall. election campaign. - - Nor do 'we agree - with -the: judge's finding that the" -Responderit's `display of- its i'so-called red-line poster threatened employees with loss of`jobs if the Union 'wonA"he election 'and - thus `violated Section §(a)(1) '.6f the Act:-The poster ,' related to,layoffs'at 3. another furniture company and+.purportedto illus trate,,those; .of the ., Respondent's employees Who would; have; been ,laid, off if. the Respondent' s:"em- ployees .worked for' the, other :company: We -do not find 'that - such - a-, hypothetical comparison -would reasonably' fend- to "coerce ernployeest i^in 'the 'exer= cise of rights under the Act and 'there`'i's' no' evi- dence that the poster itself otherwise - suggested that' the ,,Respondent' would lay off employees if the Union won: the , election., Accordingly,Tiwe .dismiss the-:allegation'that the display:of the=red-line poster viol'ated' the; Act 5 tiC• - F,t 2. The judge=also' found that the Respondent -,vioz lated Section 8(a)(1) of the Act by the conduct of Chief Industrial Engineer Bailey in telling employ- ees during a campaign speech that the Respondent did not have to give - anything in negotiations, could begin bargaining at' "ground zero," and that 275 NLRB No. 117 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the -employees might lose their benefits. We -dis- agree. - - Bailey's statements, unlike those of Plant Manag- er Clark which we found above to be unlawful, do not contain a threat that the Respondent on its own would reduce benefits in retaliation against the em- ployees if they • selected the Union as their bargain- ing.representative. Rather, Bailey's remarks reason- ably communicated the views that a union cannot compel concessions in negotiations and that a union cannot guarantee the retention of all present bene- fits because such benefits are subject to negotiation. Thus, the remarks accurately reflect the bargaining process and we find that the Respondent did not violate Section 8(a)(1) by Bailey's statements. See International Filling Co., 271 NLRB 1591 (1984).4 3. The judge found that the Respondent-violated Section 8(a)(1) of the Act through the conduct of Supervisor Hopkins- in telling employees'that the Union was responsible for causing a safety inspec- tion which resulted in a requirement that the em- ployees purchase safety shoes. In so doing, the judge acknowledged that "such a statement, stand- ing alone, might be considered inoffensive." Never- theless, he found, in the context of the Respond- ent's widespread campaign to denigrate the Union, that the statement tended to disparage the Union and was thus unlawful. We disagree: It is clear - from the record that union organizer and employee Aletha Johnson initiated proceedings before the United States Occupational Safety and Health Administration (OSHA) and, that following an OSHA inspection employees of the Respondent were required to purchase safety-shoes. The state- ments of Hopkins neither expressly nor. impliedly threatened' employees for union activity and in the circumstances were neither coercive nor disparag- ing of the Union itself. Thus, we find that Hopkins' statements, even when considered in, light of the Respondent's other conduct, do not rise to the level of an unfair labor practice. We therefore dis- miss that allegation of the complaint. ORDER The. National Labor Relations - Board adopts the recommended Order of the administrative law judge as modified and set out in -full below and orders -that the Respondent; Pilliod of Mississippi, Inc., Meridian, Mississippi, its -officers, agents, suc- cessors, and assigns, shall - - 1. Cease and desist from - - 4 In reaching a contrary conclusion , the judge relied on'De Queen Gen- era! Hospital, 264 NLRB 480 (1982),"and Tra-Mar Communications, 265 NLRB 664 ( 1982). Without passing on the ments of these cases, we note that, unlike the instant case, each involved an alleged threat by the em- ployer to retaliate against the employees during the bargaining process We find no such threat here. (a) Telling employees that it would close the plant down, -tape it up, or move it before the Com- pany would think of having a union in the plant. (b) Telling employees that they would get repri- mands, indefinite layoffs, or be discharged if they distributed union material in the plant or placed union stickers on anything. (c) Telling employees that there would be a strike if the Union won an election, and that em- ployees' families would go hungry. - (d) Telling employees that they would be fired for signing union authorization cards. (e) Telling employees that they would be fired for giving information to the National. Labor Rela- tions Board. - (f) Telling employees that they will not keep their jobs unless they refrain' from associating with union officials. (g) Asking employees how many, employees are going to vote for the Union. (h) Telling union supporters that they are' hang- ing around with the wrong-crowd. - (i) Telling employees that the Union is going to get them fired. I • (j) Telling employees that they will get raises if the Union does not come into the plant. (k) Telling union adherents that they had- better watch themselves. (1) Telling employees- that they had better refrain from wearing' union clothing or insignia. - (m) Discriminatorily promulgating or maintain- ing a no-solicitation%distribution rule. (n) Discouraging membership in' the United States Furniture Workers of America, AFL-CIO, or, any other labor organization, by discharging em- ployees, issuing warnings to them, or refraining from transferring them, because of their union ac- tivities; or_ by discriminating against them in any other manner' with respect to, their hire, tenure of employment; or terms and conditions of employ- ment. (o) In. any other manner ' interfering with, re- straining,. or coercing employees in the exercise of the rights,guaranteed them by Section 7 of the Act. 2. Take the following- affiimative action designed to effectuate the purposes of the Act. (a) Offer, Aletha -Johnson_ and, James' White im- mediate, and,full .-reinstatement;to; their former jobs or, if those, jobs no, .longer. . exist,. to I substantially equivalent positions, without prejudice to, their, se- niority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings • and other benefits suffered as a result of the Respondent's unlawful conduct in the manner described in the remedy section of the decision. Remove from its files any reference to the unlawful PILLIOD OF MISSISSIPPI, INC. 801, discharges, and notify the employees in writing that this has been done and that the discharges will not be used against them in any way. (b) Remove from its files any reference to the warning unlawfully issued to Donald E. Tanner for alleged violation of a no-solicitation/distribution rule, and notify him in writing' that this has been done and that the warning will. not be used against him in any way. (c) Refrain from transferring Le' Westmoreland back into the finishing or deburg department, and make her whole for any losses suffered as a result of the discrimination against her. (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of reimbursement due under the terms. of this Order. (e) Post at its facility at Meridian, Mississippi, copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Re- gional Director- for Region 15, 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. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply., MEMBER DENNIS,' concurring ih part and. dissent- ing in part. . 'I concur with my ' colleagues' adoption of the judge's finding that the Respondent committed nu- merous unfair' labor practices. 'Contrary to' my col- leagues, I would find that the "red-line" poster re- inforced the Respondent's threats of plant closure, other retaliation, and the inevitability of strikes, and thus the "red-liiie" "poster itself, unlawfully threatened employees -with' the ' loss of job -security. Further; although I do'not -agree with the ' breadth of the judge's finding "in 'his "Fa6iual' Summary` and Legal Analysis" that the Respondent's campaign as a ' whole was unlawful;- I' would 'find 'the' Respond- ent's numerous threats conveyed to employees the futility of supporting the 'Union. Finally, I believe 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 Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board that, under Rossmore House, 269 NLRB 1176 (1984), the totality of circumstances dictates a find- ing that Supervisor Hopkins' interrogation of em- ployee Donaldson violated Section 8(a)(1), as the questioning occurred against a background of nu- merous unfair labor practices (including threats and interrogations) affecting a large number of employ- ees. t - i I agree that the Act was not violated by either Hopkins' statement that the Union was responsible for the requirement that employees pur- chase safety shoes or by Engineer Bailey's statement that the Respondent could begin bargaining at ground zero 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 the National Labor Relations Act and has ordered us to post and abide by this -notice. WE WILL NOT tell employees that we will close the plant down, tape it up, or move it, before al- lowing a union to come into the plant. WE WILL NOT tell employees that they will get reprimands, indefinite layoffs, or be discharged if they distribute union material in the plant or place union stickers on anything. WE WILL NOT tell employees that there will be a strike in the event the Union comes into the plant, and that employees' families will go hungry. WE WILL NOT tell employees that they will be fired for signing union authorization cards. . WE WILL NOT tell employees that they will be fired for giving information to the National Labor Relations Board. WE WILL NOT tell employees that they will not keep their jobs unless they refrain from associating with union officials. WE WILL NOT ask employees how many employ- ees are going to vote for the Union. WE 'WILL NOT tell union' supporters that they are hanging around with the wrong crowd. ' WE WILL. NOT tell employees that the Union is going to get them fired. WE WILL NOT tell employees that they will get raises if the Union does not come into the plant. WE WILL NOT tell union adherents that they had better watch themselves. WE WILL NOT tell employees that they had better refrain from wearing union clothing or insig- nia. 802 DECISIONS OF: NATIONAL LABOR RELATIONS BOARD -'WE WILL 'NOT--•discriininatorily promulgate or maintainea no-solicitation/distribution -rule: -- t WE : WILL'-NOT discourage membership' in ,any' union by' discharging; issuing warnings to, or refus: ing to -transfer employees, because of their, union' activities. Wi •WILV NOT in `any '=other ,manner 'interfere with,' restrain or , coerce, employees in "the exercise' of the rights. guaranteed" them by Section 7' of the Act. WE' WILL .offer-Aletha"Johnson and James White immediate -and, full reinstatement to their former`, jobs or, if those jobs no longer : exist„to. substantial- ly equivalents- positions, without prejudice to their seniority or any other rights or privileges previous- ly- enjoyed and WE WILL make them whole for any loss : of-earnings^'and - other benefits resulting from their discharge, less. any-net ;interim earnings, plus interest,' and WE WILL expunge all, references to- those`'discharges -from our records,"and notify them' in writing that we have 'done • so. •,"-- ' -`WE WILL 'expunge'--from""our personnel trecords all' references to"the 'unlawful warning which we' issued to Donald E. Tanner;' -' and - notify him = ; in writing~that`we have done so. WEB WILL refrain' from.' transferring - Le' • West- moreland back into the , finishing or" deburg depart= ment„and- WE WILL .make, her whole for any losses she,, incurred - because.: of, our unlawful refusal to transfer her out of that department,: plus interest. - ,. PILLIOD'OF^MISSISSIPP1, INC.' DECISION--t OF THE CASE ;,, HOWARD I_. GROSSMAN, -Administrative = Law;•Judge. The original charge ,in Case; l5-.CA-9159'was.-filed_by United Furniture. Workers .,of -America; AFLCIO (the Union , or ° Petitioner),. on- October 31, 1983, ij and an amended charge .on November 1'8. A- complaint. issued on December 31,' which , -as amende 3 d, "alleges that` illio'd' of Mississippi, Inc. (Respondent or the Employer)"threat- ened, employees with discharge or loss of jobs ,if they (-1) continuedzto, support '-the, Union, ,(2)_ posted' union litera- ture iii Respondent's, facility;,, (3)^-signed ,union cards, or (4) .,talked, to a an. agent! of the'iNational Labor r' Relations Board (the Board).. In addition, the corriplaint alleges that- Respondent posted a notice threatening loss of ,job's; and otherwise threatened employees with foss of employment and Ybenef ts; with reductions of• wages ; and ,'with plant closure " if'the' Union 'won'a ' forthcoming 'election: Fur- ther;j=the ` comp l'aint 'asserts' "drat Respond'eiiF (1)' 'threat- ened employees - with -'discipline-if they" voted for the Union;" (2) engaged'iin unlawful inter"rogation of eniploy- ' -All dates are in 1983 unless otherwise indicated Although Respond- ent initially denied - service of the original charge, this was admitted at hearing „t ees with respect to union activities;-(3) promised a wage increase if the Union lost the election; and created an im- pression of surveillance of union activities. The foregoing acts and conduct are asserted to be violations of Section 8(a)(1) of the Act. - - - 'The complaint, as amended, further alleges that Re- spondent discriminatorily and disparately promulgated and-maintained a no-solicitation and distribution rule in order to discourage- its employees from supporting the Union in violation of Section 8(a)(1); and - enforced such rule'by discharging employee Aletha Johnson and by is- suing a written warning to employee Donald E. Tanner because of their their union activities, all in violation of Sec- tion 8(a)(3) and (1). 'Finally, the complaint alleges that Respondent made campaign speeches and distributed literature to its em- ployees which,- considered -in totality with the offenses alleged above, -conveyed to its employees an atmosphere of futility with respect to continued support of the Union, in-violation of Section 8(a)(1). 'Petitioner filed a petition iri Case 1'5-RC-7021 on' Sep- tember' . 