United States Aviex Co.

826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United States Aviex Company and International Union of Electrical, Radio and Machine Work- ers, AFL-CIO. Cases 7-CA-21791, 7-CA- 22573, and 7-RC-16853 30 April 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 24 October 1984 Administrative Law Judge Donald R . Holley issued the attached decision.' The Respondent and the Charging Party filed ex- ceptions and supporting briefs, and the Respondent filed an answer to the Charging Party's exceptions. 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 briefs and has decided to affirm the judge's rulings, findings 2 and conclusions3 as modified and to adopt his recom- mended Order.4 ' On 8 March 1985 the judge issued an Erratum to his decision 2 The Respondent and the Charging Party have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative 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 reversing the findings We note that although the judge initially stated that 15 votes were cast against the Petitioner in the February 1983 election , he correctly stated later in his decision that 17 votes were cast against the Petitioner We also correct the judge's error in referring to the Respondent's foreman Chavous as "Chaveous " 8 In adopting the judge's conclusion that the Respondent engaged in objectionable preelection conduct, we do not rely on his finding that the Respondent's president Kaiser, in remarks during the employee meeting on 17 January 1983, failed to differentiate between economic and unfair labor practice stnkes and thereby led employees to conclude that their participation in any strike while employed by the Respondent would place their jobs in jeopardy In adopting the judge's conclusion that the Petitioner did not engage in objectionable conduct, we find that the statements made by in-plant orga- nizing committee members Brown and Brady were unobjectionable irre- spective of whether they were acting as agents of the Union Furthermore, we affirm the judge's overruling of the challenges to the ballots of laid-off employees Marion Glaser and Ronald Zebell, but we disavow , for lack of substantiation, the judge's suspicion that written ter- mination slips for employees in layoff status, dated in January 1983, were probably prepared after the 17 February election In addition, we note that the judge inadvertently found that Zebell was hired on 10 October rather than 22 October 1982 Member Babson notes that no exceptions have been filed to the judge's dismissal of the alleged 8(a)(1) violation based on the early January 1983 conversation between the Respondent's official Craig Bryant and employ- ee John Bryant 4 We find , in agreement with the judge , that the Respondent's few iso- lated 8(a)(l) violations do not warrant the issuance of a Gissel bargaining order In so finding, however, we do not rely on his ancillary finding that the Petitioner never made an effective demand on the Respondent for recognition and bargaining In finding a bargaining order inappropriate , Member Dennis relies on her concurring opinion in Regency Manor Nursing Home, 275 NLRB 1262 (1985) The judge found that Supervisor Chavous en- gaged employee Arroyo in coercive interrogation on 14 December 1982 in violation of Section 8(a)(1) of the Act. We disagree for the reasons set forth below. During the Union's campaign beginning in early December 1982 various employee supporters wore hats and buttons bearing the I-U-E logo. Arroyo was wearing such a hat at his workplace on 14 De- cember when Supervisor Chavous approached and asked if Arroyo was satisfied with the Company. Arroyo responded affirmatively and Chavous re- plied, "Well, I don't know, if you're satisfied or not because you're wearing a funny hat around the company." Arroyo further testified that he and other employees continued to wear I-U-E buttons and hats thereafter. The judge credited Arroyo and interpreted Cha- vous' remarks as indicating to Arroyo, in effect, that people who enjoyed their jobs did not sign union cards. He found an element of coercion in the context of their conversation as it could have reasonably led Arroyo to conclude that his job was in jeopardy because he signed a union card. He therefore concluded that Chavous' remarks violat- ed Section 8(a)(1). Contrary to the judge, we find Chavous' statement did not reasonably convey a threat of job loss. Further, in the totality of the cir- cumstances here, including Arroyo's open organiz- ing activity and the absence of any other state- ments in the conversation which would reasonably tend to coerce Arroyo, we find that Chavous' re- marks to Arroyo did not violate the Act. 5 Accord- ingly, we reverse the judge and dismiss this 8(a)(1) allegation. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, United States Aviex Company, Niles, Michigan, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. IT IS FURTHER ORDERED that Case 7-RC-16853 be severed and remanded to the Regional Director for Region 7 who shall, pursuant to the Board's Rules and Regulations, within 10 days from the date of this Decision and Order, open and count the ballots of Fred Shaner, Bradley Clear, Marion Glaser, and Ron Zebell, and prepare and cause to No exceptions were filed to the judge's recommendation that numerous 8(a)(1) complaint allegations be dismissed s Rossmore House, 269 NLRB 1176 (1984) Member Dennis agrees with the judge that the conversation was coer- cive because the supervisor suggested that the Company viewed union activity as inconsistent with continued employment 279 NLRB No. 110 UNITED STATES AVIEX CO. be served on the parties a revised tally of ballots, including the count of the ballots. If the revised tally shows that a majority of the valid votes has been cast for the Petitioner, the Petitioner's Objec- tions 1, 2, 3, 4, 6, and 9 will be moot, and the Re- gional Director shall issue the appropriate certifica- tion of representative. However, in the event that the revised tally of ballots shows that a majority of the valid votes has not been cast for the Petitioner, the following shall be applicable: IT IS ORDERED that the election conducted on 17 February 1983 be set aside. The Regional Director shall conduct a new election when he deems the circumstances permit the free choice of a bargain- ing representative. Howard M. Dodd, Esq., for the General Counsel. Paul F. Gleeson, Esq. (Vedder, Price, Kaufman and Kammholz), of Chicago, Illinois, for the Respondent. Carole W Wilson, Esq, of Washington, D.C., for the Charging Party. DECISION STATEMENT OF THE CASE' DONALD R HOLLEY, Administrative Law Judge The original charge in Case 7-CA-21791 was filed by the above-named Union on February 23, 1983. Subsequently, on April 29, 1983, the Regional Director for Region 7 of the National Labor Relations Board issued a complaint which alleged that United States Aviex Company (Re- spondent and/or the Employer) had engaged in conduct which violates Section 8(a)(1), (3), and (5) of the Nation- al Labor Relations Act. In addition, the April 29, 1983 complaint set forth the Regional Director's report on ob- jections and challenged ballots in Case 7-RC-16853, and the representation case was consolidated with the unfair labor practice case for hearing. Respondent filed a timely answer denying it had engaged in the unfair labor prac- tices alleged. On September 6, 1983, the Union filed the original charge in Case 7-CA-22573. Thereafter, on Oc- tober 31, 1983, the Regional Director issued an amended consolidated complaint which reiterated the allegations contained in the original complaint and alleged that Re- spondent had engaged in additional violation of Section 8(a)(3) of the Act by assigning employee Jimmie Brady to more onerous working conditions on February 23, 1983, and by demoting employee Kenneth Frantz on February 23, 1983. On November 1, 1983, the Regional Director issued an erratum to the amended consolidated complaint correcting specified inadvertent errors, and on November 4, 1983, Respondent filed a timely answer to the amended complaint denying it had committed the unfair labor practices alleged. The hearing was commenced in the case in Cassopolis, Michigan, on December 19, 1983 , and was thereafter continued in Niles, Michigan, on December 20 and 21, I Charging Party's motion to correct transcript, which is unopposed, is granted 827 1983, and on February 14, 15, and 16, 1984. Subsequent to the close of the hearing, the parties filed posthearing briefs which have been carefully considered. On the entire record and from my observation of the witnesses who appeared to give testimony , I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a Michigan corporation, maintains its office and place of business at 1800 Terminal Road, Niles, Michigan, where it is engaged in the manufacture, sale, and distribution of chemicals and related products. During calendar year 1982 , it sold and distributed to cus- tomers located outside the State of Michigan products which were valued in excess of $50,000. It is admitted, and I find, that Respondent is an employer engaged in commerce within the meaning of Section 2 (2), (6), and (7) of the Act. II. STATUS OF LABOR ORGANIZATION It is admitted, and I find, that International Union of Electrical, Radio and Machine Workers , AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Overview of the Case Respondent is a privately held corporation which man- ufactures and sells automotive chemical products. Fay Kaiser owns all the outstanding stock of the corporation. The business is heavily seasonable as approximately 70 percent of the products manufactured are winter-aid automobile products, such as gasline antifreeze , starting fluid, and windshield ice remover. The record reveals that Respondent sells products under its own name and under the name of a sister com- pany, Northern Chemical. In addition, it produces pri- vate label products for other companies. Because its products must go through several distribution levels before reaching the customer , Respondent's operations begin building up several months before the onset of winter, generally around September of each year. Re- spondent contends, and the record reveals, that its winter sales season normally ends in mid -February. At the commencement of its 1982-1983 winter sales period, Respondent employed approximately 30 produc- tion and maintenance employees in various job classifica- tions, including that of machine operators, setup; line workers; shipping employees; maintenance employees; drivers; janitors and guards; and laboratory employees. From late September through the end of October 1982, it hired approximately 20 new employees, most of whom were to be utilized as production line employees. On December 1, 1982, eight of Respondent's employ- ees met with Ellis Holland, an International representa- tive of the Union . Each of them signed union authoriza- tion cards and agreed that Holland could inform the Re- spondent they were assisting the Union in an attempt to organize its operation. The next day, December 2, West- 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ern Union telephoned Respondent to deliver a telegram which advised that the Union was assisting the employ- ees to organize and that the eight named employees were on the organizing committee . Respondent's receptionist accepted a portion of the message, but, acting on the in- structions of Respondent Vice President Fekrat, refused to accept the portion of the telegram identifying the em- ployee organizers. At noon on December 2, Respondent shut down its production lines and laid off virtually all its employees whose job tasks related directly to production. The Gen- eral Counsel claims Respondent effectuated the layoff be- cause it had learned that morning that its employees were interested in organizing. Respondent contends that economic considerations compelled it to effectuate the layoff. On December 15, the Union drafted a demand letter in which it indicated it represented a majority of Respond- ent's production and maintenance employees and was re- questing that Respondent recognize and bargain with it. The following day, 12 employee-members of the Union's organizing committee delivered the letter to Kaiser's office. Fred Fekrat subsequently contacted one of the employees and informed him the Company would not accept the letter. Thereafter, it was retrieved by the em- ployee. During the period extending from December 3 to 13, 1982, Respondent recalled the 18 employees named in paragraph 18(a) of the complaint to work. On various dates extending from January 11, through 31, 1983, it al- legedly terminated the 15 employees named in paragraph 18(b) of the complaint. The General Counsel contends the December 2 layoff and the subsequent terminations were effectuated in violation of Section 8(a)(3) of the Act. Respondent contends it laid off employees on De- cember 2 for economic reasons and the subsequent termi- nations were accomplished in accordance with its normal company personnel policies. The Union filed the petition in Case 7-RC-16853 on December 20, 1982. An election was held in that case on February 17, 1983. The Union received 19 votes, 15 votes were cast against it, and the ballots of 5 individuals were challenged. The Employer and the Union both filed timely objections to the conduct of the election. Such objections and challenged ballots are discussed in detail, infra. The General Counsel contends that, from the com- mencement of the unionization campaign forward, Re- spondent has engaged in the commission of a number of unfair labor practices. The allegations are discussed indi- vidually below. B. Alleged 8(a)(1) Violations Paragraphs 14 through 17 of the complaint allege that named Respondent supervisors and/or agents engaged in various conduct during the organization campaign which violated Section 8(a)(1) of the Act. The supervisors in- volved are named in paragraphs 7 and 8 of the com- plaint. They are: Fay Kaiser President Fred Fekrat Vice President Andy Chaveous Foreman Rod Boyle Batch Supervisor Jack Helt Maintenance Supervisor Ed Bartek Machine Operator Norm Clear Craig Bryant Supervisor Technical Director Vice President, Sales Respondent admits, and I find, that the named individ- uals are supervisors within the meaning of Section 2(11) of the Act.2 The specific conduct attributed to each of the supervi- sors named isdiscussed below: 1. Fay Kaiser Kaiser, Respondent's sole owner and its president, is alleged to have violated the Act through his conduct at meetings with employees on December 9, 1982, and Jan- uary 17, 1983, and through comments made to two em- ployees on February 16 and 17, 1983. a. December 9 meeting Paragraph 13(a) of the complaint alleges that Kaiser violated Section 8(a)(1) on December 9, 1982, as he: (i) solicited employee complaints and grievances, promised its employees improved conditions of em- ployment if they rejected the Charging Party Union as their collective bargaining representative; and (ii) promised its employees raises and bonuses, if they rejected the Charging Party Union as their collective bargaining representative. No evidence was offered to support the allegation set forth at paragraph 13(a)(ii) of the complaint and that portion of the complaint was dismissed on Respondent's motion at the conclusion of the General Counsel's pres- entation of evidence. The General Counsel sought to prove the allegations set forth in paragraph 13(a)(i) of the complaint through the testimony of employee witnesses, Ronald Zebell, David Brown, Marion Glaser, Robert Shepherd, Gary Pease, David Wolfe, and Cedric Moodie. When the above-named employees appeared as wit- nesses, the General Counsel asked each of them to de- scribe what was said at the December 9 meeting. With respect to the allegation that Kaiser solicited their griev- ances during the meeting, Zebell testified Kaiser told them during the meeting that they did not need a union because they had an open-door policy and the employees could go to them with their problems. Brown's recollec- tion was that Kaiser told them they had been given a handbook, and, if there were problems, they could come to them or their immediate supervisor. Glaser's recollec- tion was that Kaiser informed the employees the Compa- ny had an open-door policy, and, if there were problems, they could see him at any time. Shepherd indicated he 2 Although Respondent indicated in its answer to complaint that it was not admitting such individuals were its agents at all times material, I find that as it vested them with supervisory authority , it is responsible for their action UNITED STATES AVIEX CO recalled that Kaiser told them they did not need a union there; that they could bring their complaints to the Com- pany because of their open-door policy, and they could take care of it. Pease, whose