Resistance Technology, Inc.

1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Resistance Technology, Inc. and Teamsters Local No. 970, affiliated With International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 18-CA-7702 and 18-CA-7836 24 June 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS, JOHANSEN, BABSON, AND STEPHENS On 11 August 1983 Administrative Law Judge Stanley N. Ohlbaum issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed limited cross- exceptions and a brief. 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, I and conclusions as modified and to adopt the recom- mended Order, as modified. Except as modified in sections II and III of this Decision & Order, we agree with the judge that the Respondent committed numerous violations of Section 8(a)(1) through various acts in interference with and coercion and restraint of its employees' rights protected by the Act; and violated Section 8(a)(3) and (1) of the Act by laying off several of its employees and demoting an employee for their participation in and support of union activities. Al- though we agree with the judge's conclusion that the Respondent violated the Act by laying off 18 employees on 7 May 1982,2 we do so for some- what different reasons. 1. TERMINATION OF EMPLOYEES The Respondent is a manufacturer of hearing aid components at its facility in Arden Hills, Minneso- ta. Due to the employees' discontent with a wage reduction and a subsequent change in the absentee policy, a union organizational campaign began at the Respondent's facility in March 1982. A general organizational meeting was held on 22 April at a St. Paul, Minnesota hotel. The Respondent con- ducted a vigorous antiunion campaign during which it held meetings with employees two or r 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 sec III,B,1 of his decision, the judge states that in the Board-super- vised representation election the vote was 50 for and 30 against union representation, with 7 challenged ballots, in a unit of 82 eligible voters The correct vote was 50 against and 30 for the union representation with 7 challenged ballots, in a unit of 82 eligible voters 2 All dates are in 1982, unless otherwise indicated three times weekly beginning the afternoon of 22 April and ending on 7 May when it suddenly and summarily terminated 18 production employees. At these meetings, the Respondent's president, Tom Giguere, assured employees that there would be no layoffs in the foreseeable future. He also assured employees that despite a temporary dip in sales the Company was "doing a lot better than last year .. . [and] growing," and that "there [is] no need for layoffs," because there were other alternatives which the Respondent had used in the past, such as a liberal leave without pay policy and shifting em- ployees from job to job. There had been no general layoff since at least mid-1979, and the production manager told the supervisory staff that if the work- load declined, employees would be placed on a 6- hour workday as in the past. At the end of the workday on 7 May, without any prior notice, the 18 production employees were summarily terminated. These employees were informed that this was a permanent layoff and that they would not be rehired. Three days prior to the 7 May layoffs, employees were solicited to sign a petition expressing their opposition to the Union. This petition came into the Respondent's possession prior to the terminations. Of the 18 employees sum- marily terminated on 7 May, only 2 had signed the antiunion employees' petition. Around the time the petition was circulating, Personnel Manager Lam- bert placed a list before Supervisor Storey and asked her to identify those employees for and against the Union to enable Lambert to identify the instigators of the organizational effort. On the morning of the terminations, Lambert asked Super- visor Witter to identify those employees for and against the Union and Lambert told her that Wit- ter's supervisees (the model 10 line) and Storey's supervisees (the models 15 and 16 line) were the highest in prounion advocates and the Respondent was determined to root out the instigators.3 After the Board-conducted representation election which the Union lost, most of the permanently laid-off employees were recalled. Meanwhile, immediately after the layoffs, the Respondent canceled its vol- untary time-off program which, beginning early in March, permitted employees (as in the past) to take time off without pay. Shortly thereafter, the Re- spondent began making the employees work over- time. Although the Respondent contends that the mass layoff was in accordance with plant seniority, em- ployee Carl Brassill who had less seniority than other laid-off employees was not laid off. Brassill 3 Of the 18 employees terminated , most were under the supervision of Witter or Storey 280 NLRB No. 117 RESISTANCE TECHNOLOGY was a signer of the antiunion petition. In addition, an employee testified that about 2 weeks after the mass layoff she complained to Production Manager Scott that she and other employees had too much work and that the Respondent had laid off too many people. Scott agreed and remarked, "We'll learn by our mistakes." Based on the above evidence, the judge found that the General Counsel had established that the employees' union activity was the motivating factor for the mass layoff of 18 employees on 7 May. The judge relied on several factors, among them the overwhelming evidence of union animus, the Respondent's assurance that there would be no layoffs, and the suddenness and timing of the lay- offs. He also noted the employees chosen for layoff, the extent of the layoff, the absence of evi- dence of previous layoffs of full-time employees, the unchanged nature and level of work to be done, the resumption of overtime soon after the layoffs, and the recall of substantially all of the laid-off employees despite their having been noti- fied that the layoff was permanent and they "were not subject to rehire." On this basis the judge con- cluded, and we agree, that the layoffs were moti- vated by the union activity of the Respondent's employees. The judge then turned to the Respondent's de- fense of economic necessity. The judge noted that the Respondent did not demonstrate any significant diminution in its business activity to account for the unprecedented mass layoffs in the midst of an organizing campaign; the documentary evidence in- dicated an increase in its inventory far in excess of that planned preceding the 7 May layoffs, and a massive drawing down of inventories after the lay- offs; the Respondent's total assets as of 30 April 1982 were appreciably up over those of 1980 and 1981; and the Respondent's May "Manpower Sum- maries" show shortages in some assembly lines while its May "Headcount Requirements" show a net diminution of 7 employees, far below the 18 re- leased. Based on these circumstances, the judge found, and we agree, that the Respondent has failed to carry its evidentiary burden under NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), of establishing that it would have laid off 18 employees en masse on 7 May even in the absence of their union activities. In agreeing with the judge's conclusion, howev- er, we do not rely on his finding that the Respond- ent deliberately engaged in a substantial buildup of its inventories in anticipation of the mass layoff. The inventory buildups began before the Respond- ent had knowledge of the union activities and there is no evidence that the buildups accelerated after 1005 the Respondent learned of the organizing cam- paign. The judge's error in this regard, however, does not affect the correctness of his finding that the layoff was discriminatorily, rather than eco- nomically, motivated. As fully detailed by the judge, the Respondent had already undertaken steps to reduce its inventory before the layoff oc- curred. Although it is conceivable that some addi- tional inventory-reducing measures were required, the evidence simply does not demonstrate that the mass layoff was motivated by a need to reduce in- ventory. Indeed, the Respondent's claim that its in- ventory buildups establish the validity of its eco- nomic defense is belied by the Respondent's aban- donment simultaneously with the 7 May layoffs of its voluntary time-off program and the resumption soon thereafter by production employees of over- time work. H. RESCISSION OF WARNING LETTERS In April 1982, the Respondent's operating direc- tor, Wray Wentworth, announced and implement- ed a toughening of its previous disciplinary warn- ing policy by changing its absentee policy. Prior to this action, the Respondent's policy, as set forth in its "Employee Handbook," was that "Excessive ab- sence and or tardiness without satisfactory explana- tion acceptable to the Company will result in disci- plinary action, including discharge." Excessive ab- senteeism was defined as more than 1 day per month on a continuing basis. On 15 April Went- worth issued warning letters to employees concern- ing absenteeism that calculated excessive absentee- ism based on the national average. In the letter he told certain employees that "your absenteeism rate is significantly above the national average," calcu- lated retroactively on an annual basis to the begin- ning of the year for the expired first quarter. The letter warned that continued poor attendance could affect their performance rating and lead to discipli- nary action or termination. This action resulted in employee protests and fueled the union organizing campaign which was already underway. On 22 April the employees held a union organizational meeting. That same day the Respondent's president began its vigorous antiun- ion campaign by having a meeting with employees to discuss the Union. Shortly thereafter, the Re- spondent held a supervisor's meeting to address the "problem" of the union organizing campaign. At this meeting, the Respondent's parts supervisor, Robert Bowker, stated that the "new" employees were the ones causing the trouble. When Supervi- sors Bowker and Storey suggested rescinding the recently distributed absentee warnings, Personnel Manager Lambert responded that it would first 1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have to be ascertained if it was "legal " to do so, adding that she was desirous of telling the employ- ees that "See, this [the absentee warnings] is what your union did for you." On 26 April , Wentworth held a meeting with all production employees in which he announced that he had "jumped the gun," the warnings had been issued in "error" and would be rescinded. The warning letters were sub- sequently rescinded but only after resistance from other management officials such as Lambert who yielded after berating one employee with the an- noyed remark that Lambert did not know why she was pushing this. The judge found that the Respondent announced and implemented its sudden harsher absentee policy in response to union organizational activity and thus violated Section 8(a)(1). The General Counsel has excepted to this finding, contending that only the rescission of the warning letters was unlawful. She points out that there is no evidence that the Respondent was aware of the union organizational activity at the time it issued the 15 April warning letters. In fact it was the issuance of the 15 April letters, combined with an earlier change in the Re- spondent's wage schedule, which impelled the union organizational activity. Thus, the General Counsel contends that the Respondent unlawfully sought to discourage support for the Union by its 26 April rescission of the warning letters. We agree with the General Counsel's contention. It was only after the union organizational meeting and the beginning of its vigorous antiunion cam- paign that the Respondent realized it had "jumped the gun." One of the first solutions the Respondent considered to solve its union "problem " was the re- scission of the warning letters which was discussed at the supervisors' meeting. Shortly after this meet- ing the Respondent rescinded the letters . It has of- fered no explanation for its actions. Considering the surrounding circumstances and the absence of an explanation, we conclude that the Respondent's action was designed to undermine the employees' union activity. We find, therefore , that by rescind- ing the warning letters on 26 April the Respondent violated Section 8(a)(1) of the Act.4 III. ORDERING SUPERVISOR TO COMMIT UNFAIR LABOR PRACTICES On the day after the Union's 22 April general or- ganizational meeting, Personnel Manager Lambert asked Production Supervisor Storey to find out who had signed union authorization cards, how many people were at the meeting, what the "gener- 4 In reaching this conclusion we find it unneccessary to modify the remedy, Order, or notice in the judge's decision as they are broad enough to encompass this violation al feeling" was, and who was at the meeting. Storey indicated that she could not ask those types of questions. Lambert persisted that Storey could "just talk to someone . . . somebody that you talk to in the normal course of the day" ; Lambert spe- cifically suggested that Storey talk to employee Penny Krueger . Storey reiterated that she could not do that. Lambert insisted that she could, and that Lambert wanted the information the same day. The judge found that Lambert had effectively di- rected Storey to engage in unlawful interrogation of employees about their union activities and sym- pathies, and that Lambert had acted unlawfully in directing Storey to violate the Act. We do not agree with the judge 's finding that Lambert's in- structions to Storey were unlawful in and of them- selves and without a showing that they were either carried out or disclosed to the employees. The judge relied on Cannon Electric Co., 151 NLRB 1465, 1468 (1965), in finding the violation under discussion. There, the Board held that in- structions to supervisors to unlawfully obtain infor- mation concerning employees ' protected activities are unlawful even if the instructions have not been carried out or disclosed to the employees. The Board reasoned that attempts by employers to find out about the union activities and sympathies of their employees frequently precede acts of unlaw- ful discrimination by employers against union sup- porters. Thus, the Board saw a "danger inherent" in an employer's efforts to learn the names of union activists; i.e., the danger that the employer will dis- criminate against them once it finds out who they are. On the strength of this assessment , the Board concluded that an employer's instruction to its su- pervisors to find out who the union supporters are is itself unlawful, even if the instructions are not carried out or otherwise disclosed to the employ- ees.5 In our view, the Board went too far in Cannon Electric. Clearly, action taken in contemplation of committing an unfair labor practice is not, without more, itself an unfair labor practice . The mere issu- ance of instructions, even if to perform unlawful 5 The Board in Cannon Electric earlier found that at least some em- ployees had become