12. Pursuant to a Stipulation' for Certification Upon Consent Election, an-election-by'secret ballot was conducted on November 4. Of'approximately 388 eligible voters; 350 ballots were cast, 147 'for 'the Petitioner, and 180 votes' against the. Petitioner. There were 22 chal- lenged ballots, and 1 was "void. `The' challenged ballots were insufficient in -number to affect the 'results • of the election. Petitioner timely filed 30 objections to the con- duct ,of the election and, thereafter, withdrew 17 of them with the approval of, the Regional Director for' Region 15. On December 30,- the Regional Director issued his Report on` Objections arfd Order Directing Hearing, in which he concluded that seven 'of the remaining objec- tions were. the subject of, unfair . labor proceedings' in Case' 15-C-9159,2 and that six of them, if proven, would constitute sufficient basis-for setting aside the elec- tion.3 Accordingly, the Regional Director ordered that'a hearing Cori the objections be consolidated with the pro- ceedings Case 1 5-CA-9159, ! absent settlement - of the latter. • The.JEmployer thereafter fled exceptions to the Regional Director's' report, and the Board, on February 3,,,1984, overiuled,said exceptions (G.C. EA. 1(aa)). - . The -charge in` Case. 15-CA-9212-2 was filed by the Onion 63,1 January `6, -1984, and complaint.issued on Janu- Objections (1). discharge and intimidation of union . supporters; (6) campaign of- fear . about union strikes, -violence, and plant closings, (13) permitting "loyal" employees to,campaign during working hours while threatening discharge of union supporters for'same; •(14) posting `of poster implying that half of the employees would be fired if the Union won, (16) harassing and =intimidatmg(union"supporters with suspensions- and warn- ing, (17) allowing "loyal" employees to distribute company materials on company .propeity during working 'hours, and threatenug discharge of union supporters1dr. same, and-(29) threatening employees with reduction in wages and loss of benefits if the Union won (G.C Exh 1(e)) 3 Objections:-(8) ,threat to sue union- committee for,31 million (9) suing each union representative for $1 million on the day before the election; (11),postingtarmed guards prior to election to createimpression employ- ees needed piotechon from violence, (12) promising favors to `employees joining the "Loyal Empioyees'Committee", (18) company letter on day of election threatening to close plant and creating new issue about Com- pany's'financial status-which Union had no opportunity to answer, and (22) conversations with employees - waiting to' vote by. supervisors sta- tioned .outside•polhng area,(G.C Exh -1(e)).. - , PILLIOD OF MISSISSIPPI , INC. 803 ary 30, 1984. As amended, it contained additional allega- tions of violations of Section 8(a)(1) similar to those in Case 15-CA-9159 and, further, alleges that Respondent (1) told an employee that the Union was responsible for causing OSHA to require that Respondent furnish work shoes to employees at the latter's expense; (2) told em- ployees that Respondent did not have to bargain in good faith if the Union won, and could reduce wages to mini- mum levels; (3), accused an employee of being "damn dumb" for supporting the Union, thereby implying that reprisals would be taken; and (4) threatened employees with discharge or other reprisals for distributing union literature; posting union or "Vote Yes" stickers, or other- wise supporting the Union, and (5) threatened employees with reduction of wages or refusal to grant a wage in- crease because of their support of the Union. This com- plaint also alleges that Respondent discharged employee James White because of his union activities, in violation of Section 8(a)(3) and (1). The charge in Case 15-CA-9242 was filed by Le' Westmoreland (Westmoreland) on January 20, 1984, and complaint issued on February 21, 1984. It alleges that Respondent threatened an employee that his family would go hungry if the Union came into the plant. Fur- ther, the complaint alleges, Westmoreland requested a transfer from Respondent's finishing department for med- ical reasons, and Respondent refused because of West- moreland's union activities, in violation of Section 8(a)(3) and (1) of the Act. A hearing on these matters was conducted before me in Meridian, Mississippi, on March 12 through March 16, and March 26 and 27, 1984. On the entire record, includ- ing briefs filed by the General Counsel, Respondent, and the Union, I make the following FINDINGS OF FACT 1. JURISDICTION The pleadings, 'as amended, establish'that Respondent is a Mississippi corporation with an office and place of business located at Meridian, Mississippi, where it is en- gaged in the manufacture of wood products. During the 12-month period preceding issuance of the last ' com- plaint, a representative period, Respondent purchased and received goods and materials valued in excess of $50,000 directly from points located outside the State of Mississippi, and sold and shipped goods similarly valued directly to points located outside the State of Mississippi. Respondent is an employer engaged in, commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION, INVOLVED The pleadings establish, and I find, that the Union is a labor organization within the meaning of the Act. - III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Parties Engage in a Leaflet, Letter, and Poster Campaign • : The first union meeting took place in late April or early. May, and an "Inplant Organizing Committee" was formed. Thereafter, the Union mailed out a poster stating that it was an employee's right to join a union (Jt. Exh. 37). The Union also mailed "Vote Yes" stickers to em- ployees, and 'a letter thanking them for signing authoriza- tion cards. In addition, the Union distributed leaflets at. plant entrances stressing-the benefits of union organiza- tion. One of the leaflets asserts that the "fringe benefits" at the Company's plant include skin rashes, breathing problems, dizziness, and nausea as a result of working conditions. The leaflet demands a medical committee, in- formation on chemicals with which the employees were working, and adequate ventilation (Jt. Exh. 45). Another leaflet demands adequate notice of overtime (Jt. Exh. 44). In August, the Union distributed leaflets stressing wages and job security, and noted 'the superior benefits granted by Respondent at another of its plants which was unionized, (Jt. Exhs. 39, 40, 42, and 43). As noted above, the petition was filed on September 12. The Union distributed several- leaflets in September on the same themes of improved employee benefits and working conditions (Jt. Exhs. 30-35): Another leaflet in September is a• letter to coworkers from alleged discri- minatee - Aletha Johnson, who identifies herself as the Union's International representative and a former em- ployee at Memphis Furniture Company, where she en- gaged in union activities (Jt. Exh. 26). The Company's initial , response, was a letter from Plant Manager Ken Clark4 to employees in late September. This letter reads in part as follows: That's why simply having a union means ABSO- LUTELY NOTHING! Everything depends on NE- GOTIATIONS which BY LAW your Company DOES NOT HAVE TO AGREE TO ANY- THING OR MAKE ANY CONCESSIONS. That's when the other side of the union picture comes into focus. STRIKES, LOST PAYCHECKS, NO BENE- FITS, NO UNEMPLOYMENT PAY, AND OFTEN LOSS OF JOB. The other side of the story is EXACTLY WHAT HAPPENED TO MEMPHIS FURNITURE-COMPANY AND TO OTHER FURNITURE WORKER UNION PLANTS. `The approximately 1000 employees who were ' working at Memphis Furniture Company before the Furniture Workers • Union and its long strike are now down to around 200. That's right-800 Union jobs lost!' Of course, that's just the start. Ask the Union Agents about Fort Smith Chair Company. Here is another sad but true example of the other side. ,The Furniture Workers Union called a long strike at Fort. Smith Chair and caused many of their members to lose their jobs when they were discharged. (Jt. Exh. 77). * The pleadings establish that Clark was a supervisor within the mean- mg of the Act. 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A few days later, Respondent sent a letter to employ- ees saying that the Union could not solve the Company's problems, but "could' compound them"- (Jt. Exh. 76). In October and early' November, the ^ Company issued a series of leaflets presenting the Company's point of -view. Some of them. stress the Union's alleged propensity for strikes and violence, loss of jobs, and the failure of em- ployees to get improved benefits.(Jt. Exhs. 63, 75). The- ,failure-of another union to obtain improved benefits after a=strike was also noted•.(Jt. Exh._74).,-Those employees who wanted "steady work" and "no strikes" were urged to, vote "No'-''(Jt. Exh. 51), and possible loss of jobs was noted in other- leaflets -(Jt.; Exhs. 54, 60). A. company letter to employees asserts that many ;"unionized plants" had "closed their doors" (Jt. Exh. 64), while another states that the Union at other companies had caused em- ployees to lose' their jobs and health insurance, and had fined union members (Jt. Exh. 61). t The Union replied- in October `with leaflets which in general • showed the' benefits of unionization, and which responded to some of Respondent's leaflets. One of them was a leaflet purporting to tell "The Real Memphis Fur= niture. Story" (Jt. Exh. 14). • - Alleged discriminates Donald' Tanner testified that he saw 40-50 antiunion posters in the plaht. The parties stip- ulated that they were'20 by 30 inches in size. The posters dealt with' strikes, fines, assessments, and the Memphis Furniture-campaign. 'One of'them said that 800-900 em- ployees at Memphis Furniture had' lost their jobs^ because of the Union. Another poster was put up in the cafeteria•oii Novem- ber- 3, • the day' before the election., It had the names' of Pilliod employees on it, with -a red line separating one group of names from another. According to the testimo- ny of Tanner and other witnesses,-' the poster stated that those employees whose _ names appeared below - the' red line would be the first laid off if Pilliod were Memphis Furniture Company. Two-thirds of the' names 'of Re- spondent's employees were below the-red. line:. ' , Former employee Mary Griffin testified.that Supervi- sor Rob Allison6 came to-'her work station and- told her- about a poster in the cafeteria, and that those employees whose names were below the red line would-be the first to be• laid off if the= Union came ,in. Griffin saw the poster, and observed that her name was above the red. line. Other employees talked to Griffin and were fright- ened that they were going to lose their jobs. Griffin's tes- timony was corroborated by current employees Nora Downs and Le' Westmoreland. The ?latter; affirmed that employees were in a panic, about - the poster, and, were scared to death that they were going to lose their' jobs. The poster stayed up only a short time on November 3. This testimony is: unconti•adicted, and I credit it. B. Clark's and Bailey's speeches The Company's position-was repeated in,speeches to' employees by Plant Manager Clark and Chief Industrial S Wiley Ewing, Mary Gnffm, and Nora Downs 6 The pleadings establish ' that Allison was a supervisor within the meaning of the'Act Allison 's first name appears as amended.at the hear- ing. Engineer Autrey Batley.' Clark made four speeches to employees, the first one in late' August or September, and the-last one on November 3. Larry Dixon testified he heard three speeches, and'the evidence "indicates that he did 'not hear' the last speech. According to Dixon, Clark said essentially the same thing in all the speeches. If the Union came in there was going to, be a strike,- and the Company would be in the same position as Memphis 'Furniture, where the number of employees went down from about 800 to about 250. This reduction was -the fault of the Union. According to Le' Westmoreland, Clark said that he did not want the Company pulled down to the level of Memphis., Furniture because of strikes and violence. He did not want employees to lose their jobs because of the Union and, if the Union came in, it would be detrimental to the Company. ' On -November 3, according to Westmoreland, Clark said that he did not want employees to lose their jobs if the Union came in,, and that the Company but not the Union could guarantee' jobs: The Company would start negotiations from the minimum wage level, and the em- ployees-could lose benefits. Mary Griffin said that Clark told the employees that they-=would not lose their jobs and the Company could continue in operation. -On the morning of the election, Clark distributed a job "guaran- tee." ,Westmoreland crumpled up `her "guarantee" with The pleadings establish that Batley was a supervisor within the mean- ing of the Act ` The front of.the 'Guarantee" reads as follows Guarantee . This is our -PERSONAL GUARANTEE- and your ?LEGAL DOCUMENT' that :. ' . ' you will have a job with our Company whether the union gets into • our plant'or riot, even though at one time or another for van 'ous rea- sons you may'have signed a union card, as long as you'perform your work satisfactorily,' follow our customary plant rules, and -we are economically able' to operate this business successfully and work is available . -, . This 'Guarantee is provided to you by your Company for the ex- press purpose of assuring our employees that there is no truth in rumors that anyone will lose his job if the union is unsuccessful and is 'an example• of the JOB SECURITY that can only'be provided by your Company Has the union` given, you any kihd of WRITTEN GUARANTEE that they can or -will • live up• to all BIG PROMISES 'and "HIGH HOPES" they have made and are trying to make you believe-and has the UNION given you a WRITTEN GUARANTEE that the 'UNION WILL"NOT CALL YOU OUT ON STRIKE'AND COST YOU A,LOSS, OF-MONEY and POSSIBLY EVEN YOUR JOB? =Compare this'WRITTEN,GUARANTEE of a job to the.unse- cured statements made by,the union politicians and their supporters that are not in any way legally binding and enforceable by law Hun- dreds of Unionmembers who are•now out of work would gladly ex- 'change their liistory'of strikes, 'union fines, assessments, 'layoffs and plant closings'fora WRITTEN GUARANTEE such as this - The back'of the "Guarantee", reads as follows - • ) When! you Vote No, [X] It means NO Strikes, Dues, Fines, Assessments, Lost Pay Due to Strikes, Picket Lines; Violence, Foiced Attendance at Union Meet- ings, Umon Dictatorship " [Jt Exh 52 ] PILLIOD OF MISSISSIPPI, INC 805 her name on it and-threw it on a pallet. Plant Manager Clark saw it and picked it up. Clark denied that he said the employees would get less if the Union came in, but admitted that he spoke against the Union. I credit the General Counsel's evidence as to the first three speeches, the essence of which was that union victory in the election might result in loss of jobs as it had at Memphis Furniture Company, and loss of benefits. In the November 3 speech, Clark said that em- ployees would not lose jobs but that the Company would start negotiating at minimum wage levels, and the em- ployees could lose benefits. According to Tanner, Bailey made several speeches and slide presentations before the election, in which he said that the Company did not have to give anything in negotiations, could start at "ground zero," and