recollection was obviously faulty, testified that Fekrat rather than Kaiser told them during the meeting that, if they had any problems, they could bring them to them and they would take care of them. Wolfe, the only witness produced by the General Counsel who recalled that management was represented at the meeting by Kaiser, Fekrat, and Craig, testified that, during the meeting, some employee asked Kaiser how grievances could be handled. His recollection was that Kaiser replied that all the employees were supposed to have received a handbook and there was a procedure to handle grievances right in the book. Finally, Moodie testified at all meetings held by the Company, Kaiser told them if they had any problems he would take care of them. When he appeared as a witness, Kaiser indicated that during the December 9 meeting an employee from the floor asked him how they could voice their grievances and how they could be taken care of. He claims he re- sponded by stating the company handbook sets out a procedure for doing this and they had always followed that procedure with satisfactory results. He testified he indicated the procedure gave them a route to go if they had problems, and it also gave them an escape hatch to come directly to the officers of the Company as it specif- ically talks about an open-door policy.' I conclude that Kaiser's testimony, which was cor- roborated to a great extent by the General Counsel's wit- ness Wolfe, most reliably reveals what was said to em- ployees concerning grievances during the December 9 meeting. I find that by informing employees that the Company had an open-door policy for handling griev- ances which was described in an employee handbook, Respondent did not violate Section 8(a)(1) of the Act as alleged Accordingly, I recommend that paragraph 13(a)(i) of the complaint be dismissed. b. January 17 meeting Paragraph 13(b) of the complaint alleges that at an em- ployee meeting held on January 17, 1983, Kaiser "solicit- ed employee complaints and grievances and promised to remedy them, if employees rejected the Charging Party Union as their collective bargaining representative." The General Counsel sought to prove the above-de- scribed allegation through the testimony of employees Shepherd and Moodie. The former testified that on Janu- ary 17 Kaiser informed employees "if we had problems we could bring our grievances or complaints to supervi- sors or the Company and they would take care of them." Moodie testified that Kaiser told them if you had any problems he would take care of them-just come to him. Kaiser testified that he read a prepared text at the Jan- uary 17, 1983 meeting . Significantly, he was corroborat- 3 After Kaiser explained that the handbook contained a grievance pro- cedure , he was advised that most employees had not received a hand- book because they were destroyed in a 1978 fire He informed the em- ployees during the meeting that new copies would be printed and distrib- uted to them 829 ed in this assertion by the General Counsel's witnesses, Shepherd and Wolfe. The text of his speech was placed in the record as Respondent's Exhibit 18. The only por- tions of the speech which could fairly be said to relate to grievances directly or indirectly are found on page 5 of the document . They are as follows: Remember, however, we cannot make any prom- ises or agree to any remedy during this election period We can solve our problems by talking amoung [sic] ourselves and come out a lot better than bring in an outsider. Remember, "Two is company, three is a crowd." Thank you. It is clear, and I find, that Kaiser did not make the comments attributed to him by Shepherd and Moodie at the January 17, 1983 meeting. It is equally clear that he did not, by making the comments found in the text of the written speech, which are set forth above, solicit em- ployee grievances and promise to remedy them during the meeting. I recommend that paragraph 13(b) of the complaint be dismissed. c. Forklift situation Paragraph 13(c) of the complaint alleges that Respond- ent (through Kaiser) told an employee on February 16, 1983, that employees would not be permitted to operate the forklift if they selected the Union as their bargaining representative. The General Counsel sought to prove the allegation through the testimony of employee John Bryant Bryant testified that while he was storing items on the mezzanine of the plant on February 16, Kaiser ap- proached him and stated: "Do you know, after you vote the Union in, you won't be able to drive the forklift?" Bryant claims he responded by asking, "[W]ho told you I was going to vote the Union in?" He claims Kaiser re- plied, "[I]t was all over the shop," and that he then stated, "Well, I don't know where you heard that at." Bryant testified Kaiser concluded the conversation by stating: "I knew I could count on you." When he appeared as a witness, Kaiser testified that, during the spring of 1982, Bryant tipped over a forklift while attempting to move a tank by himself. According to Kaiser, he learned of the incident the following morn- ing and that caused him to warn Bryant that he was not to operate forklifts when he was alone or without imme- diate supervision. Kaiser claims that on February 16 he noticed Bryant drive by the lunchroom on a forklift and that he followed him to the mezzanine and conversed with him as follows (Tr. 813): A. And I said, "Wouldn't the regular lift truck drivers do this for you, John?" I said, "Did they refuse you?" And he said, "No, they didn't refuse me, but they were busy so I dust jumped on the lift truck and brought it around here. And I said, "Well, John, we have job classifications here. They are not strictly enforced or as strictly enforced as they might be if we had a union here, but we do 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have them; and I would appreciate it if you would take the lift truck and take it back to where you got it carefully and give it back to the operator, and in the future, let the operators, the regular drivers, do this work for you." Q. And what, if anything, did Mr. Bryant say? A. He said, "Okay; I will take it back." Jack Helt, Bryant's immediate supervisor, corroborat- ed Kaiser's testimony indirectly by testifying Bryant op- erated fork lifts carelessly and had been repeatedly told by him that he was not to operate them without close supervision. Bryant denied that Kaiser told him at any time that he was not to operate a forklift. He claimed that he fre- quently operated forklifts in the course of the perform- ance of his maintenance work and claimed Helt had in- structed him to drive forklifts on at least 20 occasions. The record reveals that Bryant sought during the or- ganization campaign to convince Respondent Officials Craig, Fekrat, and Kaiser that he was procompany, and during the same period he supported the Union by sign- ing an authorization card . Kaiser was the more impres- sive witness and I credit his version of the February 16, 1983 incident. Accordingly, I recommend that paragraph 13(c) of the complaint be dismissed. d. Lawshea situation Paragraph 13(d) of the complaint alleges that Re- spondent violated Section 8(a)(1) on February 17, 1983, by promising to recall its laid-off employees if its em- ployees would agree to vote against the Union in the representation election. The General Counsel sought to prove the allegation through the testimony of employee Charles Lawshea Sr. The record reveals that Charles Lawshea Jr. was em- ployed by Respondent on October 7, 1982. He was laid off on December 2, 1982. His father, Charles Lawshea Sr. testified that on February 17, 1983, the day the elec- tion was held in Case 7-RC-16853, Andy Chaveous told him his son "did good work and if I give them a vote for the company my son would be called back to work." According to Lawshea, after Chaveous made the above- described comment to him, Kaiser walked up to them and Chaveous told him he had just been telling Charlie about his son and working conditions there, and that caused Kaiser to say: "Yes, Charlie was a good worker and if you'll give us a vote for the company and every- thing there, then he would be called back to work." Chaveous testified that on the occasion under discus- sion, Lawshea Sr. told him as he was passing the em- ployee's work station: "Andy, I will give you what you want." Chaveous claims he asked Lawshea if he would tell that to Kaiser, and the employee told him to go get Kaiser. Chaveous testified he went to Kaiser, told him Lawshea had said he would give them what they wanted, and that Kaiser accompanied him back to Law- shea's work station . According to Chaveous, Kaiser told Lawshea his son was first on the list for recall to the batch room when business picked up; that there was a man ahead of him, but his work had been unsatisfactory. Kaiser testified Chaveous came to him on February 17 and told him Lawshea Sr. had told him he was going to give the Company "what we wanted," and that Lawshea wanted to talk with him. Kaiser claims he went to Law- shea's work station with Chaveous and that he and the employee discussed one of Lawshea's neighbors who had worked at the plant previously. Kaiser indicated Law- shea then asked him what he thought of his son's work- where did he stand on the seniority list-and would they be calling him back. Kaiser testified he replied his son's work was very satisfactory; that he was number two on the seniority list to go back to the batch room; that, in fact, because the number one man's work was unsatisfac- tory, he would really be number one to go back in the batch room if and when business picked up and the work warranted it. Respondent contends I should refuse to credit Law- shea's testimony because he originally indicated he initi- ated the conversation with Chaveous on February 19 by inquiring about his son, but subsequently claimed Cha- veous initiated the conversation by asking him if his son had found other work. In addition, Respondent supports its contention by observing that Lawshea testified on direct examination that Chaveous and Kaiser told him his son would be recalled if he gave them a vote for the Company, but subsequently indicated during cross- exami- nation that they had both told him his son would be re- called if he gave them what they wanted. Although Lawshea's testimony during direct examination and on cross-examination did vary somewhat, the employee ap- peared to be a sincere individual who was attempting to tell the truth. I strongly suspect that he did initiate the conversation with Chaveous and I suspect that he volun- tarily offered to vote for the Company if Chaveous and Kaiser would assure him that they would repay him by recalling his son to work at the plant. There is no doubt in my mind that when Chaveous sought out Kaiser to inform him of the deal he and Lawshea had discussed, he informed Kaiser the employee was willing to trade his vote for the Company's recall of his son to work. Signifi- cantly, Chaveous testified that when he went to Kaiser, he merely told him Lawshea had said he would give them what they wanted. Common sense causes me to conclude he told Kaiser more-that the quid pro quo was the recall by the Company of Charles Lawshea Jr. Lawshea Sr. claims that when Kaiser spoke with him, he told him his son would be recalled if he voted for the Company. I believe his assertion. Accordingly, I find, as alleged, that on February 17, 1983, Respondent violated Section 8(a)(1) of the Act by promising Charles Lawshea Sr. that it would recall his son to work at the plant if he voted for the Company in the February 17, 1983 elec- tion. 2. Andrew Chaveous a. December 2 and 3 conduct Paragraphs 14(a), (c), and (e) of the complaint allege that Chaveous unlawfully interrogated employees re- garding their union membership, activities, and senti- ments on December 2, 3, and 14, 1982. Paragraph 14(b) UNITED STATES AVIEX CO. 831 alleges that on December 3, 1982, Chaveous violated Section 8(a)(1) by creating the impression employees' union activities were under surveillance and by disparag- ing employees because they selected the Union as their bargaining agent. The General Counsel sought to prove the allegations through the testimony of employees Marion Glaser, Jeffery Weaver, and Santiago Arroyo. Glaser testified that on December 2, 1982, at approxi- mately 9:45 a.m., Chaveous walked up to her and asked, "[W]hat union did you have at Essex Wire?" She claims she responded AFL-CIO, something to do with aero- space workers, and Chaveous then asked, "[A]re you sure it wasn't electrical workers?" Glaser claims she told him no and attempted to find the Essex Wire contract in her purse but discovered it was not there. Weaver testified that early in the morning of Decem- ber 3, 1982, Chaveous came to his work station to see how the line was going and after Weaver told him it was going good, Chaveous commented, "I thought we were buddies." Weaver claims that an hour later Chaveous re- turned and said, "Talk about Tony Grimes being stupid . .. you aren't even a man." Weaver testified Chaveous then told him he had received a phone call stating he had signed. Weaver claims he said, "I signed what," and Chaveous replied, "you know what." Later the same morning, Weaver claims Chaveous again came to his work station to ask how the line was going. Weaver tes- tified that when he said fine, Chaveous said, "Chicken" and left. Arroyo testified that on December 14, 1982, at ap- proximately 10 a.m., Chaveous asked him whether he was satisfied with the Company. He claims that, when he said yes, Chaveous said he did not know if he was satis- fied or not because he was wearing a funny hat around the Company. Arroyo indicated he was wearing a hat with an I-U-E emblem on it at the time. Chaveous denied having any of the conversations de- scribed by the above-named employees. With respect to Glaser, he testified the only conversation he had with this employee on December 2 was a conversation which occurred at approximately 11 a.m. during which the em- ployee asked permission to go home. With respect to Weaver's assertions, he denied making the remarks at- tributed to him by Weaver and claimed that on Decem- ber 3 he did not know who had signed union cards. Fi- nally, with respect to Arroyo, he testified he had never referred to Arroyo's hat in any way; had never asked Arroyo if he was satisifed with the Company; and had never told Arroyo he believed he was dissatisfied. Respondent argues I should credit Chaveous rather than the employees. In the alternative, it contends that the Board's decision in Rossmore House, 269 NLRB 1176 (1984), should cause me to find that the testimony given by Glaser and Arroyo does not prove a violation of Sec- tion 8(a)(1). I resolve the credibility conflicts without difficulty as Glaser and Arroyo were impressive witnesses while Cha- veous was not. Although Weaver was not as impressive as the other two employee witnesses,' I credit his claim • Respondent sought to discredit Weaver on a collateral matter as it caused him to deny that he told another employee, Sam Milnar, that they that Chaveous informed him he had received a telephone call during which he learned he had signed a card and his assertion that Chaveous subsequently sought to belit- tle him by calling him "chicken." In Rossmore House, the Board indicated that it would not find an 8(aXl) violation in circumstances wherein management officials merely discussed unionism with known union supporters unless the words used during the discussion, or the context in which they are used, suggest an element of coercion or interference. Applying the teachings of Rossmore House here, I note that when interrogating Glaser, Chaveous merely asked what union had represented her when she worked at a prior employ- er, which was apparently known to be a union operation. I find with respect to the Chaveous-Glaser conversation that neither the words used, nor the context in which they were used suggest an element of coercion or inter- ference. Consequently, I recommend that paragraph 14(a) of the complaint be dismissed. Noting that Cha- veous told Arroyo, in effect, that people that enjoyed their jobs did not sign union cards, I find that the con- text of the Chaveous-Arroyo conversation does suggest an element of coercion and interference as the employee could have reasonably concluded on hearing Chaveous' remarks that his job was in jeopardy because he had signed a union card. I find that Respondent, through Chaveous' conversation with Arroyo, violated Section 8(a)(1) as alleged . Finally, it is clear, and I find, that Re- spondent, through Chaveous' conversation with Weaver, engaged in unlawful interrogation, created the impression that Respondent was engaging in surveillance of its em- ployees' union activities, and demeaned the employee be- cause he had signed a