Products Unlimited Corp.

PRODUCTS UNLIMITED CORP. Products Unlimited Corp. and United Steelworkers of America, AFL-CIO. Cases 33-CA-7315 and 33-RC-3050 19 June 1986 DECISION AND ORDER APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 7 March 1986 Administrative Law Judge Marion C. Ladwig issued the attached decision. The Respondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the judge's rulings, findings, I and conclusions and to adopt the recommended Order2 as modified. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Products Unlimited Corp., Sterling, Illi- nois, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Delete the second and third sentences of para- graph 2(f)- 2. Substitute the attached notice for that of the administrative law judge. i The Respondent has excepted to some of the judge's credibility find- ings. 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. In agreeing with the judge that the Respondent violated Sec 8(axl) by refusing to permit the display of proumon posters, although permitting the display of antiunion posters, we rely on Foreman Sigel's testimony that he told a group of employees that "We were told that they could not put signs up" and the credited testimony that Company President Schreiner and Personnel Director Rosenow evaded employee requests to post prounion posters. No exceptions were filed to the judge's finding that the Respondent violated Sec. 8(a)(1), on the first day of the trial, by interrogating two employees without providing safeguards required by Johnnie's Poultry Co., 146 NLRB 770 (1964). S The judge's recommended Order includes a provision for a visitator- ial clause authorizing the Board , for compliance purposes, to obtain dis- covery from the Respondent under the Federal Rules of Civil Procedure under the supervision of the United States Court of Appeals enforcing this Order. Under the circumstances of this case, we find it unnecessary to include such a clause. We shall modify the notice of the judge because it does not include a general injunctive provision. 435 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT discharge , refuse to promote, or otherwise discriminate against any of you for sup- porting United Steelworkers of America, AFL- CIO, or any other union. WE WILL NOT threaten to discharge any of you for supporting a union. WE WILL NOT coercively question you about a union, how you plan to vote, or about your testi- mony before the National Labor Relations Board. WE WILL NOT threaten to terminate our 401(k) plan, to move the plant, or not to bargain in good faith if you vote for a union. WE WILL NOT forbid prounion posters in the plant while permitting antiunion or procompany posters during an election campaign. WE WILL NOT promise a pay raise if you aban- don a union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer Edna Garcia immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed and WE WILL make her whole for any loss of earnings and other benefits resulting from her discharge, less any net interim earnings, plus interest. WE WILL pay Linda Smith the earnings she lost by our refusing to promote her to be a setup person, plus interest. WE WILL notify Edna Garcia and Linda Smith that we have removed from our files any reference to their respective discharge and refusal to promote 280 NLRB No. 41 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that the discharge and refusal to promote will not be used against them in any way. PRODUCTS UNLIMITED CORP. Barbara S. Van Auken and Deborah Fisher, Esqs., for the General Counsel. Henry J. Close, Esq. (Connolly, Hickey & Oliver), of Rock- ford, Illinois, for the Respondent. Robert Glaser, for the Charging Party. DECISION STATEMENT OF THE CASE MARION C. LAD WIG, Administrative Law Judge. These consolidated cases were tried at Rock Falls, Illi- nois, on 13-15 November 1985.1 The charge was filed by the Union 11 July (amended 26 July), the complaint was issued 23 August (amended at the trial), and an order was issued 26 August consolidating the cases and refer- ring the representation case to the Board. All the employees in the 8400 line calibration room continued to support the Union despite the Company's antiunion campaign . During the week preceding the elec- tion, the Company discharged one and denied a promo- tion to another of these calibrators. Although now ad- mitting knowledge of their "active" and "visible" union support, the Company falsely claimed during the investi- gation of the charge that it "had no knowledge of either employee's involvement with the union." The primary issues in the complaint case are whether the Company, the Respondent, (a) discriminatorily dis- charged calibrator Edna Garcia and refused to promote calibrator Linda Smith because of their active union sup- port, and (b) unlawfully coerced employees in its cam- paign to defeat the Union, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act. In the representation case the petition was filed 7 May, a stipulated election agreement was approved 6 June, and the election was conducted 12 July. The vote was 68 for and 87 against union representation with 15 chal- lenged ballots, an insufficient number to affect the out- come of the election. The Union filed timely objections. On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel, the Company, and the Union, I make the following FINDINGS OF FACT 1. JURISDICTION The Company, an Iowa corporation, manufactures small relays, starters, and transformers at its facility in Sterling, Illinois, where it annually receives goods valued over $50,000 directly from outside the State. The Com- pany admits and I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. 1 All dates are in 1985 unless otherwise indicated II. ALLEGED UNFAIR LABOR PRACTICES A. Discharge and Denial of Promotion 1. Solid union support by the 8400 line calibrators The Company's antiunion campaign began 13 March when President Gary Schreiner addressed a letter to the employees, stating, "I definitely do not want a union to get into the plant" and "I still believe that a union would not be good for you or the Company" (G.C. Exh. 3). Both Schriener and David Sigel (the foreman over the 8400 line calibrators) engaged in antiunion conduct that is alleged in part to be coercive, as discussed later. Calibrator Edna Garcia (discharged 2 July) wore a union button and distributed union literature outside the plant before work (Tr. 129). The Company admits in its brief (Br. 14): "It is undisputed that Edna Garcia was active in the union campaign and that Respondent knew it." Early in the campaign, when Garcia was telling Foreman Sigel "why we need this union," Sigel warned her that "Gary [Schreiner] will never allow a union in his plant" (Tr. 134-135). Yet Garcia persisted in her active union support. Calibrator Linda Smith, another 8400 line employee (who was denied a promotion about 3 July), was also active in supporting the Union . She wore two union but- tons, a union T-shirt, and a union hat (Tr. 257). She passed out union literature outside the plant and distrib- uted the literature in the plant cafeteria (Tr. 259). The Company admits in its brief (Br. 21) that "[j]ust like Edna Garcia ... Linda Smith was a visible union sup- porter." About the middle of June Sigel told Smith to take the union hat off, but she refused and continued to wear it (Tr. 258). The other calibrators in the 8400 line calibration room were also visible union supporters. The Company admit- ted in its brief (Br. 15) that calibrators Lois Cook and Cindy Thompson "were obviously union supporters," and it is undisputed that calibrator Cindy Hughes, the re- maining employee in the 8400 line calibration room at the time (Tr. 124), was one of those wearing union but- tons or other union insignia on a fairly regular basis (Tr. 295). Despite this solid and open support of the Union in the 8400 line calibration room, the Company at first denied any knowledge of Garcia's and Smith's union involve- ment. The Company was responding by letter to an in- quiry from the Regional Office about the allegation in the 11 July charge that the Company had discriminatori- ly discharged Garcia and denied Smith a promotion be- cause of their support of the Union. The date of the re- sponse was 19 July, when the circumstances were un- doubtedly fresh in the minds of the responsible company officials. The company counsel gave the following false information in the letter to the field examiner: "The com- pany had no knowledge of either employee's involve- ment with the union." (G.C. Exh. 26A.) In the counsel's 13 August letter, in which he ampli- fied the purported reasons for the discharge and denial of promotion, he omitted this false statement, but did not retract