that the employees might -lose their benefits. This was partially corroborated by former employee Kathy Henderson. Current employee Charles C. Harper testified that Bailey told employees that Pete Pilliod would "close up the place" if the Union came in. Bailey admitted making speeches to three or four groups of employees. He also denied the statements attributed to him by the General Counsel's witnesses. However, Bailey stated that he could remember only about half of the statements he made. I credit. the testimony of Tanner, Harper, and Henderson as related above. C. Alleged Individual Violations of Section 8(a)(1) 1. Statements of Rob Allison - Former employee 'Dennis Bracken, a union supporter,- testified that he started wearing union insignia in about July, and that Allison told him that he thought that Bracken had better sense than to get-involved with the Union, that it was not going to do the employees any good, that all the Union would do is charge union dues and fines, and that the Company would close the plant down before they would think of having a union in it. Allison told Bracken, that he could get his,union card back, but Bracken was not interested. . In late September, according to Aletha Johnson and current employee Anthony Ray Pippen, Allison told em- ployees that they -would get an indefinite layoff if they were caught distributing union material in the plant or placing union stickers on anything. Johnson protested to Allison that a procompany employee had worn -a noose around his neck with a sign saying, "This is-what the Union will do for you." Allison replied that the other employee had a right to'voice his opinion. ' Mary Griffin affirmed that Allison 'took her to' the breakroom during the week of the election, and told' her that she had to make up her-own mind. When Griffin re- plied that she had- done so, Allison told her that she would lose all _ her benefits if `the Union came 'in, and showed her pages from a company, handbook depicting bomb threats, and people killing each other (G.C..Exh. 3). On November 3, Allison arid Clark gave Gnffin • a "job guarantee" (Jt. Exh. 52), and said that she-Would not be laid off if the Union came in.9 9 Supra, fn 8 Current employee Anthony Ray Pippen testified that he had a conversation with Allison in mid-October. Pippen was wearing a union button at the time. Allison. asked. whether Pippen had a-family, and Pippen replied in the negative. Allison replied that if the Union came in there would be a strike, and Pippen's family would go hungry. Pippen replied that his family would not go hungry, because'he would eat one way or another. - Nora Downs' asserted that the Company required em- ployees-to buy safety shoes. -After the election, about November 21, Allison- told Downs to blame OSHA for this, not the Company. Allison inquired, "You know who brought OSHA in here, don't you?" The implica- tion was that Aletha Johnson or the Union had done so. Former employee Dennis Bracken testified that, in mid-July, Allison told him that the Union was not going to do the employees any good, that all they did was col- lect dues and fines, and that the Company would close the - plant down before allowing the, Union to come in. Allison" did not testify, and I credit the uncontradicted evidence from the General Counsel's witnesses. 2. Statements. of Randolph Hopkins a. Hopkins' supervisory status The parties stipulated that Hopkins was a supervisor no later than August-8, but the General Counsel- argues that he achieved that status at an earlier date. Hopkins began working as a janitor in December 1982. When production began in February 1983, Hopkins was made leadperson in the packing department. He testified that, although he. could not discipline employees himself, he could recommend such discipline, and that such rec- ommendations were followed most of the time. Hopkins also admitted that he was promoted to foreman of one of the assembly -lines in June or July 1983 and that, as such, he could discipline employees and gave them their duties for the day. Although Hopkins contended that he was only a supervisor, in training beginning about 4 weeks before August 8, -he -admitted that as' such he could disci- plnne'employees, effectively recommend - discharge, and correct employees concerning their 'work.' - I conclude- that Hopkins was a supervisor within- the meaning of the•Act not later than about July 1. b. Hopkins' statements _r (1)-To Martin A. McDonald . Former employee- Martin A. McDonald, testified that he knew an employee named Beverly '"Gist who had- been discharged., McDonald stated that Hopkins called Gist a ringleader of the Union. Gist asked McDonald to sign a union card, and. he did so. Hopkins -told McDonald, sometime in July, that if the • bosses found out that McDonald` had signed 'a, card, he `would be terminated for union activities. McDonald further affirmed that an agent of the Board approached him and asked whether Gist had been 'fired. McDonald reported this to Hopkins. Hopkins observed that McDonald could be terminated "if it got around." 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The clear implication is that the reason for the termina- tion would be giving information to the Board. Hopkins agreed that he had a conversation- with McDonald about union cards. McDonald asked • him whether he would get into trouble if he signed one, and Hopkins replied in the negative; saying that it was McDonald's decision to make, and that it was against the law for the Company to dissuade him from doing so. However, Hopkins also admitted that he had never heard of the NLRB' until he was subpoenaed in this pro- ceeding. Hopkins also agreed that he had a conversation with McDonald about Gist. According to Hopkins, McDonald complained that he was being "harassed by some people." Hopkins contended that McDonald'said it was a union official. He assertedly replied to McDonald that it was "against the law to be harassed by officials like that." Hopkins also denied the statement that-Gist was a union ring leader. - McDonald appeared to be a truthful-witness. Hopkins, however, was not reliable. He had formerly been a- minor league baseball player, and blamed a strike called by a union of major league players for his failure to be called up to the major leagues. Hopkins thus-manifested antiunion bias. I do not credit his asserted reply to McDonald's inquiry concerning union cards-since Hop- kins had never heard of the NLRB, it is unlikely that he would have been reciting "the law" to McDonald. Nor do I credit Hopkins' contention that McDonald com- plained- about a union official-McDonald was quite clear that it was an agent of the Board. Accordingly, I find that Hopkins told McDonald that • he would be fired if the bosses -found out that he had signed a union card. He- also told McDonald, in effect, that the same thing would happen if it became known that McDonald had given information to the Board. - - (2) To Steven P. Donaldson Donaldson was a prounion employee who was laid off in February 1984. He testified that, in mid-October, Hop- kins asked him how he felt about the Union and Donald- son replied that he did not know. Hopkins responded: "I've played pro ball and you can see what the Union has done for me. You're a smart boy, you can figure it out." Donaldson further asserted that, in mid-November, Hopkins told him that Aletha Johnson had.called OSHA, and that he could thank that "fat. bitch" for the safety shoes. Hopkins agreed that he had a conversation with Don- aldson about the Union. Donaldson was wearing a union button, and other employees were kidding him. Hopkins contended that he said that it was Donaldson's right to wear whatever he wanted to wear. He also admitted that he blamed Aletha Johnson and the. Union for the safety shoes, but denied that he ever said: "You see what the union'did for me. You're a smart boy, you figure 'it out." On the other hand, Hopkins admitted telling Donaldson that he had been "hurt" in baseball by a union. - I credit Donaldson's version of these conversations.'" (3) To Willie Holliday and Mike Mizell Current employee Willie Holliday testified that, about 5 days before the election, Hopkins told him that he knew Holliday was for the Union. Hopkins further said: "If you don't stop fucking around-with that black' bitch' ass, Aletha Johnson, you won't have a job here at all." After the election, according to Holliday, Hopkins said that "they" were requiring the employees to buy "those high priced shoes." Current employee Mike Mizell testi- fied that Hopkins made similar statements about safety shoes in mid-November, referring to Johnson as that "fat-ass gal." Although Hopkins denied the verbal descriptions of Aletha Johnson attributed to him by Holliday and Mizell-saying that such words are not in his vocabu- lary-he admitted discussion of safety shoes and blaming them on the Union. I credit the testimony of Holliday. and Mizell. 3. Statements of William E. Voelz Jr. a. To Wiley Ewing Current employee Wiley Ewing testified that William E. Voelz Jr. became foreman of the bookcase assembly department after the departure- of the former supervisor. The parties stipulated that Voelz became a supervisor no' later than October 3,'° and that this status terminated on January 3, 1984. Ewing testified that, about a' month before the election, i.e., about October 4, Voelz asked him how many people on the assembly line were actual- ly voting for the Union. Voelz testified that he could not remember this conversation. I credit Ewing. I further find that this conversation took place during the period when Voelz was a supervisor. i i b. To Kathy Ann Henderson, Henderson, a union supporter, affirmed that, about a week before the election, ' Voelz !told her that she was hanging around with the wrong' crowd, and that he wanted to talk to her about the 'Union. Henderson re- plied that she already knew about the Union. Voelz testi-' Pied-that he could not remember having such a conversa- tion.' Henderson was a credible witness, and Voelz" denial was vague. I credit Henderson. c. To James Dantzler Current employee James Dantzler affirmed that Voelz had a conversation with him about 3 weeks before the election. Dantzler• was wearing a,.union :cap.- Voelz told- him that, he did not.. know - that - Dantzler was crazy. enough, to,vote for the Union:,Later the same, day, Voelz told him that Pete ,(Pilliod), the owner ; of the plant, would move the plant if the Union came in. Voelz denied knowing Dantzler, and said that he could not re- member telling anyone that he was crazy to vote for the 10 Voelz asserted that the beginning date was October 4 I accept the stipulation of the parties ii Ewing attributed other statements to Voelz prior to the date that the latter became a supervisor - PILLIOD OF MISSISSIPPI, INC. Union. Voelz was again vague, and I credit Dantzler, a believable, witness. - - 4. Statements of Don McWhirt Former employee Larry Dixon testified' that, in mid- September, Supervisor Don McWhirt12 said: "That damn-Union is going to get you fired." Dixon was wear- ing an insignia at the time. Dixon said that McWhirt's statement did not frighten him. In late September, ac- cording to Dixon, McWhirt told him' that: "You know if the Union doesn't go in you're supposed to get a 50-cent an hour raise in December." Dixon further stated that, in early September, McWhirt told a group of employees that anyone caught posting or 'dropping union propaganda on company- property would be dismissed. Charles C. Harper placed this conversation in October, and said that McWhirt re- ferred to union handbills. As McWhirt did not testify at the hearing, I credit the' otherwise believable testimony of Dixon and Harper. 5. Statement of Wanda Steen' Former employee James Dantzler testified that, in-the latter part of September, Supervisor Wanda Steen13 told him that, if the Union came into the plant, Pete Pilliod was going to tape the plant up and leave town. Steen ad- mitted knowing Dantzler, could not recall talking about a union with him, and denied making the statement at- tributed to her. Steen was an unreliable witness on other issues, and I credit Dantzler's testimony. 6. Statement of Gayle McCarty Steven P. Donaldson affirmed that, about a month before the election, Supervisor Gayle -McCarty14 told employees in the packing department that any employee who put up union stickers or distributed union handouts or leaflets would be "written up, and. after 3 writeups would be terminated." On direct examination, McCarty admitted talking to employees about the Company's no- solicitation rule,15 but denied telling them that they, would be discharged if they put up union stickers. On cross-examination, McCarty contended that she did tell employees that they would be terminated if they were, caught putting up any stickers on company property., However, the witness further admitted that her pretrial affidavit avers that she did not recall making any such statement. McCarty said that her testimony at the hear- ing, rather than her affidavit, was 'correct. She had thought 'about -the subject more since the time that she signed her affidavit., Nonetheless, McCarty was unable to recall the date that' she made the statement to employees. I credit Donaldson's testimony rather than the contra- dictory versions put forth by McCarty. ' 12 The pleadmgs establish that McWhirt was a'supervisor 'within the meaning of the Act. • - ' 18 The pleadings establish that Steen was a supervisor within the meaning of the Act. 14 The pleadings establish that McCarty was a supervisor within the meaning of the Act 15 See infra, subset. 10 807. --7. Statement of Bobby- Ray Slagle - Donaldson also testified that, about the time the no-so- licitation rule was promulgated,ts Assistant Plant Man- ager Bobby Ray Slagle 17 said that they had "bad reports about [Donaldson's] passing out union material in the plant," and that he would be terminated if the Company could get one witness to confirm this. Slagle was asked on direct examination whether he had ever had a con- versation with an employee about -"union stickers," and answered affirmatively. Slagle identified Donaldson as the employee. His further testimony reads in part as fol- lows: - - • I told him that if the union had-if we had anybody that would testify that they saw him putting up union-any kind of sticker, that he would be termi- nated. - Slagle's first version of his statement-that he said union stickers-is obviously correct and corroborates Donaldson. I credit the latter's testimony. 