Ro-Lab Rubber Co., Inc.

386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ro-Lab Rubber Co., Inc. and International Union of Petroleum and Industrial Workers, a/w Seafar- ers Union of North America, AFL-CIO. Cases 32-CA-4569 and 32-CA-5143 22 April 1986 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 22 March 1984 Administrative Law Judge George Christensen issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed a brief in response.1 The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs2 and has decided to affirm the judge 's rulings, findings, 3 and conclusions4 as set forth in the Order herein. i By unpublished Order dated 12 August 1985 the Board granted the Charging Party's request to withdraw its petition in Case 32-RC-1616, which had been consolidated with the cases considered here x As the Respondent has failed to file exceptions to the judge's deci- sion, we decline to pass on the substance of those portions of the Re- spondent's brief which are contrary to the judge's findings and conclu- sions 8 The General Counsel has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the findings 4 The judge found that the Respondent's president, Henry Wright, told the employees on 24 May 1982 that if a union came in the Respondent's lenient policy regarding attendance would be discontinued The judge made no reference to this finding in his Conclusions of Law or recom- mended Order Based on the finding, we conclude that Wright's state- ment violated Sec 8(a)(1) The judge declined to resolve which of two alleged versions of a con- versation took place on 2 August between Wright and employee Vincent Rodriguez Based on the consistency of Rodriguez' testimony with his other credited testimony, and the similarity of the statements mentioned by Rodriguez to the other unlawful statements found by the judge to have been uttered by Wright, we find that Wright stated that if the Union were not voted in, "changes will be made " We conclude that this statement constituted an implied promise of benefit in violation of Sec 8(a)(1) Chairman Dotson would adopt the judge's conclusion regarding the 2 August conversation Even assuming the credibility of Rodriguez' ver- sion, the Chairman would not find Wright's statement an unlawful threat Absent exceptions, the Chairman pro forma adopts the judge's conclu- sions that Supervisor Mullins interrogated employees in violation of Sec. 8(a)(1) In affirming the judge's recommendation to dismiss the allegation that the Respondent violated Sec 8(a)(3) by discharging employee Erasmo Osorno, we find that the Respondent has proven it would have dis- charged Osorno for multiple incidents of negligence and unexcused ab- sence even if there had been neither union activities by employees nor an unlawful retaliatory general increase in discipline by the Respondent We affirm the judge's recommended dismissal of the allegation that the Respondent's failure to recall employee Robert Bryant prior to other em- ployees violated Sec 8(a)(3) As with Osorno, we find that the warnings to Bryant would have been given in the absence of union activity and We have affirmed the judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by instituting and administering a harsher dis- ciplinary policy after its discovery of the Union's organizing activity. Pursuant to the General Coun- sel's exception, we shall order the expunction of all disciplinary warnings imposed by the Respondent from 24 May 1982 through 6 August 1982, with the exception of those warnings issued during that period to employees Erasmo Osorno and Robert Bryant, whose discipline has been fully litigated and found to be legitimate. Electri-Flex Co., 228 NLRB 847 (1977); RAHCO, Inc., 265 NLRB 235, 260 fn. 59 (1982). The Respondent is entitled to show in the compliance stage of this proceeding that any discipline imposed on employees other than Osorno and Bryant from 24 May through 6 August 1982 would have been imposed under the more lenient disciplinary system maintained by the Respondent prior to that time. RAHCO, Inc., supra. ORDER The National Labor Relations Board orders that the Respondent, Ro-Lab Rubber Co., Inc., Tracy, California, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Promising implicitly to remedy its employees' grievances if the Union loses the election. (b) Interrogating its employees concerning their union activities. (c) Threatening its employees with statements to the effect that the lenient policy regarding employ- ee attendance would cease if the Union comes in, that the Company will close in the event they secure union representation, that the Company will not negotiate with the Union they choose in the event they secure union representation, that loyal employees would not support a union, that the Company never would go union, that they will lose benefits if they secure union representation, that the Company will impose harsher discipline if they secure union representation, and that the Company no longer would be there if they secure union representation. (d) Imposing harsher discipline to discourage its employees from seeking and securing union repre- sentation. (e) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. that Bryant was recalled when sufficient work and application of the Re- spondent's criteria for recall warranted 279 NLRB No. 57 RO-LAB RUBBER CO. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Remove from its files any reference to disci- plinary warnings or other memoranda of discipli- nary action issued to its employees other than Erasmo Osorno and Robert Bryant from 24 May through 6 August 1982, and notify the affected em- ployees, in writing, that this has been done and that evidence of these unlawful disciplinary warnings will not be used as a basis for future personnel ac- tions against them. (b) Post at its premises at Tracy, California, copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Re- gional Director for Region 32, 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. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 5 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 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 interrogate you concerning your activities on behalf of International Union of Petro- leum and Industrial Workers, a/w Seafarers Union of North America, AFL-CIO, or any other labor organization. WE WILL NOT promise to make changes in your wages or terms and conditions of employment if the above or any other labor organization loses an election. WE WILL NOT threaten to close the plant if you seek and secure representation by the above or any other labor organization. WE WILL NOT threaten you with the futility of seeking and securing representation by the above 387 or any other labor organization by stating the Company never will go union and will not negoti- ate with the above or any other labor organization in the event it is designated as your representative. WE WILL NOT threaten you by stating loyal em- ployees would not support the above or any other labor organization. WE WILL NOT threaten you by stating you will lose benefits if you seek and secure representation by the above or any other labor organization. WE WILL NOT threaten you by stating that our lenient policy regarding attendance will be discon- tinued if you seek and secure representation by the above or any other labor organization. We will not threaten you with harsher discipline in the event you seek and secure representation by the above or any other labor organization nor impose harsher discipline to discourage your sup- port of the above or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL remove from our files any reference to disciplinary warnings or other memoranda of disci- plinary action issued to our employees other than Erasmo Osorno and Robert Bryant from 24 May through 6 August 1982, and WE WILL notify the af- fected employees, in writing, that this has been done and that evidence of these unlawful discipli- nary warnings will not be used as a basis for future personnel actions against them. Ro-LAB RUBBER Co., INC. Diane Sidd and Linda Bytof, for the General Counsel. Robert V. Magor (Severson, Werson, Berke & Melchior), of San Francisco , California, for the Respondent. DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Administrative Law Judge. On April 19-25, 1983, I conducted a hearing at Oakland, California, to try issues raised by a consolidated amended complaint issued on February 23, 1983, based on original and amended charges filed by International Union of Pe- troleum and Industrial Workers (the Union) in Case 32- CA-4569 on June 7 and 22 and August 16, 1982,1 origi- nal and amended charges filed by the Union in Case 32- CA-5143 on January 3 and February 15, 1983, and ob- jections to employer conduct allegedly affecting an August 6 election filed by the Union on August 9 in Case 32-RC-1616.2 ' Read 1982 after all further date references omitting the year 2 No findings shall be entered concerning those portions of the election objections withdrawn by the Union and those portions of the complaint withdrawn by the General Counsel prior to the hearing 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the August 6 election, 10 of the approximately 25 employees eligible to participate in the election voted for, and 13 voted against, representation by the Union; Although there were 2 challenged ballots , counting them would not influence the outcome of the election. The complaint alleged Ro-Lab Rubber Co ., Inc. (the Company) violated Section 8(a)(1) and (3) of the Act by Company President Henry Wright's May interrogation of employees concerning their union activities and his May and August comments to employees ; Company Foreman Richard Mullins' May and July comments to employees; the Company's institution and administration of a harsher disciplinary policy after learning of the Union's organizational campaign ; the Company's disci- plining, denying a scheduled pay raise to, and discharg- ing employee Erasmo Osorno because of his union or other activities protected by the Act; and by the Compa- ny's disciplining, laying off, and late recall of employee Robert Bryant because of his union or other activities protected by the Act. All the Union's objections to the election were encompassed within the complaint allega- tions. The Company denied at times pertinent Mullins was its supervisor and/or agent within the meaning of the Act, denies the commission of the acts alleged in the ob- jections and complaint allegations , denies committing any violation of the Act, and moves for dismissal of the ob- jections and the complaint. The issues for resolution are: whether Mullins was a supervisor and/or agent of the Company at pertinent times; if he was, whether he made the statements attrib- uted to him; if so, whether those statements violated the Act; whether Wright made the statements attributed to him; if so, whether those statements violated the Act; whether the Company instituted and administered a harsher disciplinary policy on learning of the Union's campaign to represent its employees ; if so, whether the Company instituted and administered that policy because of its employees' union or other protected activities and thereby violated the Act; whether the Company disci- plined, denied a scheduled wage increase to, and dis- charged Osorno following the commencement of the Union's organizational effort; if so, whether the Compa- ny took those actions because of Osorno's union or other protected activities, and thereby violated the Act; wheth- er the Company disciplined , laid off, and failed to timely recall Bryant; if so, whether it so acted because of Bry- ant's union or other protected activities and thereby vio- lated the Act; if affirmative findings are entered concern- ing one or more of the above, whether the conduct in question warrants setting aside the election. The parties appeared by counsel at the hearing and were afforded full opportunity to adduce evidence, ex- amine and cross-examine witnesses, argue, and file briefs. Briefs were filed by the General Counsel and the Com- pany. Based on my review of the entire record,3 observation of the witnesses, persual of the briefs , analysis, and re- search, I enter the following 9 The General Counsel's