it (G.C. Exh. 26C). PRODUCTS UNLIMITED CORP. 2. Discharge of calibrator Edna Garcia a. Her discharge At 3 p.m. on 2 July Foreman Sigel entered the 8400 line calibration room and instructed Edna Garcia to turn off her radio. As she credibly testified, she did not take him seriously because he was often joking with the em- ployees (Tr. 151-152, 169, 368). She said, "Okay, just let me listen to the news and I will." He asked, "Are you refusing me?" She was getting ready to turn up the volume, but when she realized from the change in his tone of voice that he appeared quite angry or upset, "I turned my volume off." He again asked , "Are you refus- ing me?" She answered , "No. A month ago you said it was okay for us to listen to radios as long as we kept them low enough that it did not bother anyone." He said, "You are going to do what I tell you when I tell you." She responded, "Well, are you not going to tell anyone else to turn their radios off?" (Calibrator Cindy Hughes, sitting next to Garcia, still had her radio on.) Sigel stated, "No, you will do what I tell you." (Tr. 146- 148, 164-167.) Garcia went back to work , with the radio volume off. (Sigel did not instruct her to unplug or remove the radio.) As Sigel was standing behind her, she asked if this was discrimination. After about 2 minutes he asked if she would like to go to the office and discuss it and she said, "No, let's drop it." After another minute he asked again if she wanted to go to the office to discuss it fur- ther and she again said no. He "was quiet for about a minute and he says, `Come to the office and we will dis- cuss this further."' (Tr. 148.) In his office Foreman Sigel told Personnel Director Herman Rosenow, "I asked her three times to turn the radio off and she refuses to do it." Garcia told Rosenow, "No, I am not refusing him [emphasis added] . I would just like to know why a month ago he said it was all right for us to listen to radios." Rosenow said, "Well, we have been thinking of getting rid of radios all together." Garcia responded, "I have worked here two years and I have heard that before.... Why is it that certain poli- cies only go for certain people, is that not discrimina- tion?" Rosenow asked, "Well, if you do not like it here, why do you not quit?" She answered, "No, I am not ready to quit yet. The union vote is coming up in a couple weeks and I want to see what happens [emphasis added]." Rosenow stated that "It does not matter if the union gets in, Gary [Schreiner] is not going to give you girls any- thing." Garcia retorted, "We do not have anything now, what can it hurt?" After the meeting Garcia returned to work, with her radio still off. (Tr. 149-150.) (By her de- meanor on the stand, Garcia impressed me most favor- ably as an honest, forthright witness with a good memory. I credit her account of what happened.) Personnel Director Rosenow admitted asking Garcia in the meeting, "[I]f you are this unhappy , why don't you find a job some place else," and her answering, "I am just waiting to see what the Union is going to do for me." In his version of the conversation, however, Ro- senow omitted her denial that she was refusing to turn off the radio, testifying merely , "I asked Edna if it were true and she made some comment to the effect that other 437 people had radios playing." (Tr. 587-588.) (Rosenow did not appear to be entirely candid on the stand .) Foreman Sigel claimed that when he walked behind Garcia's sta- tion in the calibration room and asked her to turn off the radio, her reply was "No," and that when he asked her the second and third times she refused (Tr. 504). I dis- credit this testimony as fabrications . I also discredit as a further fabrication his claim that Garcia admitted in the meeting with Rosenow that she refused to turn the radio off. (Throughout his testimony Sigel appeared by his de- meanor to be willing to give any testimony that might help the Company's cause.) Calibrator Linda Smith con- firmed that Garcia turned the radio off when "Dave Sigel raised his voice the second time" and said to "turn it off" (Tr. 283) and that calibrator Cindy Hughes (who did not testify) had her radio on (Tr. 284). Calibrator Lois Cook also credibly testified that Garcia turned off her radio after Sigel said to turn off the radio the second time (she recalled hearing "the snap of the switch") and that Hughes had her radio on at the time (Tr. 363-365). As Garcia was clocking out around 3:30 p.m. Ro- senow said he would like to talk to her in the office. There, in the presence of Sigel, Rosenow told her, "As of now consider yourself suspended until Monday" (8 July) and that "[c]ome Monday if your attitude does not change consider yourself fired." (Tr. 150-151.) The next day (3 July) Rosenow sent Garcia a letter (G.C. Exh. 6), stating that "[y]ou have been discharged from the em- ployment of Products Unlimited Corp. as of 7/2/85 due to insubordination." The Company took shifting positions regarding the de- cision to discharge Garcia. In its 13 August statement of position during the investigation of the Union's charge, the company counsel asserted that after Garcia's suspen- sion, "Mr. Rosenow and Mr. Sigel met with [Manufac- turing Manager] Peterson, the facts reviewed and the de- cision made to terminate her" (G.C. Exh. 26C). When testifying about the discharge decision, Sigel denied that he decided to fire her. He claimed that Rosenow decided the next morning to fire her for insubordination (Tr. 105) and later claimed that "the next morning I asked Herman [Rosenow] and he said he had decided to discharge Edna for this" (Tr. 506). Evidently giving a version that was closer to the truth, Rosenow admitted, "I probably had made the decision immediately upon finding out what she had done." He testified that he first suspended her because he wanted to discuss the discharge with Peter- son (Tr. 588), with whom he did not normally check before discharging an employee (Tr. 46). Rosenow did discuss the discharge with Peterson and also with their labor consultant (Tr. 47) "to make certain I was not going to create a problem . . . at a critical time like this" (referring to discharging an active union supporter 10 days before the election). Yet, as discussed above, the Company took the position in its counsel's letter (G.C. Exh. 26A) to the Regional Office dated 19 July (17 days later) that "[t]he Company had no knowledge of [Gar- cia's] involvement with the union." Personnel Director Rosenow admitted (contrary to his practice in incidents not involving an active union sup- porter) that he made no investigation before deciding to 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge Garcia. Although Garcia had denied in the meeting that she was refusing to turn off the radio, Ro- senow admitted that he did not talk with any of the other employees in the calibration room about what hap- pened (Tr. 48, 648). (As discussed above, two of the other calibrators credibly testified that Garcia had turned off the radio when the foreman told her the second time, confirming Garcia's denial to Rosenow.) When asked what he had done to investigate the matter, Rosenow testified, "I had further discussion with Mr. Sigel after Edna had gone home for the day.... I wanted him to be very sure that he did actually say what he said ... that he did tell her three times and he continued to insist he did" (Tr. 47). Obviously Rosenow was seeking a de- fense to a possible unfair labor practice charge, not the truth of what happened. This failure tb investigate is in sharp contrast to Rosenow's actions in February, before the union organizing drive began. As developed by the General Counsel on cross-examination, Rosenow's "first suggestion" was that employee Linda Rodriguez be dis- charged for a "gross violation of our safety rules" by taping down a safety switch. But he approved only a written warning "[w]hen I went out and investigated the situation" and "discovered that her foreman was aware of the fact that the button was taped down and did noth- ing about it." (Fr. 646-648, G.C. Exh. 30.) Foreman Sigel falsely testified that radios have never been allowed in the 8400 line caliration room (Tr. 98). Garcia credibly testified that in the first part of June she met with Personnel Director Rosenow in Sigel's office regarding the poor ventilation in the room. After getting Rosenow's permission for the calibrators to bring in fans, Garcia asked Sigel if they were allowed to use radios there. Sigel said yes, that "we could use radios as long as we kept them low enough that it did not disturb the other women." Garcia returned to the calibration room and reported the conversation to her coworkers , calibra- tors Cook, Hughes, Smith, and Thompson. (Tr. 135-137, 165-166, 190, 