8. `Statement of Charles Woodall Alleged discriminatee -James. White testified that he had a conversation with Maintenance Superintendent Charles Woodall,"' at a time when White got a raise to $7 an hour. Woodall then told White that he "stuck his neck out" to get White the raise. White replied that- he would try not to be a" "thorn in [Woodall's] side," mean- ing that White would not engage in union activities. Thereafter, White attended union meetings, distributed leaflets, and obtained 35-40 signatures on union authori- zation cards. In the last week of September, when White, was distributing leaflets, Woodall said that White had been "out in front of the plant" that morning, and that Woodall thought they had an agreement. White shrugged and went -back, to work. Later the same day, Woodall told White that he wanted to call the latter's at- tention to some lies in a contract with another employer which the Union had passed out. White said that -they still needed a union, and Woodall replied: "You'd better watch yourself." Woodall testified that he and White were "professional friends" and talked together, but denied that they ever talked about the Union. However, Woodall admitted that he could' only recall •10-12 percent of the conversations he had with White. . In light of ` Woodall's' admittedly deficient -memory; and because White was a believable witness, I credit his testimony. 9. Statement of Ernest Byrd. Steven P. Donaldson further affirmed that he was wearing 'a union; T-shirt. in' mid-'October when Shipping, '!.See infra, subset. 10. - 17 The pleadings establish that Slagle was •a supervisor within the meaning of the Act 18 The pleadings establish that Woodall was a supervisor within the meaning of the Act. 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Supervisor Ernest Byrd' 9 approached and told him to take the shirt off and put on another one, because Byrd did not want to see Donaldson get into trouble. Byrd ad- mitted having some conversations with Donaldson, but said that he could not remember, or did not think that they had.a conversation about the Union. He could not' remember the substance of the conversations. Byrd said that he did not consult with company counsel before the hearing, and that the latter's questions surprised him. Donaldson was a more believable witness-than Byrd; and I credit the former's testimony. 10. The alleged unlawful no-solicitation/distribution rule The 'pleadings and evidence establish that Respondent posted the following rule near the timeclock about August 23, as additional conduct prohibited by Respond- ent in its "Plant Rules of Conduct": Interfering with any employee's work duties or dis- tributing literature in work areas or soliciting during time the employee should be working, or interfering with the work of another employee during the time they should be working. As indicated above, the complaint, as amended, alleges that Respondent discriminatorily and disparately. promul- gated and maintained the rule. This Respondent denies. Although Plant Manager Clark testified that the rule applied to all employees including supervisors, the hear- ing produced an overwhelming mass of ciedible evi- dence to the effect that Respondent permitted siipervi- sors and antiunion employees to solicit employees and distribute antiunion literature in work areas' during work- ing time, while enforcing the rule with respect to proun- ion employees. Thus, Supervisor Randolph Hopkins frankly admitted. passing out handbills on the assembly line which he su- pervised, during working hours. Supervisor Voelz made a similar admission . Plant Manager Clark himself admit- ted passing out his "work guarantee"20 to employees on election day. "I gave that to each employee," Clark testi- fied. "I went to the individual working stations.and gave it to individuals." Donald Tanner credibly asserted without contradiction that Supervisors John Holloman and John -Jewell21 handed him procompany literature while he was work- ing. Charles C. Harper testified without contradiction that Supervisor Don McWhirt gave him a company leaf- let (G.C. Exh. 20) attacking union activist Aletha John- son, during working time. Mary griffin's and -Nora Downs' believable and unrebutted testimony establishes that Supervisor Rob Allison gave them antiunion litera- ture during working time when they were on the line. Allison took them into the breakroom for 1-2 hours, and showed them a "green book" depicting union violence. Former employee Robert G. Johnson affirmed without 19 The pleadings establish that Byrd was a supervisor within theimean- ing of the Act 20 Supra, fn 8 - 21 The pleadings establish that Holloman and Jewell were supervisors within the meaning of the Act. - rebuttal that he worked in the embossing department,' whose supervisor was Douglas Skinner, and that he re- ceived company campaign material from Skinner during working time. On three or four occasions; Skinner told him to stop his machine and read the literature. Johnson also saw the "green book" (G.C. Exh. 3). Westmoreland credibly testified that Plant Manager Clark and Supervi- sor Wanda Steen gave her antiunion literature while she was working. Clark admitted that, he allowed supervisors.to hand out company literature during working time. He also ac- knowledged that the areas where this was done were considered working areas. It is clear, beyond doubt that Respondent's supervisors solicited employees - to vote against the Union, and handed out antiunion literature, during working time in working areas. The evidence.also shows that many em- ployees discarded this literature, creating a litter problem in work areas. The evidence is -also-clear that Respondent permitted antiunion employees to engage in the same activity. Thus, Wiley 'Ewing testified that antiunion employees Jim Foshee and Roy Gunter distributed antiunion T- shirts and caps during working time while supervisors were looking at" them. Although Gunter and Foshee as- serted that these activities were restricted to' nonworking time, such as break periods, and to nonworking areas, their assertions are not believable. Gunter admitted that he'took break periods which for the most part were dif- ferent from the break periods of other employees. West- moreland testified ifiat Tom Bailey, the foreman of as sembly line 5, told Westmoreland that Foshee's campaign activities were interfering with production, and that Bailey complained to Slagle. Ewing credibly testified that he. reported Foshee's and Gunter's distribution of antiunion T-shirts during - working - time to Supervisors Allison,,Voelz, and Hopkins, and asked whether it was legal. He received no response, and the distribution con- tinued thereafter. I -do not credit- company denials of Ewing's report. Le' Westmoreland testified that Foshee and other employees distributed antiunion literature in the finishing department during working time when the supervisor, Wanda. Steen, was present. This testimony was corroborated by Dantzler. Steen denied seeing any of the -procompany employees engaged in such activities, but asserted that she saw Dantzler distributing prounion buttons. Steen was an evasive witness, as appears herein- after in connection-with Westmoreland's case,. and I.do not credit her testimony. Anthony Ray Pippen -testified that employees distributed antiunion material in Allison's department while he was in the area, without -interfer- ence from Allison. - Finally, according to Westmoreland, a "loyal employ- ees' committee" remained "on the clock" while meeting in a breakroom. Westmoreland checked the timecards, and I credit her testimony. Supervisor Bailey admitted that he "stopped by" for a few minutes during a commit- tee meeting. It is also clear that Respondent enforced the rule with respect to prounion employees. Supervisor Hopkins ad- mitted this. As described above, Supervisors McCarty PILLIOD OF MISSISSIPPI , INC. 809 and Slagle told employees that they would be disciplined in the event they violated the no-solicitation rule. Final- ly, as described hereinafter, Tanner was disciplined for violation of the rule and the same violation was ad- vanced by Respondent as one of the reasons for Aletha Johnson's discharge. D. Factual Summary and Legal Analysis The credited evidence thus shows that Respondent threatened employees with plant closure or removal if the Union won the election. These statements are clearly coercive under established Board law. The statements that bargaining would begin from "ground zero," and that employees might lose their benefits if the Union won were also coercive. De Queen General Hospital, 264 NLRB 480 (1982).22 Respondent also threatened employees with discharge, indefinite layoff, and reprimands if they signed union cards, gave information to the Board, or associated with union leaders. One employee was told that the "damn Union was going to get him fired." The "red line" poster, on the day before the election, threatened em- ployees with loss of jobs if the Union won. These state- ments and writings were also coercive. In the context of this widespread unlawful conduct, the statement of a supervisor (Byrd) that' an employee might get into trouble if he did not take off a union T- shirt constituted an unlawful threat of indefinite reprisal. The complaint alleges that the statement of a Supervisor (Woodall) to a prounion employee-"You'd better watch yourself-created an impression of surveillance. I agree, but note in addition that it also constituted a threat of in- definite reprisal. The statement to an employee that his family. would "go hungry" in the event the Union came in was a specific threat, and was unlawful. The statement of a supervisor (Voelz) to a prounion employee that she was "hanging around with the wrong crowd" gave that employee an unlawful impression that her union activi- ties were under surveillance. The statement of a supervisor (McWhirt) to an em- ployee, that the latter was supposed to get a raise in De- cember if the Union did not come in, was an implied promise to grant a benefit during an organizational cam- paign, and was unlawful. J. J. Newberry Co., 249 NLRB 991 (1980). I also conclude that Respondent's overall campaign violated Section 8(a)(1) of the Act, in light of its posters, campaign literature, and Clark's and Bailey's speeches. In a case where the employer made similar speeches, the Board stated: We find that the above statements unlawfully em- phasized the inevitability of strikes and threatened the loss of strikers' jobs and plant closure. More- over, these statements were made in the context of other conduct violative 'of Section 8(a)(1), including . :. campaign literature concerning the effects of unionization, and other remarks made to employees by supervisors, through which Respondent also em- phasized the inevitability of strikes and threatened employees with loss of jobs and plant closure. Grove Valve & Regulator Co., 262 NLRB 285 (1982). The same, rationale applies to the facts in this case. The statements that the Union was responsible for the company requirement that employees purchase safety shoes, standing alone, might be. considered inoffensive. However,- in context with Respondent's widespread cam- paign to denigrate the Union, the statements about the cost of safety shoes further tended to disparage the Union, and violated Section 8(a)(1). Respondent's last minute "job guarantee" and Clark's assurances of continued employment in his speech on November 3 did not constitute effective repudiation of these threats. The Board has stated as follows: .. It is settled that under certain circumstances an employee (sic) may relieve himself of liability for unlawful conduct by repudiating the conduct. To be , effective, however, such repudiation must be "timely," "unambiguous," "specific in nature to the coercive conduct," and 'free from other proscribed illegal conduct." [Authorities cited.] Furthermore, there must be adequate publication of the repudi- ation to the employees involved and there must be no proscribed conduct on the employer's part after the publication. [Authority cited.] And, finally, the Board has pointed out that such repudiation or dis- avowal of coercive conduct should give assurances to employees that in the future their employer will not interfere with the exercise of their Section 7 rights. [Authorities cited.] [Passavant Memorial Area Hospital, 237 NLRB 138 (1978).] The language of the "job guarantee" is ambiguous. From the statement that employees would not lose their jobs if the Union failed to win, employees might reason-- ably infer that this would happen if the Union won.23 I conclude that the "guarantee" and Clark's last speech do not meet the Passavant criteria. Respondent's disavowal, on the day before the election when the red line poster was being posted, was not timely and was not free of other proscribed conduct. Further, there was proscribed conduct after the purported disavowal since, as I find hereinafter, Respondent discriminatorily refused to trans- fer Le' Westmoreland from the finishing department at a time subsequent to the purported disavowal. With respect- to Respondent's no-solicitation/- distribution rule, the evidence clearly shows that the Company's plant manager himself violated the rule, that he allowed supervisors to do so, and that the Company condoned violations of the rule by antiunion employees. At the same time, Respondent rigidly enforced the rule against prounion employees. "It is well settled that an employer violates Section 8(a)(1) by failing. to enforce a no-solicitation rule against activities similar to those in- volved here, while simultaneously enforcing the rule against solicitation on behalf of a union." Saint Vincent's Hospital, 265 NLRB 38; 40 (1982). Accordingly, -I find 122 See also Tra-Mar Communications, 265 NLRB 664 (1982) 23 Supra, fn 8 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that, by engaging in such conduct , Respondent violated Section 8(a)(l). Since enforcement in.such circumstances violates the Act, it follows necessarily that a threat to enforce the rule in, the same "circumstances is'similarly coercive. Ac- cordingly, I find that the statements 'of Respondent's su- pervisors that employees would be fired if they were caught distributing ,or posting union literature,' while Re- spondent was'at the same time allowing supervisors and other employees -to engage in such activity , violated Sec- tion 8(a)(1). Indeed; such threats themselves constituted enforcement of the rule. ' Taking into account Respondent's 'widespread unfair labor practices, which , conveyed to employees the inten- sity of Respondent's opposition to the Union , I also con- clude that Supervisor Hopkins' inquiry to an employee, as' to how he felt about the Union, and Supervisor Voelz' question as to how many employees were voting for the Union, were coercive and unlawful. C. Alleged `Violations of Section 8(q)(3) 1. The discharge 'of Aletha' Johnson on October 10 a. The.hiring ofJohnson. Johnson ' had `previously been. employed by Memphis Furniture Company . She was ' laid off in February 1981, and didvolunteer - work for;the Union for about a year. In September , 1982, she, became -a paid organizer for the Union, :and in February ' 1983, her status with Memphis Furniture was changed to'"indefinite - union leave of ab- sence,'-', - Johnson ,.filed an,,,employment, application with • Re- spondent on January 12, 1983 . A union publication states that she did so,for organizational purposes Qt. Exh. 9). In the application, Johnson listed her previous -employer as `-`M & L .Furniture''Company" in St, -Louis," Missouri,, where she- ^worked ''from -April 1'973 to February .1980.; The application states ;that_she- left ;because the plant, closed .