union card. By engaging in such conduct, Respondent violated Section 8(a)(l) as alleged. b. Chaveous' January 17, 1983 conduct Paragraph 14(f) alleges that Respondent created the impression that its employees ' union activites were under surveillance on January 17, 1983. The General Counsel caused employees Larry Steward and Barbara Weise to describe mid-January conversations they had with Cha- veous. Steward testified that he heard from other employees that the Company was to meet with all its employees on January 17 and he went to the plant to attend the meet- ing. He claims he encountered Chaveous when he ar- rived and Chaveous informed him he had been terminat- ed and must leave the building. At some point in the conversation, Steward claims Chaveous asked him if he had not heard a rumor at the union hall that he had been terminated . He claims he said, "No"; that he paid no at- tention to rumors. Weise testified that she went to the plant to pick up a Christmas turkey in mid-January and while she was there Chaveous conversed with her. She testified Chaveous asked, "What do you think of the talk going around?" would burn the plant down if the Union did not get in Milnar and em- ployee Barbara Johnson testified Weaver made such a comment Al- though I do not credit Weaver's denial, I nevertheless conclude he is a more reliable witness than Chaveous and I chose to credit his version of the December 3 conversations between him and Chaveous 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to Weise, she asked if he meant talk about the Union, and Chaveous replied in the affirmative. Weise testified she indicated to Chaveous that she did not know anything as fact, and Chaveous responded by saying he thought things could be worked out; that they were trying; and he did not think a small Company like theirs needed a union. Weise claims she agreed the Company was small and did not need a union. Chaveous testified that when he encountered Steward in the lunchroom on January 17, he told him he had been terminated, and the meeting might not be of interest to him, but he was welcome to stay if he wished. He denied mentioning rumors or the union hall to the em- ployee. He did not refute Weise's testimony. The record reveals that, prior to the time Chaveous had his discussion with Steward, Respondent had indi- cated to the Union that it intended to terminate the last six employees hired in 1982 and that they would not be eligible to vote in the coming election. The Union appar- ently agreed before it signed a Stipulation for Certifica- tion Upon Consent Election in Case 7-RC-16853 on Jan- uary 12, 1983. Viewing Chaveous' conversation in that context, I find that even if Steward's testimony is fully credited, the General Counsel has offered insufficient evidence to show that Respondent created the impres- sion that the union activities of its employees were under surveillance through the Chaveous comments to Stew- ard. Patently the testimony offered through employee Weise fails to prove the allegation under discussion. Ac- cordingly, I recommend that paragraph 14(f) of the com- plaint be dismissed. c. Alleged disparaging of employees on February 24, 1983 Paragraph 14(h) of the complaint alleges that Re- spondent, through the actions of Chaveous, disparaged its employees because of their union activities, member- ship, and sympathies on February 24, 1983. The General Counsel sought to prove the allegation through the testi- mony of employee Kenneth Frantz. On February 23, 1983, Frantz was a setup man on a 3m machine. At the beginning of his shift that day, he removed a plastic nozzle from a filling machine and ground it down in an attempt to cause the filling ma- chine to operate more efficiently . His action reduced rather than improved the operation of the machine. Cha- veous "jumped on" him for grinding down the nozzle and, on February 24, transferred him from the 3m setup position to a job on the production line. Frantz testified Chaveous informed him he was demoted stating: I'm taking you off the 3m machine because ever since you've been in the organizing committee in the union your production has dropped and you got a bad attitude and I'm going to take you off the ma- chine. Paragraph 20 of the complaint alleges that Frantz was demoted in violation of Section 8(a)(3) on February 23, 1983. That allegation is discussed in detail , infra. During his testimony, Chaveous denied he said anything about Frantz' union membership or his participation in the or- ganizing committee when he informed him of his demo- tion on February 24, 1983. Although I have, generally speaking, credited employee testimony where it conflicts with the testimony given by Chaveous, I do not credit Frantz' version of the February 24 demotion conversa- tion. Chaveous was the more convincing witness and, as indicated hereinafter, I find the employee was transferred for good and valid reasons having nothing to do with his union activities or sentiments. I recommend that para- graph (h) of the complaint be dismissed.5 3. Craig Bryant a. January 3 conduct Paragraph 15(a) of the complaint alleges that on Janu- ary 3, 1983, Respondent through Craig Bryant asked em- ployees to ascertain and divulge to Respondent the union membership, activities, sympathies, and desires of other employees. The General Counsel sought to prove the al- legation through the testimony of employee John Bryant. John Bryant, who is not related to Craig Bryant, testi- fied that on January 3, 1983, Craig Bryant called him to his office and conversed with him about the Union. The employee testified that Respondent's vice president asked him how he felt about the Union, and that, after he re- plied there were pros and cons, Craig Bryant asked him to go to a union meeting to be held on Tuesday night; to take another company employee with him; and to find out all he could and come back to him because it was important to the Company. The employee claims Craig Bryant told him during the same conversation to go around the shop and tell everybody what a great guy Fay Kaiser was. According to John Bryant, later the same day he told Kaiser what Craig had told him to do and Kaiser told him: "Forget it. We have not gotten to the point where we need spies in the Company." After indicating that he was not in the plant on Janu- ary 3 or 4, 1983, Craig Bryant testified that on a date he could not recall, possibly in January, John Bryant ap- proached him and asked him if he would like for him to go to a union meeting and report back on it. Craig Bryant claims he told the employee, "That's up to you." Significantly, Kaiser did not controvert the above-de- scribed portion of John Bryant's testimony when he ap- peared as a witness. Respondent contends I should credit Craig Bryant rather than the employee. In the alternative, it claims I should find no violation as the record reveals Kaiser de- nounced Craig Bryant's conduct and told the employee they had not reached the point where they needed a spy in the Company. John Bryant was the more impressive witness, and this, plus Kaiser's failure to controvert the employee's testimony concerning their conversation on the date in question, causes me to credit John Bryant. Although I ° During direct examination, Frantz sought to create the impression that he was an excellent setup man who had been frequently compliment- ed by his supervisors on his work . The record reveals he was, at best, a marginal setup man and that he had been reprimanded on numerous oc- casions because he could not accomplish his assigned duties . Frantz was not an impressive witness. UNITED STATES AVIEX CO. credit the employee, I conclude no violation of Section 8(a)(1) has been shown as the record fails to reveal that John Bryant informed other employees of Craig Bryant's request before Kaiser, Respondent's owner and president, disavowed the vice president's conduct in clear and un- mistakable terms . I recommend that paragraph 15(a) of the complaint be dismissed. See Town & Country Super Markets, 244 NLRB 303, 307 (1979). b. February 16 conduct Paragraph 15(b) of the complaint alleges that on Feb- ruary 16, 1983, Respondent coercively interrogated em- ployees concerning their union activities and created the impression that their union activities were under surveil- lance. The General Counsel sought to prove the allega- tion through the testimony of employee John Bryant. John Bryant testified, without contradiction, that the day before the election was held on February 16, 1983, Craig Bryant called him into the cold storage room where he asked, "[W]hy are you voting for the Union?" The employee claims he asked, "[W]ho told you I was voting for the Union?" He claims C. Bryant replied, "It's all over the shop that you're voting for the Union . . . I thought we could count on you." J. Bryant claims he re- plied, "Well, I don't know who told you I was voting for the Union," and that Bryant then stated, "Well, ev- erybody says that you're for the Union." The employee claims the conversation ended when he said, "That's what I want them to think." It is clear, and I find, that Respondent, through the above-described conduct of its vice president, Craig Bryant, unlawfully interrogated John Bryant concerning his union sentiments in violation of Section 8(a)(1) of the Act. Noting that Craig Bryant had sought, in early Janu- ary, to cause employee John Bryant to attend a union meeting and thereafter report to him, I find that by indi- cating to the employee on February 16, 1983, that he had sources of information throughout the shop, he un- lawfully gave the employee the impression that the union activities of the employees were under surveillance. By engaging in such conduct, he violated Section 8(a)(1) of the Act as alleged. c. February 17 conduct Paragraph 15(c) of the complaint alleges that Respond- ent through Craig Bryant coercively interrogated em- ployees regarding their union activities on February 17, 1983. The General Counsel sought to prove the allega- tion through the testimony of employee Robert Shep- herd. Shepherd testified that during the morning on Febru- ary 17 Bryant came up to him while he was working at an aerosol filling machine and engaged him in conversa- tion. The employee claims that after saying, "Good Morning," Bryant asked him why he thought they needed a union. Shepherd testified that he replied they needed the Union for seniority rights, recall rights, job descriptions, and such. Bryant admitted he conversed with Shepherd on the day of the election, but gave a different version of the conversation. He claims that Shepherd started the con- 833 versation by asking him how he thought the election would turn out. He testified he replied he did not know, but he hoped Shepherd would vote. Bryant indicated during his testimony that he had seen Shepherd wearing a union badge and a hat with a union symbol on it before the discussion occurred. Shepherd was still employed by Respondent at the time of the hearing. He testified in a straightforward manner and I credit his version of the conversation. Respondent argues that even if Shepherd's testimony is accepted, the Board's decision in Rossmore House , supra, should preclude me from finding a violation . I agree and find that Shepherd's testimony fails to establish the viola- tion alleged because he was a known union supporter and neither the words uttered by Bryant nor the context in which they were uttered suggests an element of coer- cion or interference with employees in the exercise of their Section 7 rights. 6 For the reasons stated, I recom- mend that paragraph 15(c) of the Complaint be dis- missed. 4. Rod Boyle Paragraph 16 of the complaint alleges that on Decem- ber 3, 1982, Rod Boyle threatened, in the presence of employees, to discharge an employee for supporting the Union. The General Counsel sought to prove the allega- tion through the testimony of employee Jimmie Brady. The record reveals that during the afternoon of De- cember 3, 1982, Brady went to employee Steve Regenos' home to solicit that employee to join the Union. It is un- disputed that Rod Boyle, Regenos' immediate supervisor, arrived at the Regenos home shortly after Brady arrived. Brady testified that after Boyle joined him and Regenos in the kitchen, he asked Regenos in Boyle's presence if he would like to sign a union card. According to Brady, Boyle then made a statement to the effect that at union companies employees could be let go before their proba- tionary period was up, and that employee David Brown had "overstepped his bounds and he would be fired for getting in the Union activity." Boyle testified that he socializes with Regenos and in- dicated he went to the Regenos home on December 3 because Steve Regenos had called in sick that day and he wanted to check on Steve as well as his mother, who was then in the hospital. He claims that when he arrived, Brady was telling Regenos the reasons he should join the Union, and Regenos was telling Brady the reasons he should not join. Boyle testified that after saying "Hi" to both employees, he said nothing until Brady asked him some question about the Union. He claims he answered by telling Brady he was "uncapable of giving an 6 Shepherd indicated dunng his testimony that he made no effort to conceal the fact that he wanted a union in the plant Thus , he testified that he was one of the 12 employees who sought to deliver the Union's demand letter to Kaiser at the commencement of the union campaign and that he was the employee who was requested by Fekrat to retrieve the letter the next day He further indicated that he later participated in union handbillmg activity during which, inter alia, copies of the demand letter were distributed These factors, coupled with the unrebutted testi- mony which reveals Shepherd wore a union badge and a hat with a union logo on it at the plant, clearly establish that Shepherd was known by Respondent to be a union supporter 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD answer." Boyle denied that he made the statements at- tributed to him by Brady. He testified that he did recall that Regenos mentioned Dave Brown , stating that some- body who is begging for a job had no business organiz- ing in a union. Regenos testified that after Boyle joined him and Brady at his home on December 3 , Boyle said little or nothing after he said hello. He recalled that Brady indi- cated that David Brown was on the Union's organizing committee and as he worked in the batch room with Re- genos they could really slow things down if Regenos would give them his support. While they were discussing Brown, Regenos claims he voiced the opinion that the Company should have gotten rid of him long ago. He claims Boyle made no comment one way or the other. I became convinced when listening to Regenos' testi- mony that Brady probably recalled the substance of the conversation concerning Brown at Regenos ' home on December 3, but intentionally failed to relate all he re- called. Regenos was the more impressive witness and I credit his claim that he, rather than Boyle, stated on De- cember 3 that David Brown should have been fired by the Company. I recommend that paragraph 16 of the complaint be dismissed. 