aware of the personnel manager's instructions that the supervisors identify the union supporters . Thus, the Board found that the employer had violated Sec 8(a)(1) on the grounds that an employer's instructions to a supervisor to engage in unlawful conduct encroached upon its employees' protected activities We have no quarrel with this .her aspect of the Board's decision in Cannon Electric, premised as it is on disclosure to employees of an employer's request or instructions to su- pervisors to engage in unlawful interrogation or surveillance In the instant case, the record establishes that Production Supervisor Storey disclosed to several employees that Personnel Manager Lambert had asked her to engage in unlawful interrogation to find out about em- ployee union activity The judge correctly found that the Respondent violated the Act as a result of this disclosure, and we affirm that finding RESISTANCE TECHNOLOGY acts, to supervisors to find out the identity of union supporters and the union sympathies of employees cannot in itself interfere with, restrain, and coerce employees in the exercise of their statutory rights where those instructions are neither carried out nor disclosed to the employees. We would not extend the reach of the Act that far into such intramana- gerial activity. Rather, we agree with the principles espoused earlier by the Board in General Engineering, 131 NLRB 648 (1961). In that case, the employer's gen- eral manager instructed a supervisor to "get rid of' the employees responsible for union activities, using pretextual reasons. These instructions were neither carried out nor disclosed to the employees. The Board there expressly affirmed Florida Build- ers, 111 NLRB 786 (1955), and held that "unexe- cuted instructions to a supervisor to discriminate against employees who are unaware of the instruc- tions do not have any impact on the employees and therefore cannot interfere with the exercise of the rights guaranteed by Section 7 of the Act."6 Accordingly, we overrule Cannon Electric and its progeny7 to the extent that they hold that an employer may be found to have violated the Act when it instructs its supervisors to commit unlaw- ful acts, even if those instructions are neither car- ried out nor disclosed to the employees. Therefore, we conclude that a violation of the Act cannot be based solely on Personnel Manager Lambert's in- structions to Production Supervisor Storey to engage in unlawful acts to find out who were the union supporters and what was the extent of sup- port for the union among the employees." As 8 131 NLRB at 649 The Board in Cannon Electric expressly found it unnecessary to overrule General Engineering, because, unlike in Cannon Electric, the instructions to supervisors in General Engineering were not executed 151 NLRB 1469 fn 7 However, it is clear that the holding of General Engineering to which we here subscribe is inconsistent with the aspect of Cannon Electric which we expressly overrule infra See, e g , Harvey's Resort Hotel, 236 NLRB 1670, 1681 (1978), Russell Stover Candies, 223 NLRB 592, 600 (1976), GTE Lenkurt, 204 NLRB 921, 927 (1973), GTE Automatic Electric, 204 NLRB 716, 721-722 (1973) Atlas Engine Works, 163 NLRB 486, 491 (1967) 8 The judge also relied in part on Frenchy's K & T, 263 NLRB 45 (1982), and Howard Johnson Motor Lodge, 261 NLRB 866 (1982), as sup- port for his finding that the Respondent acted unlawfully by directing a supervisor to violate the Act These cases are inapposite In both of those cases, the issue was whether the employers had acted unlawfully by dis- charging supervisors for refusing to commit unfair labor practices. Here, the issue is quite different whether a violation of the Act can be based solely upon instructions to a supervisor to commit unlawful acts without a showing that the instructions were either carried out or disclosed to the employees The Board can only proscribe employer conduct that "interfere[s] with," "restrain[s]," or "coerce[s]" employees in the exercise of Sec 7 rights When an employer discharges a supervisor for refusing to commit an unfair labor practice, conducts surveillance of union activi- ties, or otherwise interferes with employees' Sec 7 rights, we will contin- ue to find violations of the Act and provide appropriate remedies When two members of management merely converse, however, and nothing further occurs, there is no impact on employee rights and, consequently, no violation of the Act 1007 stated in footnote 5, however, we find that a viola- tion of the Act did occur when those instructions were disclosed to employees. Accordingly, we adopt paragrpah 5 of the judge' s cease-and-desist order, but not paragraph 3. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge aid orders that the Respondent, Resistance Technology, Inc., Arden Hills, Minnesota, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. 1. Delete paragraph 1,C and renumber subse- quent paragraphs. 2. Substitute the attached notice for that of the administrative law judge. MEMBERS BABSON and STEPHENS, concurring in part and dissenting in part. We agree with our colleagues in all respects except that we believe it is unnecessary on this record to decide whether instructions to supervi- sors to violate the Act are proscribed by Section 8(a)(1), where those instructions were neither exe- cuted nor disclosed. The record established that when Personnel Manager Lambert instructed Production Supervi- sor Storey to question employees concerning their union activities, Storey replied that she could not ask those types of questions. Lambert insisted that she comply, suggested that she interrogate employ- ee Krueger, and stated that the information should be provided that day. The judge found that these instructions to Storey violated the Act. The judge further found, and our colleagues do not dispute, that Supervisor Storey informed employees Krueger, Bruzek, and Kerrigan of her instructions. In fact, Supervisor Storey told the employees that she was asking questions at the direction of the Re- spondent's high level management. Storey thereaf- ter reported the results of her inquiries to Lambert, who had acknowledged that the inquiry procedure "would be breaking the law." Our colleagues reverse the judge's finding that the instructions to Storey constituted an independ- ent violation of the Act. In so doing, they an- nounce that they will no longer find a violation when an employer instructs its supervisor to vio- late the Act "where those instructions are neither carried out nor disclosed to the employees," and they overrule Cannon Electric Co., 151 NLRB 1465 (1965), and its progeny to the extent they find oth- 1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD erwise. I We believe that it is unnecessary to decide whether the Act is violated by instructions without either execution or disclosure. We acknowledge that the complaint separately alleged the instruc- tions as a violation, that the judge found them as an independent violation, and that the Order re- flects this. We believe, however, that paragraph 1,(c) of the judge's recommended Order can stand as an appropriate restraint on the conduct of an employer whose unlawful instructions have been executed and disclosed. Thus we decline the invita- tion to overrule the dictum in Cannon Electric, and we would leave for an appropriate case the ques- tion whether instructions to violate the Act, with- out more, are a violation of Section 8(a)(1). Without intimating our view on this difficult question, 2 we nevertheless have reservations about the consistency of the steps taken by our colleagues today in overruling the dictum in Cannon Electric. The majority presents two arguments to support their position: (1) the mere issuance of instructions cannot interfere with the exercise of employees' statutory rights; and (2) the Act should not extend into merely intramanagerial activity. Our colleagues' conclusion that instructions to violate the Act cannot alone interfere with employ- ees' rights arguably is inconsistent with established Board precedent concerning the surreptitious sur- veillance of union activities, and arguably inconsist- ent with those cases involving the discharge of su- pervisors for refusing to violate the Act. The Board recently reaffirmed that an employer vio- lates Section 8(a)(1) by discharging a supervisor for refusing to commit an unfair labor practice.3 Find- ' Today's decision overrules dictum in Cannon Electric The Board in that case found that the Respondent 's instructions to supervisory person- nel to identify union sympathizers were carried out, and the Board in- ferred from the evidence that the instructions to the supervisors were di- vulged to some of the employees 151 NLRB at 1468 Although the Board's decision in Cannon and in the case at bar reach opposite conclu- sions, ironically each decides an issue (the lawfulness of instructions nei- ther executed nor disclosed ) not presented by the facts 2 The Board at first concluded that unexecuted and undisclosed in- structions to violate the Act were not lawful, but since the early 1950s its declarations on this subject (sometimes in dicta and sometimes merely through adoption of an administrative law judge's opinion) have been characterized by frequent shifts in opinion Compare, for example, cases finding no violation-Arnholt Motor Co, 68 NLRB 868 (1946), enfd 173 F.2d 597 (7th Cir 1949), Atlantic Stages, 78 NLRB 553 (1948), modified on other grounds 180 F 2d 727 (5th Cir 1950), General Engineering, 131 NLRB 648 (1961), modified on other grounds 311 F 2d 570 (9th Cir 1962), Bedford Discounters, 204 NLRB 509 (1972), Service Spring Co, 263 NLRB 812 (1982)-with cases finding a violation-H N. Thayer Co., 99 NLRB 1122 (1952), modified on other grounds 213 F 2d 748 (1st Cit 1953), cert denied 348 U S 883 (1954), Cannon Electric Co, supra, Elder Beerman Stores Corp, 173 NLRB 566 (1968), enfd 415 F.2d 1375 (6th Cir 1969), cert. denied 397 U S 1009 (1970), Elm Hill Meats of Owens- boro, 205 NLRB 285 (1973), St Vincent's Hospital, 265 NLRB 38 (1982) 2 See Parker-Robb Chevrolet, 262 NLRB 402 (1982), enfd. sub nom Food & Commercial Workers Local 1095 v. NLRB, 711 F 2d 383 (D C Cir 1983) ing that such a discharge interferes with employ- ees' rights, even if the employees are unaware of it,4 the Board in Parker-Robb stated that it seeks "to ensure that even statutorily excluded individ- uals may not be coerced into violating the law." 262 NLRB at 404. Clearly, the Board proscribes this intramanagerial activity, i.e., the discharge of a supervisor, regardless of employee knowledge, be- cause it seeks to deter violations of the Act. This policy of deterrence is also evident in cases involv- ing surreptitious surveillance, an activity which the Board has prohibited for many years.5 As the Board explained in Wallace Press, Inc., 146 NLRB 1236, 1239 (1964), surreptitious surveillance of em- ployees' union activities violates Section 8(a)(1) be- cause it represents the first step leading to discrimi- natory actions taken against employees. In order to deter these discriminatory actions, the Board out- laws this first step. The dictum in Cannon Electric also focused on this need to deter violations of the Act. Finally, we note, as the judge pointed out,6 that the Board has not prohibited an employer from questioning its supervisors concerning the su- pervisors' own union activities nor concerning their lawfully acquired knowledge of employees' union activities. We therefore find it unnecessary on the record before us, where the instructions were both executed and known to employees, to overrule Cannon Electric. For the foregoing reasons, we respectfully dis- sent. 4 The Board so found because "it is the act itself and not just the fear that it may create among the employees that interferes with their Sec 7 rights " 262 NLRB at 404 fn 18 6 See, e.g, NLRB v. Southwire Corp, 429 F 2d 1050 (5th Cir 1970), Virginia Electric Co, 44 NLRB 404 (1942) 8 Infra fns 14 & 15 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. 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 RESISTANCE TECHNOLOGY To choose not to engage in any of these protected concerted activities. WE WILL NOT make or announce any change in our disciplinary warning policy for absence or at- tendance, for the purpose of interfering with, co- ercing, or restraining employees in the exercise of their rights under the National Labor Relations Act. WE WILL NOT interrogate any employees in vio- lation of the Act, concerning their or other em- ployees' union membership, sympathies, affairs, or activities, or their exercise of any other rights under the Act. WE WILL NOT threaten employees with reprisals or loss of benefits because of their union activities or for exercising any other right under the Act. WE WILL NOT inform or indicate to employees that we are keeping tabs on their union member- ship and activities and having our supervisors watch over and report to us thereon. WE WILL NOT threaten employees that a violent strike is inevitable or that we intend to bargain "from scratch" if they exercise their right to bar- gain with us collectively, in order to coerce and re- strain our employees from selecting a Union as their representative. WE WILL NOT discharge, terminate, suspend, lay off, or fail or refuse to reinstate or recall or rehire, nor will we demote or otherwise discriminate against or coerce or restrain any employee, or threaten to do so, because she or he joins, supports, or is active on behalf of a union or otherwise exer- cises any of her or his rights under the Act as set forth above. WE WILL NOT directly or indirectly do any of these things, or otherwise violate the Act, in order to prevent, coerce, or restrain our employees from selecting a union to bargain collectively for them with us. WE WILL NOT threaten or inform our employees that if they select a union as their bargaining repre- sentative, we will not bargain collectively with that union. WE WILL NOT solicit or offer to adjust griev- ances of employees in order to restrain or coerce employees from exercising their right to be repre- sented by a union. WE WILL NOT threaten or inform any employee that she or he will not be considered for promotion unless she or he discourages other employees from supporting a union. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL promptly offer (to the extent we have not already properly done so) the following 18 em- 1009 ployees whom we unlawfully terminated on 7 May 1982, as well as Penny Krueger whom we unlaw- fully demoted from her job as group leader about 12 July 1982, full and unconditional reinstatement to their former or equivalent jobs, with full restora- tion of seniority and all other benefits, and we will pay each of them, with interest, for any losses by reason of those terminations and that demotion: Shelly Bibeau Julie LeMire Betty Brassill Carol Loughrey Carol Bruzek Debra Manthey Ruth Giefer Margaret Marty Barbara Hayne Leanne Nicklason Margaret Haynes Karin Palmer Joyce Himango Deborah Resch Penny Holcombe Elnora Roehling Burhite Lenore Schendel Brenda Kowalski WE WILL remove from our files and records any references that any of the above terminations or demotion was for any job-related reason or for sup- porting the Union; and WE WILL promptly notify each of the above employees, including Penny Krueger, that we have done so and that evidence thereof will not be used as a basis for any person- nel action against any of them. All of our employees are free to join or not to join or assist Teamsters Local No. 970, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, or any other union, or to exercise any other right under the National Labor Relations Act, as they see fit, without interference, restraint, coer- cion, or discrimination from us in any form. RESISTANCE TECHNOLOGY, INC. Marlin O. Osthus, Esq., for the General Counsel. William H. Bruckner & Richard London, Esqs. (Messrs. Alaniz, Bruckner & Sykes, Esqs.), of Houston, Texas, for the Respondent. James T. Hansing, Esq., and Messrs. Daniel L. Fortier & John Robertus, of Minneapolis, Minnesota, for the Charging Party. DECISION Preliminary Statement; Issues STANLEY OHLBAUM, Administrative Law Judge. This consolidated proceeding' under the National Labor Re- lations Act was litigated before me in Minneapolis, Min- nesota, on six hearing days between January 11 and March 16, 1983, with all parties participating throughout 1 Case 18-CA-7702 Complaint issued on July 23, based on charge filed May 10, 1982 Case 18-CA-7836 The consolidated complaint, based on a charge filed August 24, issued on September 15, 1982 1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by counsel who was afforded full opportunity to present evidence, arguments, and briefs (received, after extension of time at Respondent's request, on May 2). All have been carefully considered. The basic issues presented are whether Respondent Employer violated Section 8(a)(1) and (3) of the Act through various alleged acts in interference with and co- ercion, and restraint of its employees ' rights protected by the Act, and in discrimination against them for their union membership, activities, and sympathies; and, fur- ther, for the same reasons , through demotion of 1 em- ployee and termination of 18 others. On the entire record and my observation cf the testi- monial demeanor of the witnesses , I make the following FINDINGS AND CONCLUSIONS 1. PARTIES; JURISDICTION At all material times, Respondent, a Minnesota corpo- ration with an office and place of business in Arden Hills, Minnesota, has engaged in the manufacture and nonretail sale and distribution of hearing aid components and related products. In that business in 1982 Respond- ent sold and shipped directly in interstate commerce to places outside of Minnesota products valued at over $50,000 and, at the same time, there purchased and re- ceived directly in interstate commerce from places out- side of Minnesota goods and materials valued at over $50,000. I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act; and that, at all of those times, Charging Party Union has been and is a labor organization as defined in Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Basic Questions Tendered Respondent Employer, a manufacturer of hearing aid components, is charged with having committed a rela- tively large variety of violations of the Act during the period April to July 1982, including termination of 18 employees and demotion of another, to stave off feared unionization of its plant, and to discourage and deflect its employees from union support. Respondent denies it vio- lated the Act in any way. B. Miscellaneous Interference, Restraint, and Coercion (Section 8(a)(1)) The 8(a)(1) allegations of the complaint cover a wide spectrum of alleged acts of interference with and re- straint and coercion of employees in the exercise of rights guaranteed by Section 7 of the Act. These include coercive interrogation, economic threats, and retaliatory actions, spying, threats not to bargain collectively, and plant closure in the event of unionization, solicitation, and the promise of remediation of grievances, threat not to give a promotion unless unionization is actively op- posed, and the demotion of 1 employee and termination of 18 others. 1. Union interest and activity commences and continues among Respondent's employees; Respondent's reactions thereto Discontent with wages and conditions of employment among Respondent's employees, sparked by an an- nounced reduction in their prevailing wage scales affect- ing primarily "newer" employees, aroused interest among them in unionization , resulting in a first union or- ganizational meeting in March 19822 and others thereaf- ter. Two general organizational meetings were subse- quently announced by printed handbills for midafternoon on April 22 at a nearby St. Paul (Minnesota) hotel, at which union cards were distributed and signed . To short- circuit these meetings, however, Respondent convoked an assemblage of all its production workers on the same afternoon of April 22; and two or three times weekly thereafter until its summary termination of 18 employees on May 7-to be discussed below-Respondent's presi- dent, Giguere,3 convoked assemblages of employees, at each of which he discussed the threatened unionization, to which he was vehemently and unalterably opposed, among other things exhorting employees, "Don't sign a union card . . . . Give me some time to get my act to- gether" and labeling union protagonists among them- doing nothing other than exercising rights guaranteed to them by Congress under the Act-as "militant activists." Also on the same day, April 22, Giguere distributed to employees, with their paychecks, the following letter (G.C. Exh. 6): April 22, 1982 Dear Fellow Employees: We are all aware that Teamster's Local 970 has approached some of our employees for the purpose of getting them to sign union cards and become Teamster members. These union salesmen are trained in the art of persuasion and thus I feel it is necessary to warn that may persuade, make you promises or even threaten you to get you to sign a union card. In our brief meeting I asked that you please not sign any union cards. I wish to repeat what I said to you in that meeting , I want you to know how im- portant I feel it is that Resistance Technology em- ployees not sign any union membership cards prior to hearing what the company has to say . The signa- ture on a union membership card may very well be an irreputable [sic] decision and an action that you might have to live with the rest of your life. This could be true even if you decide you don't want anything to do with the union, now or later. Thus, we request that you please do not sign a union card at this time if asked to do so. Once you are a member, unions can collect dues, make special 2 Unless otherwise specified, all dates are in 1982 2 Without explanation, Giguere did not testify here to controvert any testimony concerning him 4 Although, as shown below, Giguere also assured his employees that there would be no layoffs, he seemingly got his "act together" by termi- nating 18 of them wholesale on May 7 RESISTANCE TECHNOLOGY assessments and fine you for many actions and ac- tivities including going to work if the union bosses have called a strike. As I said to you I will endeav- or to meet with you again next week to give my reasons why I feel a union would not be good for any of us as individuals or for our company. A union, and particularly the Teamster's Union, could very well do serious harm to our job security and our opportunity to grow or maintain our position in our industry. After you have heard my reasons, I believe that you will agree with me that a union; and like I said before, particularly the Teamster's Union, would hurt each of us immediately. And, in the long run might destroy our future. There will be plenty of time to sign a union card if you ever wish to, the union salesman will always be there as long there is someone to listen to his sales pitch. In the meantime, if you are approached, I would ap- preciate it if you would simply say, no thanks and close the door or walk away. Sincerely, Thomas A. Giguere President As credibly and uncontrovertedly testified to by Re- spondent's own former production supervisor, Gail Storey, immediately following the employees' organiza- tional meeting of April 22, Respondent's president walked into the Company's conference room and an- nounced to the managerial and supervisory staff that "the minute [I] walked in the door [I] could smell the union," that "there was no way that [you supervisors] could have not known there was union activity going on and that [you] should have informed [me]," and that "if [you] allow[ed] the Union to get in then [your] jobs [are] on the line," and he demanded that the supervisors supply him with the names of the "union instigators," adding that he "would not bargain with the union" and "would hang a for sale sign on the door before [I will] let the union in." When Supervisor Witter told Giguere that she (Witter) had informed Personnel Manager Lam- bert about the union activity, Lambert did not responds When Giguere pronounced that the supervisors' "number one priority [is] to keep the union out," Super- visor Thompson's remark that she (Thompson) thought her priority was to get out production met with the re- joinder from Giguere that she had her "priorities all screwed up." At an ensuing supervisors' meeting to address this bur- geoning "problem" arising from the employees' attempt- ed exercise of their federally guaranteed rights, Respond- ent's parts supervisor, Robert Bowker, maintained that the "new" employees "were the ones who were causing all the problems [and] . . . trouble." When Supervisors Bowker and Storey brought up the possibility of rescind- ing some newly instituted absentee "warnings" that had been distributed to employees since the advent of the union activity, Personnel Manager Lambert responded 5 Because Respondent's personnel manager, Lambert, also, as Giguere, unexplamedly failed to testify, all testimony concerning her likewise stands uncontroverted 1011 that it would first have to be ascertained if it was "legal" to do so, adding that for her (Lambert's) part she was desirous of telling the employees that "See, this is what your union did for you." On May 4, a document of unknown authorship was circulated among Respondent's employees soliciting their signatures to "keep our own negotiabl [sic] work climent [sic] union free" and to prevent "any Union invaiding [sic] our work environment." (R. Exh. 7.) On May 6, Respondent's personnel manager, Ruth A. Lambert, directed the following document to employees (R. Exh. 8): INTEROFFICE MEMORANDUM Dated: May 6, 1982 Memo To: All Production and Support Employees From: Ruth A. Lambert s/ Ruth Subject: Withdrawal of Union Cards Discussion: Several employees have asked me whether or not they could withdraw their union card. My answer to this is that YES it is possible to ask for your card back from the person or persons to whom you gave the card. Union organizers are well trained in the art of persuading and applying either outside or peer pres- sure, or for that matter, threatening people to get a union card signed. Sometimes they do it themselves or sometimes they have employees they have trained do it for them. If you are one of those who have made the error of signing a union card, you are simply one person in a long line who have been mislead [sic] by a skilled unionist applying their trade. It is no sin to be duped by one of these people. It is only a sin to continue to follow when you have once realized your mistake. If you want your card returned .. . ask for it back! On the next day, May 7, 18 employees were summari- ly terminated, under circumstances discussed below (infra "11,C,1"). Finally, following the described events culminating in the summary discharge of these 18 employees, a Board- supervised representation election, based on a May 20 stipulation, was held on June 24, resulting in a vote of 50 for and 30 against union representation , with 7 chal- lenged ballots, in a unit of 82 eligible voters.6 2. Respondent's toughening of disciplinary policy: complaint paragraph 5(a)' The complaint (par. 5(a)) alleges that, in violation of Section 8(a)(1) of the Act, in or about April 1982-soon after the employees' first union organizational meeting- Respondent's operating director, Wentworth, announced 6 Board Case 18-RC-13255. No objections having been filed, on July 1 the Regional Director certified the result 4 All "complaint" references are to the complaint as consolidated and amended 1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and implemented a toughening of its previous discipli- nary warning policy to discourage union support. Prior to the attempted exercise by Respondent's em- ployees of their rights under the Act in March and April, Respondent's absence policy, as set forth in its "Employee Handbook" (G.C. Exh. 4), was that "Exces- sive absence and/or tardiness without satisfactory expla- nation acceptable to the Company will result in discipli- nary action, including discharge. Excessive absenteeism is defined as being absent more than one day a month on a continuing basis." Id. (Emphasis added.) However, soon after the employees began to attempt to exercise their rights under the Act-and for no other demonstrated reason-on April 15 Respondent's director of operations, Wray A. Wentworth, issued warning let- ters to employees concerning "absenteeism," pointing out that "your absenteeism rate is significantly above the na- tional average" (emphasis added), calculated retroactively on an annual basis to the beginning of the year for the expired first quarter, and further warning that "A poor attendance record will hurt your performance rating. An excessive level may also lead to disciplinary action or termination." (R. Exhs. 2 and 6.) Because calculation of "excessive" absenteeism on an alleged "national average" basis, rather than on the day-per-month basis specified in Respondent's "Employee Handbook" (supra), was defi- nitely not only disadvantageous to the employees but di- rectly contrary to what they had been assured by Re- spondent's president, Giguere, in his welcoming "Em- ployee Handbook" (id.), particularly if announced unilat- Complaint Par. 5(b) 5(h) 5(m) 5(o) Respondent's employee Margaret Haynes8 testified credi- bly and without contradiction9 that in the latter part of April her supervisor, Quality Control or Assurance Man- ager McLinn, met with Quality Control employees and, after saying that Teamsters Union "seemed to be for the employees but they turned out probably for the compa- ny," encouraged them to think of "[me] as a fellow em- ployee instead of a supervisor and if there was any latest a Although laid off by Respondent on May 7, Haynes has since been readmitted into Respondent 's employ . We have been instructed that an employee who testifies against his or her employer 's perceived interest deserves, for that reason, an extra credibility mark, since hazarding retal- iation See, e.g., Georgia Rug Mill, 131 NLRB 1304, 1305 in 2 ( 1961), enfd as modified 308 F 2d 89 (5th Cir 1962), Wirtz Y. B A. C Steel Prod- ucts, 312 F 2d 14, 16 (4th Cit. 1963) 9 As Respondent's president, Giguere, and its personnel manager, Lam- bert, its quality assurance manager James McLinn likewise, without ex- planation, failed to testify. Thus, in his case also, activities and statements attributed to him stand uncontradicted. erally and applied retroactively as these warning letters purported to do, the employees protested, resulting in a meeting around the end of April, when Wentworth an- nounced that he had "jumped the gun" and that the warnings had been issued in "error" and would be re- scinded, which they eventually were, but only after re- fusal and resistance from other management sources and visible anger from Personnel Manager Lambert, who yielded only after berating one of the warning recipients (Charlene Kerrigan) with the annoyed remark that she (Lambert) did not know "why you are pushing this." Inasmuch as I am unable to relate Respondent's sudden stiffening of its previously stipulated absence policy to anything other than the employees' advent into attempted exercise of their organizational rights under the Act, I am compelled to conclude that Respondent's action was an attempt-one of many others to be de- scribed-to clamp down on those activities, to coerce and cow the employees into abandonment thereof, and to discourage and wean the employees from continued union support, as alleged in the complaint. 