(G.C. Eich. 5). Johnson ,testified that M & L and Memphis Furniture were related' firms;. but^conceded that M& L w,as not located in St . Louis- and that the -plant. did' not close. She withheld the information that: her last employer was Memphis Furniture Company . However, Johnson further testified, she did have about 8 years of experience as a furniture -worker. It is clear that Johnson falsified information on' -her' employment application. She was a full-time worker after .her hiring and was compen- sated by Respondent. "' b:`Johnson's union activities- ;;Johnson. participated in the union . ca_mpaign.as indicat- ed,;above . She, said that , she:did notknow the, time that the, Company;becameaware of this, but believed it to be- in ,July, because, . Pete;,Pilliod,_ the ,owiier, of the plant, came to the line and stared at her . In late July; Supervi-' sor Allison told her. that, she. could not go to the bath- room .without a supervisor.,•When -*she wasworking, in the 'finishing ' department, . either supervisor ' Wanda Steen or another supervisor followed her every time she went to the bathroom, As noted above, Johnson issued a letter to employees . in September in which she identified herself as the Union's International representative and a former em- ployee of Memphis Furniture Company (Jt. Exh. 26). - Johnson credibly - testified that Respondent put up a poster about her on September 23. It stated that she was. employed by the Union with a salary of $13,000, and was on leave from Memphis Furniture Company. Plant Manager Clark conceded that he brought up Johnson's name during the campaign , and the fact that she had been employed by Memphis Furniture. - c. The first interview with Plant Manager Clark Johnson spoke to Supervisor - Allison about the poster on September 23. He replied that she could not be flied for having two jobs. Johnson had a meeting with Plant Manager Clark the same day . He produced her employ- ment application, and asked whether she had signed it.' Johnson acknowledged that it was her signature. Clark said that he could fire her for falsifying her application, but, did not know what to do about her. Clark said he knew that there was an employee -named "Aletha John- son" at Memphis Furniture, but wanted to know wheth- er ' was .another individual with the same name. After some time, Johnson asked Clark whether he wanted her to, continue sitting in his office. "No,". he re- plied, "you can go back to work. There I can keep an eye on you." Johnson's testimony about this interview is uncontradicted, and I credit it.. d. Supervisor Bailey's meeting with employees "On October 7, Supervisor Autrey Bailey and other'su- pervisors showed a movie to employees in the cafeteria. Johnson was present, ad described the movie as antiun- ion in nature . There was a question -and' answer period after-the movie.'After'some discussion, Johnson stood up and said that Bailey and `the movie had implied that there would be "nothing by the union" in the event 'of a 'strike, i.e., nothing for the strikers. Johnson took a group of canceled checks out of a kit which she was carrying. Ac- cording , to Johnson,' they were union checks paying house notes; car riotes, and utilities bills- of Memphis Fur- niture employees. Johnson put the canceled checks on a table, Bailey told 'her to sit down, and Johnson ' replied that she had as much right to talk as anybody and, further, Bailey ' had `raised the-subject. Johnson continued to'tell the employee s ' that 'if• they ;wanted to know the whole truth,-, she was available . Bailey ' said that Johnson' had made '$ 13,000 (from''the Union) the prior year . Bailey fi- nally_ instructed 'theemployees' to. return to work. "Johnson then joined a discussion about insurance be'- tween`Westrrioreland and Supervisor Slagle . She told the latter that he''had a high rate of absentee 's because the chemicals'`in the plant and''the long hours were making people sick, On the way back to her work station, John- son ,gave` an employee a "guarantee of union representa- tion." Supervisor Allison took it away from her, but then gave it back when Johnson told him that it was not his property.. : _ , PILLIOD OF MISSISSIPPI, INC. e. The anti-Johnson leaflet On the same day, October 7, Respondent distributed a leaflet attacking Johnson. At the top is a legend reading: "WANTED: PUSHER ALETHA B. JOHNSON." The substance of the leaflet contains reprints of two articles written by Johnson, together with two pictures of her. The commentary states that Johnson was an inplant or- ganizer, although she had "a job" with Respondent. Her function was to spread lies and false rumors to deceive the employees with "cloak and dagger tricks." The poster itself is pale yellow in color, whereas all of the other company posters were white (G.C. Exh. 20). John- son herself is black. f. The discharge Three days later, on October 10, Supervisors Slagle and Allison told Johnson that Clark wanted to see her in his office. Johnson said that she wanted to bring some- body along with her from the line, but the supervisors said she did not need anybody. Slagle remained in the office. Clark told her she was terminated for falsifying her records, and that he *could not have a union repre- sentative in the plant interrupting company meetings. Clark then asked Slagle to leave. When-Johnson and Clark were alone, the plant manager said that he hated to see her leave, because he had_ watched her work and she was a good worker. Clark said that he hoped the Company had run a clean campaign . Johnson replied that she would have believed this until the last company leaflet had been distributed. Clark asked the reason, and Johnson said that the fact that the leaflet was colored was intended to emphasize the fact that she, Johnson, was colored. Clark denied this, and said that the Compa- ny simply wanted to put some variety into its literature. Johnson's termination report states that she was fired for attempting to hand out union literature on company time, for disrupting company meetings, and for falsifying her (employment) application (G.C. Exh. 6). g. Legal analysis and conclusions Respondent argues that Johnson was not an "employ- ee'.' within the meaning 'of the Act. The Company con- cedes that "a full time paid union organizer working for an employer" may be entitled to the protection afforded an "employee" within the meaning of the Act. However, the fact, that Johnson had this status at the time of hiring requires that she be "divested" of this status. To rule otherwise would be "sanctioning labor espionage." The, Board has already ruled on this issue. In a case where the -union union directed two organizers to apply-for jobs for organizational purposes, and where they were hired by,.worked for, and received compensation from the employer, each was held to be an "employee" within the meaning of the Act. Oak Apparel, Inc., 218 NLRB 701, 706-707 (1975). The same rationale applies to John- son in this case. The ,first reason for discharge in the termination report is attempted distribution of union literature on company time. However, it is well established that "discipline of an employee pursuant to a no-solicitation rule violates Section 8(a)(3) and (1) where the rule has been selective- 811 ly applied to prohibit union activities." Saint - Vincent's Hospital, supra. As it has already been established that Respondent's rule was thus selectively applied, Respond- ent's assertion that Johnson was discharged for violating the rule manifests discriminatory motivation on its face. The second reason given in the termination report is disrupting a company meeting .- But Johnson was merely participating in a discussion about unions initiated by Re- spondent at a meeting of employees . Moreover, Clark told her at the exit interview that he could not have a union representative disrupting company ,meetings. I con- clude -that Johnson was engaged in protected activity at the October 7 meeting, and that the ,termination report again shows on its face that the discharge was discrimin- atorily motivated. The third reason advanced by Respondent for the dis- charge is Johnson's admitted falsification of her employ- ment application. However, Clark knew this at his Sep- tember 23 meeting with Johnson, but failed to discharge her. Respondent cites L: B. Darling Division of Idle Wild Farm, 254 NLRB 691 (1981), as authority for the propo- sition that the delay in firing Johnson, after learning of the falsification, does not warrant an inference' that the discharge was discriminatory. However, Idle Wild Farm is inapposite, because no union animus was found, unlike the case at bar, and because the alleged discriminatees were not credited . Moreover, there was no additional protected activity immediately preceding the discharge, as was the case ' at the Autrey Bailey meeting on October 7. Accordingly, I conclude that the delay in discharging Johnson, after the Company established on September 23 that she had falsified her application until she defended the Union on October 7, shows that the falsification reason was pretextual. Finally, the fact that Clark told Johnson that she was a good worker and that he hated to see her leave provides conclusive proof that Respondent's motive was unlawful. I, therefore, find that the General Counsel has estab- lished a strong prima facie case that Johnson's discharge was discriminatorily motivated , and that Respondent has not rebutted that case. NLRB v. Transportation Manage- ment Corp., 462 U.S. 393 (1983); Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). 2. The discharge of James White on October 19- a. Background White was hired in December 1982 as a machine main- tenance mechanic at $4 per hour. At the time of his dis- charge on October ' 19, he had received three wage in- creases and was being paid $7 hourly: This was the high- est: rate for an employee in White's classification. It was equal to the wage of Superintendent . Woodall's assistant, James. Culberson, and was $2 higher than that of other mechanics. No discipline had ever been administered to White. In August, Woodall wrote a letter of recommendation, in which he praised White's diligence, knowledge of me- chanics, hard work, and attitude toward work (G.C. Exh. 17). White testified without contradiction that he 812.1 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had received praise from other individuals' in manage- ment. He affirmed that. he trained other mechanics.- In addition, White asserted, he had authority to take equip- ment off company premises, to send pieces out-for weld- ing, and to order material for the Company. Prior to Culberson's appointment as Woodall's assistant, White was in charge of the maintenance department in Wood- all's absence. White protested Culberson's appointment, and, was told by' Woodall that things were the same as they were before. White denied that he had ever been told he had to get Culberson's permission to do-anything. Woodall denied that White had any duties different from other mechanics: Asked whether White could order material for-the Company, Woodall responded he "con- ceivably" could do so, but only with Woodall's or Cu'l-. berson's permission., Woodall - said that he once gave White permission to" take home a wrench.. Woodall was a less 'reliable witness than White. Based, on this fact, and White's high rate of pay, I credit his tes timony- as to his duties and responsibilities. - b. The discharge As indicated above, White engaged in union activities, including the distribution of leaflets. He was seen by at least three supervisors - while doing this. The conversa- tion between White and Woodall described above-in which the latter said that he had seen White in front of the plant that morning • (when White was distributing leaflets), and that, the latter had better "watch himself'- took place in the last week of September. About 3 weeks later, on October 17, White worked almost 12 hours ending' about 6 p.m. Woodall was out of town that day. White had clothing at home which had been soiled at work, and he picked up two bottles of sol. vent methylene chloride and lacquer thinner for the pur- pose' of cleaning 'his clothes. He carried the bottles by their necks in one hand. As he passed' Supervisor Autrey Bailey, in the main plant, he waved at Bailey and then' punched - out.- Bailey testified. that he saw what • he thought were two bottles of glue. He acknowledged that White 'made no'attempt to conceal them. Bailey followed White,- and saw him get into his car. 'After speaking with Culberson, Bailey reported the, matter to Plant Manager Clark. - White used about one-half ounce of lacquer :thinner, that- night to clean his clothes, and drove back to the plant-the next morning with the bottles under his floor board. He, forgot to bring them- into the plant. Another employee told him that Autrey Bailey was -ready to "write him up". for taking' the two bottles. -White went-. back to his car, got the bottles, and went to talk to Plant Manager Clark. He protested being "'written up,"- and Clark replied -that he should' have. asked Culberson for permission. Clark 'deferred the' matter until Woodall'•s return. Woodall returned the next day, October 19, was in-. formed what had happened, and went to talk to• Clark. White stopped him on the way and informed •him• that the bottles-had been returned. In Clark's office, Woodall and the'plant manager decided on the appropriate action to-take. Woodall'told Clark that-the offense was .serious, and that- they had to be able to trust employees: Clark and Woodall determined that White had violated rule 10 of the Company's handbook, which prohibits "theft or possession without proper authority of company proper- ty, or property of another employee." A,first offense is. punishable by a 1-day suspension 'or discharge (G.C. Exli. 13, pp. 16-18). Woodall informed Personnel Direc- tor Null of the decision to terminate White. Woodall ad- mitted that he did not know whether White had used any of the solvents. Woodall stated on direct examination that he consid- ered the, use of. these chemicals to be dangerous. On cross-examination, he initially testified- that protection of company property was the only ' concern which he dis- cussed with Clark. He was asked, "So you didn't raise anything about the safety factor?". Woodall replied, "Oh, yeah, yes." White was called to the office of *Personnel Director George Null, with Woodall and another official present. Null told White that he was being terminated for viola- tion of rule 10. White protested and asked for lesser dis- cipline, to no avail. Woodall asked what would have happened if somebody had been "splashed in the eyes." White was given his termination notice which states the reason as' removal of company' property from the prem- ises without proper authority (G.C. Exh. 18). Plant Man- ager Clark admitted that no one other -than White had been discharged for theft. -The record shows that chemicals such as the solvents which White took home are purchased by the Company in large tanks, and are used freely by, employees; to clean machinery, without any attempt to economize in their use. •, - - c. -Employee use of company property The General Counsel elicited testimony from several witnesses24 to the effect that employees regularly took home= articles. such as red rags, putty knives, brushes, gloves, air nozzles, wrenches; and screwdrivers. The arti- cles usually protruded from their pockets, and were visi- ble to supervisors, according to the General Counsel's witnesses. One 'witness who had been terminated re- turned several tools to the Company at the hearing. Donald Tanner stated that the supervisors would have had to be blind to have missed this practice. Assembly Supervisor Paul D. Miller, Jr.25 said that loss of tools had always been a problem, but that neither he' nor'other supervisors ever did anything about it. Su- per'vi`sor Hopkins' admitted that he did not watch people leaving the 'plant; then claimed that he did watch them leaving his department-but'had riot seen anyone leaving with tools. 