motion to correct the transcript is granted FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION The complaint alleges , the answer admits, and I find at all pertinent times the Company is an employer engaged in commerce in a business affecting commerce and the Union is a labor organization within the meaning of Sec- tion 2 of the Act. H. THE ALLEGED UNFAIR LABOR PRACTICES AND ALLEGED ELECTION MISCONDUCT A. Background The Company was incorporated in 1976; at all times since, it has been jointly owned by Henry Wright, its president, and David Currie, its vice president. The Company basically consists of two divisions , a polyureth- ylene division and a factory division, producing a variety of rubber products. At all pertinent times Wright exer- cised overall direction of the Company's operations, Currie concentrated on sales , Richard Boutelle managed the polyurethylene division , and Peter Compatore man- aged the factory division, with the four supervising a work force of approximately 25 employees.4 In mid-May Thomas Rincon , a business representative and organizer employed by the Union, secured employ- ment at the Company. By May 24 a substantial number of the Company 's employees had signed cards authoriz- ing the Union to represent them for collective-bargaining purposes and turned those cards over to Rincon, who gave them to Union Representative Glenn Toon. B. The Alleged May 24 Unfair Labor Practices and Election Misconduct (Wright) 1. Allegations The complaint alleged that on May 24 the Company violated Section 8(a)(1) of the Act (and prevented a fair election) by Wright's interrogation of employees con- cerning their union activities and his comments to the effect the Company never would negotiate with the Union; the Company never would go union ; the plant would be closed before the Company would go union; employees who supported the Union would be laid off or discharged ; and loyal employees would not support the Union. 2. Facts The morning of May 24 Toon telephoned the plant, asked for Wright, identified himself, told Wright a ma- jority of the Company's production and maintenance em- ployees had authorized the Union to represent them for collective-bargaining purposes , and asked when he could meet with Wright to negotiate a contract . Wright re- sponded he did not know Toon; he doubted a majority of the Company's employees had chosen a union to rep- 4 The complaint alleges, the answer admits, and I find at all pertinent times Wright, Currie, Boutelle, and Compatore were supervisors and agents of the Company acting on its behalf within the meaning of Sec 2 of the Act RO-LAB RUBBER CO. resent them, and he stated he did not want to have any- thing to do with Toon. As soon as the conversation ended, Wright and Mul- lins (at Wright's instructions) went about the plant and summoned the employees present to a meeting. Approxi- mately 20 employees attended the meeting. Wright was still angry and upset over his conversation with Toon and showed his feelings in the manner and tone in which he opened the meeting, first by reciting the gist of his conversation with Toon and his incredulity over Toon's claim of magority representation, and then while polling each employee concerning whether or not each had signed a card authorizing the Union to represent him or her (all but Rincon denied signing a card). On complet- ing his poll, Wright declared either Toon or the employ- ees were lying and he preferred to believe the employ- ees. He went on to castigate unions, described some ex- periences he had with unions in the past, stated he was not going to meet with this Union, and stated he would close down the plant before dealing with a union. Rincon interrupted Wright with the statement Wright was intimidating employees and breaking the law. Wright responded Rincon was on company time, he could say whatever he pleased, and to shut up. Rincon continued to remonstrate, the two began to argue, and Rincon announced he was leaving. Wright instructed Mullins to accompany Rincon until he left the plant. After the two left, Wright stated although Rincon was right, he was not supposed to intimidate employees, loyal employees would not support a union. He repeated his aversion to union representation of the Company's em- ployees and commented if a union came in, the employ- ees would lose benefits, such as company loans, bonuses, and continuance of the Company's lenient policy regard- ing attendance.5 3. Findings and conclusions On the basis of the foregoing, I find and conclude on May 24 the Company violated Section 8(a)(1) of the Act and prevented a fair election by: Wright's polling of company employees on the question of whether or not they had signed union authorization cards, his threat to close the plant if they secured union representation, his statement he would never meet and negotiate with a union concerning their wages, etc., his statement that loyal employees would not support the Union, and his statement the employees would lose company benefits if they secured union representation. I further find and conclude on that date the Company did not otherwise violate the Act or prevent a fair election. s The findings in this section are based promarily on the testimony of Rincon, employee Vincent Rodriguez, and employee Robert Bryant, with substantial corroboration (or absence of denial) by Wright, and substan- tial corroboration by Mullins and Connie Evans In the absence of such corroboration and a specific denial by Wright (supported by Mullins and Evans), I do not credit a portion of Rodriguez' testimony to the effect Wright stated employees who supported the Union would be laid off, finding Rodriguez reached this conclusion by inference drawn from Wright's admitted statement he would close the plant before he would deal with a union 389 C. The Filing of the Petition On May 26 the Union filed a petition supported by the cards secured from the Company's employees authoriz- ing the Union to represent them for collective-bargaining purposes. The Union sought certification as the exclusive representative of the Company's production, mainte- nance, and lab employees (Case 32-RC-1616). D. The Alleged May 26 Unfair Labor Practices and Election Misconduct (Wright) 1. Allegations The complaint alleged the Company on May 26 violat- ed Section 8(a)(1) of the Act (and prevented a fair elec- tion) by Wright's comments to employees to the effect they would be treated more harshly if they secured union representation; it was unlikely one of the employ- ees present would receive a previously scheduled pay raise in view of his union activities; the Company never would "go union"; the Company would close down rather than "go union"; and the Company did not need "rabblerousers" or "instigators." 