3. Interrogation of employees: complaint paragraphs 5(b), 5(h), 5(m) and 5(o) The complaint further alleges that on various occa- sions, in April and May, Respondent through various managerial and supervisory officials interrogated employ- ees concerning their (and other employees') union mem- bership, activities, and sympathies. The specific alleged incidents were: Date or Approx. Employee Date Resp. Mgr. or Official Supv. Capacity April Margaret Haynes James McLinn Quality Assurance Mgr. Late April Lynn Mane Schmidt Ruth Lambert Personnel Mgr. May 3 Penny Krueger Gail Storey Production Mgr. May 5 Kari Palmer Ruth Lambert Personnel Mgr. gossip going around fill [me] in. [I] would like to keep in tune with [you] more or less." Lynn Marie Schmidt, another employee of Respond- ent,10 also testified credibly and without contradiction that during the last week of April she was called into the office of Personnel Manager Ruth Lambert, where the latter told Schmidt that Lambert would go down a list in her hand of employees on Schmidt's line (Model 10) and that Schmidt should indicate, by nod of the head which would suffice, who was for and who against the Union. Schmidt declined to do so. Respondent's former Supervi- sor Gail Storey's testimony corroborates that Schmidt thereafter recounted this episode to Storey. I 1 10 See in 8 supra i i On brief, Respondent in effect renews its trial application to remove or ignore the testimony of its former supervisors , Storey and Witter For reasons adequately explored in the record , I again deny that application Continued RESISTANCE TECHNOLOGY Still another current employee 12 of Respondent, its former Model 15/16 assembly line group leader Penny Krueger, testified credibly that in late April she was in- formed by Respondent's production supervisor, Gail Storey, that Personnel Manager Lambert had instructed Storey to ascertain from Krueger which and how many employees had joined the Union, and that Storey had in- dicated she did not wish to do this because it was against the law. Krueger declined to supply the desired informa- tion. In her testimony here, Respondent's former supervi- sor, Storey, corroborated this testimony of Krueger. Yet another current employee of Respondent, Karin Palmer, testified credibly and without contradiction that a few days before she was terminated on May 7 (she has since been readmitted to Respondent's employ), while in Personnel Manager Lambert's office regarding a dental appointment, Lambert asked her, "Now, tell me about the union . . . . [Is] the attendance [at meetings] heavy?" When Palmer declined to supply this information, Lam- bert acknowledged she should not be asking such ques- tions. Based on the foregoing clearly established, uncontro- verted testimony, it is found that impermissible interroga- tion was conducted by Respondent, as above specified, substantially as alleged in the indicated paragraphs of the complaint. 13 4. Directing supervisors to "spy" on employees: complaint paragraphs 5(e), 5(f), 5(i), and 5(1) The complaint alleges that in April and May Respond- ent, through its managerial personnel, instructed its su- pervisors to ascertain the union membership, sympathies, and activities of its employees; and that the supervisory personnel made that known to employees. Respondent's former production supervisor, Storey, testified credibly and without contradiction that on the "next day after the first union meeting" (i.e., on April 22) Personnel Manager Lambert asked her to "find out four things for her. And that was, who signed the union cards; how many people were there; what the general feeling was. And who was at the meeting." When Storey indicated that she could not "ask . . . those types of questions," Lambert persisted that Storey could "just talk to someone . . . . somebody that you talk to in the normal course of the day. And what about [employee] Penny Krueger? Couldn't you just talk to her in a friend- ly conversation and ask her an open-ended question?" When Storey reiterated that she could not very well do that, Lambert nevertheless insisted that she could and Nor do I believe that, under the circumstances presented, there has been shown to have occurred any improper or censurable conduct on the part of any Regional Office personnel to warrant suppression of any testimony before me of those witnesses (Storey and Witter), who, incidentally, im- pressed me as thoroughly credible witnesses of high order-entirely apart from the contents, whatever they may have been, of any statements sup- plied by them to any Regional Office personnel Cf Nicholas George The- atres, 266 NLRB 545 fn 1 (1983). 12 See fn 8, supra is Although there is also evidence of questioning of supervisory per- sonnel concerning union activities and affiliations , such questioning, inso- far as limited to supervisory personnel, not within the Act's definition of "employees," is neither alleged to be nor regarded as violative of the Act 1013 that she (Lambert) "wanted it that same day," drawing from Storey that she would try and also a report from Storey later that day. Although it is not unlawful for a supervisor to keep his eyes and ears open and report to management what is plain for eyes to see and ears to hear, without intrusive spying or, for example, off-premises surveillance, 14 It is unlawful for an employer to direct a supervisor to vio- late the Act.15 The uncontroverted proof here estab- lishes that Respondent's personnel director Lambert's di- rections to Supervisor Storey required the latter not merely passively to observe but actively to inquire by engaging in impermissible interrogation in violation of the Act. Credited uncontroverted testimony, including that of Supervisor Storey, further establishes that Supervisor Storey conveyed this information on to employees (Krueger, Bruzek, and Kerrigan) and, indeed, in one case (Krueger-concerning whom, more below), asked the employee whether she (Storey) could report her (Krueger) to Lambert as "riding the fence" and as not "wish[ing] to get involved"-which Storey later in fact reported to Lambert, who had acknowledged to Storey that the described inquiry procedure "would be breaking the law." Supervisor Storey's carrying out of higher manage- ment's directions in the described manner that she did (i.e., informing employees that she was doing this at the direction of high-level managerial personnel, Lambert) must also be regarded as coercive and restraintful to be inhibitory of their and fellow employees' continued exer- cise of their organizational rights under the Act, and I so find. t 6 Accordingly, I find paragraphs 5(e), (f) and (i) of the complaint established.17 5. Economic threats: complaint paragraphs 5(c), 5(d), 5(g), 5(k), and 5(q) The complaint further alleges that in April and May, Respondent through its president, Giguere, and other of- ficials threatened employees with reprisals for union ac- tivities; loss of benefits, inevitability of a violent strike, and bargaining "from scratch" in the event of unioniza- tion; to shut down in the event of unionization; and not to consider an employee for promotion unless the em- ployee were to actively discourage other employees not to support the Union. 14 Cf., e g, NLRB v Simplex Time Recorder Co, 401 F 2d 547, 549 (1st Cir 1968), Federated Department Stores, 241 NLRB 240, 243 (1979), Porto Systems Corp, 238 NLRB 192 (1978), enfd 625 F2d 399 (1st Cir. 1980), Emerson Electric Co, 177 NLRB 75, 87 and cases cited (1969) But cf Elm Hill Meats, 205 NLRB 285 (1973), Cannon Electric Co, 151 NLRB 1465 (1965) 18 Frenchy's K & T, 263 NLRB 45 (1982), Cannon Electric Co, 151 NLRB 1465, 1468 (1965) Cf Howard Johnson Motor Lodge, 261 NLRB 866, 870-871 (1982), enfd 702 F2d 1 (1st Cir 1983) BE & K, 252 NLRB 256 (1980), cited by Respondent, is inapposite because it is not violative of the Act for an employer to question his supervisors concern- ing their own union activities, nor concerning their knowledge of em- ployees' union activities lawfully acquired 18 Cannon Electric Co, 151 NLRB 1465, 1468 (1965) 17 On brief (at fn 13), the General Counsel moved to dismiss par 5(1) of the complaint for failure of proof The motion is granted 1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Credited, uncontradicted testimony of Respondent's current employees Charlene Kerrigan, Carol Ann Bruzek, and Penny Krueger establishes that in the course of his address to assembled employees on April 22, re- ferred to above, Respondent's president, Giguere, warned the employees that in the event of unionization he could "bring [you] all the way down to minimum wage and . . . keep [you there]"; that "organizing under the Teamsters is equivalent to throwing a grenade in the door . . . and then running"; that it would be "inevita- ble" that the "Teamsters would put [you] out on strike," and that area plants had been closing and moving "due to union organizing campaigns." Giguere does not deny that he said these things. On the same day, Giguere wrote the employees, inter alia, that (G.C. Exh. 6): A union, and particularly the Teamster's Union, could very well do serious harm to our job securi- ty. . . . A union, and like I said before, particularly the Teamster's Union, would hurt each of us imme- diately. And, in the long run might destroy our future. . . . I would appreciate it if you would simply say, no thanks and close the door or walk away. Respondent's former employee Patricia Jones testified credibly and without contradiction that during an eval- uation in May by her supervisor, Quality Assurance Manager McLinn, to whom she expressed the aspiration (in response to McLinn's query) to become a supervisor, McLinn informed her that her "silence in the union busi- ness that was transpiring at [this] particular time [is] not in [your] favor as far as going on in the company to achieve any promotions." When she indicated she was trying to remain aloof, McLinn reiterated that "it [isn't] helping [your] position with the company."20 On the basis of the foregoing credited and undisputed testimony, I find the allegations of paragraphs 5(c), (d), (q), and (q) established.21 6. Threat not to bargain collectively: complaint paragraph 5(j) The complaint also alleges (par. 5(j),22 as amended with regard to date, at close of case) that about April 20 Respondent's president, Giguere, informed employees that Respondent would not bargain with the Union. Concerning this, credited and uncontradicted testimo- ny of Respondent's former Supervisor Carol Jean Witter23 establishes that on April 20 Giguere informed About a week later, addressing small groups of em- ployees, Giguere warned employees that "all plant clos- ings [are] due to unions . . . this is not a right to work state." Giguere had also told his supervisors and leadper- sons about a week earlier, that he would "close the plant down" before he would allow the Union to come in- "No way [is] a union going in [here] . . . . [I will] never negotiate." Giguere had previously, in 1979, warned em- ployees that "RTI [i.e., Resistance Technology, Inc.] will never have a union. . . . [I] would never tolerate a union at RTI."18 Called as Respondent's witness, its employee Penny Holcombe Burhite testified that Respondent's president, Giguere, made it plain to employees at meetings he con- voked that he was opposed to unionization; that the em- ployees did not need a union since they had it "good enough"; and that if the Union came in he would bargain "from scratch . . . you wouldn't have what you [have] now and your benefits . . . might change . . . your pay might change." Another witness called by Respondent, its employee Gloria Plaster, testified that at an employ- ees' meeting she attended, Giguere insisted the employ- ees did not need a union, expounded on Teamsters Union income, showed a film demonstrating violence under the Teamsters, and informed the employees that in the event of unionization they could no longer communicate di- rectly with the Company.19 18 This is according to the credited and undisputed testimony of former Production Supervisor Witter At that time (1979) there were only around 50 total employees, in contrast to the over 100 production employees alone to which the Company had grown by 1982 19 This is patently contrary to Sec 9(a) of the Act See Henry I. Siegel Co v NLRB, 417 F 2d 1206, 1215 (6th Cir 1969), cert. denied 398 U S 959 (1970); NLRB v. Graber Mfg. Co, 382 F 2d 990, 991 (7th Cir 1967), Dixisteel Buildings, 186 NLRB 393, 395-396 fn 6 (1970), enfd 445 F 2d 1260 (8th Cir 1971) 20 That such a statement by a supervisory official to an employee con- stitutes an implied threat of economic reprisal for continuing to engage in protected concerted activities, and thus violative of Sec 8(a)(1) of the Act See, e g, NLRB v US. Industries, 701 F 2d 452 (5th Cir 1983). 