202-203.) From that time until Garcia's discharge, she and one or two other calibrators played their radios daily from 7 a.m. to 3 :30 p.m., except when another employee brought in a large "jam box" radio and played it loud enough for all the calibrators to hear (Tr. 143, 145, 190). Garcia's radio was atop the meter on the back wall of her station , in plain sight of Foreman Sigel, Personnel Director Rosenow, Manufacturing Man- ager Peterson, and President Schreiner when they en- tered the calibration room (Tr. 139-140, 143-144). Calibrator Thompson was on vacation when Garcia was discharged. When she returned 8 July she played her radio daily until 19 July (the day the company coun- sel wrote the first letter to the Regional office, asserting that employees working in the calibration room "are not allowed to have radios"). On that date Sigel entered the 8400 line calibration room and told calibrator Thompson that "due to the unfortunate incident with Edna I am going to ask you to please unplug and turn your radio off . . . we do not need another incident like the one we had with Edna" (Tr. 191-192). b. Contentions and concluding findings The General Counsel contends in her brief (Br. 37) that Foreman Sigel decided to "crack down" on the prounion calibrators in the 8400 room on the afternoon of 2 July, in the last 10 days of the union campaign, and to use Edna Garcia as an example. She also contends (Br. 37) that Garcia's refusal to quit because she wanted to participate in the union vote on 12 July "virtually en- sured her termination." Pointing out that Personnel Di- rector Rosenow made no investigation before discharg- ing Garcia, the General Counsel argues (Br. 40) that "Rosenow did not need to investigate" because he had decided to fire Garcia at the time she told him she was waiting for the union vote. "No investigation of the facts would have deterred Rosenow. He only checked to see if he could get away with using the opportunity of the radio incident to rid Respondent of a union supporter without too much trouble!" The Company relies in its brief (Br. 6) on the false tes- timony that radios were not permitted in the 8400 line calibration room and speculates (Br. 17) that Garcia "close to quitting time . . . decided to turn her radio on and then created an incident when the expected hap- pened-her foreman told her to turn it off. Not being able to get inside Edna's head, we don 't really know her motive, but the 3 p.m. incident on July 2 comes close to a setup." (I consider this a frivolous argument.) The Company also attacks Garcia's credibility and contends (Br. 21) that the General Counsel has not produced one iota of evidence that Garia's protected conduct was a substantial motivating factor in her termination. I dis- agree. An employer of course has the right in a nonunion plant to decide for legitimate reasons not to permit the playing of radios. But here Foreman Sigel a month earli- er, in the presence of Personnel Director Rosenow, spe- cifically authorized the playing of radios in the 8400 line calibration room as long as the volume was kept low enough not to disturb other employees. Yet on 2 July, 10 days before the election , he ignored his earlier permis- sion, entered the calibration room where all the employ- ees were prounion, singled out employee Garcia who had persisted in her active support of the Union despite his earlier warning to her that the company president "will never allow a union in his plant," ignored the radio being played by employee Hughes at the adjoining work station, and ordered Garcia to turn off her radio. She did turn off the volume as soon as she realized that he was serious, but argued back. She reminded him of the per- mission he had given a month earlier, asked if he was going to tell anyone else to turn their radios off and, after resuming work while he was standing behind her, questioned whether this was discrimination . Several min- utes after she resumed work, with the radio volume off, Sigel ordered her to go to his office. There he falsely re- ported to Personnel Director Rosenow that "I asked her three times to turn the radio off and she refused to do it." Garcia immediately denied it, stating, "No, I am not refusing him," but then continued to talk back , remind- ing Rosenow of Sigel's permission a month earlier, asking why certain policies were not uniformly applied, PRODUCTS UNLIMITED CORP. and suggesting discrimination . When Rosenow asked why she did not quit if she did not like it there, she said she was not ready, "The union vote is coming up in a couple weeks and I want to see what happens." At quitting time Rosenow suspended her from that Tuesday until the following Monday and warned, "Come Monday if your attitude does not change consid- er yourself fired." But he did not wait to discharge her. After checking with the plant manager and the labor consultant "to make certain I was not going to create a problem ... at a critical time like this" (discharging an active union supporter 10 days before the election), he decided to discharge her that same afternoon . Although he followed a practice of investigating before discharg- ing an employee, he made no investigation of Sigel's dis- puted report that he had asked Garcia three times but she was refusing to turn off her radio. He merely asked if Sigel was sure about telling Garcia three times. As found, Rosenow was obviously seeking a defense to a possible unfair labor practice charge, not the truth of what happened. He proceeded to discharge her, falsely accusing her of insubordination. Then, after the Union filed the charge alleging her discriminatory discharge, the Company, through its counsel, falsely asserted to the Regional Office, in an attempt to get the charge dis- missed, that "[t]he company had no knowledge" of Gar- cia's "involvement with the union." I agree with the General Counsel that she has made a prima facie showing that a motivating factor in the Com- pany's decision to discharge Garcia on 2 July was Gar- cia's union activity and that the Company has failed to rebut the prima facie case by carrying its burden to dem- onstrate that it would have discharged Garcia even in the absence of her protected conduct. Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved by the Supreme Court in NLRB v. Transportation Management, 462 U.S. 393 (1983). Accordingly I find that the Compa- ny discriminatorily discharged Garcia in violation of Section 8(a)(3) and (1) of the Act. 3. Refusing to promote calibrator Linda Smith a. Her bid rejected On 3 July, the same day Personnel Director Rosenow wrote the letter discriminatorily discharging calibrator Edna Garcia because of her active union support, he and Foreman Sigel (who had falsely accused Garcia of insub- ordination) interviewed calibrator Linda Smith (Tr. 274- 275). Smith was another one of the pronunion 8400 line calibration room employees. She had bid on the setup position, the highest paying job under Sigel on the 8400 line (Tr. 582). The setup person not only acts as a material handler, supplying parts to employees on the 8400 line, but she also acts as a leadman . Taking instructions from the fore- man, she "goes out on the line and directs the people" (Tr. 56). The job description (G.C. Exh. 20A) requires that the setup person do "[p]lanning , organizing, and giving directions to others," and states that "[s]ome problem solving skills [are] necessary." It requires "spe- cialized and general knowledge of equipment , fixtures, 439 tools, and measuring devices"; the "[a]bility to read and interpret drawings, outlines, EML's and other special in- structions"; and "[s]kills in adjusting and operating all as- sembly line equipment." She assigns the work to the as- semblers, calibrators, testers, and packagers on the line; makes sure the right model relay is being sent out; and tries "to get the rate out for the day, the quota" (Tr. 325, 327). Foreman Sigel admitted that having worked on the 8400 line was considered a "strong factor" in favor of a bidder and that Smith "knew all parts of the 8400 line" (Tr. 91-92). Linda Smith was the senior employee bidding on the setup job. Two of the other three bidders were rejected because of "Less seniority" (G.C. Exh. 20B). The re- maining bidder was Rebecca Dettman, who had over 6 months less seniority and who had no experience work- ing on the 8400 line. About 7 weeks earlier, on 15 May, Dettman had been given a "WARNING NOTICE/UNACCEPTABLE BEHAVIOR" for "OBSCENE CONDUCT" (G.C. Exh. 20L) which, as Foreman Sigel admitted, involved abusive and obscene language (Tr. 583). The Company's work rules (contained in the employee handbook that is given each employee) list examples of "misconduct" that "are serious violations which