2. Facts At midday of May 26 six shop employees6 punched their timecards as "in" or back to work after their lunch- break but did not report to their work stations and go to work. Mullins observed it was after the normal lunch- break and they were not at work. He looked for and found the six at the spot they normally ate lunch, told them to go to work, and reported the incident to Wright. Wright instructed him to get the six and bring them to the lab. When Mullins and the six arrived at the lab, Wright was at a desk with a number of forms before him utilized by the Company in issuing written disciplinary notices to its employees. The lab technician in charge of quality control, Connie Evans, was also present. Wright opened the conference by criticizing the six for loafing on time they were paid to work, noting he had advised them that morning the Company was going to give them an addi- tional holiday off (Memorial Day) with pay. He asked for an explanation, heard some mention of returning lunch pails but rejected the explanation. He said he should issue written reprimands, there was no doubt they would issue if it was a union shop, but since it was not, he was only going to verbally warn them not to repeat such conduct.' Wright continued with a repetition of his May 24 remarks concerning his opposition to unions and his intention to close down the plant rather than deal with a union, with the additional comment if he had to close the plant, the employees would have difficulty se- curing employment, in view of the high unemployment in the area.8 6 Boyd Bradburn, Bryant, Alvaro Herrero, David Herrero, Modesto Quintua, and Erasmo Osorno 9 Wright corroborated Bryant's testimony concerning these statements 8 These findings are based on Bryant's testimony, Bryant impressed use as sincere and direct with respect to this testimony I also note Wright, when called as a hostile witness at the outset of the hearing, conceded he Continued 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bryant testified in the course of the conference Wright singled out Osorno for criticism, threatening to issue a written disciplinary notice only to Osorno, calling Osorno the "troublemaker" and "instigator" who brought in the Union, and stating although Osorno was due for a raise, Wright was not sure he deserved it and was not sure he was going to give it to him. Wright denied he made the threat, denied there was any mention of wage increases during the conference, denied he stated Osorno was a troublemaker and mentioned any union activity by Osorno, but conceded he referred to Osorno as a "pipsqueak" when Osorno took issue with some of his statements. Mullins and Evans corroborated that testimony. Although David and Alvaro Herrero were called by the Company as witnesses, neither was questioned about the May 26 conference. Bradburn, Quintua, and Osorno did not testify. No evidence was introduced establishing that Wright had any reason to believe Osorno was active in the union campaign;9 Osorno did not testify; the Herrero brothers did not support Bryant's testimony; and Mullins and Evans supported Wright's denials. On the basis of the lack of any evidence of any knowledge on Wright's part of Osorno's union activities and the mutually corrobora- tive and convincing nature of the dinials by Wright, Mullins, and Evans, I find and conclude on May 26 Wright did not call Osorno the instigator and trouble- maker who brought in the Union nor state Osorno was due for a raise but he was not sure he was going to grant it. 3. Findings and conclusions I therefore find and conclude on May 26 the Compa- ny, by Wright, violated Section 8(a)(1) of the Act and prevented a fair election by Wright's statement the Com- pany would have imposed harsher discipline on the six employees if they had union representation and by reiter- ating his May 24 threat to close the plant rather than deal with a union. I further find and conclude Wright did not make any other or additional comments violative of the Act or constituting unlawful interference with the employees' exercise of their voting franchise. E. The Alleged Late May Unfair Labor Practices and Election Misconduct (Wright) 1. Allegations The complaint alleged in late May the Company vio- lated Section 8(a)(1) of the Act (and prevented a fair election) by Wright's threatening Bryant with plant clo- sure and the termination of promised company payments repeated on May 26 his May 24 plant closure remarks (though he recant- ed and changed that testimony later), and Evans' corroboration of Bry- ant's testimony that Wright referred to high unemployment in the area and a loss of jobs, which renders it highly probable he coupled those comments with a reference to closure of the plant 9 Although it was established Osorno attended union meetings and was given cards to distribute, and that Mullins and Evans attended one union meeting when Osorno was also present, it was never established Wright had any awareness thereof (it is also noted that the two Herreros and other employees still in the Company's employ also attended meetings, including the one attended by Mullins and Evans, and were not singled out for criticism) for an electronic course Bryant wished to take if the em- ployees secured union representation 2. Facts Wright corroborated Bryant's testimony that sometime in March or April Bryant approached Wright, advised Wright he wanted to take an electronics course, asked Wright to check and see if the school and the course were legitimate, showed