5. Norman Clear Paragraph 17 of the complaint alleges that Norman Clear coercively interrogated employees regarding their union membership, activities, and sympathies on Febru- ary 16, 1983. The General Counsel sought to prove the allegation through the testimony of employee Charles Simpson. Simpson testified that at approximately 4:50 p.m. on February 16, Norm Clear approached him in the packing room and asked him what he thought about the upcom- ing election and how he intended to vote. He claimed he replied he was undecided right then; that the way things were going, he would probably consider voting yes. He testified that Clear then made a statement about not re- calling what went wrong and why he was not still in the shipping department. He claims he replied that if Clear would care to sit down with Fay Kaiser or Andy Cha- veous, they would talk about it. He recalled that Clear then said he hoped he would consider voting no, and claims he replied he would give it some deep consider- ation. During cross-examination, Simpson admitted he was wearing a hat, which had the Union's logo on it, and a union button when he conversed with Clear on February 16. In addition, he indicated during cross-examination that although he specifically recalled that Clear told him during their discussion that he hoped he would consider voting no-that they could use his vote-he did not recall that Clear asked him specifically how he intended to vote. Clear testified he could not recall whether he had a conversation with Simpson on February 16. He denied that he asked any employee what they thought about the election or how they intended to vote. He testified he did tell a number of employees that he would appreciate their support in the election. Respondent contends that I should credit Clear rather than Simpson . In the alternative, it contends that applica- tion of the criteria set forth in Rossmore House, supra, should cause me to find that no violation was committed even if Simpson's cross-examination version of the con- versation is credited. Although I gained the impression that Simpson sought to tell the truth when he testified, he exhibited consider- able uncertainty when describing the February 16 discus- sion he had with Clear. Although it appears he discussed his desire to return to the shipping department during the conversation and responded to Clear's request that he consider voting "no" by saying he would give the re- quest "some deep consideration ," I find I am unable to conclude with any degree of certainty that Clear asked him what he thought of the upcoming election, or that Clear asked him how he would vote. For the reasons stated, I find that the General Counsel has failed to offer sufficient reliable evidence to prove that Clear coercive- ly interrogated the employee.' I recommend that para- graph 17 of the complaint be dismissed. C. Alleged 8(a)(3) Violations The parties stipulated that the 18 employees named in paragraph 18(a) of the complaint and the 15 employees named in paragraph 18(b) of the complaint, all produc- tion employees, were laid off by Respondent at noon on December 2, 1982. The record reveals that those em- ployees named in paragraph 18(a) were all recalled to work between December 3 and 13, 1982, and it reveals that the employees named in paragraph 18(b) had not been recalled prior to the time the hearing was held in this case. As noted, supra, Respondent learned at ap- proximately 9 a.m., on December 2, that the Union was seeking to organize its employees. The General Counsel contends that Respondent effectuated the December 2 layoff because it learned that morning that the Union was attempting to organize its operation, and she con- tends it discharged the employees who have never been recalled because it knew or suspected they were union adherents. In addition, the General Counsel contends that after recalling employees Jimmie Brady and Ken- neth Frantz, Respondent violated Section 8(a)(3) by as- signing Brady to more onerous working conditions on February 23, 1983, and by demoting Frantz on February 23, 1983, and thereafter laying him off on March 17, 1983. Respondent contends that valid economic consider- ations, rather than the union activities of its employees, necessitated the December 2 layoff, and it claims that lack of demand for its products caused it to refrain from recalling the employees named in paragraph 18(b) of the complaint. With respect to those employees who were never recalled, it contends it terminated them pursuant to 7 I do not reach this conclusion because I credit Clear I do not Ervin Stryner, previously Respondent's plant manager, testified that, during the spring of 1981 , Clear instructed him to bypass two batchmen and recall a third employee with less seniority Stryner testified when he asked why the two employees were to be bypassed, Clear told him they were union agitators Clear denied Stryner's assertion I am firmly convinced that Stryner told the truth, and therefore view Clear's testimony skeptically UNITED STATES AVIEX CO. its normal company policies during the period extending from January 11, to 31, 1983. It denies that employee Brady was assigned to more onerous working conditions on February 23, 1983, and it claims that it reassigned em- ployee Frantz from a setup position to a production line job on February 23, 1983, because he had demonstrated he could not perform the setup job. Finally, it claims Frantz was laid off on March 17 along with some 10 other employees and it contends the General Counsel of- fered no evidence which would establish that Frantz or the other employees were chosen for layoff for discrimi- natory reasons. 1. December 2, 1982 layoff The General Counsel contends a finding that Respond- ent effectuated the December 2 layoff to nip the Union's organizational drive in the bud is warranted because the layoff occurred immediately after Respondent learned the Union was seeking to organize its operation and un- controverted evidence reveals that work was available for at least some employees, but virtually all Respond- ent's production employees were laid off. Realistic ap- praisal of the record causes me to conclude that Re- spondent has shown that it effectuated the layoff for valid business reasons. The scenario which the General Counsel urges was developed through the testimony of employees Shep- herd, Mikel Reid, Larry Stewart, Ronald Zebell, Frantz, and Respondent's former plant manager, Stryner. The first prong in the argument is that the record reveals Re- spondent possesses marked antiunion animus. With re- spect to animus, Shepherd and Reid both testified that Chaveous told them at their time of hire that the Compa- ny had no union and wanted none. Stryner's credited tes- timony added more as he testified, as noted, supra, that Respondent's technical director, Clear, told him during a 1981 recall situation to bypass two employees because they were union agitators. The second prong of the ar- gument is a claim that employees in the batchman and setup job classifications were told when hired that they would never be laid off, but they were included in the December 2 layoff. Employees Brown, Reid, Frantz, and Zebell each testified that Chaveous or Stryner (in the case of Frantz) made such statements to them when they were placed in batchman or setup man positions." Next, was the General Counsel's attempt to establish that work was available for some employees when the December 2 layoff was effectuated, and, despite that, all production workers were laid off. To establish that prong of his ar- gument, the General Counsel points to Stewart 's claim that on November 27, 1982, he overheard a sales repre- sentative from Myer's Thrify Acres Estate, while touring the plant with other sales representatives, that the Com- pany's production was nice but they were still 6 months' behind on his order.9 In addition, he relies on Shepherd's 8 Chaveous testified he gave employees no such assurances , that he told them they would be the last to go in a layoff situation I credit the employees 8 Fekrat testified that certain sales representatives toured the plant on November 1 before attending a convention in Chicago on November 2, 3, and 4 He claims there was no representative from Myer's Thrifty Acres in the group R Exh 37 reveals the automobile parts and accesso- 835 claim that Supervisor Bartek told him at 7:30 a.m., on December 2, that he would be running the gasline anti- freeze capping and filling machine all that day and prob- ably into the next, and that later in the morning after vis- iting the office where he was told the Union was at- tempting to organize the plant, Bartek informed the em- ployee Chaveous was talking about a layoff. Although total acceptance of the testimony summa- rized above might warrant an inference that Respondent unlawfully decided to lay off its entire production crew when it learned the Union was seeking to organize its operation, the testimonial and documentary evidence of- fered by Respondent during the presentation of its case convinces me that Respondent effectuated the layoff under discussion for valid business reasons. Fekrat, Clear, and Chaveous gave mutually corrobora- tive testimony to explain Respondent's reason for decid- ing to lay off its production employees at noon on De- cember 2, 1982. They claim that on November 22 Clear, who schedules production, informed the other two that they were catching up with orders and, unless new orders were received soon, they would be caught up in about a week and would either have to lay off employ- ees or build inventory. Chaveous testified that after it was decided they would not build inventory, he was in- structed by Clear to prepare for a layoff. He claims that caused him to instruct the payroll clerk, Kaiser, to pre- pare a seniority list for him. She prepared such a list on November 24 and on inspecting it, Chaveous noted that the new employees hired after September 1 were not on the list as they would have no seniority until they com- pleted their 90-day probationary period, so he asked her to prepare a second list giving the names and dates of hire of all employees hired after September 1, 1982.10 As Respondent had orders for certain products, Chaveous indicated that, after obtaining the above-mentioned lists, he determined which employees he should retain to op- erate the production lines which would produce the products needed and he prepared a document placed in the record as Respondent's Exhibit 10, indicating which lines he wanted to run, the number of employees he needed to operate them, and the names of the employees who would be retained. Clear testified that, on Novem- ber 29, he informed Fekrat that by the end of the week (last working day Thursday, December 2) they would be caught up with orders, and Fekrat asked him to attempt to operate until noon on Thursday, which was the day employees were paid. Clear testified that he then in- formed Jack Helt, the maintenance supervisor, they would probably shut down production at noon on Thurs- day, December 2, and he could schedule maintenance on machines requiring maintenance. I t According to Clear, he and Chaveous decided at 7:30 a.m. on Thursday, December 2, that they would lay off all the production employees at noon because raw mate- rtes show was held during the period November 2-4, 1982 In the ab- sence of documentary evidence which would corroborate Stewart's claim, I credit Fekrat 10 The lists were placed in evidence as R Exhs 8 and 9 Kaiser testi- fied she prepared them on November 24, 1982 11 Helt corroborated Clear's claim during his testimony 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rial shortages prevented them from producing anything other than gasline antifreeze , and it was not feasible to continue even that line because they were experiencing capping problems which reduced production by 50 per- cent. The plan was that Clear would notify the produc- tion employees they were to be laid off at noon when they took their morning break at 9 a.m. Chaveous testi- fied he was called to Fekrat's office around 9 a.m. at which time he was told the receptionist had taken part of a telegram from the Union indicating it was attempting to organize Respondent's employees,12 and Fekrat told him to go to the breakroom and get Clear. Chaveous tes- tified he went to the breakroom and asked Clear, who was already there, whether he had made the announce- ment yet.13 According to Chaveous, when Clear told him he had not yet announced the layoff, he caused Clear to accompany him to Fekrat's office where they discussed the situation. Fekrat indicated that after ascer- taining that Clear and Chaveous were unaware of any union activity at the plant, he summoned Ed Bartek, an- other supervisor, to the office where Bartek also dis- claimed any knowledge of union activity by the employ- ees. Finally, Fekrat testified they decided to proceed with the layoff, after unsuccessfully attempting to seek legal advice, because: (1) They were caught up with their orders for product; (2) raw materials shortages pre- vented them from producing any product other than gas- line antifreeze; and (3) a problem with caps on the gas- line antifreeze line had decreased production of that product by 50 percent. To support the testimony given by the above-named individuals, Respondent placed considerable documenta- ry evidence in the record. Thus, Respondent placed in the record as Respondent Exhibits 24 and 25 a graph and actual sales figures showing sales for its fiscal years 1978, 1979, 1980, 1981, 1982, and for the period April 1, 1982, to November 1, 1983. The exhibits reveal, inter alia, that Respondent's sales were $714,817 in October 1982, that sales peaked at $826,340 in November, that they dropped to $492,441 in December, and they continued to drop thereafter during the first 3 months of 1983. Having shown it experienced a precipitous drop in sales and/or orders between November and December, Respondent then placed a document entitled "Compari- son on Inventory and Orders [cases] as of 12/02/82" in evidence as Respondent's Exhibit 36.14 The document in question contains information under four headings, i.e., inventory, order, shortage, and remarks. The numbers of product ordered were subtracted from the numbers ap- pearing in the inventory column to produce figures in the shortage column . That mathematical exercise reveals 12 Debra Boyle, the receptionist, testified she accepted only that por- tion of the Union's telegram received in evidence as R Exh 7 as she had previously been instructed to refuse to accept any correspondence from any union 19 Respondent witnesses Barbara Johnson and Gary White corroborat- ed his testimony by testifying that Chaveous appeared in the breakroom shortly after 9 am and asked Clear if he had made the announcement yet 14 With the exception of certain subjective comments contained in the notes section of the exhibit (p 3), the information appearing therein was obtained from R Exhs 32, 33, 34, and 35 , which had previously been received in evidence that on December 2 Respondent had orders for various quantities of 21 different products which it had not filled. Various references to footnotes appear immediately to the right of each of the 21 items, and explanation for the Company's inability to produce such products appear in the referenced footnotes, which are set forth at page 3 of the document. I see no need to set forth a description of the 21 shortage items or the explanations set forth in the footnotes as the document is self-explanatory. Suffice it to say that Fekrat orally explained why each shortage item could not be produced on December 2, and he ref- erenced footnotes contain essentially the same explana- tions that he provided without looking at the exhibit. t 5 Consideration of the document causes me to find that Respondent has shown that due to raw material short- ages, lack of containers, and other valid reasons set forth in the exhibit, it was not feasible, or it was impossible, for it to produce any of the 21 items which customers had placed orders for on December 2, 1982. In sum, I find that Respondent has shown, through the testimonial and documentary evidence described above, that it laid off the employees named, in paragraph 18 of the complaint on December 2, 1982, for valid business reasons. 