may result in dismissal" (R. Exh. 17). The fifth example reads: "Obscene language or conduct may lead to unfortunate incidents and must be avoided." Concerning her qualifications, Personnel Di- rector Rosenow testified that she had "the basic setup experience that was required for the job" because of her previous job as "a material handler at Borg-Warner" (Tr. 639). Although Rosenow claimed that this was "compa- rable supervisory experience" (Tr. 640) to Smith's previ- ous experience of "directing the work force to some extent" in a nursing home (Tr. 598), Rosenow admitted on cross-examination by the Union's assistant director that the job of material handler is normally the bottom- grade job in a plant (Tr. 680-681). Yet, despite Dett- man's lower seniority, lack of experience on the 8400 line, lack of previous experience in directing other em- ployees, and recent misconduct (committing one of the "serious violations which may result in dismissal"), the Company accepted her bid for the top-paid leadman job. The purported reason was her lower absenteeism. Neither Personnel Director Rosenow nor Foreman Sigel discussed Smith's attendance record when inter- viewing her for the setup job (Tr. 276, 325). As Smith credibly testified, she was interviewed first by Rosenow, who asked her if she knew the parts and the way the line was run and if she thought she could handle the job. When he asked "if I ever worked with girls under me before," she said yes, at the Dixon Development Center. He said he "was just interviewing everyone and talking to them" and that Sigel "would make the final decision." Foreman Sigel interviewed her next. When she walked into his office wearing two union buttons on her T-shirt, he started the conversation by stating, "I don't think we could work together, I don't think we could get along." He did not say why, but stated, "Now this is nothing personal." He asked what she thought . She said she would be a liar if she said they would not have their dif- 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ference of opinion on running the line. He responded, "Well, I am not saying anything like that," but still did not say what he was referring to. He stated : "You have all the qualifications for the job" but that he would have to think about it, that "it is nothing personal." (Tr. 275- 276.) Two days later, 5 July (1 week before the election), Sigel called Smith into his office and told her that he had given the job to Rebecca Dettman. She asked why and he said "because of you absenteeism ." She retorted, "Oh bull" and walked out. Sigel then called a meeting of the 8400 line employees and told them he had given the job to Dettman. It is undisputed, as Smith credibly testified, that "one of the girls asked him why someone on our line wasn't given the job. And he said I give the job to her because of her seniority. And I said, excuse me Dave I think you better clarify that . . . it wasn't because of seniority or I would have the job. And he said yes, Linda did not get the job because of her absenteeism." (Tr. 276-277.) (Smith, like Garcia, impressed me most fa- vorably by her demeanor as an honest, forthright wit- ness. I credit her account of what happened. She was certain about the date of her interviews and other dates because she "wrote down every date that something hap- pened" to her during the election campaign (Tr. 341). Although she testified that she reviewed these notes before testifying, the Company did not request to see them.) Foreman Sigel admitted that after all bidders on a job are interviewed, the Company's practice is to "take a slip around to each employee that has been turned down and the reasons marked on it, why they did not get the job" (Tr. 88). The Company deviated from this practice when it rejected Smith's bid for "setup man." Personnel Direc- tor Rosenow prepared the slip, which gave no reason for the rejection of Smith's bid. It merely read: "This is to inform you that the position which you applied for has been filled. Thank you for your interest." (G.C. Exh. 35.) When Rosenow told her orally that her bid was rejected because of absenteeism, she asked him to put the reason in writing, but he refused . When asked at the trial why, he answered: "I had a feeling she was going to use it for some purpose. . . . I just had the feeling something wasn't right about it when she asked me to write my name. I am a little careful where I put my name." (Tr. 678-679.) b. Smith 's attendance record Both Personnel Director Rosenow and Foreman Sigel were aware that the reason Smith's absenteeism in 1985 was 6.2 percent (somewhat higher than the 5-percent "dividing line between execessive and tolerated absentee- ism") was that she had been "trapped by the weather" by being snowed in with closed roads early in the year. Although Rosenow, when testifying first as an adverse witness, denied remembering anything about her "snow days . . . where the roads were closed" (Tr. 61), he later admitted (Tr. 675-676): Q. Did you know that Linda Smith lived in the Deer Grove area? A. I believe Dave Sigel commented about that during storms last winter. Q. So you knew she had touble with roads being closed last winter? A. A lot of people had troubles. Yes, I knew she did Q. Did you discuss that with her in the interview that you understood some of her absenteeism was due to the roads being closed? A. No, I did not. [Emphasis added.] Also when first testifying as an adverse witness, Sigel readily admitted that Smith "was snowed in early in the year a couple of days" (Tr. 92, emphasis added). Sigel's knowledge of Smith being snowed in, causing her to be absent beyond her control, is indicated by his actions on 6 February, following her absences 21 Janu- ary and 4 February as shown on her individual attend- ance form (G.C. Exh. 20C, R. Exh. 9A). The form shows that he gave her merely an oral warning 6 Febru- ary despite her 9.5-percent absenteeism through 4 Febru- ary (16 hours absence divided by 168 scheduled hours) even though 4 months earlier, on 3 October 1984, she had been given a written notice of excessive absenteeism of 10 percent, warning that "[c]ontinued violation will result in one week off without pay" (G.C. Exh. 2011). (Smith credibly testified that she had been missing work because of a physical condition at that time (Tr. 342). Her 1984 attendance history (G.C. Exh. 20E) shows that she was absent nine times from 24 September to 7 De- cember 1984, causing her absenteeism to be 11 percent at the end of 1984.) If Sigel had not taken into consider- ation the unavoidable nature of one or both of these two early 1985 absences, he undoubtedly would have given Smith a 1-week suspension, as required by the Compa- ny's absenteeism policy for continued high absenteeism within a 12-month period (R. Exh. 14). The Company's records clearly show that a bidder is not denied a promotion because of being "trapped by the weather." On 18 January the Company posted a job opening for the 9400 relay preadjust job (G .C. Exh. 21A). The list of 14 bidders, routinely prepared by Per- sonnel Director Rosenow in the order of their seniority (G.C. Exh. 21B), shows that the third senior employee, Diane Waldron, was first rejected because of "[h]igh ab- senteeism." (The person with the highest seniority did not want to work nights and the next senior bidder was rejected for high absenteeism (20.4 percent) and low effi- ciency.) Yet Waldron's bid was later accepted for the job-despite her five absences in the first 4 weeks of the year (one illness and four snow days), raising her absen- teeism to 24 percent at the time of the bidding (G.C. Exh. 21D), and despite her 8 October 1984 warning notice for excessive absenteeism of 23.2 percent (G.C. Exh. 21F) and her absenteeism of 11 percent at the end of 1984. The list of bidders shows that the words "[h]igh absenteeism" opposite her name were marked through and the expla- nation "[s]now" was inserted. Rosenow's explanation for disregarding the snow -day absences, permitting her to be promoted with a 24-percent absenteeism record (5.4 per- cent without the snow days), was that Waldron was PRODUCTS UNLIMITED CORP. "trapped by the weather" and that "[t]he roads were closed shut three days, four days" (Tr. 654). Waldron's individual attendance form (prepared under a different foreman) shows absences cause by "[w]eather" and days that she "[l]eft early" because of "[r]oads Drifting Shut." Although Foreman Sigel did not state the reasons for absences on Smith's form, I note that Smith was absent on one of Waldron's snow days (21 January) and that at one point Sigel testified that Smith's one absence in January and two absences in Feb- ruary (following her personal leave during the weeks of 31 December