Wright literature concerning the school and the content of the course, and Wright agreed to make the requested check and advise Bryant what he learned. Wright also corroborated Bryant's testimony that Wright called Bryant into his office at a later date to dis- cuss the results of Wright's investigation, the cost of the course, the method of payment, the Company's assump- tion of the costs for the course, and the procurement of a tool Bryant would need to complete the course The two agreed in the course of this second discussion Wright ad- vised Bryant he had checked, the school was legitimate, and had a good record in that employers who hired its graduates were satisfied with their work performance, that Wright offered to pay the cost for Bryant's comple- tion of the course on a month-to-month basis, and that Wright offered to make his oscilloscope available to Bryant for his use in completing his course work. Wright, however, disputed Bryant's testimony that this second discussion took place subsequent to the May 24 employee meeting described above, saying it took place in March or April, and denied Bryant's testimony he told Bryant Ro-Lab no longer would be there and Bryant would have to complete the payments on the course himself in the event the employees voted for union rep- resentation, stating he only told Bryant if the Company went out of business Bryant would have to complete payments for the course. I credit Bryant's testimony. The clarity of his recollec- tion of both the timing and the nature of his and Wright's comments in the course of the two discussions was impressive and convincing, as is the likelihood of its occurrence as Bryant related, since Wright's testimony Bryant would have to complete payments for the course if the Company went out of business would be gratuitous and superfluous in the context of a pre-May 24 conversa- tion, particularly in view of testimony by Wright he did not intend to go out of business that year. 3. Findings and conclusions On the basis of the foregoing, I find and conclude that in late May the Company, by Wright, violated Section 8(a)(1) of the Act and prevented a fair election by Wright's statement the Company no longer would be there and Bryant would have to complete his course payments in the event the employees secured union rep- resentation. RO-LAB RUBBER CO F. The Alleged August Unfair Labor Practice and Election Misconduct (Wright) 1. Allegations The complaint alleged the Company violated Section 8(a)(1) of the Act (and prevented a fair election) by Wright's August promise to remedy employee grievances if the Union was defeated in the election. 2. Facts Wright corroborated Rodriguez' testimony that Wright called Rodriguez into his office on August 2, 3 days prior to the August 6 election; that Wright told Ro- driguez he wanted Rodriguez to have his views about the Company prior to the election, advised Rodriguez he and Curry put a lot of time and money into Ro-Lab, but production was down; that Rodriguez replied production was down because the employees had a bad attitude to- wards the Company; and that he replied that was his fault because he had not been sufficiently attentive to the employees' needs. Wright denied Rodriguez' testimony that he then stated if the Union was not voted in, "changes will be made," 1 ° stating the best he could recall was a statement to the effect there would be some changes if the Compa- ny was financially successful, regardless of the Union. 3. Findings and conclusions In either event, I find and conclude Wright's August 3 remarks were neither violative of the Act nor a promise to resolve employee grievances; the statement "changes will be made," without specifying what changes, is too vague to support such a finding. I therefore find and conclude the Company by Wright neither violated the Act nor prevented a fair election by Wright's comments to Rodriguez , and I will recommend dismissal of those portions of the complaint and election objections so alleging. G. Mullins' Status 2. Facts 391 For 15 years prior to his August 1980 hire by the Company, Mullins worked at a family-owned rubber business in Ohio. He was hired as a mill operator, worked thereafter as a press operator, and by January 1981 was designated a working foreman, in which posi- tion he continued through 1981 and 1982.11 During the 1981-1982 period he functioned as a work- ing foreman at the plant, Mullins oversaw: the produc- tion and maintenance operations conducted by the Com- pany in two separate buildings in four or five separate rooms by operators of the Banbury Machine, the presses, the mills, etc.; the installation, removal, and repair of the molds used for the various products the Company manu- factured; determined the appropriate rubber and chemi- cal mixes for the production of varying rubber products, the quantity to be produced; instructed the affected em- ployees concerning the appropriate mix and quantity; as- signed employees to jobs and reassigned them as the oc- casion warranted; taught new employees their job duties; directed, inspected, and corrected employees' work; issued oral and written reprimands and warning notices; interviewed and effectively recommended employee hires and, in at least one instance, discharged an employ- ee. He was recognized as their foreman by the produc- tion employees, including several leadmen; received a wage rate substantially higher than the rates of pay of the employees whose work he directed; processed em- ployee requests for time off and vacations; wrote in their time when they neglected to punch their timecards; etc. 3. Findings and conclusions On the basis of the foregoing, I find at times pertinent to this proceeding (through the summer of 1982) Mullins was a supervisor and agent of the Company acting on its behalf within the meaning of Section 2 of the Act. H. The Alleged May and July Unfair Labor Practices and Election Misconduct (Mullins) 1. Allegations The complaint alleged and the Company denied at pertinent times Mullins was a supervisor of the Company acting on its behalf within the meaning of Secion 2(11) of the Act. That section defines as a supervisor "any in- dividual having authority, in the interest of the employ- er, to hire, transfer, suspend, lay off, recall, promote, dis- charge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." The complaint also al- leged and the Company denied Mullins was an agent of the Company acting on its behalf within the meaning of Section 2(13) of the Act 10 Rodriguez further testified Wright also said he was unable to speci- fy what those changes would be, and at no time stated what changes he had in mind 1. Allegations The complaint alleged the Company violated Section 8(a)(1) of the Act (and interfered with employee free choice in the election) by Mullins' May and July interro- gations of employees concerning their union sentiments and telling an employee in July the plant would be closed if the employees secured union representation. 