'Superviso'r Woodall said that some employees use their 'own tools' at ork; and that they are on the "honor system" with respect to company property. Woodall admitted on cross- examination that he saw em- ployees carrying out'=red rags., Asked' whether he at- teiripted to stop ;this, Woodall was evasive. Supervisor Gayle McCarty also admitted that' missing tools were a 24 Brenda Thompson, Donald Tanner, Mike Mizell, Larry Dixon, and Charles C Harper 25 The pleadings establish'that Miller is a supervisor within the mean- mg of-the'Act - ' - . . , - - PILLIOD OF MISSISSIPPI, INC. problem. One employee took a screwdriver home but brought it back. McCarty merely told the employee that she appreciated it, but that employees should not be leaving the building with tools: No discipline was admin- istered. Supervisor Bailey contended that White-was the only employee he ever followed because he never -saw any other employee leaving the plant with company property I conclude that Respondent's control' of its tools and other property, was lax. Although the Company contends that every employee who took out company property either did so inadvertently or,with supervisory approval, the-evidence does not-establish this. At least some-of'the taking was deliberate, while supervisory approval has not been established in every instance. I also conclude that supervisors were generally aware of the employees' practice of taking company property home,-but did little or nothing to prevent it. When an employee did so on one occasion,. and returned the, item to Supervisor McCarty, no discipline was administered. -' d. Legal analysis There is no question'that the. Company knew White was a union activist-Supervisor. Woodall explicitly, stated in late September that he had seen -White in front of the plant, where the latter was distributing leaflets, and he was seen by three other supervisors. - ' White was an exemplary and highly paid employee, who had been praised by management: The reason for his discharge asserted by Respondent is, that he `took home two bottles of solvent without permission, in viola- tion of a company rule.-Although White used only'one- half ounce of this material, at certainly 'negligible cost, Respondent never bothered to ask how.much , he used. Respondent allowed other employees to take other items of property home without effective control or discipline. The Company thus tolerated' the same conduct in other employees for which it administered the harsh penalty of discharge in the case of White: The disparate nature of this treatment is evidence of discriminatory..motivation.. Although White did break a rule , his infraciion was trivi- al; and the Company seized on this violation to adminis-I ter discipline out of proportion for the offense... " The board of review of the Mississippi Employment Security Commission reached similar conclusions. ,-Re-, versing the decision of an examiner who- denied' White's claim for unemployment benefits, the.,board; of review held that, although White was in "technical; violation",of: company policy, the evidence before the board sli'oed, that the taking of. solvents; by, employees was common practice, and had been condoned.by the Employer.(G.C; Exh. 19). , a. I conclude that the General Counsel has established, a prima facie case that .White's discharge was discrimina torily, motivated. Respondent- has not.. rebutted,, this case by - showing that White would-;have , been., discharged. even if he had not supported the Union-indeed, no dis- cipline whatever was administered in the case of infrac- tions by other employees. I, therefore, conclude that Re- spondent, by discharging White- because -of:his union ac- tivities, violated Section 8(a)(3) and (1) of the: ,Act. 813 NLRB v. -Transportation Management Corp., supra; Wright Line, supra. 3. The warning issued to Donald E. Tanner on October 21 a. The evidence Respondent's answer denies - the complaint allegation that Tanner is an employee within the meaning of'the Act. Respondent has not disclosed its reason for this con- tention. The record shows that Tanner was employed by Respondent on June 17, that he works as a millworker with John Holloman as supervisor, and that he has no other job. It is clear that Tanner is an employee within the meaning of.the Act. Oak Apparel, supra. Tanner was a member of the Union 's organizing com- mittee and engaged in extensive union activities . He testi- fied that, on the morning of October 20, he was distribut- ing,leaflets outside the.plant. Just as Tanner entered the plant, clocked in, and was standing on a walkway near the restroom and water fountain, two employees ap- proached him from behind and asked for leaflets. Tanner identified one 'of them as Don Taylor. On the way to his work station, Tanner received another request, and again complied. - - About an hour later, Tanner was called to the office, where Superintendent John Jewell told him that he was going to "write him up." Jewell had a document already prepared on his desk. Tanner - asserted to Jewell that "Federal Law" gave him a right to engage in this activi- ty on his own time. Holloman replied that he did not care what "Federal Law says." Jewell handed the document to Tanner. It states that Tanner had- violated "Company policy" -by "handing out literature inside of the plant," and that another violation would result in termination . The warning is signed by Holloman and is dated October 21. (G.C. Exh. 12). Tanner asked to see the rule that he had supposedly violated. In response,. Jewell showed him a rule in the Company's, handbook for employees which prohibits "personal work on company • property. either during or after, working hours" (G.C. Exh. 13, rule 19, p. 19). Jewell acknowledged that these events took place in his office,•and said that the date was October-21. He'ad- mitted that the rule which he showed Tanner was not the actual rule for violation of which Tanner was disci- plined.- Instead , it was the. no-solicitation/distribution rule. Jewell simply showed Tanner a rule to "satisfy" hun, •so_that Jewell could get back to work. Jewell also acknowledged that he himself did not see the violation. 'Neither did Holloman. He testified that a Don Taylor.' had reported the event to him. Holloman contended that Tanner handed out the leaflets before` 7 o'clock but after he had clocked in. Despite this latter fact, however; Holloman admitted that the beginning time 'for determination of employees' pay is 7 a.m. 1=Jewell 'identified a warning issued to another employ- ee, Cynthia Rish, for "getting post sign on company time an premises [sic]." This document is also signed by Hol- loman and is dated October 26 (R. -Exh. 6). The warning to, Rish indicates that it was a -violation of "company 814. DECISIONS OF NATIONAL LABOR RELATIONS BOARD " policy." According to Jewell, Rish was circulating a pe- tition during working time to get employees to volunteer to do all overtime work which was required . Jewell said that Rish was warned for violating the same rule which involved Tanner. Although Jewell testified that Rish was also told that she would be terminated if she committed the same violation again, he could not explain why Rish's warning, unlike Tanner's, does not contain this further statement. Jewell agreed that Rish was ',`probably pro-Company." b. Factual and legal analysis I conclude -that the leaflet for which Tanner was disci- plined was the one which he gave to Don Taylor, and that this took place on a walkway near the restroom and water fountain. Although Tanner had already clocked in, it was not yet 7 a.m., the starting time for pay purposes, and, presumably, for work. Accordingly, I find that an- other employee approached Tanner from behind and asked him for' a leaflet during nonworking time. Tanner complied. It is doubtful that this was a "work area" within the meaning of Respondent's no-solicitation/- distribution rule. Within less than an hour, Taylor report- ed the matter to Holloman. It is also clear that Jewell did not know what rule Tanner had supposedly violated when he delivered the warning to him. Jewell's attitude toward the discipline was almost cavalier-he just wanted to get back to work. - The warning issued to Cynthia' Rish is almost without meaning. Assuming arguendo that Rish actually did cir- culate- a petition of the kind described by Jewell, such action was in ;the Company's interest, since Rish would have been soliciting employees to volunteer for overtime work. It is, therefore, incredible that Respondent would have threatened her with discharge if she did the same thing again, as asserted by Jewell. This fact, plus'the ab- sence of any such warning on the document itself, impels the conclusion that even if the incident did take place, Tanner was given more severe discipline than " Rish for supposedly violating the sane rule. This disparate treat-' ment indicates discriminatory motivation. The Taylor' episode suggests - entrapment of Tanner, while the evidence concerning Rish indicates the possi- bility that the Company simply manufactured the whole thing in an attempt to prove even-handed enforcement' of the rule. However, I need not decide these issues for one of the reasons advanced in Johnson' s case. The" "disci pline of an `employee pursuant to a no-solicitation rule violates Section 8(a)(3) and (1) where the rule'has been selectively applied to prohibit union activities.'Saint Vin- cent's Hospital, supra. As this has" already been estab- lished, I find that Respondent, by'its warning issued to Donald Tanner, violated Section 8(a)(3) and (1) of the Act. 26 , 4. .The alleged discriminatory refusal to transfer Le' Westmoreland a. Westmoreland 's union activities Westmoreland was hired in April and is still employed by Respondent. The complaint alleges that she was dis- - criminatorily " denied a permanent transfer for medical reasons since about the third week of October because of her union activities. . Westmoreland attended a union meeting 'in June and signed a card. She became a member of the Union's in- plant committee and, beginning in late July, she engaged in the distribution of leaflets at the-entrance of the plant. This entrance was used by company supervisors. West- moreland made house calls and obtained approximately 20 signed authorization cards. , Westmoreland spoke up for the Union at company meetings of employees, and contradicted Supervisor Bailey. Thus, when Bailey asserted that a Memphis Fur- niture Company employee had been shot or cut during a strike, Westmoreland denied it and said that it was a do- mestic dispute. On October 11, Supervisor Wanda Steen passed out a booklet entitled "Questions Pilliod Employees Have Been Asking." It contained statements about Memphis Furniture Company and other companies (Jt. Exh. 69). Westmoreland asked Steen for some facts to support the Company's position, but Steen did not have the answers. Later on, the same or the following day, Steen gave Westmoreland a handwritten document, supposedly pre- pared, by company counsel and purporting to show the decline in employment at Memphis Furniture Co. (G.C: Exh. 21). " About a-week later, on October 19, Westmoreland dis- tributed an "open letter" to her coworkers. It criticizes the Company's campaign literature, and labels as "'lies" the Company's responses to questions about the booklet which Steen had just handed out (Jt. Exh. 20). Westmoreland credibly testified that Supervisor Steen and others praised her work prior to the issuance of Westmoreland's "open letter," and thereafter -criticized her. ;In December, Westmoreland was elected president of the' Union's local which services Respondent's em- ployees. " b. Westmoreland's work assignments and medical problems Westmoreland began work in the door line depart- ment. In about mid-August, she was transferred to the post line department under Supervisor Wanda Steen. On October 10, she was transferred- to the,finishing depart- ment, also called "deburg."27 Employees in the finishing department stain and spray the tables -which Respondent produces, Wipe. them down, brush and "cowtail" them, and run them through -ovens. Westmoreland testified that the wiping job is the worst. position in the . finishing department . Because it is -adja- 26 There is a difference in "the evidence as to whether this took place on October 20 or,21. Although this is not an important issue, it probably took place on the date indicated on the warning, October 21. . .27 Steen contended that there was no transfer -of Westmoreland into the•finishing department. Instead,,Steen had acquired the post line depart- ment. This is mere sophistry PILLIOD OF"•MISSISSIPPI, INC. cent to the spraying operation, employees doing wiping are subjected to the spray and are constantly "filthy." Anthony Ray Pippen worked on the wiping job, became ill, and was transferred out of the finishiiig"department, as. were many other employees. I credit this testimony. Westmoreland had originally been assigned brushing work on her transfer to the finishing department. On Oc- tober 24, a few days after distribution ' of her "open letter" to employees, she was reassigned to a wiping job. Westmoreland testified that she had a "rash on her left arm prior to her transfer into the finishing. department. She showed this condition to Supervisor Wanda Steen and the company doctor, but was nonetheless , trans ferred. The rash spread to - Westmoreland's` right arm when she was doing brushing' work, and she started wearing long-sleeve shirts. After Westmoreland's teas signment to the wiping job on October 24, the rash gradually spread over her body, and blood vessels began bursting on her abdomen and side.. In November, 'as the: spray "kept hitting [her] in the face," Westmoreland-de-' veloped a sore throat and respiratory problems.' She had difficulty breathing through her nose and 'developed severe nose bleeds. Westmoreland tried to wear -a mask, but could not breathe thrdugh 'One ' which`' was 'thick enough to block the fumes. In late November, Westmoreland saw 'her own doctor: He'gave her a note'reading as follows-`"Miss' We§tmore- land should be transferred froni-her present'pdsitioii be-' cause exposure to finishing fumes _has- caused respiratory; and skin problems"' (G'.C. Exh:. 