and 7 January) possibly could have been snow days (Tr. 558). If the Company had similarly disregarded Smith's snow days (the one on 21 January and one or both of her absences on 4 and 12 February), her absenteeism would not have been considered excessive . Assuming that Foreman Sigel's ready admission of two snow days early in the trial was not an understatement, the elimina- tion of 16 hours from her absencies would leave her ab- senteeism at 4.7 percent-not 6.2 percent. This 4.7 per- cent would have been well within the 5-percent standard (an absence of about 1 workday a month ) for determin- ing excessive absenteeism . (If both 4 and 12 February were snow days, Smith's absenteeism at the time of the bidding would have been 3 .9 percent, slightly lower than the 4 percent of employee Dettman, who was awarded the promotion.) Even assuming that Smith had only two snow days (either 4 or 12 February being the second one), her absenteeism would have been below 5 percent each of the 24 weeks ending 28 June and would have averaged about 3 percent. These attendance records demonstrate why, as Smith credibly testified , neither Personnel Director Rosenow nor Foreman Sigel mentioned her absenteeism 3 July when they interviewed her. Their mentioning her 6.2 ab- senteeism would have given her the opportunity of re- minding them that the snow days were not her fault and should not, under the Company's promotion policy, be used to deny her a promotion. The records also show that the Company had already decided to deny her the promotion before either Rosenow or Sigel interviewed her. Although Sigel claimed, "I am sure I must have" been considering her for the promotion when he inter- viewed her (Tr. 561), Smith's individual attendance form (G.C. Exh. 20C) reveals that the Company had already rejected her bid the day before. There is a note at the bottom stating that "Linda was refused job because of high absenteeism," and the note is dated "7/2/85," the day before the 3 July interviews. Foreman Sigel did not deny, but merely claimed that he did not recall, that (as Smith credibly testified) he told her in the interview that she was qualified for the setup job (Tr. 91) and that he did not think the two of them could get along (Tr. 92). I discredit his and Rosen- ow's claims that they discussed her attendance record with her. (Rosenow initially testified , "Yes, I think I did" (Tr. 60, emphasis added).) I also discredit Sigel's claim that he did take into consideration the couple of days that Smith was snowed in early in the year (Tr. 92). I further discredit Rosenow's claim that only a foreman could replace a setup person : that if a "setup person is 441 missing that means the foreman is going to have to take their job and do it for them for the day. This means the foreman is tied up for the day, he doesn't get his other work done." (Tr. 598-599.) Smith, who worked on that 8400 line, credibly testified that the utility operator re- places employees who are absent and that "If [the setup person] is not there then she is to replace the setup first" (Tr. 327, 329). Foreman Sigel was acting as a setup person when Edna Garcia was discharged (Tr. 576) be- cause calibrator Cindy Thompson was newly promoted to be the utility operator and, as Sigel testified , "we were quite busy" in the calibration room "so, yes, I . . . did act as setup" (Tr. 128, 582). c. Contentions and concluding findings The General Counsel contends that the obvious real reason for the Company's refusal to promote Linda Smith was her union activity. She points out that if the Company had considered the fact that at least 16 hours of Smith's absenteeism resulted from closed roads, her remaining absences would have been below the excessive figure of 5 percent, and that the Company "admitted that it does not absolutely or religiously follow its no promo- tion rule for employees who have a 5 percent or higher rate of absenteeism" (Tr. 622). She argues that the Com- pany "showed its animus toward the Union throughout the campaign," that Smith was "one of the Union's most active, and visible, supporters," and that Smith worked in the prounion 8400 calibration room where Foreman Sigel decided to "crack down" on the prounion calibra- tors. She points out Smith's greater seniority, knowledge of all parts of the 8400 line (admittedly a "strong factor"), and previous supervisory experience, as weighed against Rebecca Dettman's nearly 7 months less seniority, no work on the 8400 line, no true supervisory experience, and the recent warning about obscene con- duct. She contends that Dettman's absenteeism rate (of 4 percent), "only marginally better that Smith 's," was a mere pretext for not promoting Smith. In its brief the Company admits that Linda Smith "was the employee with the most seniority of the four employ- ees bidding on the position " and that the Company "tries to follow seniority first." Although the Company also lists ability as a basic factor in deciding whom to pro- mote, it completely ignores Smith's superior qualifica- tions (her work on the 8400 line and knowledge of all its parts, as well as her previous leadership experience). It also ignores Rebecca Dettman's deficiencies (no experi- ence on the line, her lack of previous leadership experi- ence, and her recent warning for serious misconduct in- volving abusive and obscene language). It contends that Smith "was not offered the position of setup person be- cause of her absenteeism record," citing her 1985 record of 6.2-percent absenteeism (above the 5-percent absentee- ism considered excessive) and her 11-percent absenteeism at the end of 1984 (resulting from her nine absences be- tween 24 September and 7 December 1984 , when she was missing work because of a physical condition at the time). In support of its argument that this explanation "makes sense in light of the job requirements ," the Com- pany falsely claims in its brief that only a foreman can 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD replace an absent setup person, even though this is the utility operator's first responsibility. The Company fur- ther contends that "[t]here is not one word of evidence that Respondent's rejection of Linda Smith from the setup job had anything to do with her union activities." In making these contentions the Company completely ignores the fact that Smith's 1985 absenteeism would have been 4.7 percent or lower (well within the 5-per- cent excessive standard) instead of 6.2 percent, and would have averaged even lower, if the Company had followed its policy of disregarding for the purpose of promotions an employee's "snow days" (when the em- ployee is "trapped by the weather" and the roads are closed). The Company makes no effort to justify its fail- ure to disregard senior bidder Smith 's snow days and to promote her, although it earlier had disregarded senior bidder Diane Waldron's 4 snow days and promoted her, despite Waldron's 1985 absenteeism of 24 percent, her 11-percent absenteeism at the end of 1984, and her 8 Oc- tober 1984 warning notice for excessive absenteeism of 23.2 percent. After considering all the evidence and contentions I find that the Company had already decided to deny Smith's bid for the promotion for the reason disputed by the Company in its brief (that it "refused to promote Linda Smith because of her union activities and as a means of discouraging other bargaining unit employees from voting for the Union"). The Company's own records show that "Linda was refused [the] setup job be- cause of high absenteeism" on 2 July, the day before Personnel Director Rosenow and Foreman Sigel inter- viewed her for the job. (The date 2 July was the same date that Rosenow decided to discharge Edna Garcia be- cause of her active union support, after Rosenow dis- cussed the discharge with Manufacturing Manager Peter- son and the Company's labor consultant "to make certain I was not going to create a problem . . . at a critical time like this"-referring to discharging active union supporter Garcia 10 days before the election.) As found, neither Rosenow nor Sigel mentioned anything about her attendance in the interviews . The obvious reason was that their mentioning her 6.2-absenteeism rate would have given her the opportunity to point out the Compa- ny's policy of disregarding snow days for the purpose of promotions (leaving her an absenteeism rate of 4.7 per- cent or lower, well below the 5-percent excessive stand- ard). I also find that on 3 July, when Smith entered Fore- man Sigel's office wearing two union buttons on her T- shirt, Sigel was referring to her active, visible union sup- port when he told her, without explanation : "Now this is nothing personal" but "I don't think we could work to- gether" even though "[y]ou