2. Facts Mullins corroborated testimony by employees Bryant and Rodriguez that he approached Bryant at his work station on May 24 and Rodriguez at his work station in July and engaged them in conversation 11 Although Mullins and Wright tried to minimize Mullins ' exercise of the duties and responsibilities of his position on and after January 1982, the testimony of Wright, Mullins, Evans , Bryant, and Rodriguez and doc- umentary evidence amply support my finding and conclusion Mullins continued to exercise the functions hereinafter described throughout 1982 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bryant testified that during the afternoon of May 24, Mullins approached him at his work station and asked him how he felt about unions. Mullins responded to Bry- ant's rejoinder, that he did not care about unions since he had a bad experience with one, with the comment he also had a bad experience, as a union caused his dis- charge from a previous job because he did not join it. Mullins testified he may have made the remarks attrib- uted to him by Bryant; he did not recall whether he did or not Rodriguez testified that sometime in July Mullins ap- proached him at his work station and asked him what he felt about the Union; he replied even if the Union did get in, he doubted it would change anything. Mullins closed the encounter by saying there would be some changes; he did not care whether or not the Union came in, be- cause Wright was only legally obligated to bargain; the employees would have to strike to get anything. If they did, Wright probably would close the plant, all the em- ployees would be out of work and he could not afford to be out of work. Mullins confirmed he approached Rodriguez sometime in July and engaged him in conversation, but stated he asked Rodriguez if Rodriguez thought the Union was going to get in. Rodriguez replied he did not know, and he told Rodriguez he telephoned the NLRB and was ad- vised Wright was only obligated to bargain with the Union in good faith if the Union came in; if no agree- ment was reached, the only recourse the employees had was to go on strike, and if they struck, they all could be fired, and he could not afford to be out of work 3. Findings and conclusions Bryant was convincing in this portion of his testimony, with excellent recall of the conversation. Mullins, by contrast, was hesitant and stated he may have made the remarks attributed to him by Bryant. I credit Bryant's testimony. I find Mullins made the May 24 statements at- tributed to him. I further find and conclude by Mullins' May 24 interrogation of Bryant concerning his union sentiments, the Company violated Section 8(a)(1) of the Act and prevented a fair election. I also found Rodriguez convincing, and substantially corroborated by Mullins, who again was a hesitating, un- certain witness . I therefore credit Rodriguez' testimony where it conflicts with Mullins' testimony. I find and conclude that in July Mullins interrogated Rodriguez concerning his union sentiments and thereby violated Section 8(a)(1) of the Act and interfered with Rodriguez' right to cast a free and uncoerced ballot (by implying a vote for the Union would be futile in that Wright never would agree with the Union on a contract containing im- proved wages, etc., the employees would have to go on strike to pressure Wright therefor, and if they did they would be replaced). 1. The Alleged Institution and Administration of Harsher Discipline 1. Allegations The complaint alleged the Company violated Section by instituting and administering a harsher disciplinary policy between the time it became aware of the Union's organizational effort among its employees (May 24) and the date of the election (August 6) because of its employ- ees' union activities 2. Facts The statistical evidence supports those allegations. During the entire calendar year 1980, the Company issued a total of 16 written disciplinary notices to its em- ployees; 7 in 1981; 16 between January 1 and May 23 of 1982; 24 between May 24 and August 5, 1982; 11 between August 6 and December 31, 1982; and 4 between Janu- ary 1 and March 31, 1983. The Company contends it issued a greater number of disciplinary notices after January 1, 1982, because a re- presenatative of the state agency administering unem- ployment benefits advised Wright in late 1981 or early 1982 to document its discipline of its employees if it in- tended to contest cases in which discharged employees sought unemployment compensation on the ground they were discharged for cause.' 2 As noted above, however, the number of issued warn- ings drastically increased after May 24, and after Wright's May 24 and 26 threats to administer much stricter discipline in the event the employees secured union representation. 