4). A`"few' days later, Westmoreland saw the company'doctOi. He,`gave"het" a' note reading, "Le' has problems breathing"well.aroiind paint fumes. She also finds it"difficult'to'Weir mask's Eto filter these fumes. If possible, a transfer to another de partment' should - help this `situation. May return' to 'work Monday„ (G.C.-Exh: 4).28 c. Westmoreland's attempts to:get a, transfer Westmoreland testified • that she first asked `Supervisor Wanda Steen-for a reassignment `elsewhere in"th'e' depart- ment. This took place in late" October after•,one of West moreland's 'visits to the company doctor. ' Westmoreland repeated the request, and then asked 'for atrans, fer out of the finishing department. Steen replied'that'she"did'not have authority to do this, although it was Steen who'liad' transferred Westmoreland from the post, line,ipto the fin- ishing department. Steen acknowledged that Westmoreland asked for a transfer but contended that -she did =note give- •a- health condition as the reason: Instead; _Steeii _maintaihed' West moreland', said': she,, had :woodworking uexperiencel and; wanted' a transfer, to the mill;*, but 'there were; no..open ings. This version of Westmoreland's -first-srequest'-is;,un- likely. Steen acknowledged .that .Westmoreland". complained ,of a rash on her body: during the second request,' andfinally,; admitted that Westmoreland, made-four- orfiv_e..requests for transfer. However;-the supervisor; maintained she saw: no evidence of a rash and Westmoreland did not show- ,28 Westmoreland made several visits-to !the -company doctor, 'thisibeing' the only one that was documented i. , - ^ t'rt 815 her, any: Steen conceded that Westmoreland showed her notes- from the doctors. - • ' ' Westmoreland affirmed that she "repeatedly" showed. Steen her skin- condition,, beginning on October 10, when she was first transferred into the finishing department. Her left arm was then. "swollen and inflamed, from the elbow down." When the rash spread to her body, West- moreland showed Steen where it existed on her neck. I credit' Westmoreland,,a more credible witness. Westmoreland concluded that Steen was giving her the "run-around," and began asking Personnel Director George Null for a transfer in late November and all through December. She was willing to take any job, in- cluding cleaning . bathrooms. Null had' notes from the doctors, and spoke to the company doctor over the phone.. The personnel director -told Westmoreland that there was no place to put her, and that she might. have to goon medical leave. But Plant Manager Clark admit- ted' that there were openings beginning at least as early as mid-November. I credit Westmoreland's uncontradicted testimony .1 ind Clark's admission: Finally; 'Westmoreland went to Plant Manager Clark on' January 4, 1984,?and'was given a temporary transfer to the trim department. On January X13, Clark told West- moreland that he wanted all of her' medical records from her own-doctor,'who was being '"uncooperative." West- moreland replied that 'she-would do so if Clark would. give her a written statement setting forth the reason for this request.;Clark dropped-the subject, and said that the trim department was running out of work. Accordingly, her was i thinking of transferring .Westmoreland back 'to the ..finishing ; department.,' Westmoreland considered this to -be a; threat, and, as indicated above, filed -the charge in her. case- on ,January:-20, 1984. -She received a permanent transfer out- of, the ,finishing; department,afterthe filing of the,charge,•and is satisfied with her present job., d.; Transfers, in and`out of the finishing department (1) 'Summaryof'the evidence' ?,).i'•t -°.Yl ."J':.. ..fit.. r- >.- , Plant Manager" Clark'testified that the Company has an unwritten ; policy to transfer an employee if he has a. reason, and if there -is, another opening, available ,to him. Respondent contends that transfers in and out of. the fin- ishing, department were made without regard for union status, arid, that, ,Westmoreland was treated like the other. employees.,".. . Union activist Aletha Johnson was transferred out of the finishing department for medical reasons, about July. 1:29 Wanda Newell,' who wore,union ,insignia according. to Westmoreland, was transferred' out in' mid-July.30 An-' thony, Ray Pippen, a union supporter, was transferred ou 11,t for medical reasons about 'August 1: However he ' , did'not •fiave a'doctor's`excuse.31 2B Testimony of Johnson and Anthony Ray Pippen The date is based on a necessary inference drawn from Pippen's testimony This was con- firmed by Johnson who said that she had been transferred out in July before leaflets were distributed so Testimony of Pippen "I Testimony of Pippen Supervisor Steen said that Pippen wore union insignia, but did not specify the beginning date 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to Westmoreland, _ Geraldine Sims was transferred from the finishing department -to a job in the post line department at the same time that Westmoreland was taken out of the post line department on October 10. They simply switched jobs. Sims did not openly support the Union, according to Westmoreland. The latter also affirmed that other employees were transferred out after complaining of the fumes and chemicals. Eugene Ramsey was one of these. Robert Faith, who issued an "open letter" to employees in November (Jt. Exh. 5), was trans- ferred out only "recently" according to Westmoreland -testifying on March 26, 1984. Supervisor's Steen'stestimony is ambiguous. She first identified employees who had requested transfers32 and then named three who had received them-' Gena Haynie, Marie Sharon, and Pippen. Steen did not know the dates that Haynie and Sharon were transferred. Of these three employees, only Pippen has been identified as a union supporter, and his transfer, as indicated, took place on August 1. By inference, the other four employees identified by Steen were not transferred out. Yet, Respondent has in- troduced medical reports on these four employees dated as indicated-Minnie P. Rush, February 3, 1984; Annie Owens, February 9, 1984; Alice (Moulds) Cooley, Janu- ary 31, 1984; and Lester Mitchell, February 1, 1984. All the reports recommend transfer for medical reasons (R. Exhs. 9-11). The parties stipulated that Rush and Mitch- ell wore union insignia. (2) Factual analysis I conclude that union supporters Aletha Johnson; Wanda Newell, and Anthony Ray Pippen were trans- ferred out of the finishing department about July 1, July 15, and August 1, respectively. As indicated above, Johnson believed that the earliest date the' Company sus- pected her union affiliation was late July. There is no evidence as to the date that Newell started wearing union insignia. The earliest date shown by the record that Pippen did so was in mid-October, when Supervisor Allison told him that his family would go hungry if the Union came in. As indicated, Steen was not specific on the date Pippen started wearing union insignia. Although Westmoreland testified that employees were transferred in and out of the department during her tenure there, the evidence of their union status is incon- clusive. Therefore, for the period from about August 1 to about December 31, there were transfers in and out of the department, • but the union affiliation of only one of them is known-prounion employee Westmoreland was transferred in,-and Sims, who did not openly support the Union, was given- Westmoreland's job in the post line de- partment. - Steen's testimony and the medical reports introduced by Respondent are too contradictory to warrant definite findings. I infer from the dates on their medical reports that, if Rush and Mitchell were transferred' out, this did not take place until 1984 after litigation in this case had begun. I make the same inference concerning the transfer 32 Annie Owens, Minnie Rush, Alice Moulds, Mane Sharon, Anthony Pippen, Gena Haynie, and Lester Mitchell. of Robert Faith. The evidence is inconclusive as to the dates of transfer and union sympathies of the other em- ployees in the record. - e. Factual summary and conclusions The credible evidence thus shows that Westmoreland protested her initial transfer into- the finishing depart- ment, and showed Supervisor Steen her skin rash. It is also clear that employees in that department developed medical problems. Nonetheless, Westmoreland was trans- ferred into the department, and another employee, who did not openly support the Union, was given Westmore- land's job in the post line department. The record reveals no business reason for this personnel action. Westmoreland was first assigned to a brushing job. However, a few days after she issued her "open letter" to employees on October 19, she was transferred' to a wiping job-the worst position in the department for- maintenance of health. It was at that time that superviso- ry comment about her work changed from praise to crit- icism. - Westmoreland's condition steadily worsened and became more complicated. She gave at least one doctor's report to Steen, but the latter refused to transfer her out, saying that she had no authority. Since it was Steen who originally - transferred Westmoreland into the finishing department, this reason was obviously manufactured. Westmoreland then sought the assistance of Personnel Director Null in late November and December, but Null contended that there was no job to which she could be transferred. As employees were being transferred in and out of the finishing department at that time, Null's state- ment, like Steen's, was manufactured. It was not until, January 4; 1984, that Westmoreland received a temporary transfer to the trim department from Plant Manager Clark. As described above, the first complaint (in Case 15-CA-9159) had issued on Decem- ber 31,.1983 Nonetheless, Clark later demanded all of Westmoreland's medical records, and suggested the pos- sibility that she would be transferred back to the finish- ing department. I conclude that Respondent refused to transfer West- moreland out of the finishing department in the latter part of 1983 because of her union activities and her lead- ership role in the union campaign. Westmoreland was treated differently from other employees, who did re- ceive such transfers when she was in the department. This disparate treatment suggests discriminatory motiva- tion. Such an inference is strengthened (1) by the fact that Respondent transferred Westmoreland to the worst job in the department a few days after she issued an open letter to employees-despite the fact that the Compaiiy knew her condition and the health hazards involved in - the reassignment-and (2) by the pretextual reasons given her by Steen and Null for their failure to transfer her. Respondent has not established that Westmoreland was treated like other employees, or that it followed a non- discriminatory policy in granting transfers. The fact that Aletha Johnson was granted a medical transfer about July 1 does not constitute probative evidence on this PILLIOD OF MISSISSIPPI, INC. issue, since the union campaign had scarcely begun at that time, and there is no evidence. that the Company knew of Johnson's union affiliation until late July, at the earliest. The same reasoning applies to the transfers of prounion employees Wanda Newell and Anthony Ray Pippen. The latter did not even need a doctor's report to get a transfer for medical reasons. The transfers of prounion'employees Rush and Mitch- ell-if, indeed, they were transferred-probably took place in February 1984 or later-after two complaints against Respondent had already issued, and after West- moreland had filed a charge alleging a discriminatory- re-fusal to transfer her (G.C. Exh. 1 (p)). I reach the same conclusion in the case of Robert Faith. In these circumstances, any subsequent transfers of prounion employees establishes nothing as to Respond- ent's prior motivation during the union . campaign. Rather, it suggests that Respondent was preparing for the litigation that had already commenced. In any event, the fact that an employer chooses not to discriminate against some union adherents does not vitiate evidence that it has discriminated against others. Ethyl Corp., 231 NLRB 431, 433 (1977). I, therefore, find that the General Counsel has estab- lished a prima facie case that Respondent discriminatori- ly refused to transfer Westmoreland out of the finishing department, such refusal beginning in the fourth week of October 1983 and lasting until January 4, 1984, at which time Westmoreland received a temporary transfer. After the filing of the unfair labor practice charge, the transfer was made permanent. Respondent has not rebutted this case. Accordingly,'! conclude that by such refusal Re- spondent has violated Section 8(a)(3) and (1) of the Act. NLRB v. Transportation Management Company, supra; Wright Line, supra. D. The Objections to the Election 1. The objections raising the same issues as the complaints33. My conclusions in the unfair labor practice case estab- lish the merit of Petitioner's Objections 1, 6, 13, 14, 16, 17, and 29. 