21 An employer's mere statement that in the event of unionization he will "bargain from scratch" is not ipso facto unlawful Cf NLRB v. Inter- state Engineering, 583 F 2d 1087 (9th Cir 1978), Campbell Soup Co, 225 NLRB 222 (1976), Ludwig Motor Corp, 222 NLRB 635 (1976); Computer Peripherals, 215 NLRB 293, 294 (1974), Stumpf Motor Co, 208 NLRB 431 (1974), Wagner Industrial Products Co, 170 NLRB 1413 (1968) However, under the circumstances here presented, including a panorama of uncon- tested attendant violative acts, among them threats not to permit a union, not to bargain, and to go out of business, the threat to "bargain from scratch" takes on a coloration it might otherwise lack Under these cir- cumstances, the threat to "bargain from scratch" may properly be re- garded as but an added manifestation of coercion in violation of the Act's basic purpose to liberate employees to organize and bargain collectively in an atmosphere free from such confluent threats and coercively pat- terned restraints Cf, e.g, NLRB v Gissel Packing Co, 395 U S 575, 617-620 (1969), NLRB v. Exchange Parts Co, 375 U S 405, 409 (1964), Towne v. Eisner, 245 U S 418, 425 (1918), NLRB Y Interstate Engineering, 583 F 2d 1087 (9th Cir 1978), enfg. 230 NLRB 1 (1977), Henry I. Siegel Co v. NLRB, 417 F 2d 1206, 1208, 1214 (6th Cir 1969), cert denied 398 U.S 959 (1970), NLRB v Federbush Co, 121 F 2d 954, 957 (2d Cir 1941), Madison Kipp Co, 240 NLRB 879 (1979), Plastronics, inc, 233 NLRB 155 (1977), Coach & Equipment Sales Corp, 228 NLRB 440 (1977), North Electric Co., 225 NLRB 1114 (1976), enfd 588 F 2d 213 (6th Cir 1978); Peterson Builders, 215 NLRB 161 (1974), Saunders Leasing System, 204 NLRB 448, 454-455 (1973), enfd. in relevant part 497 F 2d 453 (8th Cir 1974), Oak Mfg Co, 141 NLRB 1323, 1325 (1963) 22 Par 5(k) of the complaint was dismissed on consent at the conclu- sion of the General Counsel's case for lack of proof On brief (p 13 fn 12) the General Counsel requests a finding of further violation consisting of Respondent President Giguere's threat to close down the plant, re- flected in testimony to that effect Although that testimony is uncontra- dicted, there is no such allegation in the complaint (other than par 5(k), which was dismissed on consent of the General Counsel at the end of his case in chief) Although I recognize that power exists to conform plead- ings to proof, even after trial, under the circumstances I do not consider that it would be fair to do so here because in the existing state of the record I am unable to determine whether Respondent would have litigat- ed this particular matter if it had been alleged Accordingly, the General Counsel's application for such a finding is denied 2a See fn 11 supra RESISTANCE TECHNOLOGY not only supervisors but also leadpersons, with a secre- tarial person present, that he would "never negotiate" with a union but would "fight the union to the wall" and "close the plant down. No way [is] a union going in [here]." In view of the fact that it is not disputed that Giguere made the indicated statement on the occasion in question to a group including leadpersons, who come within the Act's definition of "employees," I find the complaint al- legation in question established 7. Solicitation of grievances: complaint paragraph 5(p) In the aspect of "independent" alleged violations of Section 8(a)(1), the complaint (par. 5 (p)) finally alleges that-within the factual context here-about May 5 Re- spondent, through its Personnel Manager Lambert, solic- ited and undertook to remedy employee complaints and grievances. Once again, credited and uncontroverted proof estab- lishes that, in the context of an ongoing union organiza- tional campaign, a few days before the May 7 wholesale layoff of 18 employees, discussed below, while Respond- ent's current employee Kari Palmer (included in that layoff but since reinstated to her job) was in the office of Respondent's personnel manager, Ruth Lambert, and after she (Palmer) had declined to comply with Lam- bert's request that Palmer provide information concern- ing attendance at union meetings, Lambert informed Palmer that she (Lambert) not only was aware that the Company had serious problems with its work force but stood "willing to do something about it" and that "if anybody else want[s] to talk to [me] to send them in." Although this was a somewhat mild assurance and solici- tation, to be sure, nevertheless it cannot be gainsaid that, particularly in the overall frame of reference of Re- spondent's avowed bitter hostility to any union "involve- ment" by its employees, this in effect amounted to an in- vitation to deal directly with the Company rather than through a union pictured as unnecessary for (and con- ceivably even hostile to) the solution of the employees' problems because Respondent allegedly stood ready to remedy them without a union. Because such solicitation of employee grievances and assurance of remediation, during an organizational drive, constitutes an improper "promise of benefit" within the meaning of Section 8(c) of the Act,24 it is found that this allegation of the com- plaint is established.25 24 Cf NLRB Y Exchange Parts Co, 375 U S 405, 409-410 (1964), Hed- strom Co Y NLRB, 558 F 2d 1137, 1142, 1145 (3d Cir 1977), cert denied 450 U S 996 (1981), NLRB v Broyhill Co, 514 F 2d 655, 657 (8th Or 1975), Litton Industries v NLRB, 460 F 2d 23, 24-25 (3d Or 1972), cert denied 409 U S 915 (1972), NLRB v Crown Can Co, 138 F 2d 263, 267 (8th Cir 1943), cert denied 321 U S 769 (1944), Dresser Industries, 248 NLRB 33, 44 (1980), enfd in relevant part 654 F 2d 944, 947 (4th Cir 1981) 25 Par 5(n) of the complaint was dismissed on consent at the conclu- sion of the General Counsel's case for lack of proof 1015 C. Termination and Demotion of Employees (Section 8(a)(3) and (1)) 1. Termination of 18 employees: Complaint par. 6(a) The complaint alleges that, in violation of Section 8(a)(3) and (1) of the Act, on May 7 Respondent dis- charged 18 employees because of their union adherence or support and their exercise of rights guaranteed under the Act, and to discourage them from continuing therein. It is undisputed that on May 7 Respondent terminated the 18 production employees identified in the complaint. The issue is why. Respondent contends it did so because of transient economic necessity. No question is raised as to the qualification or efficiency of any of these employ- ees. Many if not most of the employees in question have been reinstated to Respondent's employ The General Counsel having, as will be shown, estab- lished prima facie that the employees in question were terminated to discourage and abort further unionizational activity and efforts, within a framework of extreme em- ployer hostility to such activity, interlarded with an es- sentially uncontested smorgasbord of unfair labor prac- tices, it is necessary to examine whether Respondent's defense of economic necessity for those wholesale dis- charges, at the time and under the circumstances in ques- tion, holds water. NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), approving Board's rationale in Wright Line, 251 NLRB 1083 (1980), enfd 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). From the outset of the publicized union organizational meetings (April 22) of Respondent's employees until at least the date of the wholesale discharge of 18 of them on May 7, Respondent's president, Giguere, met steadily with groups of those employees. At these meetings, he continued to assure them that there would be no layoffs or that "no layoffs [are] foreseen at [this] time," while at the same time continuing to inveigh against the employ- ees' continued interest in and involvement with the Union26 and blasting union protagonists among his em- ployees as "militant activists"-even though they were doing no more than exercising their rights under a Fed- eral statute. At these meetings, displaying charts, Gi- guere assured employees that despite an alleged "tempo- rary" lessening of some product sales, which had been $3,900,000 in 1981, these were anticipated to rise to $5 million in 1982, that the Company was "doing a lot better than last year . . . [and] growing," and that "there [is] no need for layoffs," adding that there were ways to avoid layoffs including a liberal leave-without-pay policy and shifting employees from job to job as in the past. This is confirmed by the uncontradicted, credited testi- mony of Respondent's former production supervisor, Storey, that at no time during her tenure (since mid- 26 He was referring to particularly the Teamsters However, as has been repeatedly decisionally emphasized, the choice of bargaining repre- sentative is that of the employees, not of the employer See, e g , Frank- furter, J, in Brooks v NLRB, 348 US 96, 103 (1954), Burger, J , in Ladies Garment Workers Local 57 (Corwin Corp) v NLRB, 374 F 2d 295, 308 (D C Cir 1967), cert denied 387 US 942 (1967), NLRB v Signal M f g C o, 351 F 2d 471 (1st Cir 1965), cert denied 382 U S 985 (1966), Washington Post Co, 165 NLRB 819, 826 (1967) 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1979) had there been a general layoff, whether or not work declined, and that the regular practice had always been to shift employees from job to job or from depart- ment to department. Particularly was this appropriate be- cause many if not most of the jobs required no real ex- pertise. Indeed, as further testified credibly and without contradiction by Supervisor Storey, at a March supervi- sory meeting Production Manager Scott27 had indicated that if workload declined employees would be placed on a 6-hour workday as in the past. And at no supervisory meeting attended by Storey was there any manifestation regarding a layoff, other than that it would (as in the past) be avoided in various ways, as President Giguere and other company officials and supervisors had contin- ued to assure the employees themselves. Notwithstanding Respondent's president Giguere's ear- lier assurances to employees of no layoff or the improb- ability of a layoff, without any notice whatsoever-and without placing into effect any of the alternative meas- ures regularly employed in the past-at the end of the workday on Friday, May 7, 18 production employees were summarily terminated28 then and there, and in- formed-as, indeed, the "employee status change" (G.C. Exh. 10) document distributed to each of them stated- that it was a "permanent lay off," with Personnel Man- ager Lambert (as well as Production Manager Scott) adding that "you are not going to be rehired"-as, again, the "employee status change" document (G.C. Exh. 10) also specifies ("Rehire-No"), and that there would be no vacation pay for the terminated employees. It is to be noted that 3 days before this, on May 4, employees were solicited to sign a paper disavowing and expressing op- position to unionization (R. Exh. 7). Credited and uncon- tradicted testimony of Respondent's former supervisor, Storey, as well as of former employee Jonas, establishes that that signature list came into Respondent's posses- sion. It is further to be noted that of the 36 employees whose names (or other ostensible signatures) appear on that antiunion employees' list (R. Exh. 7) which came into Re- spondent's hands, only 2 (Himango and Roehling) were among the 18 terminated on May 7,• with only those 2 ex- ceptions, the remainder of the 18 employees summarily ter- minated on May 7 did not sign that antiunion employees' list. It is further noted that at around the same time, as established by the credited and uncontradicted testimony of Supervisor Storey, Respondent's personnel manager, Lambert, had placed before Storey a list of employees' names and directed Storey to identify which were pro and which antiunion, indicating to Storey that the Com- pany was intent on identifying and dealing with the "in- stigators" of the unionizational effort. Also, on the very morning of May 7 (the day of the mass terminations here in issue), Personnel Supervisor Carol Jean Witter, who Lambert likewise asked to identify on Lambert's chart or list of employees, who was pro and who was antiunion, that Witter's (Model 10 line, Respondent's major compo- nent for hearing aids, chiefly in-ear) and Storey's 27 Although Scott also did not testify, all statements attributed to him likewise stand uncontroverted 28 As indicated above, there is no contention of any work inefficiency or deficiency on the part of any of these employees (Models 15 and 16) units were the "highest" in prounion advocates and that "all of our jobs are on the line if the union [comes] in," the Company being determined to root out the "instigators." Respondent's so-called layoff notices expressly speci- fied "Rehire-No" and "Permanent lay off-No reasona- ble expectation of recall because of lack of business" (G.C. Exh. 10). Notwithstanding this, however, many or most of the terminated employees were reinstated after the Board-conducted election which the Union lost. Re- spondent's former employee Terry June Smoyer testified credibly and without contradiction that when she asked Personnel Manager Lambert why the termination notices indicated the layoffs were "permanent," in view of the fact that Company Director of Operations Wentworth was assuring employees they would be rehired, Lambert responded that this was because the Company's lawyers had "advised them to tell the employees this" on the ter- mination notices so that "if the union was voted in that the employees wouldn't have the protection that they thought they would." When Brenda Kowalski, 1 of the 18 employees termi- nated on May 7 (and who was an election observer on behalf of the Union at the subsequent Board-conducted election, and has not been recalled to Respondent's employ), returned to the plant on Monday, May 10, and asked President Giguere why she "was a permanent layoff," Giguere told her the Company's products "weren't selling."29 When Kowalski reminded Giguere of his assurances at his meeting with employees that there would be no layoff, Giguere-who, since without explanation he elected not to testify here, in no way dis- putes the statements attributed to him-told Kowalski she had not been "listening" to what he had said. It is to be observed that notwithstanding Respondent's contention that the mass layoff in question was in ac- cordance with "seniority," this is not entirely true. Disre- garding for the moment the fact that Respondent' s mana- gerial and related personnel were voicing expressions that the union "activists" were to be found among the "junior" employees (and for that reason they would, from Respondent's viewpoint, be the "logical" candi- dates for mass layoff), it is noted that employee Carl Brassill was not among those laid off on May 7, although he concededly had less seniority than others who were laid off (and who could have done his job). It is also to be noted that Carl Brassill's name appears on the mani- festo of antiunion employees (R. Exh 7) which came into Respondent's hands shortly before the mass layoff. The evidence of actual work levels around the time of the unprecedented mass layoff of May 7, 1982, is of great interest and significance in view of Respondent's conten- tion that these layoffs were "because of lack of business" (G.C. Exh. 10, stipulated as having been given to each of the "permanent lay off" employees). At the outset it is to be noted that-as shown in greater detail below, in com- ments directed toward the mass of massive charts and other documentary predictions and records presented by 29 As shown below, Respondent's vice president, Gerald H McDon- ald, testified that Respondent controls 70 to 80 percent of the entire do- mestic United States hearing aid components market RESISTANCE TECHNOLOGY 1017 Respondent-Respondent has attempted to blur, if not obfuscate, its actual work levels by presenting massive charts and other documentary predictions of its work forecasts and then arguing "lack of business" based on the alleged fact that the actualities, at least in the