3. Findings and conclusions On these facts, I reject Wright's testimony and I find and conclude the Company by Wright instituted and ad- ministered a harsher disciplinary policy upon learning the Union was conducting an organizational campaign among its employees to demonstrate its ability to carry out its May 24 and 26 threats of harsher discipline in the event the employees sought and secured union represen- tation, thereby coercing the employees in the exercise of their Section 7 rights under the Act, violating Section 8(a)(1) and (3) of the Act and preventing a fair election J. The Alleged Disciplining, Withdrawing of a Promised Wage Increase, and Discharge of Osorno for Engaging in Union Activities 1. Allegations The complaint alleges the Company violated Section 8(a)(1) and (3) of the Act (and interfered with employee free choice in the election) by disciplining Erasmo Osorno, denying him a scheduled pay increase, and dis- charging him because of his union activities 2. Facts As noted in the discussion of Osorno's alleged union activities in section II,D,2, above, while it was estab- lished Osorno signed a card authorizing the Union to represent him for collective-bargaining purposes, that he was furnished cards to distribute to other employees, and that he attended several union meetings, it was also es- 8(a)(1) and (3) of the Act (and prevented a fair election) 12 Wright so testified RO-LAB RUBBER CO. tablished other employees who attended those meetings were not criticized, disciplined, or discharged. Findings also have been entered that no evidence was introduced establishing Wright was aware of Osorno's union activi- ties. As far as the alleged denial of a scheduled pay in- crease, findings have been entered in section II,D,2, crediting the testimony of Wright, Mullins, and Evans to the effect there was no mention of a wage increase during the course of the May 26 discussion when that denial allegedly occurred. Concerning discipline and discharge, Osorno received five written disciplinary notices, one oral warning, and a discharge notice over approximately 2-1/2 months, as follows: 1. On May 19, Osorno received a written warning for unexcused absence. 2. On May 24, Osorno received a second written warning for negligence (leaving the cure system out of a batch of rubber he was processing). 3. On June 9, Osorno received a third written warning for negligence (placing twice the amount of carbon black required by specifications in a batch of rubber of rubber, causing the batch to burn), for which he was assigned a 3-day disciplinary layoff (June 10, 11, and 14). 4. On June 17, Osorno received an oral warning for failing to maintain the written instruction card at his ma- chine showing the mixtures and temperatures to use in processing differing batches of rubber. 5. On June 23, Osorno received a fourth written warn- ing for reporting 3 hours after the time he was scheduled to report-at which time he was shown a document list- ing 14 instances of tardiness within the previous 2 months. He was warned he risked discharge if he contin- ued such conduct and was given the balance of the day and the following day off as a disciplinary layoff. 6. On July 12, Osorno received a fifth written warning for overstaying his lunchbreak on July 6 and tardiness on July 9 7. On July 26, Osorno was issued a formal discharge notice when he neither reported for work that day at his normal starting time nor called for permission to be absent. As noted previously, Osorno did not appear and testify at the hearing. The record established the discoplinary warnings and suspensions heretofore noted were for the conduct described. The record also establishes Osorno was discharged only after his receipt of two disciplinary layoffs and re- peated warnings that he risked discharge if his conduct, including his attendance, did not improve. The record further established Osorno's discharge was neither isolated nor unusual; between August 1980 and August 1982, nine employees were discharged for negli- gent work performance or unexcused absences. 3. Findings and conclusions On these facts, I find and conclude Osorno was not denied a promised wage increase and that he was disci- 393 plined and discharged for cause. i 3 I therefore shall rec- ommend dismissal of those complaint allegations and election objections alleging he was denied a promised wage increase, disciplined, and discharged for engaging in union activities. K. The Alleged Disciplining, Layoff, and Delayed Recall of Bryant for Engaging in Union Activities 1. Allegations The complaint alleges the Company violated Section 8(a)(1) and (3) of the Act (and interfered with employee free choice in the election) by disciplining, laying off, and failing to recall Bryant before several other employ- ees because of his union activities. 2. Facts a. Background Robert Bryant was hired by the Company on June 6, 1978. Between June 1978 and April 1982, he worked as a mill operator, a press operator, the Banbury Machine op- erator, and mixed and weighed chemicals. For most of his employment during that period, he worked as a mill operator. 14 In April 1982, when Bryant was operating the Ban- bury Machine, he requested reassignment on the ground he was nauseated by the smell of the chemicals he was utilizing in his work. His request was granted, and he was reassigned to his previous position (mill operator). b. Union activity As noted above, the Union commenced its organiza- tional campaign among the Company's employees in May. Bryant signed a card authorizing the Union to rep- resent him for collective-bargaining purposes on May 20. He subsequently distributed authorization cards to other employees, and on August 6 acted as the Union's elec- tion observer. c. Discipline On January 27, Bryant received a written warning for unexcused absence the preceding 2 workdays. On May 26, Bryant was orally reprimanded for clock- ing in after lunch but failing to go to work. On June 22, Bryant received a second written warning for tardiness. On June 30, Bryant received a third written warning for using obscenity in the presence of the female lab em- ployees. On August 10, Bryant received a fourth written warn- ing for tardiness that day and the preceding day, and was advised he risked termination if his performance did not improve. 