have all the qualifications for the job." I agree with the General Counsel that the Company "did not . . . feel comfortable . . . with the al- leged reason for not promoting Smith," causing (1) the Company to deviate from its practice of notifying em- ployees why their bids were rejected (Smith's rejection slip stating only that "[t]his is to inform you that the po- sition which you applied for has been filled. Thank you for you interest"), (2) Personnel Director Rosenow to refuse Smith's request that he put the reason in writing, and (3) the Company about 2 weeks later to state falsely in its attorney's letter to the Regional Office that "[t]he Company had no knowledge" of Smith's "involvement with the union." Linda Smith was even more active and visible in her union support than Edna Garcia, one of the other em- ployees in the 8400 line calibration room , which re- mained wholly prounion despite the Company's antiun- ion campaign and the promotion of one of the calibrators (Cindy Thompson) to the position of utility operator. And Smith had refused Foreman Sigel's instruction to take off the union hat she was wearing at work. Under these circumstances I fmd that the General Counsel has made a prima facie case that the real reason the Company refused to promote her was her active and visible union support, to discourage other bargaining unit employees from voting for the Union-not her absentee- ism, which was well below the "dividing line between excessive and tolerated absenteeism" except for the snow days, which the Company had a policy of disregarding for the purpose of promotions. I also fmd that the Com- pany has failed to rebut the prima facie case. According- ly I find that the Company discriminatorily refused to promote employee Linda Smith in violation of Section 8(a)(3) and (1). B. Alleged Coercion of Employees 1. President Schreiner's interrogation and threat In early June employee Nancy Kessler was walking toward the cafeteria when, as she credibly testified, President Gary Schreiner asked her how (or if she had made up her mind yet how) she was going to vote. She told him she was not sure, but that she would get the company and union literature , go through it, and then make her decision. (Tr. 440-444.) About a month later, a few days before the 12 July election, Kessler was sitting outside the restroom when Schreiner walked up and asked her again how she was going to vote. She answered that she was still not sure. He stated, "After we gave you this job you are going to do this to us." She responded that she was not going to tell anybody how she was going to vote until the day of the election. Then employee Chris Gorman (who did not testify) said, "Look what Gary has done for you." Kessler got up and walked away. (Tr. 441-442, 444445.) About the same time , on 8 or 9 July, employee Lynda Ramirez was coming from the restroom when Schreiner started talking to her . After discussing the Company's softball team Schreiner inquired , "You are not one of those Union people are you? (or "I wouldn't suppose you are one of those Union people are you?"). She said she could lie and say no, but "I better say yes." He asked, "[W]hy would you want to do something like that?" she answered that she had been fired from a job before and could not get her job back without a union. As she credibly testified, Schreiner then told her that "if I wanted to fire you I could fire you right now because you aren't working." She responded that she was not working because she was talking to him, but "if you wanted to fire me bad enough you could find a reason." PRODUCTS UNLIMITED CORP. (This was the week after Edna Garcia 's discriminatory discharge.) Schreiner asked if they had treated her badly and asked her why, if she wanted a job with the Union, she did not go and find one . He concluded the conversa- tion by telling her to think about it and come back to see him Thursday (the day before the election), but she did not. (Tr. 449-450.) About the next day, 10 July, President Schreiner insist- ed on an answer from employee Blanca Helt. He called Helt to his office and first told her to sit down, "I don't like what you have been saying." She asked if she had been saying something . He started laughing and said no, "I just wanted to know how you felt about the Union." She answered that she had not been there long enough to know. He asked, "What do we have to do, put lumps on your head?" She started laughing and responded, "No you don't have to beat me." He later asked her again how she felt about the Union and if she was going to wait until the day of the election . She answered, as she further credibly testified, "Yeah, I will wait to the day of the election and vote." He said no, "it will be too late. We need to know an answer now." He repeated that he needed an answer and she said, "Okay, no." He asked if he could count on her vote then and she answered yes. He said, "Okay, thank you." (Tr. 430-431.) The Company's defense was a complete denial. Presi- dent Schreiner claimed that he talked with individual employees during the election campaign when "people would stop me in the aisles and ... asked to talk to me" (Tr. 496) and gave the following unequivocal answer (Tr. 497-498): Q. At any time did you ask any employee how that employee was going to vote in the Union elec- tion? A. I did not. He specifically denied that he asked Kessler in early June or during the week before the election how she was going to vote, that he interrogated any employee outside the restroom about 8 or 9 July, or that he told Helt about 10 July in his office, "Sit down, I don't like some of the things I have been hearing" (Tr. 498, 500-501). By his demeanor on the stand Schreiner , like Foreman Sigel, appeared willing to give any testimony that might help the Company's cause. I discredit his denials. Before interrogating these employees President Schreiner had personally signed a letter stating, "I defi- nitely do not want a union to get into the plant" and "I still believe that a union would not be good for you or the Company," as discussed above. He expressed no le- gitimate purpose for inquiring into their union sympa- thies or asking how they intended to vote. As the Com- pany's president he was in a position to take reprisals against the employees, and he gave no assurances against doing so even though he expressed his displeasure by telling Kessler, "After we gave you this job you are going to do this to us"; by asking Ramirez, "[W]hy would you want to do something like that," telling her that "if I wanted to fire you I could fire you right now because you aren't working," and asking her why she did not go and find a union job; and by insisting in his 443 interrogation of Helt (in Schreiner's private office) that waiting until election day would be too late for her to answer. The interrogation of the three employees during the week of the election tended to be particularly coer- cive because of the reprisals taken against union support- ers Edna Garcia and Linda Smith the week before (dis- criminatorily discharging Garcia and denying Smith a promotion she otherwise would have had). Under all the circumstances I find that President Schreiner's interrogation of employees Kessler, Ramirez, and Helt reasonably tended to coerce employees and vio- lated Section 8(a)(l) of the Act. Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). I also find that when he told Ramirez that he could fire her right then after she admitted her union support, and asked her why she did not go and find a union job, he made an implied threat of discharge, further violating Section 8(a)(1). 2. President Schreiner's threat to move the plant Sometime in June President Schreiner held a series of meetings with groups of four or five employees to ex- plain the Company's 401(k) profit-sharing plan and to give out receipts showing how much the employees had in the plan. Both Schreiner and employee Blanca Helt, who attended one of the meetings with Donna Hardy and three other employees, testified that Schreiner called the meeting to explain the 401(k) plan. (Tr. 429, 497.) Hardy, a company witness who had been recalled a week before the trial after a 6-week layoff, disagreed. She testified that Schreiner called the meeting to ask if the employees had any complaints . She testified various- ly that the 401(k) plan did come up (Tr. 489), that Schreiner specifically mentioned profit sharing but not the 401(k) plan, and that "[h]e may have" called it by name, but that he did not discuss how much her assets were in the plan (Tr. 493). (She appeared to be less than candid.) Employee Helt (who impressed me by her demeanor as an honest, forthright witness) credibly testified that President Schreiner told her and the other four employ- ees "that if by any chance a Union should happen to get in he could give all of us girls our checks, close up the account with the bank, and move his plant to Gutten- berg, Iowa" (Tr. 429-430). (The Company has a small plant in Guttenberg (Tr. 29).) I discredit Schreiner's and Hardy's denials (Tr. 489-490, 492-493, 497, 500). I find that in the June meeting attended by employee Helt, President Schreiner made at least an implied threat that if the Union came in, he would terminate the 401(k) plan and move the plant. This threat clearly was coer- cive and I find that it violated Section 8(a)(1). 