early months of 1982, did not meet its forecasts. It is obvious that on this basis, a company which is doing a greater quantity of business than it ever did, with a greater income than it ever had, could still claim insufficient business based on its alleged inability to attain its own overly rosy, ipse dixit "forecasts." Such statistical formu- lations, fictions, and ambiguities are to be contrasted with sworn testimony supplied subject to the severe tests of stringent cross-examination and the well-understood sanctions of perjury prosecution Credited testimony establishes that Respondent's actual work levels in a representative period preceding the mass layoff were not diminished to an extent such as rationally to account for those layoffs, and certainly not in terms of Respondent's prior practice of moving employees around to tasks where they were more needed and could be kept busy. It is to be emphasized that Respondent' s business consists in large part of unskilled assembly work not re- quiring what is normally regarded as expertise, so that it was common practice to move employees around to where they were needed or more needed. Respondent suddenly and apparently for the first time departed from this practice on the occasion of its precipitate mass layoff of May 7 in the heat of its employees' organizational ef- forts, and with the layoffs leveled at the employees who had not signed the antiunion manifesto (R. Exh. 7). Thereafter, as shown, overtime was worked by the re- tained employees, and eventually, after the Board-con- ducted representation election which the Union lost, the "permanently" laid-off employees were, with few excep- tions, recalled. All this casts grave doubts on the alleged "lack of business" reasons for the mass layoff. Also cast- ing grave, if not graver, doubt on Respondent's conten- tion is that little if any basic record production data for pe- riods prior to 1982 have been supplied by Respondent for necessary comparison purposes here,- regarding these, Re- spondent's counsel has taken the position on the record (Tr. 430-431) that his client has told him that they were "thrown away "30 We look, therefore, first to the sworn testimony. Cred- ited testimony of Respondent's current employee31 Charlene Kerrigan establishes that from December 1981 through February 1982 she worked between a normal 40-hour week to a 9- and even 10-hour mandatory work- day plus 8 hours on most Saturdays, on the Model 15/16 30 I cannot ignore that there is, of course, a significant distinction be- tween, on the one hand, a mere statement by counsel that his client has told him that his recent business production records have been "thrown away" and, on the other hand, sworn testimony-not here provided-to that effect (which would, of course, be subject to the traditional tests and safeguards of cross-examination, refutation, and the ever-present potential sanction of perjury prosecution) Nor can I ignore the fact that although Respondent could have presented this contention, if valid, in sworn testi- monial form, it elected not to do so 31 See fn 8 supra assembly line,32 and that thereafter until the mass layoff of May 7 employees were permitted (as in the past) to take voluntary time off without pay on occasions of a lull in work; and also that since around a few months after that layoff she has on occasion been required to work overtime. Credited testimony of Respondent's current employ- ee33 Carol Bruzek establishes that although her work as assembler on the Model 15/16 line had "leveled off" from December 1981 to March 1982, this was no more than a return to a normal level because the work level had been inordinately high from November 1981 through January 1982. Credited testimony of still another witness of highly impressive demeanor, Brenda Kowalski, another Model 15/16 line assembler, establishes that at the time of the May 7 mass termination, she, too, was kept busy working 40 hours per week Credited testimony of Respondent's current employ- ee34 and former Quality Control Inspector Margaret Haynes at the time of the May 7 mass layoff, establishes that at the time of those layoffs there was sufficient work on hand as before, no less in quantity than previously. It is to be noted that her quality control unit inspected out- side purchases coming in, as well as parts fabricated at Respondent's plant itself, thus serving as a seemingly fair yardstick of the general level of the plant's productive activity. Credited testimony of Respondent's former Model 15/16 Production Supervisor Storey establishes that al- though there was somewhat of a lull or dip in work there during the 2 months before the May 7 mass layoff, nevertheless there was sufficient work so that her subor- dinates still worked (or could have worked) 40 or more hours per week; and that there had been previous times when work was even less, without a layoff. Credited testimony of Respondent's former Model 10 Production Supervisor Witter confirms that the Model 15/16 assembly lines were "busy," and establishes that her own Model 10 assembly line was likewise normally busy through April; in the case of her own Model 10, with a normal production quota of 2500-3000 per day during that entire time, and with even a general increase of actual work throughout the plant in April.35 32 Almost all the employees terminated on May 17 came from the Model 15/16 assembly line (under Production Supervisor Storey) or the Model 10 assembly line (under Production Supervisor Witter) 33 See fn 8 supra 34 See fn 8 supra 35 The testimony of Respondent's witness Virginia Wirtz (whose de- meanor impressed me highly adversely) is not to the contrary because it was confined to an entirely different line, namely, her own particular ac- tivity as a department 444 switchhne assembler Only some of Respond- ent's products contain switches Wirtz conceded on cross-examination that she has no knowledge about the work or busy-ness level of any de- partment other than her own Her vague references to not being busy all the time must be appraised in this context , as well as within the context of her admission that her work requirements have always been "in spurts We may have nothing to do the first three days of the week and then we'll get rushes on the last two days of the week and then have to work overtime to get a rush out " Indeed , if she was as idle as she now at- tempts to suggest, it is difficult to understand why, as an extremely junior (mid-June 1981) employee she has not been laid off (It is to be noted that Continued 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Against this sworn testimony, Respondent has submit- ted a mass of predictive (forecast) and other graphs and formulations in an effort to demonstrate that its May 7 mass layoff was truly economically motivated. Before analyzing these, in terms of countervailing figures sub- mitted by the General Counsel, certain observations should be made at the outset: First, as has already been pointed out, that Respondent has produced little if any basic record data, prior to 1982, for fair and necessary comparison purposes to assess the merits of its contention that May 7, 1982, was a unique time or different from prior periods or occasions. Respondent counsel's expla- nation for the failure to produce such earlier data for comparison purposes is that his client (Respondent) has informed him that it has "thrown away" that material (Tr. 430-431). Thus, if Respondent is to be believed that these data have really been "thrown away," which I regard as highly improbable, there is in essence no prior period with which to compare its alleged current data with precision. Second, as has also already been pointed out, Respondent's contention of economic necessity is largely bottomed on the misleading baseline of its alleged failure to meet its own forecast projections or expecta- tions, which it (but not I) regards as a drop in business. Third, as outlined by its founder, Vice President (also a principal and director of new product development) Gerald H. McDonald, Respondent appears to be a stable big business, which according to him by 1981 and con- tinuing into 1982 controlled 70 to 80 percent of the entire U.S. domestic market (as well as a portion of the world market) in hearing aid component parts, and with 1982 sales of almost $4 million-an enterprise which not only does a huge volume of steady business fabricating and supplying orders or specifications but also one which maintains substantial inventories 3B-hardly the sort of she was one of the signatories to the May 4 antiunion manifesto, R. Exh 7.) She also testified that she started working overtime in June-a scant month after the May mass layoff Joyce Himango, another witness for Respondent, also conceded that she was against the Union and had signed the antiunion manifesto of May 4 (R. Exh . 7), although she was laid off on May 7 but thereafter reinstat- ed Himango testified that when she was insufficiently busy prior to the layoff, she was shifted elsewhere to different tasks Nor is the testimony of Respondent's witness Penny Burhite (nee Holcombe) assistive because she only entered Respondent's employ in December 1981 and conceded she was unable to make comparisons with Respondent's business levels or practices before then Respondent's witness Gloria Plaster, a knobber on the Model 10 line, testified that in December 1981 she more than met her production quota, with much overtime, whereas in January and February she did not "always" meet her assigned quota, not counting the fact that some Model lOs require two knobs or special kinds of knobs, but that when not other- wise kept adequately busy-sometimes due to as many as "thousands" of Model 10s which had to be scrapped, resulting in a temporary work stop- page to the knobber, she was detailed to other work Plaster conceded that she had no idea regarding the relative quantities of orders received Plaster also testified, on cross-examination, that about 2 weeks after the May 7 mass layoff she complained to Production Manager Scott that she and other employees had "too much work to do" and that the Company had "laid off too many people," to which Scott in effect agreed and remarked, "We'll learn by our mistakes " 95 Characterizing itself as "a leader in this industry dedicated to the task of continuing its rapid growth," Respondent has expanded pro- gressively since it was founded in 1977, and since 1981 has occupied a modern plant of 47,000 square feet in St Paul (R Exh 16, p 1) "This new facility will allow R T I [i e, Respondent] to expand its product line and improve its service to its customers Hearing aids, other medical enterprise which would, for the first time in its history, engage in a precipitate mass layoff of its production em- ployees only to work the remaining employees overtime and then reinstate the laid-off employees to meet its pro- duction requirements (unless for some "good" reason- namely, to stave off threatened unionization). With regard to the mass of selective documentation submitted here, analysis thereof shows as follows Level of Orders/Sales Respondent's "1982 Sales Forecast" (R. Exh 18(a)), prepared by its Director of Operations Wentworth, shows an anticipated temporary slight dip in sales-in un- differentiated units of all types, without breakdown or specificity, for February and March only, but with an uptake in April continuing steadily throughout the year to a peak at yearend exceeding by close to 20 percent that at the beginning of the year. This considerably ex- ceeds the sales forecast for the hearing industry as a whole for 1982, as shown in the "1982 Hearing Aid In- dustry Report and Statistical Summary" placed in evi- dence by Respondent (R. Exh. 17 at 7-8), which predict- ed only "slightly higher" (id. at 7; emphasis added) or less than 1 percent higher (id. at 8) sales in 1982 over those of 1981, in the U.S. 15,000,000-17,370,000 or around 6.6 percent of the general population hearing-aid market (id.). Thus, Respondent's own prognostications and expectations for 1982 were far from bleak, casting doubt over the bona fides of its alleged early 1982 poor business expectations as a basis for the mass layoff in question. Moreover, as is again emphasized, Respondent has made precise horizontal comparisons of all factors with pre- vious years impossible by having, if it is to be believed, "thrown away" its basic production record data for all years preceding 1982. Respondent's graph of "1982 Net Sales vs. Plan" (G.C. Exh. 21, R. Exh. 18(c)) is, unfortunately, cast in dollars, unlike its preceding "1982 Sales Forecast" (R. Exh. 18(a), which is cast in "units per day," making comparison impracticable if not impossible; but if one were to accept the graphed representation (i.e., G.C. Exh. 21, R. Exh. 18) showing 1982 actual sales for Janu- ary through mid-April to be around 70 percent of pro- jected sales (i.e., R. Exh. 18(a)), even 70 percent of that projection, the actual sales would still have been substan- tially in excess of those for the domestic hearing aid in- dustry as projected in the aforementioned market analy- sis (R. Exh. 17) presented by Respondent-i.e., still far from bleak. Respondent's alleged May 5, 1982 "Sales Forecast Revision" (R. Exh. 19) by its "Roger Falde" is unsupported by testimony, and its allegation (id. third paragraph; emphasis added) that "our forecast for May of 1982 through December of 1982 has been reduced ap- proximately 70 percent" does not accord with the graphs or other data presented showing no such drastic reduc- tion but showing an upturn in Respondent's actual busi- ness, nor is it consistent with the actualities of Respond- ent's subsequent 1982 recall of its laid-off production workers here. Nor, again, have basic record data been services, miniature probes and pocket pagers are already heavy users of such products " (Id ) RESISTANCE TECHNOLOGY provided for previous years to enable a precise compari- son, for example, of actual work force or manpower (or even of actual orders/sales) to parts produced per month, year, or other period. Thus, as is clear, even as- suming arguendo that Respondent's sales realizations fell below its earlier "forecasts" or expectations (e.g., R. Exhs. 18(g), (i))-purely artificial figures-its actual sales in 1982 could very well have exceeded (even substantially so) its sales in 1981 with the same production force. Such comparative order totals as have been submitted by Re- spondent for 1980-1982 (R. Exh. 25) do not demonstrate a significant pattern of annual diminution for 1982, be- cause, although the figures for 1982 show a drop of somewhat less than 12.5 percent, in total units ordered in 1982 (i.e., 1,253,348) than in 1981 (i.e., 1,432,316), total units ordered in 1981 (i.e., 1,432,316) exceeded those or- dered in 1980 (i.e., 1,074,695) by 33.3 percent, resulting in a net increase of 178,653 units, or 16.6 percent, in 1982 over 1980 (id.). Respondent's data further shows that its 1982 actual orders rose dramatically from 79,096 units in January to 237,677 units by year's end, with 124,188 units (compared to 110,888 in 1981 and 40,255 in 1980) in