13 Although much of the discipline was administered between May 24- August 7 as part of the Company's attempt to inhibit its employees in general from supporting the Union, I find and conclude Osorno was not singled out for discipline for engaging in union activities as an individual 14 At one point, he was made lead mill operator, but relinquished that position by his request (in December 1979) 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD d. Layoff In July, either Wright or Mullins advised Bryant that orders requiring mill work had declined and the Compa- ny either was going to lay off or transfer some of the mill operators to other jobs . Bryant and mill operator Dan Piazza were transferred to press operator jobs short- ly thereafter. In August, either Wright or Mullins advised Bryant one of the Company's major customers, Nike Company, had directed their molds be sent out for repair or re- placement; the Company was complying with that re- quest; and this would require the layoff of a substantial number of employees. On August 30, Mullins informed Bryant he was laid off. On the same date, the Company laid off employees Bradburn, Davila, Martin Iniquez, Marshall, Piazza, Ra- mirez, and Wood. Piazza and Ramirez were recalled on September 17; Marshall was recalled on October 2 ; Bradburn was re- called on October 15; Wood was recalled on December 10; Bryant and Iniquez were recalled on February 7, 1983; and Davila never was recalled. 1 s The Company based its recall decisions on three fac- tors: each employee's prior (1) job assignment; (2) job performance; and (3) attendance record . Length of serv- ice was not accorded any weight.16 Wright testified the five employees recalled prior to Bryant and Iniquez had longer service on the presses than Bryant; that Bradburn was recalled pnor to Bryant and assigned to operate the Banbury Machine because Bryant previously complained over his assignment to that machine and requested relief from that assignment; that Bryant had a poor attendance record (with a 10.5- percent absentee record in 1982, prior to his layoff); and that he recalled Bryant (and Iniquez, a press operator) as soon as there was sufficient work to warrant their recall. 3. Findings and conclusions Although it is clear the Company was aware Bryant was an active supporter of the Union after his August 6 participation in the election as the Union's election ob- server, there is no evidence the Company was aware of Bryant's previous union activity (in fact, he told Mullins he was not interested in unions). The complaint alleges the Company violated the Act by the discipline it levied against Bryant on and after June 22. That discipline consisted of the issuance of two written warnings (on June 22 and August 10) for tardi- ness and a June 30 warning for using obscene language in the presence of female lab employees. The time 15 Davila informed Wright he secured other employment while on layoff and displayed no further interest in recall 16 It is undisputed the employees recalled pnor to the recall of Bryant and Iniquez had less company service than Bryant (though several had longer service as press operators) clocked on Bryant's timecard on the dates in question proved he was late on those dates, and he admitted he uttered obscenities before several lab employees on June 30.17 It is clear the warnings in question were issued for cause. I so find and will recommend dismissal of those portions of the complaint and election objections alleging they were issued because of Bryant's union activities.18 Although it is undisputed five of the employees re- called before Bryant had less company service, I credit Wright's undisputed testimony that prior company serv- ice was not considered in recalls, and he recalled Bryant (and Iniquez) when sufficient work and application of his three criteria warranted. I therefore shall recommend dismissal of those portions of the complaint and election objections alleging Bryant was not recalled sooner than he was because of his union activities. CONCLUSIONS OF LAW 1. At all pertinent times the Company was an employ- er engaged in commerce in a business affecting com- merce and the Union was a labor organization within the meaning of Section 2 of the Act. 2. At all pertinent times Henry Wright was an officer, supervisor, and agent of the Company acting on its behalf and Richard Mullins was a supervisor and agent of the Company acting on its behalf within the meaning of Section 2 of the Act. 3. Between May and August 1982, the Company, by Wright and Mullins, violated Section 8(a)(1) of the Act and prevented a fair election by interrogating its employ- ees concerning their union activities and by threatening them by stating the plant would be closed if the employ- ees secured union representation, that the Company never would negotiate with the Union, that the Compa- ny never would go union, that loyal employees would not support the Union, that they would lose benefits if they secured union representation, that the Company would impose harsher discipline if they secured union representation, and that the Company no longer would be there if the employees secured union representation. 4. Between May and August 1982, the Company vio- lated Section 8(a)(1) and (3) of the Act and prevented a fair election by instituting and administering a harsher disciplinary policy to discourage its employees' union ac- tivities. 5. The Company did not otherwise violate the Act or unlawfully interfere in the election. 6. The Company's unfair labor practices affected com- merce as defined in Section 2 of the Act. 17 Although Bryant testified he later apologized to the employees, it is undisputed management was not aware of the apology 18 Although much of the discipline was administered between May 24- August 6 as part of the Company's attempt to inhibit its employees in general from supporting the Union, I find and conclude Bryant was not singled out for discipline for engaging in union activities as an individual. RO-LAB RUBBER CO. 395 THE REMEDY Having found the Company violated the Act by the foregoing, I shall recommend the Company be directed to cease and desist therefrom and post appropriate no- tices. In view of the nature and number of the violations, I shall also recommend the August 6 election be set aside and the Region directed to conduct a new election when the effects of the unfair labor practices have been dissi- pated. [Recommended Order omitted from publication.]