3. Disparate enforcement of no-solicitation rule One of the Company's work rules (R. Exh. 17), listed among the examples of "misconduct" that "are serious violations which may result in dismissal," read: Unauthorized soliciting or distribution of literature on Company property is prohibited. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Despite this rule, the Company permitted five to eight hand-lettered antiunion (or procompany) cardboard post- ers to be displayed throughout the plant. Most of them were displayed on pegboard panels at the ends of the production lines, facing the aisle separating the lines from the cafeteria area. Some of them were prominently posted directly across from the cafeteria area , in clear view of employees at their breaks. (Tr. 267-268, 357, 617-619.) The poster in front of the 9400 line listed names and read: "We solderers in front are voting no." The one on the 9100 line also listed names and stated that they were voting no. The poster displayed on in- spector Debby Cossman's cart, which went "all over the plant" (Tr. 268), showed the names of Manufacturing Manager Jack Peterson, Personnel Director Herman Ro- senow, and employee Cossman. It also stated they were voting no. (Fr. 386-387.) In early June, in one of Foreman Sigel's employee meetings in which he opposed the Union, employees asked about posting union signs. He admittedly respond- ed that "[w]e were told they could not put signs up." (Tr. 566-567.) In late June employee Darlene Love (with employee Sandra Davis) asked Personnel Director Ro- senow "if we could put up posters being that the non- union people had signs up all over." Rosenow declined to give his permission, stating, "I better check with Gary Schreiner because he is kind of funny about things like that." (Tr. 407.) During the 9:20 break (Tr. 308) on 11 July (the day before the election), calibrator Linda Smith showed President Schreiner a cardboard poster she had made and (with employee Sandra Davis) asked permis- sion to post it in front of the 8400 line. Schreiner stated that he did not know and that he would talk to Rosenow "and get back to you." That afternoon between 2 and 3 p.m., after having the antiunion posters removed, Schreiner advised employee Davis, "I would rather you didn't." (Tr. 264, 390, 498.) The antiunion material was still posted at noon that day (Tr. 302). In the meantime Personnel Director Rosenow had per- mitted two antiunion letter-size papers to be posted on the bulletin board reserved for the exclusive use of the Company for job postings. One had antiunion words to a song and the other was instructions for retrieving a union authorization card from the Union, giving the union address and telephone number. They were signed by employees and initialed by Rosenow . (Tr. 266-267, 310, 386, 388.) In late June Rosenow refused to place his required initials on a typed prounion notice (G.C. Exh. 8) that employees wanted placed on the employee bulle- tin board (used for babysitting notices, etc .), explaining that "it would look like I was condoning it," and he posted it himself without any initials (Tr. 265-266, 384- 385, 407-408, 607). The Company did permit the distri- bution of handbills in the cafeteria, the wearing of both prounion and antiunion buttons, and the wearing of union shirts and hats (Tr. 63, 259, 294, 340, 352, 354- 355), although Foreman Sigel told calibrator Smith to remove her union hat (Tr. 258). I find it clear that the Company disparately enforced the no-solicitation rule in the plant by refusing to permit the display of prounion posters while permitting the dis- play of antiunion posters. I therefore find that this dis- parate enforcement of the rule was coercive and violated Section 8(a)(1). 4. Foreman Sigel's promises of a raise and threat On Saturday, 1 or 8 June, Foreman Sigel held a series of group meetings in Manufacturing Manager Peterson's office. In the first meeting attended by calibrator Edna Garcia, as she credibly testified, Sigel asked what the employees wanted most from this Union . When they an- swered "more money," he stated, "I will talk to Gary [Schreiner] and see if I can get him to give you girls a dime raise," and asked, "Will that help?" He next asked, .If I can do this will you girls make me your representa- tive? Let me be your talker." (Tr. 137-138, 169-170, 173.) Employee Lisa Persona was also present, but she had little recall of what happened. She did remember that Sigel mentioned getting them a raise and wanting to be their mediator with Schreiner. (Tr. 113, 119-120.) In the next meeting attended by calibrator Lois Cook, as she credibly testified, Foreman Sigel stated that "this is not the Company; they don't know anything about it. I am on my own. But I am going to go to Gary Schreiner and try to get you a dime raise." (Tr. 368-380-831.) None of the other employees in that meeting testified. In the third meeting that morning, attended by Blanca Helt, Kathy Johnson, and two other employees, Fore- man Sigel asked Helt to play the role of a union negotia- tor in a simulated negotiating session. He gave her a sheet of paper and she wrote down, in two columns: wages "25 cents," benefits "Yes," health insurance "Yes," and pensions "Yes." Then Sigel took the paper and wrote in the third column "No," "No," "No," and "No," and stated that Schreiner would not agree to any of them. When one of the employees asked about a raise, Sigel stated that if the Union asked for "25 cents," Schreiner "would say 5 cents," and that they could drop their wage demands "down as far as they wanted to" but Schreiner "wasn't going to go any higher"; he "wouldn't agree with the Union on anything." Sigel said, however, that "if we went along with the Company instead of the Union," he would go in himself and ask Schreiner "for a 10-cent raise for the whole [8400] line and for the whole factory too." (Tr. 415-417, 422-423, 428, 434-435.) In giving this testimony, employees Helt and Johnson ap- peared to be doing their best to give an accurate account of what happened. Foreman Sigel denied promising in any of the June meetings that he would try to get them a 10-cent raise or saying that President Schreiner would not negotiate with the Union if the Union got in (Tr. 513-514). He claimed that he stressed in each of the meetings that Schreiner would negotiate in "good faith " and that "[i]t was [Schreiner's] option during negotiations, as long as he ne- gotiated in good faith , if they gave him a list of demands, he could accept or reject those demands in good faith" (Tr. 571-572). (Again, Sigel appeared to be willing to give any testimony that might help the Company' s cause. I discredit his denials of the credited testimony.) Although stating in one of the meetings that he was acting on his own, Foreman Sigel (an admitted supervi- sor) promised employees in the three meetings to try to PRODUCTS UNLIMITED CORP. get them a 10-cent raise "as an inducement not to vote for the Union" (in the words disputed by the Company in its brief). He also made the threat in one of the meet- ings that even if the Union did come in, President Schreiner "wouldn't agree with the Union on anything." I find that the promises and the anticipatory refusal to bargain in good faith tended to coerce the employees and violated Section 8(a)(1). 