2. The separate objections34 a. Objections 8 and 9 (1) Summary of the evidence Robert G. Johnson testified that he worked in the em- bossing department and that his supervisor was Douglas Skinner. Johnson -stated that about a week before the election, Skinner took him into the office and told him that -he was being sued for slander, because one of the Union's leaflets made, opprobrious remarks about compa- ny counsel. The next day Johnson received a handbill saying that employees were not going to be sued. Donald E. Tanner affirmed that, about a week before the election, Supervisor Holloman told him that he was '33 Supra, fn 2' 34 Supra, fn 3 817 being sued for a million dollars because of the Union's slander of one of its supervisors. (Bob Bellipani). Hollo- man did not say who was filing the complaint. On cross- examination by company counsel, however, Tanner said that his conversation with Holloman had nothing to do with "your suing the Union." He had been told about the lawsuit by his "supervisor," whom he did not name. The next day, according to Tanner,•all employees re- ceived a notice stating that Respondent was not suing anybody (Jt. Exh. 57). Tanner attended a union meeting in which he was told that Company counsel had filed' a lawsuit against union officials, and that no employees were involved. Plant -Manager Clark testified that two employees told him that the Company was filing a law- suit against the Union involving slander. Clark replied that he knew nothing about it. (2) Legal analysis The Charging Party does not address this issue in its brief, and there is nothing in the unfair labor practice complaint about it. It is true that a threat to file a lawsuit in connection with employees' exercise of their statutory rights may be coercive and unlawful. Plumbers Local 81 (Morrison Construction), 237 NLRB 207, 210 (1978). However, the evidence in this case is too ambiguous to warrant a finding that Respondent made an unlawful threat to sue employees, or filed such a lawsuit. Neither Skinner, who spoke to Johnson, nor the unknown "su- pervisor" who spoke to Tanner, identified the plaintiff in the lawsuit. Tanner heard at a union meeting that com- pany counsel was suing only union officials, but not em- ployees, for defamation. The Company itself promptly issued a disclaimer stating' that it was not suing anybody. Although an attorney is normally held to be an agent-of his principal, in this case Respondent quickly informed the employees that it had nothing to do with the matter. Accordingly, I shall recommend that Objections 8 and 9 be overruled. - . b..Objecti6n 11 Plant Manager Clark stated that he normally had one guard per shift at-the plant. However, on election day, . he had four members of the Meridian Police Department stationed at various locations, and some uniformed secu- rity guards in the parking lot. The members of the police department wore plain clothes, and each was armed- with a handgun, which, he said, was,concealed beneath his jacket., Anthony Ray Pippen and Larry Dixon said that they saw guards with guns, but it is unclear whether they were referring to -the plain clothes policemen onto the security guards. Some of the policemen were known to members of the community. They testified in -general that they had been instructed to, keep unauthorized people, out of the plant and to, watch for possible violence. There is no evidence that they spoke to. any of the employees. Objection 11 alleges that the Employer posted armed guards to give the employees the impression that they needed protection from violence. In its brief, Petitioner argues that the guards created an impression of surveil- lance of the employees, citing Woodland Molded Plastics 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Corp., 250-NLRB 169 (1980). In that case,-an employer watched union organizers distributing' union literature to employees, .and engaging them in. conversation.' The Board in a split decision held that the employer had de= stroyed the laboratory- conditions necessary for the 'con- duct of a free election. - The Charging . Party' argues 'that the Employer herein - merely substituted the guards to engage in the surveillance. . I disagree. Watching a line of voters proceeding to the ballot box is not the 'same as watching union • organizers trying to persuade employees of merits of the: Union's cause. In the latter case, an employee might -well feel that excessive conversation with an organizer could bring . him into disfavor with, the employer. " A voter standing in line, however, is innocuous, and displays nothing to indicate his intentions,, absent the wearing of something to show his preference. He might well intend to vote against the union. Although Respondent did inject the fear of union violence in its-campaign, there is nothing in the record. to show. that the presence of addi- tional guards created an impression among employees on the day of the election that they needed protection. from violence. . Accordingly, I shall, recommend that Objection 11 be, overruled., C. Objection 12, " Although the Company did . allow:: members t of the Loyal Employees Committee to hold meetings while still being "on the clock, this was merely part of • its: dis= criminatory enforcement • of the , no-solicitation rule, rather than a "favor" granted, for. joining the committees Accordingly, I shall recommend that Objection :.12• be overruled. d. Objection 18 There is no copy in' the record of a letter'fromt Re= spondent dated November 4; the' day of-the election,"and Petitioner does not argue this objection-in-its brief."Ad-1 cordingly, I shall recommend that the objection; be over- ruled. e. Objection 22 Anthony Ray Pippen testified without contradiction that he saw Supervisor Rob Allison, walking, down a hallway containing a line of voters. Allison told voters: to be quiet" and otherwise talked to them Pippen also saw Supervisor .Bob Slagle in • the area talking to some of the people." Slagle admitted , being present; but denied talk- ing "to ,voters. I 'credit Pigpen.. Autrey. Bailey` and other : IF- supervisors 11were present . Some-: of them , were -talking; to the night-shift employees, who were ,coming , in'..to vote. One of the supervisors was "shoulder to -shoulder;, with the voters inI the line . Larry Dixon identified •;Ray:Eggert and Don' McWhirt as two supervisors coming inr and out of the hallway where the voters were, lined,up. , a` Le' Westmoreland affirnted` that Sper-visor; Bill'Voelz was standing alongside a line of voters for over an, hour, and was talking to them . • Westmoreland could not hear what Voelz said . Voelz denied being in the area : -I credit Westmoreland . Supervisor ' Jewell admitted talking to employees 'waitiiig'in line to vote. Jewell contended that he only -engaged in idle conversation about football and other subjects, but did not mention the Union. 'I conclude that ' several of Respondent's 'supervisors were, present alongside a line of voters ;waiting to'vote, at least one of them more than an hour. All of the super- visors' engaged in conversation with' the voters, and one of them told voters to "be quiet." f. Legal analysis • I find that because Respondent threatened employees with plant closure or removal, and with loss of fobs- and benefits in the event of a ,union victory, and engaged in the other coercive conduct described above, it thereby interfered with the conduct of a free election. A. J. Schmidt Co., 265 NLRB 1646 (1982). The total content of the speeches by Clark and Bailey, buttressed by the handouts 'and 'posters=particularly the red line poster- went beyond-the bounds of permissible campaign speech. "The Employer's "numerous - references to strikes, vio- lence loss of "jobs,; and ` loss of- benefits amounted to veiled threats' and 'created 'an atmosphere of fear. In the context' of"these' speoific'threats, the Employer's repeated statements associating the Petitioner with strikes, plant closures and job ' lo`ss' had a coercive impact on the em- ployees" General Dynamics Corp., 250 NLRB 719, 722 • ' (1980). 'This 'concliision-is' further warranted by the fact that Respondent's supervisors engaged in conversation with employees waiting in line to vote, at least one of the con- versations being prolonged in nature. I conclude that these conversations were neither, chance, isolated, nor in- nocuous. Assuming arguendo that Supervisor Jewell 11 only talked about baseball, the fact that other supervisors talked to the employees waiting to vote, constituted un- warranted interference with. the, conduct of the election. Antenna Department West, 266 `NLRB 909 (1-983); ,M il- chern, Inc.,',170NLRB, 362 (1968). The fact that one of the supervisors told `employees to be,q_uiet may have cre- ated,-the impression that Respondent had control over the -conduct of the election. Bio-Medical Applications of Puerto Rico,, 269 NLRB 827,.829-839 (1984). .,:Accordingly„ I_ shall recommend that the election be set aside, and that a second election be held.35 In;accordance;with;my findings aboye,.I make the fol- lowing, 1CONCLUSIONS;OF LAW,°I, 1. Pilliod of l fississipp.i,.Inc .is'an employer engaged in eominerce° within the meaning of'Sectio'n'2(6)' and (7) of the {Act '2.'united Furniture'Workers of America,'AFL-CIO is a labor organization within the' meaning of 'Section 2(5) of-the Act. - ' *_ ' ' ' - ' • 35 The General' Counsel does not request a bargaining order, nor would one be appropna_te ln.,the absence of evidence that the Union had majority status at any relevant time. Gourmet Foods, , 270 NLRB 578 (1984) r, ,.. s , PILLIOD OF MISSISSIPPI, INC. 3. By engaging in the following conduct, Respondent committed unfair labor practices in violation of Section 8(a)(1)' of the Act: (a) Telling employees that the Company would close the plant down, "tape it up," or remove it before the Company would think of having a union in the plant. (b) Telling employees that they would get reprimands, indefinite layoffs, or be discharged if they were caught distributing union material in the plant or placing union stickers on anything. (c) Telling employees that there would be a strike if the Union won, and that employees' families would go hungry. (d) Telling employees that they would be fired for signing union authorization cards. (e) Telling an employee that he would be fired if it got around that he had given information to an agent of the Board. (f) Asking an employee how he felt about the Union. (g) Telling an employee that he would not have a job unless he stopped associating with a union official. (h) Asking an employee how many people on the as- sembly line were actually voting for the Union. (i) Telling a union supporter that she was hanging around with the wrong crowd. 0) Telling an employee that that "damn Union is going to get you fired." (k) Telling an employee that he was supposed to get a raise in December if the Union, did not come into the plant. (1) Telling employees that the Company would begin negotiating "at ground zero" or at minimum level wages, and that the employees might lose their benefits if the Union came in. (m) Telling a union adherent that he had better watch himself. (n) Telling an employee that he had better take off a union shirt and put on another one because the supervi- sor did not want to see the employee get into trouble. (o) Discriminatorily promulgating and maintaining a no-solicitation/distribution rule. (p) Putting up a poster which' threatened employees with loss of their jobs. (q) Denigrating the Union by saying that it was re- sponsible for the employees ' having to purchase safety shoes. (r) Conducting a campaign which, with its speeches, leaflets, and posters, emphasized the inevitability of strikes and threatened the loss of jobs and plant closure. 4. By engaging in the following conduct, Respondent violated Section 8(a)(3) and (1) of the.Act: (a) Discharging employee Aletha Johnson on October 10, 1983, because of her union activities and sympathies and in purported enforcement ,of a no-solicitation/- distribution rule which Respondent discriminatorily pro- mulgated and maintained. (b) Discharging employee James White on October 19, 1983, because of his union activities and sympathies. (c) On October 21, 1983, warning employee Donald E. Tanner that because of his violation of a no-soli- citation/distribution rule, further violation' would result 819 in termination, where the Company discriminatorily pro- mulgated and enforced such rule. (d) Refusing to transfer employee' Le' Westmoreland out of the finishing department for medical reasons from about October 23, 1983, to about January 4, 1984, be- cause of her union activities and sympathies. 5. The foregoing unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not violated the Act except as herein specified. THE REMEDY It having been found that Respondent has engaged in certain unfair labor practices, it is recommended that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. Because of the wide-ranging and pervasive nature of Respondent's unfair labor practices, and the in- tensity of its opposition to the rights of its employees protected by the Act, I shall recommend a broad cease- and-desist order. It having been found that Respondent discriminatorily discharged employee Aletha Johnson on' October 10, 1983, and employee James White on October 19, 1983, it is recommended that. Respondent be ordered to offer each of them immediate and full reinstatement to his or her former position or, if such position no longer exists, to a substantially equivalent position without prejudice to his or her seniority or other rights and privileges, . dis- missing, if necessary, any employee hired to fill said posi- tion, and to make each of them whole for any loss of earnings he or she may have suffered by reason of Re- spondent's unlawful conduct, by paying each of them a sum of money equal to the amount he or she would have earned from the date of his or her unlawful discharge to the date of an offer of reinstatement, less net earnings during such period, with interest thereon to be computed in the manner established by the Board in F. W. Wool- worth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).36 It will also be recommended that Respondent expunge from its personnel records all references to their unlawful discharges, and notify them in writing that such action has been taken and that evi- dence of such action will not be used as a basis for future personnel 'actions against them. It having been found that Respondent, on October 21, 1983, unlawfully gave employee Donald E. Tanner a written warning for - violating ' a" no-solicitation/- distribution rule, stating that he would be discharged in the event of another violation, it will' be recommended that 'Respondent expunge from its personnel records all references to such warning, and notify Tanner in writing that such action has been taken and that evidence of the warning will not be used as a basis for future personnel action against him. It having , been found that Respondent discriminatorily refused to transfer Le' Westmoreland out of the finishing department from about October 23, 1983, to about Janu- 96 See generally Isis Plumbing Co., 138 NLRB 716 (1962) 820 - DECISIONS OF NATIONAL -LABOR RELATIONS BOARD ary 4, 1984, Respondent should be ordered not to trans- utable , to its unlawful refusal to transfer her. Such fer her back to that department. The General Counsel remedy is within the Board 's authority to frame appro- further. requests, that Respondent .be ordered to compen- priate remedies, and is appropriate in this case. sate Westmoreland, for all of her medical expenses .attrib- [Recommended Order omitted from publication.] " t '. ^?ii.tJ^ ' ,'•i