2. The discharges The General Counsel contends that the 15 employees named in paragraph 18(b) of the complaint were dis- charged "because of their union activity and in an at- tempt to chill the organizational process that was then ongoing." I find the contention to be without merit for the reasons set forth below. The criteria to be utilized to resolve 8(a)(3) issues were set out by the Board in Wright Line 16 at 1089, in which it stated: First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. Once this is es- tablished, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. The General Counsel offered very little affirmative evidence to prove that the employees named in para- graph 18(b) were discharged in violation of Section 8(a)(3) of the Act. Through the testimony of a number of employees and that of Leonard Speckin, a document ex- aminer for the Michigan State Police, he established that 12 of the 15 named employees had signed union authori- zation cards during the period December 1 to 15, 1983.17 is Significantly , the General Counsel did not controvert any of the fig- ures or information set forth in R Exhs 32 through 35 16 Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982) 17 See G C Exhs 5 (Glaser), 8 (Pease), 9 (Brown), 10 (Zebell), I I (Wolfe), 15 (Odle), 17 (Forrest), 22 (Stewart), 25 (Miltenberger), 28 (Nib- lick), 30 (Reid), and 32 (Lawshea Jr) Employee Thomas, Weise, and Le- mieux did not sign cards UNITED STATES AVIEX CO. Although he was able to show that all but three of the employees engaged in union activity, the only direct evi- dence offered which would show that Respondent was aware of the union activities or sentiments of the laid-off employees was that testimony given by employees Pease, Zebell, Brown, and Wolfe, which was to the effect that on December 20, 1982, and at various other unstated times, the four named employees distributed union litera- ture in Respondent's parking lot. t s Finally, through the testimony of employees Brady and Shepherd, the Gener- al Counsel established that lab personnel and Chaveous performed work in the shipping department on January 11, 1983, and that Chaveous, Norman Clear, and ship- ping department employees performed what could be de- scribed as bargaining unit work throughout the day on January 18 and 19 when they assembled caps that were to be placed on weedkiller bottles Patently, the above- described evidence is insufficient to warrant an inference that Respondent failed to recall the employees named in paragraph 18(b) of the complaint to work because they were known union adherents. Respondent defended its failure to recall the employ- ees named in paragraph 18(b) by claiming: (1) that it did not need the employees because business continued to fall off in December 1982 and January, February, and March 1983; (2) that while it admittedly performed some production work with supervisors and others, its practice was to refrain from recalling employes from layoff if it could only provide them a day or two of work; and (3) that, in any event, it terminated all 15 employees during the month of January 1983, pursuant to its normal per- sonnel policies. Respondent sought to establish its economic defense through Fekrat. As indicated, supra, it placed its sales records for the fiscal years 1979 through 1982, and the records revealing sales during the period April 1982 through November 1983, in evidence as Respondent Ex- hibits 24 and 25. Inspection of those documents reveals that after sales dropped from $826,340 in November 1982 to $492,441 in December 1982, they dropped further to $370,471 in January 1983, on down to $247,204 in Febru- ary, and then rose slightly to $262,794 in March. Addi- tionally, through Fekrat, Respondent placed in evidence as Respondent Exhibit 26 a compilation of hours worked at the plant by nonsupervisory personnel during the years 1981, 1982, and 1983. That document reveals the work force had been reduced to 36 by January 1, 1983, decreased further to 35 by February, decreased to 33 in March, and was down to 23 by April 1983. Viewing the documents mentioned, one must conclude they are sup- portive of Respondent's position that lack of orders caused it to refrain from recalling employees in layoff status during the period under discussion. With respect to the claim that supervisors and other employees performed bargaining unit work, Chaveous admitted during his testimony that he and others assisted 18 Although the record reveals that employee Shepherd and 11 other employees attempted to deliver the Union's demand letter on December 16, the employees accompanying Shepherd were not identified in the record Similarly, although 22 employees eventually signed the demand letter which was duplicated and distributed at the plant , the record fails to reveal that copies of the document were given to Respondent officials 837 production employees on January 11, 18, and 19, 1983, as contended by the General Counsel's witnesses. Chaveous explained that Respondent's normal practice was to cause supervisors, office, and lab employees to perform production line work for short periods when it became necessary. He logically indicated that persons on layoff were not normally recalled to perform what might only be 1 or 2 days of work. Realizing that Respondent's expressed reasons for re- fusing to recall the 15 employees in question were formi- dable, the General Counsel contends in brief (at 6 and 7) that Respondent has taken inconsistent positions with re- spect to the employees laid off on December 2 and never recalled, and because it has taken inconsistent positions, I should draw the negative inference that it discharged them because they had engaged in union activities. The inconsistencies referred to by the General Counsel are revealed by the testimony of Kaiser, a position letter sent by Respondent to the Regional Office in connection with the representation case on February 24, 1983,19 and by the termination slips placed in the record as Respond- ent's Exhibit 42. Kaiser indicated during his testimony that when he conversed with Lawshea Sr. on February 17, 1983, the Company intended to recall Lawshea Jr. and employee Brown to work at some future time. Similarly, the posi- tion letter dated February 24, 1983, indicates that Re- spondent contended, throughout the representation case proceeding, that the five employees named in paragraph 18(b) of the complaint with the earliest dates of hire had a reasonable expectancy of recall at the time of the elec- tion on February 17, 1983. Patently, these claims are at odds with Respondent Exhibit 42 which purports to show that all 15 employees named in paragraph 18(b) of the complaint were terminated between January 11 and 31, 1983. The factors mentioned, coupled with my exam- ination of Respondent Exhibit 42, which reveals that all the termination forms were obviously filled in with the same pen although the entries were supposedly made on different dates, cause me to suspect the termination slips were probably prepared by Chaveous after the February 17, 1983 election. As indicated, infra, three of the laid-off employees whom Respondent contends had no reasonable expectan- cy of future employment appeared at the February 17 election and voted. Respondent challenged their votes. In its brief, Respondent urges me to find that the three employees-Glaser, Reid, and Zebell-had no reasonable expectancy of recall on February 17 because they had been terminated in January 1983. In the circumstances described, I am inclined to infer that Respondent falsified the three termination slips under discussion to bolster its position in the representation case , but I do not feel its falsification of all 15 termination slips justifies an infer- ence that it terminated the 15 employees named in para- graph 18(b) of the complaint because they were known or suspected union advocates. For the reasons set forth above, I find that the General Counsel has offered insufficient evidence to prove the al- " See G C Exh 38 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD legations set forth in paragraph 18(b) of the complaint and recommend that paragraph 18(b) be dismissed. 3. The Brady situation Paragraph 19 of the complaint alleges that Respondent assigned Jimmie Brady to more onerous working condi- tions on February 23, 1983. The record reveals that Brady was known by Re- spondent to be a union supporter as he and employee Shepherd had asked Chaveous in January 1983 if they could have a union bulletin board in the plant . He testi- fied he had sustained a back injury while working for an- other employer, and that in June 1982 Chaveous re- moved him from a position in the batch room and put him on the production line stating he was doing it be- cause he was worried about his back. On February 23, 1983 , Brady and another employee were assigned by Chaveous to work on the kleer flame line. One man's job was to operate a machine which filled cans with the product. Brady's job was to place empty cans on the line, to remove full cans and place them in cartons, and to seal the cartons and place them on a skid. The cans in question were quart cans, and there were 24 to a carton or box . Twenty-eight boxes went on a skid , and Brady claims he ran five or six skids on the day in question. Brady testified two men were normally assigned to do the work that was required of him on February 23, 1983 . Brady testified that as late as December 23, 1983 , Chaveous indicated he was con- cerned with his health, as he called him into a smoking area that day and told him he might not be recalled from layoff because he had a bad back. During cross-examination, Respondent's counsel caused Brady to admit he did not indicate to Respond- ent, at the time he was hired , that he had a back injury or a problem which would restrict him in the work he could perform. In addition, Brady testified that although his back would hurt when he performed certain work tasks, he did not feel his back would prevent him from performing any task he might be assigned . Finally, Brady admitted that Chaveous slowed down the conveyor which brought the product from the filling machine to him on February 23. Chaveous testified that in June 1982 , Brady was issued a written warning because he walked off the job and left the plant without obtaining his permission . He indicated the employee was permitted to return to work the next day after he had apologized for his conduct. He denied that Brady had indicated , at that time, that he had left because the work he had been performing had caused him back problems, and he denied he had any private conversation with Brady in a smoking area on December 2. With respect to Brady's February 23 assignment, Cha- veous testified that the kleer flame line is normally oper- ated with two or three employees . He explained that when three employees are used , one operates the filling machine, one puts empty containers on the conveyor, and one takes full containers off the line and packages them. He indicated that the kleer flame line is frequently operated with just two employees, and that on those oc- casions the conveyor is slowed down . He claimed that the conveyor was slowed down on February 23 to permit Brady to keep up with the filling machine. Cha- veous testified he had no particular reason for assigning Brady to work on the kleer flame line on February 23; that Brady raised no objection when he received the as- signment that day, and that Brady said nothing to him that day to indicate he was experiencing difficulty or back trouble. He testified that as a line worker Brady could have been assigned to more difficult jobs such as packing and skidding gallon containers of windshield washer solvent, skidding starting fluid, or skidding gal- lons of super duty cleaning glaze. In sum, it appears that employee Brady experiences problems with his back on occasion , but the employee has represented himself to be physically able to perform routine production line work. Noting that he did not object when Chaveous assigned him to skidding on the kleer flame line on February 23, 1983, and that he did not indicate to the supervisor at any time during that day that he was experiencing back or other problems, I find that the General Counsel has offered insufficient evi- dence to prove that he was assigned more onerous work on February 23, 1983, because he had engaged in union activities. I recommend that paragraph 19 of the com- plaint be dismissed. 4. Frantz situation Paragraph 20 of the complaint alleges that employee Kenneth Frantz was transferred from a 3m setup position to the production line on February 23, 1983, and was thereafter laid off on March 17, 1983, because he en- gaged in union activities. Frantz was hired by Respondent in September 1980. He testified that he was promoted to a setup position 2 months after he was hired . He claims Kaiser compliment- ed him for doing a good job on December 17, 1982, and that, at some unspecified time in January 1983 , Chaveous marvelled at his speed on a 3m machine and asked if he could keep up that pace. Frantz claims he replied he could do it all day He testified that on December 2, 1982, employee Brown asked him to sign an authoriza- tion card while Chaveous was right behind them and when Brown dropped the card he was attempting to get him to sign, Chaveous asked , "[W]hat are you doing?" He claims he said , "Nothing." According to Frantz, the nozzle on his 3m machine was not working properly on February 23, 1983, and he asked maintenance employee Sam Milnar to grind the bottom of the nozzle off. When Milner refused because he was not on the clock, Frantz ground the nozzle off. Frantz claims that the next day, February 24, Chaveous transferred him to the production line stating: I'm taking you off the 3m machine because ever since you've been in the organizing committee in the union your production has dropped and you got a bad attitude and I'm going to take you off the ma- chine. Although Frantz indicated Chaveous jumped on him for grinding the nozzle down on February 23, he claims the nozzle incident was not mentioned on February 24. He denied that he had ever been reprimanded for making al- UNITED STATES AVIEX CO. terations in machines, and claimed that he had been rep- rimanded on only two occasions; one for being late and once because he ground down the nozzle. Frantz testified he had never been laid off while he was a setup man, but indicated he was laid off on March 17, 1983, after he had been demoted to the production line job. He was recalled in August or September 1983, and was still employed by Respondent at the time of the hearing. Respondent sought to refute the General Counsel's contention that Frantz was transferred and subsequently laid off because he had supported the Union through the testimony of Chaveous. Chaveous testified that when he became a supervisor in April 1981, Frantz was a setup man on an aerosol machine, and, about that time, he was demoted to the aerosol production line at no decrease in pay because he could not perform the setup job. He testi- fied, without contradiction, that in either mid-1980 or mid-1981, he was sent to Frantz' home where he discov- ered large quantities of the Company's products which had been taken by Frantz without authorization. After Chaveous recovered a pickup load of the products, Frantz was fired. According to Chaveous, Frantz had a nervous breakdown after he was fired, and, at some un- stated time, he, Clear, and Kaiser decided to give him another chance and rehired him. Chaveous indicated that thereafter, in October 1982, the setup man on the 3m ma- chine quit without notice, and he gave the job to Frantz because he had become familiar with the machine by that time. Although Frantz testified he had only been reprimanded twice during the time he was a 3m setup man, Respondent's records and Chaveous' testimony reveal Frantz was reprimanded or given warning letters on six occasions while he was assigned to the 3m setup position. Thus, the record reveals: he was warned on Oc- tober 18, 1982, that he had been observed taking more company products than he was allowed to take;20 he was orally warned on November 16, 1982, because he had been unable to satisfactorily set the 3m machine up for gallons from quarts;21 he was warned on December 23, 1982, because he had reported late twice in 1 week;22 he was warned on December 29, 1982, because it took him 3 hours to set his machine up for 12-ounce bottles;23 he was warned on February 22, 1983, because he had used vulgar language while bickering with employees Jeff Mather and Sam Milnar;24 and he received a written warning dated February 23, 1983, because he altered his machine by grinding down a nozzle without authoriza- tion.2 8 After denying that he observed Frantz and employee Brown together on December 7, 1982, and denying that he saw either employee either holding or dropping a union authorization card, Chaveous testified that when employees were assigned to setup positions they were uniformly told that they were not to alter their machines. He claimed that the alteration performed by Frantz to 20 See R Exh 14 Y1 See R Exh 15 22 See R Exh 16 23 See R Exh 17 24 See R Exh 13 25 See R Exh 12 839 his machine on February 22 caused the bottles filled by the machine that day to overflow and this resulted in a loss of production approximating 50 percent. According to Chaveous, the nozzle incident was the "straw that broke the camel's back" as far as Frantz was concerned, and, on learning what had happened, he decided to transfer Frantz to the production line. Chaveous testified that when he informed Frantz he was being removed from the setup job on February 23, he did inform the employee that it appeared to him that his attitude had changed . He claims the employee made some comment to the effect that he had not been the same since he had a nervous breakdown. Chaveous denied that he said any- thing about the Union or Frantz' membership on the or- ganizing committee during their conversation on Febru- ary 24.26 Apparently, Frantz' hourly rate was not changed when he was transferred to the production line. Patently, the General Counsel's claim that Frantz was demoted and thereafter laid off for discriminatory rea- sons was based on the employee's claim that Chaveous made reference to his union activity when he informed him of his demotion. Having decided I cannot credit Frantz' uncorroborated claim that Chaveous told him, in effect, that he was being demoted because he had served on the Union's organizing committe, I find the General Counsel has failed to offer sufficient credible evidence to prove the allegation in question. Assuming, arguendo, Chaveous did tell the employee on February 23, 1983, that his attitude had changed since he had been on the Union's organization committee, I would, nevertheless, find that the employee was demoted for lawful reasons. Chaveous' testimony that Frantz was a poor 3m setup man was corroborated by the General Counsel's witness, Zebell, as that employee testified that when he was hired in mid-October 1982, Chaveous told him he was going train him to take over Frantz' job be- cause Frantz was stupid and thickheaded. There is no doubt in my mind that Chaveous concluded that Frantz had been stupid and thickheaded when he ground down the nozzle of his machine, and I conclude that the em- ployee's alteration of the machine gave Chaveous ade- quate reason for the action he took. With respect to Frantz' layoff on March 17, 1983, Chaveous testified, without contradiction, that 10 em- ployees, including Frantz, were laid off on the date in question. Respondent's Exhibit 26 reveals that the work force was reduced from 33 employees to 23 employees at the time of the layoff. Absent a finding that Frantz was removed from his setup position, where he would have had better retention prospects, for discriminatory rea- sons, a finding that he was laid off for discriminatory reasons on March 17, 1983, would clearly be unwarrant- ed. For the reasons stated, I find the General Counsel has failed to offer sufficient credible evidence to prove the allegations set forth at paragraphs 20 and 21 of the com- plaint, and I recommend they be dismissed. 