5. Personnel Director Rosenow's interrogation In late July calibrator Smith obtained from employee Darlene Love two sheets of lined yellow paper to get employee signatures in support of the allegation in the Union's charge that calibrator Garcia had been discri- minatorily discharged. Smith was seeking proof that before Garcia was discharged , radios had been present in the calibration room. (Tr. 290-291, 409-410.) On 26 July Personnel Director Rosenow asked Love in the aisle why she had been running around the day before getting a list of names. (Rosenow had somehow received an erroneous report that it was Love , instead of Smith, who was seeking signatures on the yellow paper that Love had been using to make her reports.) As Ro- senow credibly testified, "I had been informed by some other employees that Darlene was going around the work area with a piece of paper asking people to sign it during working hours." After Love twice denied doing so, Rosenow returned to his office. (Tr. 408-409, 605- 606.) Although Rosenow was in error in interrogating Love instead of Smith, I find that this was legitimate interroga- tion concerning a possible violation of the no-solicitation rule. I therefore find that the interrogation did not vio- late the Act. 6. Interrogation without Johnnie 's Poultry safeguards On the first day of trial, 13 November, Company Counsel Henry Close interrogated employees Lisa Perso- na and Elsa Ellis in separate meetings. On the day before, Personnel Director Rosenow required Persona to report for work for an hour before she attended the trial, even though she asked, "if I had to come in for just an hour." Rosenow told neither Persona nor Ellis the next morning the purpose of the meetings in Rosenow's pri- vate office. In the 13 November meetings, Counsel Close told each of the employees that he had a legal right to ask the questions, and proceeded to interrogate them concerning certain issues of the case. It is undisputed that he failed to tell them the purpose of the meeting , to assure them that no reprisals would be taken, and to obtain their par- ticipation on a voluntary basis. (Tr. 108-110, 114-115.) It is well established that In allowing an employer the privilege of ascer- taining the necessary facts from employees [in pre- paring the employer's defense for trial of a case], the Board and courts have established specific safe- guards designed to minimize the coercive impact of such employer interrogation. Thus, the employer must communicate to the employee the purpose of the questioning, assure him that no reprisal will take 445 place, and obtain his participation on a voluntary basis. Johnnie's Poultry Co., 146 NLRB 770, 775 (1964). "The safeguards during the . . . interrogation is the same whether by design or inadvertence." Standard-Coosa- Thatcher, Inc., 257 NLRB 304 (1981). The Company contends that the failure to provide the safeguards was unintentional, de minimis, and isolated and that the interrogation "was not conducted in an at- mosphere of fear and intimidation ." I find, however, that the interrogation tended to coerce the employees and violated Section 8(a)(1). III. REPRESENTATION PROCEEDING The petition was filed by the Union 7 May, a stipulat- ed election agreement was approved 6 June, and the election was conducted 12 July in an appropriate unit of: All full-time and regular part-time production and maintenance employees , including plant clericals, employed by the Employer at its Sterling, Illinois facility; but excluding all office clericals, engineer- ing department employees, professional employees, guards, and supervisors as defined in the Act. The vote was 68 for and 87 against union representation with 15 challenged ballots, an insufficient number to affect the outcome of the election. The Union filed five timely objections 19 July. On 26 August the Regional Director issued his Report on Objections, approving the withdrawal of Objections 3 and 5 and ordering a hearing on Objections 1, 2, and 4, together with allegations in the complaint case of the un- lawful 2 July discharge of calibrator Garcia and 3 July refusal to promote calibrator Smith , as possible addition- al grounds for setting aside the election. The Order also referred the representation case to the Board after hear- ing. As found above, the Company during the critical period from the date of the 7 May petition to the date of the 12 July election unlawfully discharged Edna Garcia about 3 July, unlawfully refused to promote Linda Smith about 3 July, unlawfully refused to permit the display of prounion posters while permitting the display of antiun- ion posters in the plant (as alleged in Objection 2), and unlawfully interrogated employees about supporting the Union and about how they were going to vote (as al- leged in Objection 4). I find it clear that these violations of Section 8(a)(1) and (3) interfered with the employees' free choice of representation. I therefore sustain Objections 2 and 4, overrule Objec- tion I (for lack of supporting evidence ), and find that the election must be set aside and a new election held. CONCLUSIONS OF LAW 1. By discriminatorily discharging Edna Garcia and re- fusing to promote Linda Smith about 3 July because of their active support of the Union, the Company engaged in unfair labor practices affecting commerce within the 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meaning of Section 8(aX3) and (1) and Section 2(6) and (7) of the Act. 2. By coercively interrogating employees, threatening discharge, threatening to terminate the 401(k) plan and move the plant, disparately enforcing the no-solicitation rule, promising to seek a 10-cent pay raise, and threaten- ing not to bargain in good faith, the Company violated Section 8(a)(1). 3. The Company did not violate the Act when interro- gating an employee about a violation of the no-solicita- tion rule. 4. The Company's conduct interfered with the em- ployees' free choice of representation. The 12 July elec- tion must be set aside and a new election held. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent having discriminatorily discharged employee Edna Garcia, it must offer her reinstatement and make her whole for any loss of earnings and other benefits computed on a quarterly basis from date of the discharge to date of a proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Wool- %orth Co., 90 NLRB 289 (1950), plus interest as comput- ed in Florida Steel Corp., 231 NLRB 651 (1977). It must also make Linda Smith whole for the loss of earnings re- sulting from its discriminatory refusal to promote her to the setup position, for the period from 3 July 1985 until her resignation, plus interest. On these findings of fact and conclusions of law and on the entire record I issue the following recommended2 ORDER The Respondent, Products Unlimited Corp., Sterling, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging, refusing to promote, or otherwise dis- criminating against any employee for supporting United Steelworkers of America, AFL-CIO or any other union. (b) Threatening to discharge any employee for sup- porting a union. (c) Coercively interrogating employees about union support, how they plan to vote, or about their intended testimony before the Board. (d) Threatening to terminate the 401(k) plan, to move the plant, or not to bargain in good faith if the employ- ees select a union. (e) Forbidding prounion posters in the plant while per- mitting antiunion or procompany posters during an elec- tion campaign. (f) Promising a pay raise if employees abandon a union. ' 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. (g) 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) Offer Edna Garcia immediate and full reinstate- ment to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed, and make her whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against her, in the manner set forth in the remedy section of the decision. (b) Make Linda Smith whole for the loss of earnings resulting from the discriminatory refusal 3 July 1985 to promote her to the setup position , plus interest. (c) Remove from its files any reference to the unlawful discharge and refusal to promote and notify the two em- ployees in writing that this has been done and that the discharge and refusal to promote will not be used against them in any way. (d) Preserve and, on request, make available to the Board or its agents for examination and copying , all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at Sterling, Illinois, copies of the attached notice marked "Appendix."s Copies of the notice, on forms provided by the Regional Director for Region 33, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply . To determine or secure compliance with the Order, the Board or any authorized representatives may obtain discovery from the Respond- ent, its officers, agents, successors, or assigns or from any person having knowledge of any compliance matter, as provided in the Federal Rules of Civil Procedure. The discovery shall be conducted under the supervision of the United States Court of Appeals enforcing the Order and may be on any matter reasonably related to the com- pliance. IT IS FURTHER ORDERED that the complaint is dis- missed insofar as it alleges violations of the Act not spe- cifically found. IT IS FURTHER ORDERED that the election in Case 33- RC-3050 is set aside and that the case is remanded to the Regional Director to conduct a new election when he deems the circumstances permit a free choice. I 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 "