May (the month of the layoff here) (G.C. Exh. 20, R. Exh. 25). Respondent's own "Customer Service Analy- sis" comparing 1982 with 1981 in terms of "customer service levels" (i.e., on-time deliveries) shows a pattern of significant and substantial rise in 1982 over 1981-in some cases as much as a quadrupling (G.C. Exh. 53, p. 2 bar graph; see also p. 4 bar graph). A summary of Re- spondent's "1982 Orders" (G.C. Exh. 20) shows that, particularly on Models 15/16 and 20, they soared in May, the month of the mass layoff here. Much of the other documentary material submitted by Respondent (R. Exh. 24) consists of predictions and "forecasts" having no demonstrated relationship to actual facts. However, some of these, insofar as they provide in- sights into previous periods, are of interest. For example, Respondent's figures (R. Exh. 24) relating to its Model 8 orders and Model 10 orders for 1980-1981 (Model 8) or 1979-1980 (Model 10) indicate that its 1982 "estimates" or hoped for orders/sales far exceed those of previous years. To repeat what has been said before, actual sales in 1982 not meeting those predictive expectations could still exceed those of previous years, thus negating any contention of an actual orders/sales dropoff in 1982 in comparison with previous years, and therefore negating any rational basis for the radical manpower lopoff here at the time when it occurred. Thus, no significant diminution in the general level of Respondent's business activity over an annualized or other representative comparative period has here been demonstrated to persuasively account for the mass layoff in the midst of its production employees' union organiz- ing efforts shortly preceding the Board-conducted repre- sentation election. Level of Production The data presented regarding Respondent's levels of production will now be addressed, in relationship to its timing of the May (1982) mass terminations here in ques- tion. 1019 At the outset it may be presumed that, because Re- spondent has continued in business, the level of its pro- duction-except possibly to the extent reduced by draw- ing upon its reserves or inventories (discussed infra), or by acquisitions from outside sources (not explored here), or by "stretching out" or delaying deliveries (only brief- ly touched on at the trial in terms of variable "lead time")-kept pace with its levels of customer orders ("1," supra). Because, as shown above (id.), the level of those orders/sales has not been shown to have fallen so significantly or atypically (if, indeed, at all, when scanned over even a 2-year period (1980-1982))-par- ticularly considering Respondent's past fluctuating sales levels and its established practice of shifting employees around-as to account for the mass layoff of the produc- tion workers in question at the time it occurred, it may likewise be presumed that its level of production also did not fall appreciably so as to account for that layoff, unless it deliberately drew down its inventories (infra), thereby supplying its customers' needs out of inventory instead of current production, or unless it delayed deliv- eries, or a combination of both, until-as it did-it re- plenished and recalled its laid-off production workers. Analysis of the mass of documentation here supplied fairly supports the conclusion that production in one way or another kept apace of orders/sales, or that it ever exceeded them in the premass layoff period (of employ- ees' protected concerted activity) during which an en- gorged inventory may have been created (which could then have served as a cushion to get along with a re- duced production staff for a period following the layoff, until inventories were depleted to a point where rehiring of production workers became necessary, as it indeed did here). The production (and related inventory and man- power) documentation submitted do not persuasively ac- count for the mass layoff, timed as it was, in terms of a decrease in production. Thus, Respondent's "Final Test Logs" (G.C Exhs. 28- 49), reflecting the actual number of Model 15/16 compo- nents (i.e., the assembly line whence by far the most of the terminated production employees here were with- drawn) tested by each employees, to meet orders, for the period March 1-July 26, which fairly overlaps the mass termination date of May 7, demonstrates at best a tempo- rary dip in production levels, even without taking into consideration (1) parallel experience in previous years, when there was no mass layoff, (2) draw downs from in- ventory, and (3) necessity for refabrication of test rejects running as high as 44.9 percent of production.37 37 Test rejects, presumably requiring correction or refabrication-i e., more work, not less-ranged from 7 4 to 44 9 percent (G C Exhs 28- 49), with a sustained soaring rate following the unprecedented May 7 mass termination (id ) As has already been indicated, Respondent's "1982 Orders" (G.C Exh 20) soared in May, the mass layoff month, by year's end they reached diz- zying heights Respondent's "1982 Summary Units Built & Shipped" (R Exh 20) is cast in terms of units per business day, so that the figures thereon require a multiplier of at least 5 to reflect a business week and of at least 20 to reflect a business month 1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Level of Inventories In any ongoing manufacturing enterprise, it is possible temporarily to reduce work force by drawing down on inventories-that is to say, by filling orders from existing stock (i.e., inventories) rather than through direct manu- facture. Because, however, the maintenance of appropri- ate levels of inventories is essential to the viability of an ongoing, major, and complex manufacturing operation such as Respondent's, drawing down inventories to make possible or to accommodate for a mass layoff of produc- tion employees may be an indicium that the mass layoff-particularly if unprecedented and not accounted for by sustained substantial declines in orders/sales/- production-, timed as it was here, was for a reason other than the need to maintain efficient manufacturing operational stability. Analysis of Respondent's inventory data furnished here appears to support the foregoing. Thus, a line graph "Month End Inventory" for 1982, to be found in Re- spondent's Exhibit 25, shows that precisely this was hap- pening-i.e., a massive drawing down of inventories com- mencing in May, the very month of the mass layoff of pro- duction workers here. Complementing this are Respond- ent's figures (R. Exh . 24) showing a substantial increase in actual inventories, far in excess of budgeted or planned, particularly in fabricated parts and finished goods,38 during the period immediately preceding that layoff, which is consistent with an inventory buildup for drawing against to compensate for an intended tempo- rary mass layoff of production workers-as happened here, production workers would have to be recalled to fill orders through actual production due to depletion of such inventories. Income/Profit and Loss In a quest such as ours, income/profit and loss figures are frequently of slight if any value to provide definitive answers to the issue of why employees have been laid off. This is because such figures frequently abound in ac- countancy verbiage, artifacts, obscurantism, and semanti- cisms involving many variable, discrete, ambiguous, and allocational factors entering into calculation of "profit," "loss," and "income" to be meaningfully relatable to levels of business or of work force. These include such factors as miscellaneous "writeoffs," depreciation, mas- sive liquidations of debts, sinking funds, dividend levels, distributions, huge executive salary increases, and all manner of payments and receipts. For these reasons, income/profit and loss figures are in no way necessarily reflective of levels of production or of orders and sales or of work force. Respondent's "Balance Sheets" and "Financial State- ments" for 1980-1982 (R. Exhs. 26-27)39 show that its 31 Why, it may be asked , if orders/sales were down? In fact, Respond- ent's "Income Statements" for 1982 (R Exh 26, December tally) show that for 1982 its gross billings were $4,181,920, up from $3,911,884 in 1981, and its net sales $3,822,465, up from $3,591,401 in 1981 se It is noted that these include or reflect investments in Respondent's wholly owned subsidiary, RTI Export , Inc, "a Domestic International Sales Corporation" formed in 1981 "in anticipation of the Company's export sales activity" (R Exh 27 at 6) total assets as of April 30, 1982 (just before the May 7 mass layoff), were appreciably up over those of 1981 and 1980, and continued to show a comfortable growth over the course of 1982. Levels of Work Force Vis-a-Vis Key Indicators Respondent has here failed to derive, make any per- suasive testimonial or other evidentiary presentation of, as required, or establish any stable, historically parallel, or precedential manpower or manhours factors or ratios (e.g., W:O, W:P, W:I, or W:O 40) to account for its un- precedented and dramatically timed mass layoff of 18 production employees in a stable manufacturing oper- ation, in the midst of those employees ' union organiza- tional drive preceding the Board-conducted representa- tion election here.41 As has already been indicated, that mass layoff has not been persuasively accounted for by any of the standard level factors already discussed, any other established basis, which becomes Respondent's burden after, as here, the General Counsel has established a prima facie case.42 In short, Respondent's records (and documentation prepared for purposes of this proceeding) fail to establish or persuasively support its contention that the true reason for its precipitate mass termination of the 18 pro- duction employees here, under the circumstances and at the time described, was "because of lack of business" (G.C. Exh. 10). The unprecedented nature, as well as the timing of the mass layoff in terms of the escalating unionizational ef- forts of the employees, the selection of essentially only nonsigners of the antiunion manifesto (R. Exh. 7) for layoff, the summary suddenness of the layoff, the essen- tially unchanged nature and level of work to be done, the substantial corner Respondent had and has on the huge domestic hearing aid market, the growth in Re- spondent's economic picture in 1982 over 1981 and 1980, the utilization of its substantial inventories to meet cus- tomers' orders after the mass layoff of its unionizing pro- duction employees, and its recall of substantially all the laid-off employees in the face of the previous formal no- tifications to them that their layoff was "permanent" and not subject to rehire (G.C. Exh. 10), cast a giant shadow over Respondent's contention that this unprecedented layoff was "because of lack of business" (G.C. Exh. 10). Under the circumstances presented, because this "expla- nation" of Respondent does not hold water or "stand under scrutiny,"43 it must be rejected, leaving the em- 40 1 e, Work force sales, work force production, work force invento- ries, work force overtime 41 It is, however, observed that Respondent 's own "Manpower Sum- maries" included in its "May Presentation and Backup" (R Exh 24) show manpower shortages in Model 15/16 and other assembly lines, and that its "May Headcount Requirements" (id) in contrast to those of March , show 3 more needed on Models 8/10 and one more in piece parts and molding, with 8 less on Models 15/16, or a net diminution of only 4 in the "May Headcount Requirement "-a far cry from the 18 chopped off here 42 NLRB Y Transportation Management Corp, 423 U S 393 (1983) 43 NLRB v Dant, 207 F 2d 165, 167 (9th Cir 1953) RESISTANCE TECHNOLOGY 1021 ployees' continued unionizational effort-so abhorrent to Respondent, yet totally lawful as a Federally guaranteed right to employees-as the sole and true reason for their termination. On the record as a whole, it is accordingly found and determined that the employees' unionizational activities and those alone were the reason for their mass termination on May 7, and that but for those activities they would not have been terminated. See NLRB v. Transportation Management Corp., 462 U.S. 393 (1983); NLRB v. Industrial Erectors, 712 F.2d 1131 (7th Cir. 1983); NLRB v. Quick Find Co., 698 F.2d 355 (8th Cir 1983). 2. Demotion of Penny Krueger: Complaint Par. 6(b) It remains to consider Respondent's demotion of Penny Krueger from Model 15/16 line group leader to rank-and-file tester, with reduction of pay, on and since July 14 (complaint par. "6[b]" as amended). When Penny Krueger (who was not included in the May 7 layoff but who did not sign the antiunion manifes- to [R. Exh 7] and was a union observer at the Board- conducted representation election and testified adversely to Respondent here (she is also the daughter of laid-off employee Carol Bruzek and the cousin of laid-off em- ployee Karin Palmer), returned from her vacation on July 12, she learned-without prior notice or intima- tion-that she had been demoted from group leader of the Model 15/16 assembly line to rank-and-file tester. She had been a group leader since around September 1980, with no dissatisfaction over her work perform- ance44 and she was amply experienced and qualified for that job. She alone of all group leaders was involuntarily demoted. When she returned from her vacation on July 12 (which she had started on June 25, 1 day after she had served as a union observer at the Board-conducted elec- tion of June 24 which the Union lost), Krueger was met with the news from her newly assigned supervisor, Mary Shaw, that she (Krueger) was demoted but would be permitted to keep the extra 35 cents per hour she had been receiving as group leader since September 1980.45 Two days later, Krueger was informed that her pay was also being reduced 35 cents per hour Although Krueger has not been replaced as group leader on the Model 15/16 line-notwithstanding that line's being by far the largest, and with much smaller lines and elements retain- ing their group leaders-Supervisor Mary Shaw ostensi- bly serving in that function (with about 18 employees on that line) as well as element production supervisor, in mid-April 1982 Judy Hunt was made a group leader of another group consisting of only 6 or less employees in- cluding Hunt herself (not on the Model 15/16 line), with no offer to Krueger of that group leader designation of which she had been stripped. 