26 I credit Chaveous' denial 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Union's Majority Status, Demand for Recognition and Bargaining, and Appropriateness of the Bargaining Unit By executing the Stipulation for Certification Upon Consent Election placed in the record as General Coun- sel's Exhibit 39, the parties agreed the appropriate bar- gaining unit is: All full-time and regular part-time production and maintenance employees, including laboratory em- ployees, quality control employees, shipping & re- ceiving employees, truckdrivers and custodians em- ployed by the Employer at its 1800 Terminal Road, Niles, Michigan facility; but excluding chemists, office clerical employees, and guards, professional employees, and supervisors as defined in the Act. During the hearing, the General Counsel placed 31 au- thorization cards which had been executed by Respond- ent's employees prior to December 15, 1982, in evi- dence.27 Respondent does not dispute the validity of the cards. The General Counsel contends the Union made an effective demand for recognition and bargaining on De- cember 16, 1982. It was stipulated that on that date there were 52 employees on Respondent's payroll.28 As noted, supra, 15 of those employees-the employees named in paragraph 18(b) of the complaint-were in layoff status. Although Respondent subsequently contended in the rep- resentation case that the 10 employees in layoff status with the most recent dates of hire were not eligible to vote in the election because they had no reasonable ex- pectancy of recall, they all remained employees until at least January 11, 1983. It is clear, and I find, that at all times during the period December 16, 1982, to January 11, 1983, the Union enjoyed majority status.29 Counsel for the General Counsel concedes in his brief that he failed to offer affirmative evidence which would reveal that the Union made a demand for recognition and bargaining to a responsible Respondent official. He did establish, through the testimony of employee Shep- herd, that Shepherd and 11 other employees went to Re- spondent's offices on December 16, 1982, and left a sealed envelope addressed to Kaiser on the latter's desk. Shepherd indicated that after he and the other employees had left the envelope on Kaiser's desk, Fekrat called him to his office where he informed him they could not accept correspondence from the Union; that he should retrieve the envelope and come back the next day and talk to Kaiser. The record reveals that instead of seeking to speak directly with Kaiser the next day, the Union at- tached the demand letter (G.C. Exh. 35) to handbills, which were distributed to employees in Respondent's 27 See G. C Exhs 2 (Bryant), 4 (Brady), 5 (Glaser), 6 (Shepherd), 7 (Moodie), 8 (Pease), 9 (Brown), 10 (Zebell), 11 (Wolfe), 14 (Matten), 15 (Odle), 16 (Weaver), 17 (Forrest), 18 (Frantz), 20 (Hall), 21 (White), 22 (Stewart), 23 (Arroyo), 24 (Tucker), 25 (Miltenberger), 26 (Kaiser), 27 (Eisele), 28 (Niblick), 29 (Jackson), 30 (Reid), 31 (Johnson), 32 (Lawshea Jr ), 33 (Ferrell), 34 (Simpson), and 36 (Lawshea Sr ) 88 G C Exh 35 28 If the 10 employees on layoff with the most recent hire dates were removed from the unit and their cards were ignored , the Union would have retained majority status with 22 cards in a unit consisting of 42 em- ployees. parking lot and breakroom on December 18, 1982. The record fails to reveal that any of the handbills under dis- cussion were given to any responsible Respondent offi- cials. The General Counsel contends that as the record re- veals that Respondent refused to accept telephone deliv- ery of the Union's December 2, 1982 telegram, which was sent to advise Respondent it was organizing the plant with an organizing committee consisting of eight named employees, and the record reveals it subsequently refused mail delivery of the same telegram, I should find that Fekrat's refusal to accept the demand letter on De- cember 16, 1982, warrants a conclusion that the Union obtained "constructive" service of the demand on Re- spondent. Although the General Counsel contends any further effort by the Union to deliver a demand letter to Respondent after December 16 would have been a "fruit- less gesture," I note that Shepherd was invited to speak personally with Kaiser and he failed to accept the invita- tion. In the circumstances described, I find that the Gen- eral Counsel has offered insufficient evidence to show that the Union made an effective demand for recognition and bargaining on Respondent. Having found that the General Counsel failed to prove an essential element of the 8(a)(5) allegation-that the Union demanded that Respondent recognize and bargain with it-I recommend that the allegation be dismissed. IV. THE REPRESENTATION CASE The Union filed its petition in Case 7-RC-16853 on December 20, 1982, and an election was held among Re- spondent's employees on February 17, 1983. The tally of ballots revealed: Approximate number of eligible voters-45 Void ballots-0 Votes cast for Petitioner-19 Votes cast against participating labor organization- 17 Valid votes counted-36 Challenged ballots-5 Valid votes counted plus challenged ballots-41 The Petitioner challenged the ballot of Fred Shaner on the grounds that he is a casual employee, and the ballot of Bradley Clear on the grounds that he is a relative of management. The Employer challenged the ballots of Marion Glaser, Mikel Reid, and Ron Zebell on the grounds that they were on indefinite layoff at the time of the election. On February 22, 1983, the Petitioner filed timely ob- jections to the election, and on February 24, 1983, the Employer also filed objections to the election. The chal- lenged ballots and the objections filed by the parties are treated separately below. A. Challenged Ballots 1. Fred Shaner Shaner was employed by the Employer as a mainte- nance electrician in 1969. He thereafter worked full time UNITED STATES AVIEX CO. 841 until he contracted cancer in 1979. Subsequent to his re- covery, he applied for and received social security bene- fits and began to work for the Company part time. As a part-time employee, he is covered by the Employer's health insurance program, but he does not receive paid vacations or paid holidays, which full-time employees re- ceive. Because he is a social security annuitant, Shaner works only approximately 20 hours per week. He does not have a fixed work schedule, and is, instead, on call 24 hours a day. His immediate supervisor is Jack Helt, who supervises the Employer's maintenance department. Hell indicated he normally telephones Shaner at his home to inform him that electrical maintenance repairs of a given nature are needed, and Shaner thereafter comes to the plant and makes the needed repairs. Helt estimated that Shaner spends approximately 8 hours per week performing electrical work in the Employer's Ter- minal Road plant and spends approximately 12 hours a week at the site of its old plant located on Huntley Road. At the Huntley Road location, Shaner removes parts from equipment and machinery, which he then uses at the Terminal Road plant, and he engages in the repair and rebuilding of certain production equipment and ma- chinery. Shaner, who has his own key to the Huntley Road facility, is hourly paid but, unlike other employees, he keeps his own time records and gives them to the Employer's payroll clerk each week. Respondent's Exhibit 3, the employee earnings records reflecting Shaner's earnings for the calendar year 1982 and the first three quarters of 1983, reveals that during the first three quarters of 1982, he was paid for 20 hours work each week. During the quarter ending December 31, 1982, he worked 40 hours or more 3 weeks, 10 hours I week, 20 hours another week, and did not work at all 2 weeks. During the first quarter of 1983, he was paid for 20 hours work each week. Petitioner sought through interrogation of several of the General Counsel witnesses to establish that Shaner is a casual employee who has insufficient community of in- terest with bargaining unit employees to be included in the bargaining unit. Thus, employee Bryant testified Shaner came to work "once a week, once a month, whenever something would break down that they needed him to repair"; that when he came to the plant, he would stay 30-45 minutes or whatever time it took him to fix the problem; that Shaner never worked a full shift and did not punch a timeclock, that about 2 weeks before the election he heard Jack Hell tell Shaner to come in every week so everybody could see he was there before the election;30 and that Shaner spent more time at the plant during the 2-week period preceding the election, but he spent it walking around with Helt rather than working . During cross-examination by Respondent's counsel, Bryant indicated he was sent to the Huntley Road facility once or twice a month and he seldom saw Shaner there. He indicated that he normally went to the Huntley Road site with employee Brady, and that em- 30 Helt denied Bryant's assertion and claimed, instead, that he told Shaner to spend more time at the plant repairing a piece of filling equip- ment I credit Bryant ployees John Helt Jr. and Milnar also went to that site on occasion. Similarly, employee Brady testified: Shaner could come and go, and in the winter he did not have to come in because of a lung problem; that Shaner never worked a full day; that he did not see Shaner at the Terminal Road plant at all during December 1982; that he saw Shaver at the Terminal Road plant 2-3 hours a day, 3 or 4 days a week in January and February 1983, but that, instead of working, Shaner spent his time talking and drinking coffee with Kaiser, Fekrat, Chaveous, Helt, or Boyle; that he did not see Shaner in the plant after the election; that Shaner had special privileges as he could go to the office when he pleased, drink coffee, or pop anywhere in the plant, take breaks or lunch with supervi- sors, and wear clothing other than work clothing. During cross-examination, Brady indicated he had worked 2 months at the Huntley Road plant during the summer of 1982, and Shaner spent most of his time there. He admitted that, when he returned to the Terminal Road plant, he worked in the batch room and saw Shaner only when he came to the batch room, and that the Employer provides a soda machine and free coffee for all employees. Employee Shepherd added little. Like Brady, Shep- herd claimed that Shaver "came and went as he pleased" in the plant. Shepherd said he saw Shaner at the Termi- nal Road plant only four of five times between Decem- ber 1981 and December 1982. On these occasions, Shaver would come in at "odd hours," stay a short time, and leave. Between January 1983 and the election, how- ever, Shepherd testified he saw Shaner in the main plant more frequently. Although Shaner would do some elec- trical work "once in a while" during this period, Shep- herd stated that Shaner was more often just walking around the plant and talking to various supervisors. After the election, Shepherd seldom saw Shaner in the plant. On cross-examination , Shepherd admitted that as a production employee, his opportunities to observe other areas of the facility were very limited. He seldom over- heard what Shaner and the supervisors were talking about, and did not know what Shaner did when he was in the office area, nor did he knew whether Shaver went into and out of the office areas of his own accord, or in response to supervisory directions or work requirements. Shepherd conceded that he had seen Shaner working on various pieces of equipment and machinery in the plant, and that Shaner's normal work methods included ex- tended periods of observing the machinery in question. Jeff Weaver also testified that Shaner "could come and go as he pleased" in the plant. Like Brady, Weaver said that Shaner had "office privileges." Weaver, however, stated that he saw Shaner in the Terminal Road plant 2 to 4 days a week, 2 to 3 hours a day, between August 1981 and December 1982. According to Weaver, Shaner spent slightly more time than this in the main plant in January and February 1983, and after the election Shaner continued to appear in the plant I or 2 days per week. Weaver said he had observed Shaner working on con- veyor motors and electrical panels, as well as doing plumbing work, in the plant. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel's witness Charles Simpson also testified that Shaner "could come and go as he pleased." Simpson worked with Shaner at the Huntley Road facili- ty between December 1979 and March 1980. Shaner was there almost every day, doing electrical and plumbing work. His hours per day varied, depending on the work involved. Between January 1981 and December 1982, Simpson frequently saw Shaner doing electrical work at the Terminal Road plant, some two to three times a week. Although Simpson claimed that Shaner did not work in the plant in January and February 1983, he then said, "If there was a job to be done [Shaner] would come in and do it, and leave." Simpson also subsequently conceded that he did see Shaner working on motors, conveyors, switches, panels, and other equipment in the Terminal Road plant in January and February 1983. Maintenance Supervisor Helt described Shaner's duties in detail. They include maintenance and repair of all motors and electrical equipment, as well as the boilers, water heaters, and heating and air-conditioning equip- ment in the plant. He indicated that because of his unique skills, Shaner often works on electrical mainte- nance projects alone, although he also works alongside other hourly employees as well. Helt listed a large number of specific projects which Shaner worked on in the Terminal Road plant in 1982 and 1983, both before and after the election. Helt confirmed that Shaner spends varying amounts of time at Terminal Road in the general office area, and in the breakroom with Helt. However, Helt explained that Shaner must go to the office to obtain purchase orders for electrical parts, and to com- plete other maintenance related paper work, as well as to work on the thermostats and timers located in that area. Finally, Helt testified that he routinely discusses mainte- nance related work problems with Shaner in the break- room, rather than his office, because this gives them more room to spread out blueprints and equipment manuals. Petitioner challenged Shaner's right to vote in the February 17, 1983 election contending this social security annuitant who worked on an "on-call" basis has insuffi- cient community of interest with unit employee to be eli- gible. In Holiday Inns, 176 NLRB 939, 941 (1969), the Board held that it would not henceforth find employees to be ineligible to vote in a Board-conducted election solely for the reason that they limit their working time and earnings so as not to decrease their social security annuity. Moreover, in a number of cases, the Board has held that "on-call" employees who average 4 hours or more of work per week during the quarter prior to the eligibility date enjoy a sufficient community of interest to be eligible to vote. May Department Stores, 175 NLRB 514, 517 (1969); Riverside Community Mental Hospital, 250 NLRB 1355, 1356 (1980). Noting that Charging Party's Exhibit 3 reveals that Shaner worked an average of 20 hours per week from January 1, 1982, through the first quarter of 1983, it is clear that a finding that Shaner was eligible to vote in the February 17, 1983 election would be warranted. Petitioner contends that I should not make such a find- ing because the record reveals Shaner had little contact with unit employees and he enjoyed special privileges. I conclude that Petitioner has failed to factually establish either contention. With respect to the first contention, employees Bryant, Brady, and Shepherd indicated , when interrogated by Petitioner's counsel, that they seldom observed Shaner at work, but each admitted during cross-examination that, even though Shaner was in the Terminal Road plant working, they may have not been able to see him from their work stations. Significantly, Petitioner's witnesses Weaver and Simpson testified that they saw Shaner working at the Terminal Road plant frequently during 1982 and more frequently during January and February 1983. Viewing the described conflicting testimony, I am unwilling to find that Shaner's contacts with bargaining unit employees were so infrequent that a finding that he does not have sufficient community of interest with unit employees is warranted. With respect to the contention that Shaner enjoyed special privileges, all five employees who described his special privileges asserted that Shaner could come and go as he pleased. Obviously, the employee could come and go as he pleased, rather than report for work and remain for an entire shift, because he was an "on-call" employee. As indicated above, his status as an "on-call" employee did not, in the circumstances of this case, render him ineligible to vote. Finally, I attach little weight to that testimony which was to the effect that Shaner could have coffee wherever he wanted, take breaks when he wanted, or visit the office area when he desired to visit it as the record fails to reveal the employ- ee was being paid for the time he spent in such activities. Moreover, the record reveals that he engaged in some of the described activities in connection with the perform- ance of his job. In sum, the record reveals that Shaner is a regular part-time employee who performs maintenance work under the supervision of the same individual who super- vises maintenance employees who are admittedly mem- bers of the bargaining unit. I find that he shares sufficient community of interest with such employees to be includ- ed in the bargaining unit. Accordingly, I recommend that the challenge to his ballot be overruled. 2. Bradley Clear Bradley Clear was challenged by Petitioner on the grounds that he is a relative of management. Bradley Clear worked for Respondent from the spring of 1982 to some unstated time in June 1983. He is the son of Respondent's technical director, Norman Clear, and lived at home and rode to and from work with his father while employed at Respondent. During his tenure of em- ployment, he worked in Respondent's laboratory under the supervision and direction of chemists Brian Clear (his brother) and Scott Alwine. The two chemists were su- pervised by Norman Clear. Although the record reveals that Norman Clear occu- pies a position which is tantamount to the position of plant manager as he schedules Respondent's production, neither Norman Clear nor his son Brian Clear owns any interest in Respondent or holds any corporate office. UNITED STATES AVIEX CO The record reveals that while working for Respond- ent, Bradley Clear was a college student. He credibly testified that he worked full time when not attending school and 25-30 hours per week while attending school. During the penod extending from November 1982 through February 1983, he worked from 6:30 a.m. to 5 p.m. on Monday, Wednesday, and Friday. He testified that he was hourly paid at $3.35 per hour, performed the same types of work performed by other lab employees, enjoyed the same break and lunch periods, and was re- quired to perform production work on occasion as were other lab employees. While working as a part-time em- ployee, he was covered by Respondent's health insur- ance plan Petitioner sought to show that Bradley Clear enjoyed special privileges while employed by Respondent through the testimony of employee Weaver Weaver tes- tified that although Bradley Clear took his breaks and lunch periods at the same time other employees took them, he remained in the breakroom after Weaver left, and he ran errands for the office, such as picking up mail and supplies. Bradley Clear testified he could recall no occasion on which he took more than the 15-minute break which was allowed all employees He indicated that he had never been authorized to take longer breaks. He indicated he and other lab employees were permitted to take coffee into the lab. Finally, he agreed he picked up mail and supplies using a company car, but he testified that his fellow lab employees, Kluth and Johnson, also per- formed the same functions as part of their regular work duties. Noting that Petitioner has failed to show that Norman Clear and Brian Clear have any financial interest in Re- spondent and that the record reveals they occupy no corporate position other than that of supervisor, I find that it has not been shown that Bradley Clear's relation- ship to his father and brother is of such a special nature as to warrant his exclusion from the unit. Accordingly, I recommend that the challenge to Bradley Clear's ballot be overruled See Rich's Precision Foundry, 262 NLRB 678, 679 (1982). 3. Ronald Zebell Ronald Zebell was hired by the Employer on October 10, 1982. At that time, Chaveous informed the employee that he intended to train him to be a setup man on the filling machines in the 3m room because he intended to replace the then-current setup man on those machines (Frantz) because he was thickheaded and stupid. Accord- ing to Zebell, Chaveous told him he would start at $3.35 per hour, and that by occupying the setup position he would not be subject to layoff although he might be as- signed to a production line job in a layoff situation. On December 2 Zebell requested that he be permitted to leave work early. When he reported for work on De- cember 6, he was informed he had been laid off. Proun- ion employees were distributing literature in the Compa- ny's parking lot at the time, and Zebell immediately joined them Subsequent to December 6, he participated in union handbilling which was accomplished at the plant. 843 As noted, supra, the Employer held a number of meet- ings with working as well as laid-off employees during the union organization and election campaign . Zebell was invited to attend the meetings and was paid for the time spent attending them. The record reveals that at some point in time prior to January 12, 1983, the date Petitioner signed the Stipula- tion for Certification upon Consent Election in the repre- sentation case, the Employer maintained, in discussion with the Petitioner, that 5 of the 15 employees then in layoff status with the earliest dates of hire had a reasona- ble expectancy of recall, but the 10 laid-off employees with later dates of hire had no reasonable expectancy of recall. The Employer's rationale was subsequently ex- pressed in a position letter dated February 25, 1983, which was sent to the Regional Office in connection with the representation case.3 i Summarized , the Em- ployer contended the 5 employees in layoff status with the earliest dates of hire had been hired for the entire winter season, but the 10 employees in layoff status with more recent dates of hire, had been hired to perform only peak of the season work. In the instant proceeding, the Employer sought to bol- ster its contention that Zebell, Reid, and Glaser were in- eligible to vote in the February 17, 1983 election by con- tending that they, as well as the remaining employees named in paragraph 13(b) of the complaint, were termi- nated, pursuant to the normal company policy, dunng the month of January 1983.32 As noted, supra, I find the 91 G C Exh 38 32 The Employer contends that, when read together, the seniority and probationary employee provisions set forth in its employee handbook reveal it has a policy of terminating employees who fail to work 60 days in its 90-day probationary penod when their days in layoff exceed the number of days they actually worked, which are found in R Exh 20 at pp 3, 4, 9, and 10, as follows PROBATION PERIOD Alll newly hired employees are on probation for the first 90 calendar days of their employment It is during this penod that you and your Supervisor have an opportunity to fully evaluate your capacity At the successful conclusion of this period, you will gain senionty status as the date of hire, provided you work at least 60 scheduled work days during the probationary penod If you are unable to work 60 scheduled work days dunng the 90 day probationary period due to excused absence, but completed this probationary requirement within 120 calendar days from your date of hire, you will also gain seniority status SENIORITY Seniority is defined as the length of an employee's continuous serv- ice with the company from the date of his last employment, and shall be applied providing ability is equal Seniority as above defined shall govern vacation preference and permanent layoff An employ- ees' seniority shall terminate upon the occurrence of any of the fol- lowing A Resignation or retirement, B Discharge, C Layoff for a period equal to the employee's total length of serv- ice from his most recent date of hire , or one year, whichever is the lesser, D Unexcused absence from work for three consecutive working days without notification, E Failure of an employee to report for work the first working day following expiration of a leave of absence or following recall Continued 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD termination slips placed in the record as Respondent Ex- hibit 42 to be suspect. Moreover, I note that with excep- tion of employee Stewart, none of the employees named in paragraph 13(b) of the complaint have ever been in- formed by the Employer that they have been terminated, and, as indicated above, the Employer has taken a con- flicting position during the pendency of the representa- tion case. In the circumstances, I find the termination slips under discussion are entitled to no affirmative evi- dentiary weight. In sum, the record reveals that employee Zebell was hired to fill a machine setup position and, prior to the December 2, 1982 layoff, such positions were occupied by individuals who worked the entire winter season rather than simply during peak periods of the winter season. The record further reveals that he was specifical- ly informed he was being trained to replace 3m filling machine setup man Frantz. Noting Zebell was not in- formed at the time of his layoff that the layoff was to be permanent, that the Employer's need for employees was to be determined by the weather, which no one could predict during the months of December 1982 and Janu- ary and February 1983, and that the record reveals the Employer continued during the period of the layoff to be dissatisfied with the services of employee Frantz, I find that on February 17, 1983, Zebell had a reasonable ex- pectancy of recall. Accordingly, I recommend that the challenge to his ballot be overruled. 4. Mikel Reid Mikel Reid was hired by the Employer on October 13, 1982. At the time, he was informed by Chaveous that setup men did not get laid off. On December 2, 1982, Reid was laid off with virtually all of the Employer's production line employees. On February 14, 1983, he accepted full-time employment with another employer. It is clear, and I find, that Reid was not eligible to vote in the February 17, 1983 elec- tion. I recommend the challenge to his ballot be sus- tained. 5. Marion Glaser Marion Glaser was hired by the Employer on October 14, 1982. The record reveals she was a production line worker. from layoff Any employee who is promoted to foreman will main- tain and continue to accrue seniority for a maximum of six months and may return to an employee status anytime during that period without prejudice to his seniority Significantly, Fekrat indicated during his testimony that employees are granted an additional 30 days to meet the 60-workday requirement if they experience excused absences during the probationary period Leaving that aside, it appears the Employer has reached a strained interpretation of the above-described clauses here because it is clear that none of the employees laid off in early December 1982 had obtained seniority rights before they were laid off That being the case, they could hardly lose what they never had by experiencing "Layoff for period equal to the em- ployee's total length of service from his most recent date of hire, or one year, whichever is the lesser " In sum, the employee handbook is silent on the recall rights of employ- ees who have not obtained seniority pursuant to the provision quoted above Here, the Employer's principals indicated an intention to recall employees it might need I find the handbook provisions are not support- ive of the Employer's position Glaser testified that Chaveous informed her during the morning of December 2, 1982, that the employees would be sent home at noon for lack of work. She ran out of work at approximately 11:20 a.m. and was permitted to go home at that time. The parties stipulated she was in- cluded in the December 2 layoff. The record fails to reveal whether she was told the layoff would be tempo- rary or permanent. During the period extending from December 2 to the date of the election, the record reveals that Glaser, like other active and laid-off employees, attended the election campaign meetings held by the Employer. She was paid for the time spent in attendance at such meetings. As noted, supra, the Employer contended in discus- sions with Petitioner, which preceded Petitioner's execu- tion of the Stipulation for Certification upon Consent Election on January 12, 1983, that Glaser had no reason- able expectancy of recall and was, therefore, not eligible to vote in the February 17, 1983 election. Respondent's Exhibit 42 purports to show that she was terminated by the Respondent Employer on January 14, 1983. The record fails to reveal that Glaser was ever informed by the Employer that she had been terminated. For the rea- sons set forth, supra, I attach no evidentiary weight to Respondent's Exhibit 42. The record clearly reveals that the Employer's em- ployee needs during the month of December 1982 and January and February 1983 were entirely dependent on the weather which could not be predicted. In the cir- cumstances described, I find that Glaser had a reasonable expectancy of recall on February 17, 1983. Accordingly, I recommend that the challenge to her ballot be over- ruled. B. Petitioner's Objections The Objections filed by the Petitioner state, in perti- nent part, as follows. 1. Through its campaign literature, captive audience speeches, and other means, the employer created an at- mosphere of coercion, fear, and intimidation by repeated prophecy of strikes, violence, loss of business and loss of jobs as inevitable results of a union victory. 2 Created the impression that collective bargaining would be futile and harmful to employees by making re- peated predictions of bargaining difficulties, loss of bene- fits and economic security, strikes, and job loss. 3. Interrogated employees concerning their union sym- pathies and activities 4. Solicited employees to engage in surveillance of union meetings and created an impression of surveillance of employee's union activities 5. Solicited employee grievances and made express and implied promises to remedy the grievances in order to undermine support for the union. 7. Refused to allow union supporters to use the com- pany bulletin board for campaign purposes while allow- ing antiunion employees to use it. 8. Confiscated union literature from employees and otherwise interfered with their rights to engage in lawful solicitation and distribution on behalf of the Union. UNITED STATES AVIEX CO 845 9. Verbally abused employees because of their union sympathies and activities. 10. Threatened employees with a loss of job security if they voted in favor of union representation. In its brief, Petitioner sets forth facts and argument in support of Objections 1, 7, and 8. It apparently relies on that evidence adduced by the General Counsel in sup- port of the complaint allegations to establish the validity of Objections 3, 4, 5, 6, 9, and 10. The conduct found to be unlawful, supra, is alleged to be objectionable in Ob- jections 3, 4, 6, and 9. As the record reveals the Employ- er engaged in such conduct between the time the petition was filed and the date of the election, I find Objections 3, 4, 6, and 9 to be meritorious and recommend they be sustained. Having found, supra, that the Employer did not solicit employees' complaints and grievances and promise to remedy them, as alleged in paragraph 13(b) of the complaint, I find Objection 5 to be without merit, and recommend that it be overruled. The remaining ob- jections are discussed below. 