44 I discount a passing remark, candidly recounted by Krueger, around March, by Production Manager Scott to her to "Smile " Krueger, whose job did not require her to "smile" to a quantifiable degree, if at all, in- formed Scott of the fact that she had just learned that her uncle was dying of cancer 45 Krueger had entered Respondent's employ on February 4, 1980 (G C Exh 23) In early August, then Supervisor Mary Shaw upbraid- ed Krueger as "uncooperative" because she was refer- ring employees to Shaw, even though Krueger was no longer a group leader, the idea being that Krueger could have instructed or assisted the employees as she had while she was group leader. Shaw told Krueger that she had not been demoted for inefficiency or because she was not needed as a group leader, but "because of your union activity" and "influence" over other employees on the Model 15/16 assembly line since management knew all the employees on that line were in favor of the Union, and that the Company wanted group leaders who were "pro-company," adding that if Krueger was "un- happy . . . [you] should leave." Krueger informed many fellow-employees of what Shaw had told her, and also reported it to a Board agent at the Regional Office. In no way is any of the foregoing denied by Shaw, who without explanation did not testify at the trial. Credited and uncontradicted testimony of Respond- ent's former production supervisor, Storey, establishes that Penny Krueger was expressly singled out by higher management (Director of Operations Wentworth, Per- sonnel Director Lambert, and Production Manager Scott) as a prime suspect of being the union organiza- tional leader and "activist" or "instigator." Employers are not in the habit of demoting well-quali- fied employees without reason. When they do so, it is not amiss to seek explanation. Here that explanation is to be found only in Krueger's union activity (lawful, by Congressional edict), specifically focused on by various managerial pesonnel (Lambert, Wentworth, and Scott), and Respondent's unbending hostility thereto. On the record presented, I cannot but find, as I do, that Penny Krueger's demotion by Respondent was dis- criminatorily motivated in retaliation against her because of her union activities, and to coerce and restrain her and other employees into abandonment or nonexercise there- of, and that but for those lawful activities on her part she would not have been demoted. Cf. NLRB v. Transporta- tion Management Corp., 462 U.S. 393 (1983). CONCLUSIONS OF LAW A. Jurisdiction is properly asserted in this proceeding. B. By its conduct set forth and found in section II,B,1, supra, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed under Section 7 of the National Labor Relations Act and continues so to do, thereby engaging in unfair labor practices in violation of Section 8(a)(1) of the Act. C. By its conduct set forth and found in "II,C,1," supra, in terminating the employment of the following employees on May 7, 1982, until thereafter reinstated, and in so terminating but failing to reinstate others of the employees, under the circumstances described and found in "II,B" and "II,C,1," supra, Respondent has discrimi- nated and continues to discriminate in regard to the hire, tenure, and terms and conditions of employment of em- ployees, thereby engaging in unfair labor practices in violation of Section 8(a)(3) of the Act; and has, further, thereby interfered with, restrained, and coerced employ- ees in the exercise of rights guaranteed in Section 7 of 1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act, and continues so to do, thereby engaging in unfair labor practices in violation of Section 8(a)(1) of the Act: Shelly Bibeau Julie LeMire Betty Brassill Carol Loughrey Carol Bruzek Debra Manthey Ruth Giefer Margaret Marty Barbara Hayne Leanne Nicklason Margaret Haynes Karin Palmer Joyce Himango Deborah Resch Penny Holcombe Elnora Roehling Burhite Lenore Schendel Brenda Kowalski D. By its conduct set forth and found in "III,C,2," supra, in demoting its employee Penny Krueger from her job as group leader about July 12, 1982, and since then continuing to maintain her in the demoted status with re- duced pay, under the circumstances described and found in "II,B," "II,C,1" and "II,C,2," supra, Respondent has discriminated and continues to discriminate in regard to hire, tenure, and terms and conditions of employment of employees, thereby engaging in unfair labor practices in violation of Section 8(a)(3) of the Act; and has further interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, and continues so to do, thereby engaging in unfair labor practices in violation of Section 8(a)(1) of the Act. E. Respondent has engaged in the conduct, and con- tinues to do so, because its employees joined, supported, or assisted Teamsters Local No. 970, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, a labor organi- zation as defined in the Act, and because the employees engaged in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection lawful under the Act, and in order to discourage employees from engaging in such lawful activities under the Act. F. The aforesaid unfair labor practices and each of them have affected, and unless permanently restrained and enjoined will continue to affect, commerce within the meaning of Section 2(6) and (7) of the Act. G. The allegations of paragraphs 5k, 51, and 5n of the complaint, as consolidated and amended, have not been established through a fair preponderance of the substan- tial credible evidence on the record as a whole, in fact or in law, and should be dismissed. REMEDY Respondent having been found to have interfered with, restrained, and coerced employees in the exercise of rights guaranteed to them by Congress in Section 7 of the Act, should, as is usual, be ordered to cease and desist from continued and further such violations. Re- spondent having also been found to have unlawfully ter- minated the employment of 18 employees, and having failed and refused to reinstate or recall some of them and to have unlawfully demoted and lowered the pay of an additional employee, should, as is also usual in such cases, be ordered to cease and desist from continuing or other such violations, to offer full and unconditional rein- statement (to the extent, if any, it has not already done so) to the terminated employees and the demoted em- ployee to their former jobs and to make them whole, with interest, for any wages, overtime pay, accruals, bo- nuses, emoluments and benefits (including vacations and vacation pay, and hospitalization and other medical bene- fits, including reimbursement for any expenses or obliga- tions incurred by reason of any cancellation, withdrawal, lapse of coverage, or nonpayment of premiums thereon, by Respondent) lost or reduced by reason of such termi- nations and demotion, and with full restoration of senior- ity as though the terminations and demotion had not oc- curred, all as determinable in a supplemental backpay proceeding unless satisfactorily mutually adjusted with- out one. Sums and interest should be computed as expli- cated in F. W Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). All references in Respondent's records indicating termination or demo- tion of the employees for cause (including but not limited to "lack of business") or for exercising their rights under the Act should be expunged, and the terminated and de- moted employees should be so informed in writing, and Respondent should be required to desist from so indicat- ing to any prospective employer, unemployment insur- ance agency, reference seeker, credit agency, or charac- ter inquiry. Respondent should also be required to pre- serve and make available to the Board's agent its books and records for backpay and compliance determination purposes; and to post the usual informative notice to em- ployees. Because Respondent's serious violations of the Act are such in quality and quantity as to thrust at "the very heart of the Act,"48 Respondent should also be re- quired to cease and desist from further violation of its provisions.47 On these findings of fact and conclusions of law and on the entire record, I issue the following recomriend- ed48 ORDER The Respondent, Resistance Technology, Inc., Arden Hills, Minnesota, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Making or announcing change in its disciplinary warning policy for absences or attendance, for the pur- pose of interfering with, coercing or restraining employ- ees in the exercise of their rights under the National Labor Relations Act as amended. (b) Interrogating its employees concerning their or other employees' union membership, sympathies, activi- ties, voting intentions, union affairs, or other protected concerted activities, in interference with or coercion or restraint of their exercise of any right under the Act. 48 A. J. Krajewsk: Mfg Co, 180 NLRB 107 (1970) 47 NLRB v Entwistle Mfg. Co, 120 F 2d 532, 536 (4th Cir 1941), Hick- mott Foods, 242 NLRB 1357 (1979) 48 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 RESISTANCE TECHNOLOGY 1023 (c) Instructing, directing , or requesting supervisors to interrogate, question, or talk to employees in violation of the Act to elicit emloyees' union membership, activities, or sympathies. (d) Threatening employees with reprisals or loss of any benefits because of their union membership or activi- ties or for exercising any right under the Act. (e) Informing or indicating to employees, through its supervisors, that supervisors have been instructed by management to ascertain and report to management the union membership, activities, and sympathies of the em- ployees (f) Threatening employees of the inevitability of a vio- lent strike and of bargaining "from scratch" in the event of unionization, to coerce and restrain employees in the exercise of their rights under the Act. (g) Threatening or informing employees that in the event of unionization and selection by its employees of a Union as their bargaining representative, it will not bar- gain collectively with the Union. (h) Soliciting or offering to adjust job-related griev- ances of employees to interfere with, restrain, or coerce them in the exercise of their rights under the Act. (i) Threatening or informing any employee that she or he will not be considered for promotion unless the em- ployee discourages other employees from supporting a Union or from exercising any other right under the Act. (j) Discharging, terminating the employment of, laying off, furloughing, suspending, or otherwise, in violation of the Act, altering the employment status of any employee, or threatening so to do, or failing or refusing to recall, reinstate, or rehire any employee, because she or he has exercised or proposes to exercise or continue to exercise any right under the Act; or directly or indirectly so doing, or threatening to do so, to discriminate in regard to the hire, tenure, or terms or conditions of employment of any emplo, °e because she or he exercises or proposes to exercise or continue to exercise such right or engage in such activity. (k) Discriminatorily or otherwise in violation of the Act, demoting, reducing the pay or wage scale, or other- wise altering any term or condition of employment, of any of its employees in order to interfere with, restrain, coerce or intimidate that or other employees in the exer- cise of any right under the Act. (I) Directly or indirectly engaging in any of the fore- going actions or activities or any other act in order to dissipate the collective-bargaining representational status of its employees' lawfully designated collective-bargain- ing representative, or for the purpose of causing its em- ployees to discontinue or refrain from exercising their right to bargain collectively with Respondent, or other- wise to interfere with, restrain, or coerce its employees in the exercise of their rights under the Act. (m) In any other manner interfering with, restraining, or coercing employees in the exercise of their right of self-organization; to form, join, or assist any labor organi- zation; to bargain collectively through representatives of their own choosing; to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection; or to refrain from any and all such activi- ties. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer the following employees immediate, full and unconditional reinstatement to their former jobs (or, if those jobs no longer exist, to substantially equivalent jobs) with Respondent (to the extent, if any, that Re- spondent has not already duly and lawfully done so), without prejudice to their seniority and other rights, privileges, benefits and emoluments, including but not limited to any pay and wage rate increases to compara- ble employees since their termination about May 7, 1982 by Respondent, and make the employees whole for any loss of income, benefits, and emoluments (including over- time, holiday, and vacation pay and time off, and hospi- talization, medical and other insurance claims and bene- fits, both personal and derivative and dependents', if any, and expenditures in lieu thereof during any noncoverage period until reinstatement as required hereunder), togeth- er with interest, in the manner set forth in the remedy portion of the decision: Shelly Bibeau Julie LeMire Betty Brassill Carol Loughrey Carol Bruzek Debra Manthey Ruth Giefer Margaret Marty Barbara Hayne Leanne Nicklason Margaret Haynes Karin Palmer Joyce Himango Deborah Resch Penny Holcombe Elnora Roehling Burhite Lenore Schendel Brenda Kowalski (b) Offer to reinstate Penny Krueger to her former po- sition as group leader (or, if that position no longer exists, to a substantially equivalent position at the same pay as group leader) with Respondent, without prejudice to her seniority and other rights, privileges, benefits and emoluments as aforesaid in the case of the above 18 ter- minated employees, and make her whole for any loss of income, together with interest, suffered by her by reason of and since her demotion by Respondent from her posi- tion as group leader about and since July 12, 1982. (c) Remove from all Respondent's books and records any entry or mention indicating or to the effect that the termination or demotion of any of the foregoing employ- ees was because of any work or work-related fault, defi- ciency or shortcoming on her part or for exercising any right under the Act; refrain from making any such report or statement voluntarily or in response to any inquiry from any employer, prospective employer, employment agency, unemployment insurance agency, credit agency, character inquiry, or reference seeker; and promptly notify the employees in writing that such entries (if any) have been expunged and that evidence of the termina- tions, nonemployment , and demotion will not be used as a basis for any personnel action against any of them. (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. 1023 a DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Post at its plant premises at 1260 Red Fox Road, Arden hills, Minnesota, copies of the attached notice marked "Appendix."49 Copies of the notice, on forms provided by the Board's Regional Director for Region 18, after being signed by Respondent's authorized repre- sentative, shall be posted for 60 consecutive days in con- 49 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." spicuous places, including all places where notices to em- ployees are customarily posted . Reasonable steps shall be taken to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. IT IS FURTHER ORDERED that paragraphs 5k, 51, and 5n of the complaint, dated July 23, 1982, as consolidated and amended on September 15, 1982, and as thereafter further amended at the trial of this proceeding, be dis- missed. RESISTANCE TECHNOLOGY 1023 b [Page intentionally left blank.]