1. Objection 1 In its brief, Petitioner claims that certain testimony given by employees Brady, Wolfe, and Moodie reveals that Objection I is meritorious. Through employee Brady's testimony, Petitioner estab- lished the fact that in January 1983, the Employer cre- ated a company bulletin board near the premix line, and it thereafter posted antiunion literature, particularly liter- ature referring to strikes on the bulletin board. Brady tes- tified that antiunion employee Sam Milnar posted antiun- ion material he had prepared on the bulletin board on two occasions. He further indicated that after the Com- pany created its bulletin board, he and employee Shep- herd asked Chaveous if they could have a union bulletin board, and that Chaveous, after conferring with Kaiser, told him they could not have a union bulletin board. Employee Wolfe testified that during employee meet- ings held on January 18 and February 9, 1983, Kaiser in- formed employees attending the meetings that the Com- pany could replace employees who went out on both economic and unfair labor practice strikes. Through the testimony of Moodie, Petitioner sought to establish that during a meeting held on January 26, 1983, Fekrat informed employees the Company had no money and the employees would have to go on strike to get a contract. In addition, Moodie testified Fekrat told employees at a small group meeting held on February 3, 1983, that if they went on strike for more pay, they could be replaced. Employee witnesses Chaveous, Kaiser, and Fekrat denied the Company engaged in the objectionable con- duct described in Objection 1. Although Chaveous ad- mitted that employee Brady asked for a union bulletin board and Kaiser refused the request, he indicated the company bulletin board was for the Company's use only and he was told by Fekrat that employees would not be permitted to use the bulletin board. Kaiser testified that he was informed one morning that employee Milnar had posted material on the bulletin board, and that caused him to go to Milnar and tell him to remove the material he had posted and to refrain from posting further materi- al there.33 Without indicating when they were posted, the Employer placed three leaflets it placed on the bulle- tin board during the election campaign in evidence as Respondent's Exhibits 21, 22, and 23. Each of the leaflets conveys the message that a company can replace em- ployees who engage in an economic strike. As noted, supra, Kaiser read the speech placed in the record as Respondent's Exhibit 18 at the January 17, 1983 meeting. Inspection of the document reveals that Kaiser stated (at 3): When a Union goes to the bargaining table with a nice grocery list of things they would like to have and ask for them, they will get them only if the Company agrees. They will get only the things that a Company can afford and can agree to, and they get nothing that the Company doesn't agree to, and then what can a Union do if the Company doesn't agree to anything, they can do nothing except take their members out on strike. And there you go, you the employees lose again. And let's talk about a strike. It's only fair for you to know that if you were on strike and refused to report to work, a Company can go out and hire new employees to replace you. That's the law. The new hirees will have first right to the jobs, even after the strike is settled, and if you don't believe me, go find that one out for yourself. You should also seriously consider what type of jobs we have and what is available and how easy in a situation I just described, it would be to fill them up. It's a hard fact that you should recognize and seriously consider in your deliberations in the next month. I'm not saying that if the Union got in here that we would not necessarily have a strike or if we did, that we would replace the strikers. The point that I am making is, that with a Union there is a risk of a strike and we have the legal right to hire permanent replacements for anyone that goes out on strike. Kaiser credibly testified that while he attended small group meetings held in February 1983, he did not speak at such meetings. Fekrat testified that he conducted such meetings and denied that he told employees they would have to strike to get a contract. He testified that any re- marks concerning replacement of employees made during such meetings were made in the context of discus- sions regarding replacing employees who went on strike for more pay. I attach little weight to the testimony given by em- ployees Brady, Wolfe, and Moodie as I gained the im- pression when they were testifying that they were stating the conclusions they reached after attending employees' meetings, rather than stating what Kaiser and Fekrat ac- tually said during the meetings Fekrat is an intelligent individual and I credit his claim that he did not tell em- ployees at small group meetings that they would have to strike to get a contract. I likewise credit his assertion ss The record reveals Milnar's material remained on the bulletin board for approximately 2 or 3 hours. 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that any remarks he made concerning replacement of employees were made in the context of discussions of re- placing employees who went on strike for more pay. With respect to the bulletin board situation, Petitioner's contention was that the Company permitted antiunion employees to post material in the plant but denied that privilege to prounion employees. Noting that employee Milnar was the only antiunion employee who posted ma- terial on the bulletin board, and the fact that he was im- mediately ordered to remove such material by the Em- ployer's president, I find Petitioner has failed to establish its contention. Finally, it is clear, and I find, that Kaiser failed during his January 17, 1983 speech to differentiate between economic and unfair labor practice strikes, and his remarks could have caused employees to conclude that by engaging in any type of strike while employed by Respondent, they would place their jobs in jeopardy. Having undertaken to inform employees of its legal rights, the Employer was obligated to engage in no mis- representation. I find that such conduct was objection- able as contended . Olympic Medical Corp., 236 NLRB 1117, 1123-1124 (1978). For the reasons stated, I conclude Objection I is meri- torious to the extent stated above. Accordingly, I recom- mend it be sustained. 2. Objection 2 Petitioner failed to set forth facts or argument in sup- port of Objection 2 in its brief. Noting it refers to the same types of conduct mentioned in Objection 1, I find it to be meritorious and recommend it be sustained. 3. Objection 7 The facts offered in support of this objection are de- tailed above in discussion of Objection 1. For the reasons stated above, I conclude the objection is without merit and recommend it be overruled. 4. Objection 8 Employee Brady testified that at a meeting Fekrat held with employees on February 10, 1983, he complained that he had heard that a dispatch supervisor had taken a piece of union literature from the handle of his lunchbox, which had been left on a table in the breakroom, and had thrown it away. Fekrat admittedly replied by stating the company tables are company property and everyone has access to those tables and, if someone wanted to sit down and remove literature from the area they were using, he guessed they had a right to do that. Fekrat fur- ther indicated that employees were not prohibited from distributing or reading union literature in the break area on their break period. The record reveals that, in fact, union supporters did distribute union literature in the Employer's parking lot and in the breakroom or lunch- room, and no instances of interference other than the one described by Brady occurred. Although Petitioner claims that Fekrat 's actions war- rant a finding that "the Company in effect had an invalid no-distribution rule that prohibited the distribution of union literature in non-working areas on non-working time," I find the facts offered to support the contention are insufficient to establish the assertion . I conclude it is unlikely that the isolated incident involving Brady and his single piece of union literature had any significant impact on the outcome of the election. Accordingly, I recommend that the objection be overruled. 5. Objection 10 No facts or argument was offered in support of this objection Accordingly, I recommend that it be over- ruled. C. Employer's Objections34 Employer's Objections I and 4 are before me for reso- lution. These objections state: 1. After the petition had been filed, Union sup- porters, agents and representatives threatened em- ployees with physical harm if they did not sign au- thorization cards for the Union and otherwise sup- port the Union, thus intimidating voters and inter- fering with their rights to cast ballots free from such intimidation. 4. The Union, its agents, supporters and repre- sentatives have engaged in and encouraged conduct which interfered with the voters' right to cast a ballot free from such objectionable conduct thereby affecting the results of the February 17, 1983 elec- tion. The Employer sought to support its objections through the testimony of employee Regenos. Regenos testified without contradiction that on December 8, 1982, employee David Brown attempted to give him some union literature. When he refused it, he claims Brown told him to take it and read it over or he would have to hurt him . Regenos indicated Brown was standing right in front of him at the time and he told him to either get out of his way or he would have to move him. Brown moved and Regenos went to work. Regenos further indicated during his testimony that on several occasions during the month of January 1983, em- ployee Jimmie Brady solicited him to join the Union in the plant by telling him they needed it and he would be sorry if he did not join because they were going to get the thing in and would know who was supporting the thing and who was not. Regenos testified that at unstated times in December 1982 and January 1983, David Brown and Jim Brady told him, "They were members of the board, the com- mittee, whatever you want to refer to it. That actually had put the union together." Patently, Brown's December 8 comments to Regenos cannot serve as the basis for setting aside the February 17 election because the comment was made prior to the time the petition was filed in the representation case on December 20, 1982. With respect to Regenos' assertion that Brady told him in December 1982 and January 1983, that he would be sorry if he did not join the Union be- cause they were going to get the thing in and would 34 In its brief, the Employer withdrew its Objections 2 and 3 UNITED STATES AVIEX CO. know who was supporting the thing and who was not, I note that the record simply reveals that Brown and Brady were 2 of 12 members of the employee organizing committee, and were not shown to have occupied any office or official position with the Union. Moreover, the record fails to reveal that the Union was aware of or condoned the actions of Brown and Brady. In the cir- cumstances, I find that the Employer has failed to show that Brown and Brady were acting as agents of the Union when they solicited Regenos to join. Fabricut, Inc., 233 NLRB 1196 (1977). Apart from the question of agency, the facts offered by the Employer fail to show that the asserted threats to employee Regenos created a general atmosphere of fear and reprisal among its em- ployees; indeed, it appears Regenos was not coerced into joining the Union, and the conduct of Brown and Brady did not deter him from voting in the February 17 elec- tion. I find the conduct in question does not constitute grounds for setting the election aside. Fidelity Telephone Co. Y. NLRB, 574 F.2d 409, 410-411 (9th Cir. 1978). Ac- cordingly, I recommend that the Employer's Objections 1 and 4 be overruled. D. Request for a Bargaining Order Having found that Respondent did not commit the 8(a(3) violations alleged in the complaint, I conclude the 8(a)(1) violations found herein, standing alone, do not warrant the issuance of a bargaining order in this case. Although I have found that Respondent acted unlawfully when it promised Lawshea Sr. it would recall his son if he voted against representation, I note that conduct af- fected only the Lawsheas and, in fact, Lawshea Sr. invit- ed Respondent to commit the violation. Similarly, al- though it has been found that Respondent unlawfully in- terrogated employees, I note that such interrogation was not accompanied with threats of reprisal or promises of benefit. Although Respondent sought on several occa- sions to create the impression that the union activities of its employees were under surveillance, the effect of such conduct was minimal, as the record reveals the Union conducted an open campaign and caused many of its sup- porters to wear union insignia, hats, buttons, or other logo in the plant. Finally, Respondent's attempt to demean employees because of their support of the Union was limited. Viewing the violations committed in con- text, I conclude that none of them could be said to have affected the employees involved to such an extent that they would be unable to cast a free and uncoerced ballot after the application of normal Board remedies. Accord- ingly, I find that the issuance of a bargaining order is not warranted in the instant case. Noting that the Board has consistently held that con- duct which is violative of Section 8(a)(1), a fortiori, interferes with the exercise of a free and untrammeled choice in an election,95 it will be recommended that, in the event my disposition of the challenged ballots does not result in certification of the Union as the bargaining agent of Respondent's employees, the February 17, 1983 election be set aside and a second election be held. 36 Oleson's Food No 4, Inc, 167 NLRB 543, 551 (1967), Irving Air Chute Co, 149 NLRB 627, 629 (1964) CONCLUSIONS OF LAW 847 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By unlawfully interrogating employees concerning their union activities and sentiments, creating the impres- sion that the union activities of their employees were under surveillance, demeaning employees because they support the Union, and promising to recall a laid-off em- ployee to cause an active employee to reject the Union, Respondent has violated Section 8(a)(1) of the Act. 4. Respondent has not violated the Act except as ex- pressly indicated in this decision. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and to take certain affirmative action necessary to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed36 ORDER The Respondent, United States Aviex Company, Nile, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unlawfully interrogating employees concerning their union activities and sentiments. (b) Creating the impression that the union activities of its employees are under surveillance. (c) Demeaning employees because they support Inter- national Union of Electrical, Radio and Machine Work- ers, AFL-CIO or any other labor organization. (d) Promising to recall laid-off employees to cause active employees to reject the Union. (e) In any like or related 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 affirmative action necessary to effectuate the policies of the Act. (a) Post at the Niles, Michigan facility copies of the at- tached notice marked "Appendix."37 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- 39 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 34 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 " 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that Case 7-RC-16853 be severed and remanded to the Regional Director for Region 7 to open and count the overruled, determinative challenged ballots, and thereafter to issue a revised tally of ballots. Should the tally of ballots indicate that the Pe- titioner was designated by a majority, he shall issue a Certification of Representative. Should the revised tally of ballots fail to disclose that the Petitioner has been des- ignated by a majority, the election conducted on Febru- ary 17, 1983, shall be set aside and the Regional Director shall conduct a rerun election at such time as he deems the circumstances permit a free choice on the issue of representation. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unlawfully interrogate you concerning your union activities and sentiments. WE WILL NOT create the impression that the union ac- tivities of our employees are under surveillance. WE WILL NOT demean you because you support Inter- national Union of Electrical, Radio and Machine Work- ers, AFL-CIO or any other labor organization. WE WILL NOT promise to recall laid-off employees to cause active employees to reject the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. UNITED STATES AVIEX COMPANY